Last updated 14 September 2020
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) is the centrepiece of Commonwealth environmental legislation. The most important mechanism created by this Act for regulating development across Australia is a regime regulating controlled actions (chs 1–4).
An ‘action’ is a physical activity or series of activities other than a government decision or grant of funding (s 523 EPBC Act).
Controlled actions are actions:
- that have, will have or are likely to have a significant impact on a matter of national environmental significance
- by the Commonwealth that have, will have or are likely to have a significant impact on the environment
- involving Commonwealth land that have, will have or are likely to have a significant impact on the environment.
A lecture explaining the Commonwealth’s constitutional powers to protect the environment and the EPBC Act can be viewed below and is available online.
Matters of national environmental significance
Matters of national environmental significance listed under the EPBC Act currently include:
- the world heritage values of a declared world heritage property
- the national heritage values of a national heritage place
- the ecological character of a declared Ramsar wetland (wetlands of international importance)
- listed threatened species and listed threatened ecological communities
- listed migratory species
- nuclear actions (including uranium mines)
- Commonwealth marine areas
- the Great Barrier Reef Marine Park
- a water resource in relation to coal seam gas development and large coal mining development.
Referral, assessment and approval
A person proposing to carry out a controlled action must refer the proposed action for approval under the EPBC Act. The process of assessing and approving an action potentially involves three stages: referral, assessment and approval. There are a number of opportunities for public submissions in these stages.
Once an action is referred under s 68 or 69 of the EPBC Act, the Commonwealth Environment Minister decides whether the action is a controlled action. If the proponent believes it is not a controlled action, the proposal is publicly advertised online for 10 business days, and the public may make submissions about whether the proposal is a controlled action.
If the minister decides that the proposal is a controlled action, it must be assessed under the EPBC Act or under state environmental laws if there is a bilateral agreement in place. The EPBC Act gives five options for the assessment of environmental impacts of controlled actions, including environmental impact statements. There are further opportunities for public submissions in the assessment process.
Once the proposal has been assessed, the minister decides whether to approve or refuse it. This involves assessment of the potential impacts of the action against relevant provisions of the EPBC Act and international legal obligations (e.g. protecting World Heritage areas). Economic and social considerations are also relevant (ss 136–140A EPBC Act).
The EPBC Act provides a potential mechanism to link Commonwealth and state assessment and approval processes known as bilateral agreements. These accredit state and territory assessment and approval processes as assessment and approval processes under the EPBC Act thus avoiding duplication.
An assessment bilateral agreement is in place for Queensland. It allows the State Development and Public Works Organisation Act 1971 (Qld), the Planning Act 2016 (Qld) or the Environmental Protection Act 1994 (Qld) to be substituted for environmental impact assessment. Under this agreement the Commonwealth Environment Minister retains the final decision-making power.
A different type of bilateral agreement known as an ‘approval bilateral’ allows the Commonwealth to delegate the final decision-making power to the state government. No approval bilaterals are currently in force under the Act.
When to make a referral
If a person is proposing to carry out an action that was not fully approved at 16 July 2000 and that has, will have or is likely to have a significant impact on a matter of national environmental significance or a Commonwealth area, they must refer it to the Commonwealth Environment Minister (see the public notices for information about referrals).
How to prevent an offence against the EPBC Act
If a person believes that a development proposed by another person (including a government agency) may have a significant impact on a matter of national environmental significance, they can contact the Commonwealth Department of Agriculture, Water and the Environment, which will then investigate the matter and may request the proponent to refer the proposed action under the EPBC Act. Members of the public also have a right to seek an injunction under s 475 of the EPBC Act to restrain an offence against the Act.