Fact Sheet 9 – National Environmental Law

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian Government’s key piece of environmental legislation. Under the EPBC Act you need approval from the Australian Government Environment Minister (the Minister) for any proposed action — including projects, developments, activities, or alteration of these things — likely to have a significant impact on a matter protected by the EPBC Act.

The person responsible for a proposed action that will or is likely to have a significant impact on a protected matter must refer their proposal to the Minister. The Minister (or their delegate) will then decide if the proposed action requires assessment under the EPBC Act. You may need to consult with experts who can advise whether a referral is required.

What matters are protected by the EPBC Act?

The EPBC Act protects:

Matters of national environmental significance including:

  • world heritage properties
  • national heritage places
  • wetlands of international importance (listed under the Ramsar Convention)
  • nationally threatened species and ecological communities
  • migratory species
  • Commonwealth marine areas
  • the Great Barrier Reef Marine Park
  • nuclear actions (including uranium mining)
  • a water resource, in relation to coal seam gas development and large coal mining development.

Other matters:

  • the environment, where actions proposed are on, or will affect Commonwealth land, and
  • the environment, where Commonwealth agencies are proposing to take an action.

What would you need to do?

Before taking an action that could have a significant impact on a matter protected by the EPBC Act, you must complete a referral form and submit it to the Minister through the Department of the Environment and Energy for consideration. The referral form is available from the Department of Agriculture, Water and the Environment website.   

There are significant penalties, including fines and imprisonment, for taking such an action without approval. If you intend to take an action that is likely to have a significant impact on a matter protected by the EPBC Act, it is important to make a referral as early as possible in the planning and development stages.

How long does the referral process take?

Following the receipt of a valid referral, the Minister has 20 business days to decide whether the proposed action will require assessment and approval under the EPBC Act. The 20 business days includes a 10 business day public comment period.

If the project undergoes assessment, what will the Minister consider when deciding if a proposed action should be approved?

When deciding if a proposed action should be approved, and what conditions to impose, the Minister will consider the impacts of the proposed action on matters protected by the EPBC Act. The Minister may also take into account economic and social matters, public comments made during the referral and assessment processes and the environmental history of the individual or company proposing to take the action, among other things.

What decisions can the Minister make?

Following the assessment of your proposed action, the Minister will decide whether to:

  • approve your action
  • approve your action subject to constraints (that is, place conditions on the action), or
  • not approve your action.

The Minister will provide you with a copy of the proposed decision to approve or not approve the action, and any proposed conditions, for comment before making a final decision.

What conditions may be attached to the approval?

Conditions attached to an approval are those that are necessary and/or convenient to protect, repair or mitigate damage to a matter protected by the EPBC Act. These can include requirements to offset proposed impacts, bonds or other securities, independent environmental auditing and compliance monitoring.

What about state, territory and local government environmental authorisations?

Getting approval under the EPBC Act does not remove the need to seek relevant state and territory and local government authorisations. To reduce delays, the Australian Government has bilateral assessment agreements with state and territory governments where assessment processes meet set standards. We strongly encourage you to consider making an EPBC Act referral no later than when you begin state or territory authorisation processes.

Would you need other Australian Government permits?

If a proposed action is to take place on Commonwealth land or in a Commonwealth marine area, there may be cases where, even though the action is not considered to be significant and does not require approval through the referral process, it may still require a permit under a different section of the EPBC Act.

Separate permits may be required for any actions affecting a threatened, marine or migratory species, or a whale or dolphin in a Commonwealth area. If you require a permit, then you should submit a permit application at the same time as submitting a referral. The EPBC Act also regulates activities in Commonwealth protected areas and reserves, or which involve the import and export of wildlife.