The EPBC Act: matters of national environmental significance and 'controlled action' approvals
Projects likely to have a significant impact on matters of national environmental significance need approval under the Environment Protection and Biodiversity Conservation Act 1999. Here's the framework.
What the Act protects
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) serves as the primary environmental law at the Commonwealth level. It establishes a framework for protecting Australia’s unique environment and heritage.
The Act specifically identifies nine matters of national environmental significance (MNES). These include areas and species of outstanding significance for their natural or cultural values. Examples of MNES are world-heritage properties, national heritage places, and wetlands of international importance (Ramsar).
The EPBC Act also provides protection relating to specific activities. This includes actions impacting Commonwealth marine areas, the Great Barrier Reef Marine Park, nuclear actions, and developments involving a water trigger for large coal-mining and coal seam gas developments. The Act is administered by the Department of Climate Change, Energy, the Environment and Water, and is subject to reform proposals including the establishment of a new national environmental regulator.
When approval is required
Approval is required under the Environment Protection and Biodiversity Conservation Act when a proposed action is determined to be a 'controlled action'. This occurs when the action is likely to have a significant impact on a matter of national environmental significance.
The process begins when the proponent of the proposed action refers it to the Minister under section 68 of the Act. Following this referral, the Minister makes a decision about whether the action constitutes a controlled action.
If the Minister determines the action is a controlled action, a formal assessment process is initiated. This assessment may involve accredited state assessments, preliminary documentation, a public environment report, an environmental impact statement, or a public inquiry.
Penalties and enforcement
Civil penalties are applicable when a controlled action is undertaken without the required approval, or when approval conditions are breached. These penalties are enforced through civil legal proceedings.
More serious matters may attract criminal offences. These offences relate to instances where a controlled action is taken knowingly or recklessly, and that action results in significant environmental harm.
The Department of the Environment utilises a range of compliance and enforcement tools to ensure adherence to the Act. These tools include issuing remediation orders, seeking injunctions, and initiating prosecutions.
Reform on the agenda
The Australian Government is pursuing changes to the Environment Protection and Biodiversity Conservation Act. This follows the 2020 Samuel Review and is outlined in the Nature Positive Plan, which proposes a new federal environmental regulator and updates to the Act’s framework.
Legislation to enact these changes has been the subject of consultation in stages. The process of reform is ongoing.
Until the new legislation is formally enacted, the current EPBC Act framework, including the identification of matters of national environmental significance and the controlled-action approval process, remains in effect.
Frequently asked
What is a 'controlled action' under the EPBC Act?
An action that has, will have, or is likely to have a significant impact on a matter of national environmental significance. Taking a controlled action without approval is a contravention of the EPBC Act with civil-penalty consequences.
Is the EPBC Act being replaced?
Reform is proposed under the Nature Positive Plan responding to the 2020 Samuel Review. Until reform legislation is enacted, the existing EPBC Act framework — matters of national environmental significance, controlled-action assessment and approval — continues to apply.