Will practice hinder principle? - Implementing the EPBC Act

Environmental and Planning Law Journal

Volumn 18, Issue 1, 2001, Pages 14-22

  Scanlon, John ^a   Dyson, Megan ^a  

^a NONE

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EID: 78650645672     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (33)

1. See for example the comments of Associate Professor Rob Fowler in numerous publications, including R Fowler "Law and Policy Aspects of National Standardisation" (1995) Australian Centre for Environmental Law Outlook Conference, Conference Paper.
2. For a discussion of New Federalism see P Toyne, The Reluctant Nation (ABC Books, Sydney, 1994), Ch 10, p 175.
3. In this article, where "States" is used it is intended to include both States and Territories, unless indicated otherwise.
4. See generally, EPBC Act, Ch 3.
5. See offence and civil penalty provisions in EPBC Act, Pt 3 (requirements for environmental approvals).
6. See EPBC Act, s475.
7. See EPBC Act, s 478.
8. EPBC Act, s 68 provides that a person proposing to take action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister's decision whether or not the action is a controlled action. While failure to refer is not an offence, commencing an action without a referral may lead to action for an injunction (see s 475), or may amount to an offence or liability for civil penalty under the relevant sections of Pt 3 (requirements for environmental approvals).
9. A controlled action is one determined by the Minister to be likely to have a significant impact on a matter of NES.
10. This is both inherent in the definition of "action" (s 523) and explicitly provided for in s 524 ("things that are not actions").
11. Notices were published in July 2000 both in the Commonwealth Government Gazette and on the Environment Australia website at www.environment, gov.au/epbc.
12. Media Release, Victorian Minister for Planning, 21 July 2000.
13. EPBC Act, s 44.
14. See for example: "One of the strengths of the old laws was that none of them allowed the Commonwealth to hand over to the States its power to approve developments that were subject to these laws. Crucially, the amended legislation still allows the Commonwealth to hand over its approvals powers to the States" (John Connor, Habitat); "The new requirement for bilaterally accredited management plans for the purposes of a bilateral agreement simply add another procedural hoop to an already complex process, but leave open the prospect of a wide range of approval powers being delegated to the States" (Assoc Prof Rob Fowler, open letter to Democrats, 23 June 1999), and the EDO NSW Analysis of the EPBC Act, 14 May 2000, at the website www.edo.org.au/edonsw/policv/epbcanal.htm.
15. See discussion in Hon Justice Catherine Branson "Some key constitutional and administrative issues" and J Scanlon and M Dyson "An overview of the EPBC Act: From a State's perspective", both published in the conference papers of the EDO Conference "A New Green Agenda", 14 October 1999.
16. EPBC Act, s 515.
17. See motion of the Senate (moved by Senator Brown) of 13 October 1999, Senate Hansard, p 9609.
18. EPBC Act, s 46-an agreement may declare that certain actions approved by a State government do not require approval under Pt 9 of the Act.
19. EPBC Act, s 46(1).
20. EPBC Act, s 46(2).
21. EPBC Act, s 46(3)-(8).
22. See for example Ch 7 of the Report of the Senate Environment, Recreation, Communications and the Arts Legislation Committee, April 1999, and references in footnote 17.
23. EPBC Act, s 47.
24. Accredited State assessment processes do not need to be tabled in the Commonwealth Parliament, for example. However, they still need to comply with prescriptive Commonwealth standards, detailed in Ch 3 and Sch 1 of the EPBC Regulations 2000. Rather than specify the outcomes sought (for example, public notification that, in the circumstances of the action, are most likely to achieve proper opportunity for public comment), the standards mirror the Commonwealth assessment processes set out in Pt 8 of the Act.
25. EPBC Act, s 49a.
26. EPBC At, s 48a(4).
27. EPBC Act, s 57.
28. There seems to be no intention on the part of the Commonwealth or the States to enter into bilateral agreements for the accreditation of approvals at this stage
29. See the draft Statutes Amendment (Avoidance of Duplication of Environmental Procedures Bill 2000 and Explanatory Paper, released by the South Australian Minister for Environment and Heritage for public comment on 14 October 2000.
30. Personal communication, officers of Development Assessment Branch, Planning SA.
31. EPBC Act, s 45(2).
32. See Media Release of 10 October 2000 which can be found at www.pm.gov.au
33. See EPBC Act, s 3.