Department of the Environment and Heritage, September 2003
In September 2003, the EPBC Act was amended to give the Australian Government the ability to not accept a referral if it covers only one part of a larger action. The purpose of this amendment is to provide an 'up front' mechanism to ensure that environment protection objectives are not undermined by developments being considered in stages rather than in terms of their total likely impacts on matters protected by the EPBC Act. This fact sheet explains how the new provisions will be implemented.
A new Section 74A, 'Minister may request referral of a larger action', has been inserted, together with an amendment to section 75. The amendments say:
- If the Minister receives a referral in relation to a proposal to take an action by a person, and the Minister is satisfied the action that is the subject of the referral is a component of a larger action the person proposes to take, the Minister may decide to not accept the referral.
- If the Minister decides to not accept a referral under subsection (1), the Minister:
- must give written notice of the decision to the person who referred the proposal to the Minister; and
- must give written notice of the decision to the person who is proposing to take the action that was the subject of the referral; and
- may, under section 70, request of the person proposing to take the action that was the subject of the referral, that they refer the proposal, to take the larger action, to the Minister.
- To avoid doubt, sections 73 and 74 do not apply to a referral that has not been accepted in accordance with subsection (1).
- If the Minister decides to accept a referral under subsection (1), the Minister must, at the time of making a decision under section 75:
- give written notice of the decision to the person who referred the proposal to the Minister;
- (publish in accordance with the regulations (if any), a copy or summary of the decision.
1.a.a To avoid doubt, the Minister is not permitted to make a decision under subsection (1) in relation to an action that was the subject of a referral that was not accepted under subsection 74A(1).
The EPBC Act is about protecting aspects of the environment of national importance. For the Environment Minister to effectively carry out his or her responsibilities under the EPBC Act it is imperative he or she be made aware of the full scope of a development proposal. If the Environment Minister were to consider a development proposal in a piecemeal fashion, in most cases it would not be possible to accurately determine the likely impacts of the total development and make an informed decision on whether all components of the proposal require assessment and approval under the EPBC Act.
Each referral received by the Department of Environment and Heritage will be checked to establish whether it is likely to be part of a larger action. (The referral form has been amended to explicitly seek this information)
The initial decision on whether or not to accept a referral will normally be made within 48hrs. Accepted referrals will then be notified on the EPBC notifications web site.
If a referral is not accepted because the Environment Minister believes it is a component of a larger action, the person making the referral will be notified and the Environment Minister may ask the person to refer the larger action. If the person chooses not to refer the larger action, the Environment Minister may deem that the larger action has been referred for consideration under the EPBC Act.
If a person provides false or misleading information about a staged development in a referral document or in response to another requirement or request under the EPBC Act they may be subject to the offence provision contained in section 489 of the Act.
Any new information that comes to light about a staged development following a decision on whether approval is required under the Act might provide grounds under section 78 of the EPBC Act for reconsideration of the original controlled action decision. Reconsideration can result in the original decision being revoked and substituted with a new decision.
Further information: The EPBC Act, its regulations, amendments and further information is available at the Department's web site - go to www.environment.gov.au/epbc and follow the links to the information you need. To talk directly to staff on this or any other EPBC Act matter, call the Community Information Unit on 1800 803 772.