EXPLAINER
How does the EPBC Act work?
Our federal environment laws guide how our decision-makers protect our environment from harm.
In Australia, we have environment laws at the federal level and in varying forms at the state/territory level.
This guide summarises our key environmental legislation at the federal level: the Environment Protection and Biodiversity Conservation (EPBC) Act (1999).
On this page, you’ll find a summary of the EPBC Act’s purpose, an overview on the process from when a project is referred to when it’s approved under the Act, and a guide on the various opportunities community members have to engage in environmental decision making.
Contents
What is the EPBC Act?
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the key federal Australian legislation governing environmental protection.
The EPBC Act exists to protect nationally significant animals, plants, habitats and places (including places of cultural significance), called ‘Matters of National Environmental Significance’, or MNES. One of its most important functions is to regulate activities that may have a ‘significant impact’ on MNES and the Act sets out approval frameworks for such activities.
Any project or development (called an ‘action’) that may have a ‘significant impact’ on a matter protected under the EPBC Act must be referred for the Environment Minister (or a delegate) to decide whether it needs approval under the Act.
Significant impact is a term you’ll come across often in the context of our national environmental laws. An ‘impact’ is outlined in the Act at s 527E, and can be either ‘direct’ or ‘indirect’. When considering if a project may have a ‘significant impact’ on MNES, a proponent should take a conservative approach and make a referral where there is any potential for a significant impact to occur.
The word ‘significant’ in this legislation has a different meaning to the ordinary sense of the word. Impact is ‘significant’ when it is “important, notable or of consequence, having regard to its context and intensity” and this is determined subjectively, considering the specific circumstances around the potential impact.
It will include all “effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter”.
The Department has published ‘Significant Impact Guidelines’ that sets out what proponents need to take into account when considering if their project will have an ‘impact’ on MNES. Importantly, for an ‘indirect impact’ to be relevant, the action must be a ‘substantial cause’ of the indirect impact.
Referrals
How are referrals made?
Most frequently, projects are referred for assessment under the EPBC Act by the proponent – that is, the person or company behind the project. The proponent will consider if their proposed project is likely to impact on MNES, using the guidance from the Department, and if so, make a referral.
If a proponent does not refer a project for assessment, there are three alternative avenues for assessment:
- A request for referral from the Minister
- Referral by a State, Territory or their agencies
- Referral by a Commonwealth agency
What happens once a project is referred?
Once a project has been referred, the Environment Minister will consider whether it needs to be assessed and if so, how it should be assessed, under the Act. At this point the Minister determines if the project is a ‘controlled action’. As part of this process, the public is invited to provide comment on whether the project is a controlled action.
A ‘controlled action’ is any action that is likely to have a significant impact on one or more Matters of National Environmental Significance (MNES), which are also known as ‘protected matters’.
If a project is assessed, it is only assessed for its impacts on MNES. The 9 categories of MNES are:
- world heritage properties
- national heritage places
- wetlands of international importance (often called 'Ramsar' wetlands after the international treaty under which such wetlands are listed)
- nationally threatened species and ecological communities
- migratory species
- Commonwealth marine areas
- the Great Barrier Reef Marine Park
- nuclear actions (including uranium mining)
- a water resource, in relation to coal seam gas development or large coal mining development.
Assessment will also always occur if a project is to take place on Commonwealth land, or by a Commonwealth agency.
Importantly, environmental matters that are not covered by the Act, like noise or odour from a project, or impacts on other species, are not part of the assessment, unless there has been a request from a state or territory to include other matters.
When a project is referred for assessment under the EPBC Act, the public has an opportunity to comment on the referral – including whether they think the project is a controlled action. This public comment period lasts 10 days, and occurs before the Minister decides if the project is a controlled action and should be assessed under the Act. Referrals open for public comment are listed on the EBPC Portal website. The Minister will consider all public comments when making a decision.
After the public comment window has closed, the Minister will make a decision about the referral, deciding, of the following, whether the project:
- needs to be assessed because it is a controlled action
- does not need to be assessed because:
- it is not a controlled action
- it will not a be controlled action if carried out in a certain way (particular manner)
- is clearly an unacceptable project, that cannot proceed, because it would have unacceptable impacts on MNES
- is part of a larger action, so the referral should be refused and the larger action referred.
What happens when a project is deemed a controlled action?
If a decision is made that a project is a ‘controlled action’, a method for its assessment will usually be decided on at the same time.
The method of assessment is subjective, based on the potential impact of the project.
Guidance on what is taken into account when deciding on an assessment method is available on the Department website, but will broadly depend on the scale of impact by the proposed project.
There are six different assessment types, which you can explore using the expanding boxes below.
This form of assessment is for small-scale developments. Using the information provided in the referral, the Department will prepare a ‘draft recommendation report’ for the Minister within 30 days. If the Department recommends approving the project, the report will also recommend proposed approval conditions.
The draft report must be published online and invite public comments. Public comments must be incorporated into the final recommendation report. This report is provided to the Minister, who will make a decision on approval.
This form of assessment is for developments where there are only a few protected matters, there is likely to be low public interest, and the impacts are more certain.
Preliminary documentation can be with or without additional information, and is made up of:
- The referral documents
- Any further requested information
- If there is no further information requested, the referral is the preliminary documentation.
The proponent will be directed to publish the preliminary documentation and invite comments from the public.
If comments are received, the proponent must address them by preparing a document that sets out the information provided to the Minister and any changes or additions in response to the public comments received. They must then provide it to the Minister along with all of the comments. If no changes are made, they can inform the department that no action is needed.
The proponent must then publish all relevant documents required for information while the assessment is underway.
The Department will then draft a recommendation report, including a proposed decision, which goes to the proponent for comment. The finalised report is then provided to the Minister, who will make a decision on approval.
This form of assessment is for developments where there are multiple protected matters, the scale and nature of impacts are likely to be high and complex, and public interest is likely to be moderate to high.
This process is the same as the EIS process (information below), but is used when the project has a narrower scope.
The Department will develop draft PER guidelines, which may be standard or tailored. Once finalised, these guidelines are provided to the proponent.
An optional step is to invite public comments on the draft guidelines. This is not a mandatory step, but may be offered prior to the guidelines being finalised.
Then, the proponent will develop the PER in accordance with the guidelines.
The final PER will be published and the public can comment. The proponent updates the PER to address any comments, before producing the final PER, which is published and used to assess the project.
The Department will then draft a recommendation report, including a proposed decision, which will be sent to the proponent for comment. The report is then finalised and provided to the Minster, who will make a decision on approval.
This form of assessment is for developments where there are multiple protected matters, the scale and nature of impacts are likely to be high and complex, there is uncertainty as to the impacts, and public interest is high.
The Department will develop draft EIS guidelines, that may be standard or tailored. Once finalised, these guidelines are provided to the proponent.
An optional step is to invite public comments on the draft guidelines. This is not a mandatory step, but may be offered prior to the guidelines being finalised.
Then, the proponent will develop the EIS in accordance with the guidelines.
The final EIS will be published and the public can comment. The proponent will update the EIS to address any comments, before producing the final EIS, which is published and used to assess the project.
The Department will then draft a recommendation report, including a proposed decision, which will be sent to the proponent for comment. The report is then finalised and provided to the Minster, who will make a decision on approval.
If the Minister decides the project needs a flexible assessment option, they may choose to assess by public inquiry. Commissioners are appointed to undertake the process, and the Minister issues Terms of Reference for the commissioners to guide how the enquiry should be conducted.
The commissioners will then hold public hearings regarding the project. These hearings are open to any member of the public. Any submissions must be made public, except in a few limited circumstances.
After the hearings, the commissioner will prepare a report for the Minister, who will make the final decision on approval.
There may be an opportunity for the public to comment on the commissioner’s report.
These are cooperative processes intended to reduce duplication and assign the bulk of assessment activities to the relevant state authority. All states and territories have a bilateral agreement with the Commonwealth.
Often a project that needs to be referred under the EPBC Act will also require assessment and approval by the state government. To streamline the process, assessment done at the state level may be the primary form of assessment to avoid duplication of processes.
When an accredited state assessment is used to assess a project, the Minister will consider the state assessment in determining whether to approve the project under the EPBC Act.
Bilateral agreements
The state or territory carries out an assessment per the bilateral agreement.
An assessment report is then provided to the Minister, to make the final approval decision. Alternatively, the project may not need approval under the EPBC Act; this is not available if the project may impact water resources, the Great Barrier Reef or a Commonwealth area.
An example of a bilateral agreement in Victoria:
“The EPBC Act may apply to projects in Victoria independently of whether a referral or indeed assessment is required under the Environment Effects Act 1978 (Vic). A project is a ‘controlled action’ under the EPBC Act if it is considered to have or likely to have a significant impact on any matter of national environmental significance protected under the EPBC Act. If a project is a controlled action under the EPBC Act, it requires assessment and approval under the EPBC Act.”
“Victorian assessment processes such an EES or environment report are accredited under the bilateral agreement between the Australian and Victorian governments, helping to avoid duplication and align environmental decision-making on the project. Proponents should coordinate referral of their project under the EPBC Act and Environment Effects Act to the Commonwealth and Victorian Ministers to enable a timely decision on the use of an accredited assessment process. This helps ensure scoping requirements identify the matters relevant to both the state and potential EPBC Act requirements. When an accredited state assessment is completed for a project, the Minister’s assessment is considered by the commonwealth minister when determining whether to approve it under the EPBC Act”.
Accredited process
An accredited process is used when state/territory bilateral agreements do not apply. It means the project is assessed at the state or territory level. An assessment report is provided to the Minister to make the final approval decision.
Public participation is a vital part of assessing projects for their impacts on our environment.
Getting involved with EPBC Act processes
Our federal environment laws provide opportunities for the public to have a say on proposed projects at multiple points throughout the approval process.
When a project has been referred
Community members can make public comments in several circumstances once a project has been referred for assessment. These are summarised below.
Any member of the public or group can make a public comment. You don’t have to be an expert, but it does help to do a bit of research on the project and the MNES the project may impact.
Effective public comments will be specific to the project being commented on, and directly relate to matters protected under the Act. They should also be specific to the assessment stage comments are invited on.
It is important to submit a public comment within the time period. While the Minister has discretion to consider comments made outside the comment period, there is no requirement to do so, and the comment may not be considered ‘before the Minister’.
Information from the Department on how to make a public comment is published on the DCCEEW website.
When a project has not been referred
Only projects that are likely to impact Matters of National Environmental Significance (MNES) are covered by the EPBC Act and Federal Environment Minister’s authority.
If you believe a project might have an impact on an MNES and hasn’t been referred, you can appeal to the Minister to request the proponent to refer the project. Alternatively, you can request a state or territory government or agency make the referral.
Community members appealing to the Federal Environment Minister to make decisions outside of this framework have been accused of ‘asking the minister to act beyond legal authority’. However, if you can show that a project might have an impact on an MNES and hasn’t been referred, you can make a request. Make sure your concerns relate to an MNES; if your concerns are not related to MNES, the federal Department is likely to direct you to the State authority for the project.
An example of when a project has not been referred and should have, is when a project goes through the state approval process without considering the impacts on MNES. If a matter is referred after the state approval process has commenced, often the project will be barred from being assessed as a bilateral agreement because it is too late. This is a less than desirable outcome for the timely resolution of development projects because of the delays and duplication involved.
When decisions have been made
Once a decision on the project has been made under the EPBC Act, there are limited opportunities for the public to engage. However, there are a few important actions you may be able to take.
Request reasons for a decision
When a decision is made under the EPBC Act, a person or entity that may be ‘aggrieved by a decision’ can make a request for the decision maker’s reasons, to see how they came to the decision.
A request for a Statement of Reasons must be made to the Minister in writing within 28 days of the decision being made.
Once you have reviewed the decision and statement of reasons, you can assess whether you think the decision has been made in accordance with the requirements of the EPBC Act.
Request a controlled action decision be reconsidered
The Act has provision to allow a decision about controlled actions to be reconsidered, and possibly amended, by the Minister. This does not relate to the approval of the project, but to:
- Whether a project is a ‘controlled action’; and/or
- What the relevant ‘controlling provisions’ are for the project.
There are strict requirements in the Act when this process can be engaged.
Glossary
Here's a quick guide to some frequently used terms in the Act, and where you can find more information about them.
What constitutes an ‘action’ was considered in Tasmanian Aboriginal Centre Incorporated v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168. Here, a single action could “be constituted by a series of steps, conduct and processes that are properly to be considered as a whole rather than individually and in isolation from one another” [at 179].
If there is doubt, the specific circumstances around the activity will be considered to determine if it is an action [at 181]. If a referral is made for an activity that is part of a larger action, the Minister may refuse to accept the referral and request that the larger action be.
See the Policy Statement – Definition of ‘action’ for more information.
A project will be a ‘controlled action’ if it is likely to have an impact on any matters protected by the Act. Controlled actions will have identified ‘controlling provisions’.
These are the categories and sections of the Act that apply when a project may have impacts on the matters protected. For example, the project may impact koalas, a controlling provision would be: “Listed threatened species and communities (sections 18 & 18A)”.
The Department of Climate Change, Energy, the Environment and Water (DCCEEW) is a department of the Commonwealth (Federal) government. DCCEEW’s purpose is to develop and implement national policy, programs and legislation to protect and conserve our environment and heritage sites, climate and water resources.
The Department's policies and programs focused on protecting and conserving the environment and heritage are directed and overseen by Australia’s Minister for the Environment and Water.
The Department's climate change and energy policy and programs are directed by the Minister and Assistant Minister for Climate Change and Energy.
Impact is outlined in the Act at s 527E, and can be either ‘direct’ or ‘indirect’. When considering if a project may have a ‘significant impact’ on MNES, a proponent should take a conservative approach and make a referral where there is any potential for a significant impact to occur.
The Department has published ‘Significant Impact Guidelines’ that sets out what proponents need to take into account when considering if their project will have an ‘impact’ on MNES. Importantly, for an ‘indirect impact’ to be relevant, the action must be a ‘substantial cause’ of the indirect impact. See the EPBC Act Policy Statement – ‘Indirect consequences’ of an action for more information.
The Minister for the EPBC is the federal Minister for Environment and Water. The Minister may, and often does, choose to confer the decision powers to a delegate, which is the same as the Minister making a decision. References to the Minister in this document include any delegate.
The person or entity that is proposing to undertake the action.
