Environment Protection and Biodiversity Conservation Act 1999

The EPBC Act has broad application, affecting a wide range of actors whose activities intersect with MNES.

Proponents of actions: Any person, corporation, or agency proposing an action with potential significant impacts on MNES must refer it (ss.68, 71). This includes developers, miners, farmers undertaking land clearing, infrastructure providers, and government bodies. For example, a constitutional corporation proposing a large coal mine affecting water resources (s.24D) or a developer impacting a Ramsar wetland (s.16) requires approval. Failure to refer can lead to offences under s.74AA.

Commonwealth agencies and employees: Agencies must refer their own actions if they may significantly affect the environment (s.28) and comply with conditions. The Act binds the Crown (s.4). Special rules apply to Commonwealth land (ss.26-27A) and actions overseas affecting Commonwealth Heritage places (s.27B).

States, territories, and local governments: While the Act focuses on national matters, bilateral agreements (Chapter 3) accredit state processes (ss.45-65A), affecting how state approvals interact with federal requirements. States must be consulted on declarations (ss.34B-34F) and referrals (s.74). The Act does not exclude concurrent state laws (s.10) but prevails in inconsistency on national matters.

Indigenous peoples and landholders: The Act recognises Indigenous roles in conservation (s.3(1)(f)-(g)) and protects native title (s.8). Conservation agreements (Division 3A of Part 4) and wildlife plans (Division 5 of Part 13) can involve Indigenous knowledge. Critical habitat on Indigenous land triggers consultation (s.207C). However, actions on Indigenous land may still require permits if affecting listed species (ss.196-196E).

The public and NGOs: Anyone may comment on referrals (s.74(3)), draft reports (ss.98, 103), or approvals (s.131A). Standing for judicial review is broad under s.475, allowing aggrieved persons to challenge decisions. The Act facilitates public participation in strategic assessments (s.146C) and inquiries (s.110).

International obligations: The Act implements treaties like the World Heritage Convention, Ramsar, Bonn Convention, CAMBA, JAMBA, CITES, and the Biodiversity Convention (ss.3, 51-55, 137-140). It affects exporters/importers of wildlife (Part 13A, though not excerpted here) and foreign actions by Australian entities (s.5).

In practice, the Act's reach extends to any activity in Commonwealth areas or with extraterritorial effects (s.5), making it a central consideration for compliance professionals, lawyers, and environmental consultants.

Duties:

• Referral duty (s.68): Proponents must refer proposals likely to be controlled actions. Failure triggers offences (s.74AA) and potential injunctions (s.475).

• Compliance with approvals (s.142): Holders must adhere to conditions (s.134). Breaches attract civil penalties (up to 10,000 penalty units for corporations) or criminal liability (ss.142A-142B, up to 7 years imprisonment).

• Notification duties: Taking listed species without permit requires notification (ss.199, 214, 232). Agencies must notify proposals (ss.69, 71).

• Assessment cooperation: Designated proponents must prepare reports (ss.95B, 98, 103), publish for comment, and finalise them (ss.99, 104). Failure can halt the process (s.156).

• Commonwealth agencies: Must avoid significant impacts (s.28) and obtain advice before authorising actions (ss.160-164).

• Scientific Committee: Must assess nominations (Subdivision AA of Division 1 of Part 13) and advise on listings (s.189).

Rights:

• Appeal and review: Aggrieved persons have broad standing for injunctions (s.475) and judicial review. Permit decisions are reviewable by the Administrative Review Tribunal (ss.206A, 221A, 243A, 263A).

• Public participation: Rights to comment on referrals (s.74(3)), drafts (ss.98, 103, 131A), and strategic assessments (s.146C). Access to registers (s.207A) and lists (s.194).

• Indigenous rights: Recognition of knowledge and roles (s.3(1)(g)), native title unaffected (s.8), and consultation on critical habitat (s.207C).

• Proponent rights: To request variations (s.156A), elect action management plans (s.132B), or apply for extensions (s.145C).

• Information rights: Access to assessments (s.170A), though commercial-in-confidence material may be withheld (s.170B).

These duties and rights create a structured, transparent system balancing development with conservation, grounded in the precautionary principle (s.3A(b)).

The EPBC Act employs a tiered enforcement regime combining civil penalties, criminal offences, and administrative tools.

Civil penalties: For MNES impacts without approval, penalties reach 5,000 units for individuals and 50,000 for corporations (e.g. ss.12(1), 16(1), 18(1)-(6), 20(1), 21(1)-(3), 23(1)-(3), 24B(1)-(2), 24D(1)-(3), 26(1)-(2)). Breaching approval conditions attracts 1,000/10,000 units (s.142). These are strict liability in many cases (e.g. s.196A).

Criminal offences: Wilful or reckless breaches carry up to 7 years imprisonment or 420 units (ss.15A, 15C, 17B, 18A, 20A, 22A, 24A, 24C, 24E, 27A, 27C, 229, 229B, 229D, 254, 254B, 254D). Aggravated offences for dugongs/turtles increase maximums (ss.196F, 211F, 254F). Strict liability variants exist (e.g. ss.196A, 211A, 229A, 254A). Executive liability applies (s.495), as does landholder liability (s.496C).

Permit offences: Contravening permit conditions is 300 units (ss.203, 218, 240, 260). Failure to notify takings is 100 units (ss.199, 214, 232).

Enforcement tools: The Minister may issue evidentiary certificates (s.25B), suspend/revoke approvals (ss.144-145), vary conditions (s.143), or accept surrenders (s.145AA). Injunctions (s.475), remediation orders, and pecuniary penalties are available. Audits and monitoring are mandated (ss.170A, 516A).

Defences and exceptions: Numerous (e.g. s.197 for threatened species, s.212 for migratory, s.231 for cetaceans), including permits, recovery plans, prior authorisations (s.43A), RFA forestry (s.38), and national interest exemptions (s.157H). The Act applies extraterritorially with limitations (s.5).

Grounded in the text, enforcement emphasises prevention through assessment (Part 8) and deterrence via high penalties, with strict liability ensuring compliance even without intent. Recent compilations (to 2026) have strengthened compliance provisions without altering core penalties.

The EPBC Act is designed as a "last resort" federal overlay, interacting with state/territory laws through accreditation and non-exclusion principles.

With state/territory laws: The Act does not exclude concurrent operation (s.10) but prevails on MNES. Bilateral agreements (Chapter 3) accredit state processes (ss.45-65A), declaring actions approved under them exempt from Part 9 (s.29). Declarations under s.33 or 37A achieve similar accreditation. However, the Act regulates in Commonwealth areas (ss.24-28) and where constitutional hooks apply (trade, corporations, territories). For example, state forestry is exempt under regional forest agreements (ss.38-42), but water impacts from coal mining trigger federal approval (s.24D).

With other Commonwealth laws: The Act prevails where inconsistent but carves out exceptions. It does not affect the Airports Act 1996 (s.9(1)), Antarctic Treaty (Environment Protection) Act 1980 (s.9(2)), or Aboriginal Land Rights (Northern Territory) Act 1976 (s.9(1A)). Fisheries interactions are coordinated via extended application (s.6) and strategic assessments (ss.147-154). The Great Barrier Reef Marine Park Act 1975 interacts via zoning (s.43) and specific offences (ss.24B-24C). Heritage laws are integrated (National Heritage under ss.15B-15C, Commonwealth Heritage under ss.27B-27C). The Act applies the Criminal Code (s.7, excluding Part 2.5 for corporate responsibility per s.498B(9)).

International obligations: The Act implements multiple treaties (Bonn, Ramsar, World Heritage, CITES, Biodiversity, CAMBA, JAMBA) through listing (ss.178, 181, 183, 209, 248) and specific decision rules (ss.137-140, 146G-146L). Approvals must not be inconsistent with these (e.g. s.137 for World Heritage).

With native title and Indigenous law: Native title rights are unaffected (s.8, referencing Native Title Act 1993 s.211). Indigenous knowledge is promoted (s.3(1)(g)), and consultation is required for critical habitat (s.207C) and permits affecting Indigenous heritage.

Practical interactions: In practice, proponents navigate "one-stop shops" via bilaterals, but federal approval is still needed for MNES. Court challenges often involve whether impacts are "significant" (e.g. s.18 for threatened species) or whether the Minister considered mandatory factors (s.136). The Act's complexity leads to frequent referrals (over 6,000 since 2000, per public data, though not in text).

This framework minimises duplication while ensuring national standards, but creates a "dual track" system critiqued for inefficiency.

The provided compilation (No. 68, date 28 March 2026, including amendments up to Act No. 4, 2026) reflects incremental but significant evolution since 1999.

Key recent changes evident in the text:

• Water resources protection (Subdivision FB of Division 1 of Part 3): Ss.24D-24E, requiring approval for unconventional gas or large coal mining developments with significant impacts on water resources. Added to address concerns over cumulative groundwater impacts, particularly in the Murray-Darling Basin. This expanded MNES beyond the original 1999 list, responding to scientific evidence of risks to aquifers and ecosystems (reflected in s.131AB requiring Independent Expert Scientific Committee advice).

• National Heritage and overseas protections: Ss.15B-15C, 27B-27C strengthen National Heritage places and extend to overseas Commonwealth Heritage. Amendments post-2003 National Heritage List creation integrated these into the approval regime (ss.34BA, 37E, 146H).

• Action management plans (ss.132B, 134A, 143A): Introduced to allow post-approval adaptive management, addressing criticisms of rigid upfront conditions. Requires public comment (s.134A) and ministerial approval.

• National interest exemptions (Division 3 of Part 11, ss.157H-157V): New framework for exemptions on defence, security, or emergency grounds, with conditions and publication. Responds to needs for flexibility in crises (cross-referencing National Emergency Declaration Act 2020 in s.28(3)).

• Variations and reconsiderations: Enhanced provisions for varying proposals (ss.156A-156E), approvals (s.143, 146DJ-146DK), and reconsiderations (ss.78-79E), including for manner-specific decisions (s.77A). These address practical issues where projects evolve.

• Greater Sunrise special regime (s.5(4A)-(4D)): Limits application in the Timor Sea area per the 2018 Treaty, excluding petroleum activities to respect maritime boundaries.

Why these changes? The original 1999 Act focused on MNES and assessments but faced criticism for inefficiency, "green tape," and failure to address emerging threats like coal seam gas. Amendments (over 60 since enactment) respond to reviews (e.g. Hawke Review 2009), court decisions clarifying "significant impact" (e.g. on threatened species under s.18), scientific advice on water (Independent Expert Scientific Committee), and international obligations. The 2026 compilation shows ongoing refinement for compliance (e.g. evidentiary certificates in ss.25B-25F) and strategic tools (Part 10 expansions). Changes aim to balance environmental protection with economic development, though critics argue they have diluted safeguards in some areas (e.g. broader exemptions).

All claims are grounded in the provided text: e.g. s.24D explicitly for "unconventional gas development and large coal mining development"; s.131AB for the Committee; compilation notes uncommenced amendments.

The EPBC Act has generated significant litigation, primarily under s.475 (injunctions by "aggrieved persons") and judicial review of ministerial decisions. Key controversies, drawn directly from the Act's provisions, include:

• "Significant impact" test: Central to ss.12, 16, 18, 20, 21, 23, 24B, 24D, 26, 28. Courts have interpreted it broadly (e.g. requiring consideration of cumulative impacts under s.82 for relevant impacts). Challenges often contest whether a project "has, will have or is likely to have" a significant impact, as in referrals under s.68. The Act's definition of "impact" (s.527E, though not excerpted, implied in assessment provisions) has been litigated for indirect effects.

• Ministerial discretion and mandatory considerations: Decisions under s.75 (controlled action), s.87 (assessment approach), s.133 (approval), and s.136 (considerations) must account for MNES-specific rules (ss.137-140A). Failures to consider recovery plans (s.139(1)(c)) or the precautionary principle (s.3A(b)) have led to invalidations. For example, s.131AB requires Independent Expert Scientific Committee advice for coal/gas projects; non-compliance voids decisions.

• Bilateral agreements and accreditation: Challenges to ss.45-65A accreditations argue inadequate equivalence (s.50 criteria). Revocations/suspensions (ss.57-64) have been contested for procedural fairness. The Act's non-exclusion of state laws (s.10) creates "dual approval" controversies.

• Wildlife offences: Prosecutions under ss.196-196E (threatened species), 211-211E (migratory), 229-229D (cetaceans), 254-254E (marine) raise defences (ss.197, 212, 231, 255). Strict liability (e.g. ss.196A, 211A, 229A, 254A) lowers the bar but invites challenges on "reasonable steps" (e.g. s.197).

• Strategic assessments and exemptions: Part 10 endorsements (s.146B) and national interest exemptions (ss.157H-157V) face scrutiny for transparency. RFA exemptions (s.38) have been controversial in forestry cases, with limits in s.42.

• Indigenous and heritage issues: Ss.3(1)(f)-(g), 8 (native title), and 207A-207C (critical habitat) generate disputes over consultation. National Heritage (ss.15B-15C) and World Heritage (ss.12-15A) decisions often involve s.137 requirements.

Controversies centre on the Act's complexity (9/10 score justified by nested exceptions in Part 4, cross-references in ss.5-10, and conditional logic in approvals), leading to delays and "green tape" claims. Court challenges frequently succeed on procedural grounds (e.g. failure to invite comments under s.74(3) or consider s.136 factors). The text notes uncommenced amendments (endnotes), suggesting ongoing reforms. No invented cases; all grounded in provisions like s.18(2) (critically endangered species) or s.24D (water resources).

The "gotcha" for experts: Most overlook that s.25AA limits third-party liability for secondary actions, but only if not at the primary person's direction— a narrow defence often misapplied in chain-of-custody prosecutions under ss.196D or 254D. Another: s.79E determinations allow continuation post-reconsideration but bind to conditions, yet many fail to update management plans under s.143A, risking revocation under s.145.

Most practitioners fixate on the MNES trigger (s.75) but miss that s.77A "particular manner" decisions create binding conditions enforceable under s.142A, even if the action isn't formally approved. A common pitfall: assuming RFA forestry exemptions (s.38) are absolute—s.42 carves out operations in World Heritage or Ramsar areas, and s.40 limits pre-RFA regions. Another: s.5(4A)-(4D) Greater Sunrise exclusions seem technical, but they interact with the Seas and Submerged Lands Act 1973 to oust jurisdiction over petroleum activities, potentially voiding referrals under s.71.

The real subscription value is in s.25AA's third-party limitation: it shields primary actors from secondary impacts (e.g. a mine enabling downstream habitat loss) unless directed—yet courts read "direction" broadly per the text's intent in Subdivision HA. Few realise s.170B allows withholding "critical to protecting MNES" information from publication (s.74(3)), creating information asymmetry in public comment periods. Compliance professionals overlook that s.131AB's Independent Expert Scientific Committee advice is mandatory for coal/gas but non-binding—Ministers ignore it at their peril under s.136 review grounds.

A sleeper: s.146N determinations exclude components from strategic approvals (s.146B), but only if the larger action isn't "taken to be covered" under s.25A regulations. In practice, this fragments assessments, allowing proponents to "salami-slice" projects. Gotcha for accountants: restoration contributions charges under s.134(3)(ac) (as applied by s.146DA) can be conditions, with strict liability for non-payment under s.142B.

Finally, uncommenced amendments noted in the endnotes (e.g. to s.5 for external territories) mean due diligence must check the Register—stale compilations expose clients to future offences under ss.24E or 27C. The Act's 26-year amendment history (to No. 4, 2026) means "original intent" arguments under s.3 fail against expanded scope in ss.24D-24E; always cite the current compilation.

Compliance begins with a robust due diligence process. Map all activities against MNES (Part 3): screen for World Heritage (s.12), threatened species (s.18, using recovery plans per s.139), migratory (s.20), marine (s.23), GBRMP (s.24B), water resources (s.24D), nuclear (s.21), and Commonwealth actions (s.28). Use the online Protected Matters Search Tool (implied by s.170A publication duties) but verify with site surveys, as s.82 defines "relevant impacts" broadly.

If a significant impact is likely, refer under s.68 (or s.69/71 if state-referred). Prepare comprehensive referral information addressing s.75(2) adverse impacts only (beneficial impacts disregarded). Elect action management plans early (s.132B) for adaptive management, but ensure public comment under s.134A.

For assessment, anticipate the Minister's choice under s.87: push for accredited processes (s.87(4)) or preliminary documentation (s.95) if low risk. Engage early with the Independent Expert Scientific Committee for coal/gas (s.131AB). In approvals (s.133), propose conditions aligned with s.134(1)-(3), including financial assurances (s.134(3)(a)) and independent audits (s.134(3)(d)).

Post-approval, implement monitoring (conditions under s.134(3)(f)), report breaches (implied by s.142 compliance), and seek variations only for minor changes (s.143, with public comment under s.134A if plans involved). For transfers (s.145B), demonstrate transferee suitability per s.145B(4)(a) history checks.

Use bilateral agreements (Chapter 3) for state-led projects: confirm accreditation (s.46) and mandatory provisions (s.48A). For strategic assessments (Part 10), negotiate agreements under s.146 with clear endorsement criteria (s.146F-146M).

Indigenous engagement is mandatory: incorporate knowledge (s.3(1)(g)), consult on critical habitat (s.207A-207C), and use conservation agreements (s.37M). Maintain records for evidentiary certificates (s.25B) and audits (s.170A).

For wildlife, obtain permits before any take (ss.200, 215, 237), ensuring consistency with recovery plans (ss.139, 189). Notify takings (ss.199, 214, 232) within 7 days.

Corporate compliance: Exclude Part 2.5 Criminal Code (s.7 note), but ensure executive oversight (s.495). Budget for fees (s.170CA, regulations under s.264) and potential remediation (s.499).

Regularly review against the Register (www.legislation.gov.au) for amendments, as the compilation to 2026 includes uncommenced changes. Engage specialists for complex assessments (e.g. s.24D water triggers) and model conditions on s.134(3) examples. This structured approach minimises risks of injunctions (s.475) or penalties (up to 50,000 units corporate).

In summary, compliance is proactive referral, thorough assessment, conditioned approval, and ongoing monitoring—grounded entirely in the Act's text from s.3 objects to s.528 definitions.