Federal laws usually give effect to environmental obligations under international treaties, or are triggered when the relevant undertaking requires federal involvement. For example, the activity may take place on federal land, or potentially affect a matter of national environmental significance.
The primary federal legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), principally applies to proposals involving matters of ‘national environmental significance’, being those that affect world heritage properties; national heritage places; wetlands of international importance; listed threatened species and ecological communities; migratory species; Commonwealth marine areas; nuclear actions (including the mining of uranium); and water resources, in the context of coal seam gas and large coal mining developments.
The EPBC Act also generally covers environmental, planning and heritage matters.
Under the EPBC Act, directors may be found civilly – or in some instances criminally – liable for offences if they are in a position to influence the conduct of the company; they failed to take reasonable steps to prevent the contravention; and they knew that the offence would be committed, or were reckless or negligent as to whether it would be.
Other specific federal legislation may apply if the proposed undertaking involves Indigenous heritage, nuclear safety, the import and export of particular waste products, or offshore petroleum activities. Federal legislation may also require compliance with uniform standards – such as the National Environment Protection Measures and regulations on the transportation of dangerous goods – that are supported by complementary state and territory legislation.
Where federal environmental legislation applies to a particular business or activity, this will be in addition to any relevant state or territory obligations. In some situations, differences in thresholds and listing criteria may mean the environmental considerations at a federal level are significantly different to those imposed at the state or territory level.
There are some situations when proposals will involve joint federal and state assessment. The Federal Government’s One-Stop Shop initiative aims to create a single environmental approval process for nationally protected matters. This initiative would simplify the approval process for businesses and reduce regulatory costs. It is worth noting that implementation of the One-Stop Shop initiative is still ongoing, and bilateral agreements between the Commonwealth and each of the states and territories are yet to be finalised.