EPBC Act reforms released

After six years of operation the Environment Protection Biodiversity Conservation Act 1999 has been comprehensively reviewed and a Bill introduced into Parliament with over 800 proposed changes which cover a wide range of matters including offences, approvals, conservation and heritage listing. While many are administrative amendments, the more significant changes are discussed below.

Approvals

There are many amendments to the approvals process with the common aim of streamlining that process:

• A new type of assessment is proposed where the Minister considers that the project can be assessed on the referral information. This will allow for the assessment to be undertaken immediately following the referral and decision on whether or not the project is a controlled action. This should improve the time for assessment of projects with limited impact issues.
• An existing delay point in the assessment process is the requirement for the Minister to obtain a notice from the State that all other environmental impacts have been assessed as far as practicable. The requirement for this notice is to be deleted, although the Minister may seek comment from the State.
• It is proposed that, before the Minister finally makes a decision on whether or not to approve a controlled action, he advises the proponent of his proposed decision, including any proposed conditions and gives the proponent an opportunity to make submissions on the decision and conditions. This will significantly improve the current situation where a proponent does not have any opportunity to discuss and review conditions before a decision is made.
• Existing approvals will not be affected by changes to the boundaries of Ramsar wetlands or of the new listings of species or heritage places.
• Under the Bill, contractors are not permitted to make referrals. Any referral of an action to the Minister must be made by the principal.
• The Minister will be allowed to make a prompt refusal on an action that would have unacceptable impacts. The purpose of this section is to avoid the expense and time involved in conducting the full assessment and approval process for actions that would be unlikely to receive approval. Proponents might be concerned that use of this power could deprive them of natural justice.
• Applications for approval of an action will be able to be varied. An applicant can request the Minister to accept a variation to the action, where the varied proposal is substantially the same as the character of the original proposal. This will allow greater flexibility in the assessment process, particularly to address changes as a project evolves.
• Of considerable benefit to proponents will be the ability to nominate alternative proposals for referral specifying different locations, timeframes and activities.
• Proponents should expect greater public involvement in the approvals process. All referrals will be published (with the exception of commercial-in-confidence material) and the public may be invited to comment on the reconsideration of decisions made by the Minister.
• Under the existing Act, the Minister can declare that actions approved by the Commonwealth in accordance with an accredited management plan do not require approval. The amendments allow the Minister greater flexibility to accredit an alternative approval process under another Commonwealth statute to take the place of approvals.
• Currently, actions which had all of their environmental approvals before the EPBC Act commenced (ie. 16 July 2000) do not require an EPBC Act approval. The proposed amendment narrows the scope of this exemption to those actions which were specifically authorised before the commencement of the EPBC Act. The explanatory memorandum gives the example of a general vegetation clearing approval in an area issued before the EPBC Act. Where this approval was not specific to the person undertaking the action or the specific project, then the clearing would not be exempt from the EPBC Act. Also, the Bill clarifies that the exemption for a use which was in existence before the EPBC Act does not apply if there is a change in the location or nature of the activities and this change results in a substantial increase in the impact of that use.

Conservation

The Bill proposes the streamlining of project assessment and permit stages so that once a project is assessed and approved under Chapter 4 of the EPBC Act, subsequent protected species permits may be issued under Chapter 5 without further assessment. Currently, the permit regime of the Act is separate from project assessments and approvals.

The amendments to the creation of recovery plans shift the focus from recovery plans to recovery action for threatened species and ecological communities. New listings will be supported by conservation advice which will lay out practical conservation actions that can be implemented by local and regional interests. Recovery plans will still be developed but recovery documentation will be more flexible than currently prescribed.

Conservation agreements will have extended coverage and can include the protection and conservation of additional Part 3 protected matters - Ramsar wetlands, nuclear actions, Commonwealth marine areas and Commonwealth land.

Instead of enforcement action, the Bill gives the Minister the option of rectifying a breach of the Act by a conservation agreement. Where the Minister considers a person has taken an action likely to have a significant impact on a matter of national environmental significance and without approval, the Minister may enter into a conservation agreement with the person that provides for the taking of measures to repair or mitigate damage to the protected matter. These conservation agreements are voluntary. The Minister cannot force the offender to enter into the agreement.

Heritage

Significant changes have been made to the listing process for Heritage places under the Act. The amendments include:

• The National Heritage List will not be able to include places outside Australia. Instead a new list called the List of Overseas Places of Historic Significance to Australia will be established and will allow for the symbolic recognition of overseas sites that have a special place in Australia’s history.
• World Heritage properties can be transferred across to the National Heritage List without the need for further assessment.
• The procedures for listing of Commonwealth heritage places have changed to allow the assessment of whether or not nominated places should be listed to be undertaken by a themed priority list. This will avoid the listing process being determined by the order in which nominations are received and no doubt will speed up listings for groups or categories of places.

Enforcement

A number of the offences have been changed to "strict liability". This means that it will not be necessary for a successful prosecution to show that an offender knew of the likely consequences of an action or was reckless. The strict liability offences will apply to taking an action that was likely to have a significant impact on a matter of National Environmental Significance without an approval, breaching conditions of approval and unlawfully interfering, killing or injuring a listed species or critical habitat. This change will simplify enforcement particularly of breaches of approval conditions.

The Bill proposes a new offence where an action has been referred but a step in the action is taken before the decision is made. This means that any works including preliminary work for a controlled action should not be taken until the action approval of the Minister is obtained.

Existing approvals may be varied or revoked if the Minister is satisfied the impact of the action is substantially greater than that predicted during assessment. The Act will also be amended to broaden the Minister’s ability to consider a company's environmental history to include the history of a parent company and company management for the purposes of revoking, varying or adding approval conditions.

One of the most significant changes is that the Bill introduces a new legal liability for "landholders" and companies and employers.

A landholder is responsible for another person's actions where a breach of the Act occurred on his/her land and the landholder knew or was reckless or negligent about whether a breach of the Act would occur, was in a position to influence the activity that caused a breach of the Act and failed to take all reasonable steps to prevent that breach. This will mean that all landowners will have a due diligence responsibility to ensure that activities on their land are compliant with the EPBC legislation. A similar legal responsibility also is proposed for companies for the actions of their directors and employees and employers for the actions of their employees and agents. The explanatory notes suggest that this is intended as an incentive for large corporations, principals and employers to take steps to ensure the Act is complied with.