On 31 October 2008, the Federal Minister for the Environment,
Heritage and the Arts, Peter Garrett, announced the first
independent review of the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC
Act). The Review is being undertaken under section 522A of
the EPBC Act, which requires it to be independently reviewed every
ten years to investigate how it is operating and the extent to
which it is achieving its objects. The Review is intended to be
complete by 31 October 2009.
The review will be undertaken by Dr Alan Hawke, who will be
supported by a panel consisting of The Honourable Paul Stein AM,
Professor Mark Burgman, Professor Tim Bonyhardy and Rosemary
Terms of Reference
Under the Review's terms of reference, the Review will
the operation of the EPBC Act generally;
the extent to which the objects of the EPBC Act have been
the appropriateness of current matters of National
Environmental Significance (NES); and
the effectiveness of the biodiversity and wildlife conservation
The Federal Government released a Discussion Paper, which sets
out some key questions and information to be considered in the
Review. A copy of the Discussion Paper is available on the website
of the Department of Environment, Heritage and the
Out of the key questions posed in the Discussion Paper, I
believe the following are the most important from the perspective
of the development, resource and energy industries:
Is the definition of 'action' appropriate?
What kind of impacts should be considered under the EPBC Act?
In particular, does the EPBC Act adequately encompass not just
direct but also indirect impacts?
Does the test of significance, in the context of actions having
a 'significant' impact on a matter of NES, operate
effectively in practice? Should there be another test? If so, what
should it be?
Are appropriate projects being referred for approval?
Is the hierarchy of environmental assessment approaches (e.g.
ranging from assessment on referral information to assessment by
public inquiry) effective?
Does the EPBC Act operate effectively in conjunction with State
and Territory planning and environmental impact legislation? Are
existing bilateral agreements achieving the objects of the EPBC
Are there further opportunities to harmonise the EPBC Act with
other State and Territory legislation?
Does the EPBC Act provide for the appropriate follow-up of
environmental assessment and approval decisions, including the
monitoring, evaluation and auditing of actions? If not, what other
actions could be taken?
Are the offence and civil penalty provisions appropriately
framed to encourage compliance with the EPBC Act?
Does the EPBC Act contain a sufficiently comprehensive and
appropriate range of enforcement mechanisms? Are those mechanisms
capable of deterring and responding to contraventions of the EPBC
Does the EPBC Act provide sufficient guidance for decision
makers in their consideration of uncertainty when making decisions
under the EPBC Act? If not, how should the EPBC Act deal with
Should there be more scope for merits review under the EPBC
Act? Would the disadvantages of this process – in terms
of costs and delays – be outweighed by the
Next Steps for the Review
Public submissions on the Review are invited and are due by 19
December 2008. The panel is due to provide its final report to the
Minister by the end of October 2009. We will keep you updated on
the progress of the Review as it continues.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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