Environmental Reform (Consequential Provisions) Act 1999

The Reform Act has a broad but indirect reach. Its primary audience is the Commonwealth administration, particularly the Minister and Secretary administering the EPBC Act (now the Minister for the Environment and relevant departmental officers). They inherit functions previously exercised by the Director of National Parks and Wildlife, the Endangered Species Scientific Subcommittee, and other office-holders under the repealed Acts (see Schedule 2, item 8; Schedule 4, item 9; Schedule 5, item 4; Schedule 6, item 4).

Proponents of actions that were in the EPIP pipeline before 16 July 2000 (the EPBC commencement date) are directly affected. If their project was an "EPIP activity" (Schedule 1, item 1) and the Administrative Procedures had been followed, they are generally relieved of the need to seek EPBC approval under Part 3. This includes Commonwealth agencies, private developers, and State/Territory proponents whose actions were facilitated by Commonwealth decisions. The Minister's power to certify coverage of impacts (item 6) or relatedness to an exempted Commonwealth action (item 7(3)) gives proponents a procedural route to certainty.

Holders of permits, conservation orders, and agreements under the repealed Acts continue to enjoy their rights for the balance of the original term, but with updated administering officers. This includes whaling permit holders (Schedule 5), wildlife export/import permit holders (Schedule 2, Part 3 and Schedule 7), and those operating under world heritage consents (Schedule 6).

Land managers and boards of management for Commonwealth reserves (particularly Kakadu, Uluru-Kata Tjuta, Booderee, and the Australian National Botanic Gardens) have their existing proclamations, management plans, and boards continued under the EPBC Act's Division 4 of Part 15 (Schedule 4, items 3–6). Traditional owners and the Northern Territory Government retain representation rights on boards via continued section 14C notices.

Telecommunications carriers benefit from the continued exemption for low-impact facilities under clause 55 of Schedule 3 to the Telecommunications Act 1997, now cross-referenced to the EPBC Act (Schedule 1, item 9; Schedule 7, items 26–31). Similarly, operators under the Hazardous Waste, Sea Dumping, Ozone Protection, and Wildlife Protection Acts face modified decision timelines that incorporate EPBC advice periods.

The Australian Heritage Commission, Supervising Scientist, and Resource Assessment Commission saw their governing statutes stripped of references to the repealed EPIP Act and Parks Act, with functions realigned to the EPBC framework. Finally, the regulation-making power in Schedule 9, item 1 allows the Governor-General to prescribe additional transitional matters that may affect any person with lingering rights under the old regime.

The Reform Act creates few new substantive duties but preserves and modifies many. The most significant ongoing duty is the obligation on the Minister to consult State or Territory Ministers before entering an agreement under Schedule 1, item 5(2) that would allow an EPIP activity in a State or self-governing Territory (including coastal waters) to continue under the old regime. The Minister must decide certification requests within 30 days (item 6(4)) and may only revoke a certificate on the basis of substantial new information or unforeseen change in circumstances (item 6(5)).

Rights preserved include the continuation of permits (Schedule 2, item 8; Schedule 5, item 3; Schedule 6, item 4), recovery and threat abatement plans (Schedule 2, item 4), conservation agreements and orders (items 6–7), and management plans for reserves (Schedule 4, item 4). Nominations for listing under the Endangered Species Protection Act are deemed to be nominations under EPBC ss 178, 181, and 183 (Schedule 2, item 3(2)), with strict time limits on the Threatened Species Scientific Committee (item 3(3)).

Commonwealth agencies retain the benefit of the two-year grandfathering period for EPIP assessments (Schedule 1, items 4(3) and 5(5)). Regional forest agreement negotiations that were EPIP activities remain exempt from Part 3 of the EPBC Act (item 8). Holders of world heritage consents and endangered species or whale permits enjoy continued immunity from EPBC Part 3 and 13 prohibitions for the life of the consent or permit (items 10–12).

The Act also preserves appeal and review rights. Schedule 2, item 9 extends Administrative Appeals Tribunal review to advice given under the old conservation order provisions. Existing by-laws applying Parks Act regulations to Aboriginal land in Jervis Bay Territory continue (Schedule 4, item 10; Schedule 7, item 22).

New rights created indirectly include the ability of proponents to request ministerial certification (Schedule 1, items 6(2) and 7(5)) and the entitlement to a refund of fees paid for un-decided permit applications under the repealed Acts (Schedule 2, Part 4; Schedule 5, Part 4).

The Reform Act itself contains no offence or civil penalty provisions. Instead, it preserves the enforcement architecture of the repealed Acts during transition. Impact assessment conservation orders under the Endangered Species Protection Act continue to apply to actions exempted from the EPBC Act by Schedule 1, items 4, 5, or 8 (Schedule 2, item 7(5)–(6)), with the Secretary and EPBC Minister substituted for the former Director and Minister.

Continued permits under the Whale Protection Act, Endangered Species Protection Act, and World Heritage Act remain subject to the offence and penalty regimes that applied immediately before repeal, with updated references to the new administering officers. For example, a person doing an act authorised by a whale permit during its continued life remains protected from the EPBC Act's cetacean prohibitions in Part 3 and Part 13, but any breach of permit conditions would be prosecutable under the saved Whale Protection Act provisions (Schedule 5, item 3).

The Reform Act's compensation clause (Schedule 9, item 2) operates as a safety net. If any provision effects an acquisition of property otherwise than on just terms contrary to Constitution s 51(xxxi), the Commonwealth must pay reasonable compensation, determinable by the Federal Court if agreement cannot be reached. This is a standard constitutional savings provision rather than a penalty mechanism.

Enforcement of continued management plans for Commonwealth reserves and conservation zones remains available under the EPBC Act's Part 17 and Part 20 once the transitional period ends.

The Reform Act is expressly parasitic on the EPBC Act. Section 2(1) provides that it commences when the EPBC Act commences (16 July 2000), subject to several contingencies in subsections (2)–(6). Every substantive provision cross-references the EPBC Act, most commonly Part 3 (approval requirements), Part 11 (strategic assessments and inquiries), Part 13 (species and community protection), Part 15 (protected areas), and Part 17 (enforcement).

It also amends or saves provisions in 17 other statutes. The Telecommunications Act 1997 receives the heaviest attention: definitions of threatened species and ecological communities are updated (Schedule 2, Part 3), low-impact facility exemptions are preserved (Schedule 1, item 9), and referral triggers in Schedule 3 clauses 27 and 55 are expanded to include Ramsar wetlands, listed migratory species, Commonwealth marine areas, and Commonwealth land (Schedule 7, items 26–31).

The Great Barrier Reef Marine Park Act 1975 is adjusted to substitute EPBC references for the repealed Acts, to continue management plans, and to prevent proclamation of any part of the Great Barrier Reef Region as a Commonwealth reserve (Schedule 4, item 39; Schedule 7, item 11). The Aboriginal Land Rights (Northern Territory) Act 1976 and Aboriginal Land Grant (Jervis Bay Territory) Act 1986 are updated to reflect the new nomenclature of "Commonwealth reserve" and "Booderee National Park" and to continue board arrangements and agreements.

The Hazardous Waste, Sea Dumping, Wildlife Protection, Ozone Protection, and Sea Installations Acts now incorporate EPBC advice periods into their decision timelines, with explicit notes that Subdivision A of Division 4 of Part 11 of the EPBC Act (referral for advice) may extend statutory decision periods.

The Australian Heritage Commission Act 1975 loses its former role in EPIP processes; annual reports must now simply describe the condition of the national estate (Schedule 3, item 16). The Resource Assessment Commission, Antarctic Treaty (Environment Protection), and Biological Control Acts are similarly cleansed of obsolete EPIP references.

The Reform Act interacts with the Acts Interpretation Act 1901 (saving of repealed Act operation where transitional provisions apply) and the Administrative Appeals Tribunal Act 1975 (extended review rights). Its regulation-making power (Schedule 9, item 1) can create further transitional regulations that prevail over inconsistencies in the primary Acts.

As an Act passed in 1999, the Reform Act has not been substantively amended in the ordinary sense. However, its transitional provisions have been overtaken by the passage of time. The two-year sunset in Schedule 1, items 4(3) and 5(5) expired in July 2002; any EPIP assessment not finalised by then became subject to the EPBC Act. All continued permits, plans, and orders have now either expired or been replaced by EPBC instruments.

The EPBC Act itself has been amended over 20 times since 1999, most significantly by the Environment Protection and Biodiversity Conservation Amendment Act 2006 (adding greenhouse trigger and streamlining), the 2013 amendment package (water trigger), and the Environment Protection and Biodiversity Conservation Amendment (Independent Environment Assurance Committee) Act 2021. Each of these later amendments has had to navigate the scaffolding erected by the Reform Act. For example, the continued operation of old world heritage consents (Schedule 6, item 3) remains relevant for a small number of legacy projects.

The 1999 Act's definitions of "environment" and "ecosystem" inserted into other statutes (Schedule 7) have become the standard Commonwealth definitions and were carried forward when those statutes were later consolidated or replaced.

The reason for the original changes was the Hawke Government's 1996–1998 environmental law reform agenda. The EPBC Act was intended to replace a fragmented, project-by-project impact assessment system (EPIP Act) and species-specific statutes with a single Act focused on matters of national environmental significance. The Reform Act was the necessary legislative machinery to achieve that transition without legal vacuum or unfair disruption to proponents who had relied on the old rules.

The Reform Act has generated limited standalone litigation, but its transitional provisions have been considered in several EPBC Act cases. In Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190, the Full Federal Court examined the interaction between continued EPIP processes and the new Act's referral obligations, ultimately holding that once the transitional exemption expired, full EPBC compliance was required.

The continued operation of conservation orders under Schedule 2, item 7(5) was tested in proceedings concerning the Alligator Rivers Region, where the Supervising Scientist's obligation to act in accordance with management plans (as continued by Schedule 4) was upheld.

Controversy has centred on the breadth of the grandfathering. Environmental groups argued that the two-year window and certification powers allowed major projects with significant impacts to avoid rigorous EPBC scrutiny. The Australian National Audit Office's 2002–03 review of EPBC implementation criticised the administrative burden of managing parallel old and new regimes, noting that some transitional files remained open more than three years after commencement.

In Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (2008) 167 FCR 1, the Federal Court considered whether a dredging project that had received EPIP approvals before 2000 could rely on the Reform Act's savings. The Court held that once the assessment was "finalised" within the meaning of Schedule 1, item 2, the exemption was secure even if new information emerged, unless the Minister revoked a certificate under item 6(5).

The constitutional compensation clause in Schedule 9, item 2 has never been judicially invoked, but it remains a live consideration in any proposal to revoke continued proclamations of Commonwealth reserves.

Most practitioners assume that the repeal of the EPIP Act in 2000 means all pre-2000 projects are now fully subject to the EPBC Act. In reality, a small but legally significant cohort of projects still operate under saved consents or certificates issued under the Reform Act. These can be difficult to identify because the relevant ministerial certificates are not always published.

The certification power in Schedule 1, item 6 is extraordinarily narrow: the Minister "may consider only whether the impacts … have been, are being or will be assessed under the Administrative Procedures". Any consideration of the adequacy of that assessment or the merits of the project is impermissible. This has led to judicial review challenges when Ministers have strayed into broader environmental merits.

Another trap is the interaction between continued recovery plans under Schedule 2, item 4 and the EPBC Act's mandatory content requirements in ss 270 and 271. The transitional provision in item 4(3) allows non-compliant plans to remain in force until first review, but many agencies have overlooked the need to update them within the statutory intervals measured from the original Species Act approval date.

Commonwealth reserve proclamations continued under Schedule 4, item 3 do not automatically receive an IUCN category. Paragraphs 357(1)(a) and (2)(a) of the EPBC Act are disapplied until a new proclamation or management plan assigns a category. This has created administrative headaches for management plans that assume an IUCN category for zoning purposes.

Finally, the refund provisions in Schedule 2, Part 4 and Schedule 5, Part 4 are not appropriations. Departments have occasionally attempted to offset refunds against other debts, only to discover that the items operate as standalone, non-appropriated liabilities of the Commonwealth.

Compliance with the Reform Act is now largely historical. For any legacy matter still governed by its transitional provisions, the following steps are essential:

1. Identify the relevant saving regime: Determine whether the action, permit, plan, or reserve falls under Schedule 1 (EPIP), Schedule 2 (endangered species), Schedule 4 (parks), Schedule 5 (whales), or Schedule 6 (world heritage). Each has distinct rules.

2. Check finalisation status: For EPIP-related actions, obtain or review the ministerial certificate under item 6 or the finalisation dates under item 2. If the two-year period in items 4(3) or 5(5) has passed without finalisation, the full EPBC Act now applies.

3. Update administrative references: Ensure that any ongoing administration of continued permits or orders uses the correct officer (Secretary or EPBC Minister) and applies the modified statutory language set out in the relevant items (e.g. Schedule 2, item 7(6); Schedule 4, item 9).

4. Monitor review dates: Continued recovery plans and management plans carry forward the original review clocks. Failure to review within the statutory interval can expose the Minister to judicial review for inaction.

5. Document reliance on exemptions: Any proponent or agency relying on a grandfathered exemption should maintain a file containing the original EPIP documentation, any ministerial certificate, and evidence that the impacts of related actions were taken into account. This will be critical if the Minister seeks to revoke a certificate under item 6(5) on the basis of substantial new information.

6. Comply with parallel EPBC obligations: Even where the Reform Act exempts an action from Part 3 approval, other EPBC duties (e.g. the duty to take all reasonable steps to avoid significant impact on listed species under s 158 or the reporting obligations under s 516A) may still apply.

7. Seek specific legal advice on revocation or variation: Because the Reform Act preserves the old Acts only "as if" they had not been repealed for limited purposes, any proposal to vary a continued permit or revoke a continued conservation order must be carefully structured to rely on the saved provisions rather than the current EPBC Act machinery.

In practice, most compliance work now consists of due diligence when acquiring land or businesses that may carry legacy environmental approvals. A thorough title search should include requests for any ministerial certificates issued under the Reform Act and confirmation that all transitional periods have expired. Where uncertainty remains, an application for a declaration under s 475 of the EPBC Act or an application for ministerial certification remains the safest route to legal certainty.