The Law Handbook 2024

1030 Section 11: Rights, activism and fair treatment at work Act review, including establishing one or more federal environment protection regulators: Environment Protection Australia, to enforce environmental laws; and Environment Information Australia, to provide an authoritative source of high-quality environmental information. At the time of writing the legislation needed to amend the EPBC Act was expected to be introduced in early 2024 (see www.aph.gov.au/ About_Parliament/Parliamentary_departments/ Parliamentary_Library/Budget/reviews/2023-24/ Environment) . Referral to the Minister for Planning Any other controlled action taken without the Minister for Planning’s approval is prohibited (s 67A EPBC Act) and can result in prosecution or a fine (ss 481–485). Referral to the Minister for Planning can be made: • by the person taking the action (s 68 EPBC Act); • by a state government or local council (s 69); • by a Commonwealth agency (s 71); or • at the Minister for Planning’s request if they believe a controlled action is about to be taken (s 70). After the Minister for Planning has received a referral, it is published online for 10 days for public comment (see www.dcceew.gov.au/environment/epbc/public- comments) . The Minister for Planning must take into account public comments received during this 10-day period (s 75(1A) EPBC Act). The Minister for Planning has 20 days following a referral to decide whether the activity is a controlled action, and therefore whether it needs approval. If the decision is clearly unacceptable (s 74B–74D EPBC Act), the Minister for Planning does not need to decide whether it is a controlled action. If the Minister for Planning decides that approval is not needed, the activity may be carried out without contravention of the EPBC Act. Assessment If the Minister for Planning decides that a proposal is a controlled action, it must be assessed using one of the following methods: • accredited assessment process; • assessment of preliminary documents (the ‘desktop assessment’) – this is appropriate when very minor impacts are predictable with certainty; • public environment report; • environmental impact statement; or • public inquiry. There is no opportunity for public comment on the Minister for Planning’s decision about the type of assessment selected; however, there may be a chance to comment on the draft assessment prior to the minister’s decision to approve the project. Bilateral assessment In Victoria, controlled actions can be assessed under the relevant Victorian legislative systems accredited in the bilateral agreement between the Commonwealth and the State of Victoria (‘ bilateral assessment ’). The bilateral assessment proposes that a number of assessment approaches – including an EES under the EE Act – are equivalent to an environment impact statement under the Commonwealth environmental impact assessment system. Controlled actions may also be assessed under the PE Act, EP Act, Water Act 1989 (Vic) or Heritage Act 1995 (Vic). The bilateral assessment requires that public comment be incorporated into the assessments. More information about the bilateral assessment is available at www.dcceew.gov.au/environment/ epbc/approvals/state-assessments/vic. Decision to approve a controlled action The Minister for Planning may approve a proposed action after receiving the assessment report (s 133 EPBC Act). In deciding whether to approve the activity or not, the Minister for Planning must consider issues relevant to any matter of national environmental significance, and economic and social matters (s 136(1)). The Minister for Planning must also take into account the factors listed in section 136(2) of the EPBC Act. These factors include: • principles of ecologically sustainable development (s 3A); • the assessment report relating to the action; and • information provided by government ministers. The Minister for Planning may also consider whether the person is suitable to receive an approval by considering their history in relation to environ- mental matters. Conditions may be imposed on a grant of approval (s 134) for the purpose of protecting, repairing or mitigating damage to a matter of national environmental significance.