Introduction

Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999, requires that a person must not take an action that has, will have, or is likely to have a significant impact on a matter of national environmental significance unless the action is taken with Commonwealth Government approval. This law sets up a process for assessing the impacts of proposed actions.

In all cases where an action that has, will have, or is likely to have a significant impact on a matter of national environmental significance, the person (or company) proposing to take the action, must submit a referral to the Commonwealth Minister for the Environment. An action means any project, development, undertaking or any activity or series of activities.

What are matters of national environmental significance?

The Environment Protection and Biodiversity Conservation Act 1999 sets out the matters of national environmental significance, as follows:

  • Listed threatened species and communities. For example, Masked Owl (Tiwi Island), Northern quoll, Freshwater sawfish, Saltwater and Freshwater Crocodiles;
  • Listed migratory species. For example, dugong and saltwater crocodile;
  • Ramsar wetlands of international importance;
  • Commonwealth marine environment;
  • World heritage properties such as Kakadu National Park and Uluru-Kata Tjuta National Park;
  • National heritage places such as Hermannsburg Historic Precinct (near Alice Springs), Kakadu National Park, Wave Hill Walk Off route and Uluru-Kata Tjuta National Park;
  • The Great Barrier Reef Marine Park;
  • Nuclear actions (including uranium mines).

Referral of actions

A person (or company) proposing to take the action that has, will have, or is likely to have a significant impact on a matter of national environmental significance, must submit a referral to the Commonwealth Minister for the Environment. An action means any project, development, undertaking or any activity or series of activities.

A referral is a document which explains what the proposed action is and whether or not the person taking the action believes that it will have, or is likely to have a significant impact on a matter of national environmental significance.

​A significant impact is an impact which is important, notable or of consequence, having regard to its context or intensity. There are Significant Impact Criteria in the Commonwealth’s Significant Impact Guidelines – Matters of National Environmental Significance  which set out when actions are likely to have a significant impact on a matter of national environmental significance.

Public comments on referral

Referral documents can be viewed online on the Invitations to Comment webpage of the Department of the Environment and Energy.

​People have the right to make comments on a referral within 10 business days.  This deadline is strict, so it is important to make comments within 10 days.  The  Department of the Environment and Energy website has guidance on how to search for referral documents and how to make comments.

Decision on referral

The Minister for the Environment and Energy makes decisions about whether a referred action will have, or is likely to have a significant impact on a matter of national environmental significance. The Minister has to take into account any public comments that he/she receives on the referral.

​The Minister can decide:

  • That the action is a controlled action – this means that the proposal is likely to have a significant impact on a matter of national environmental significance. It means that the proposal will need to be assessed for its environmental impacts.
  • That the action is not a controlled action provided it is taken in a particular manner – this means that the proposed action will not have a significant impact provided that it is done according to the conditions set by the Minister; or
  • That the action is not a controlled action – this means that the action is not likely to have a significant impact and so can proceed without any further Commonwealth environmental assessment or approval.

It is an offence to take an action while the decision making process on a referral is still taking place.

Form of environmental assessment

If the Minister for the Environment and Energy decides that the proposed action is a controlled action, it will require an environmental assessment.

There are several types of assessments. These are:

  • An accredited assessment process;
  • Assessment on referral information only;
  • Assessment on preliminary documentation;
  • A public environment report;
  • An environmental impact statement;
  • A public inquiry.

Public comments on environment assessment

The public can make comments on the environmental impact assessment which must be made within the specified time limit.

Approval

At the end of the environmental impact assessment process, the Commonwealth Minister for the Environment and Energy decides whether or not to approve the controlled action.

In determining whether to approve a controlled action, the Minister must consider

  • The impacts on each matter of national environmental significance;
  • Economic and social matters;
  • The principles of ecologically sustainable development;
  • The environmental assessment material and any subsequent reports;
  • Public comments;
  • Comments from other Ministers.

The Minister must not act inconsistently with Australia’s international obligations.

Challenging decisions

The decision of the Minister for the Environment and Communities that an action is not a controlled action or to approve a controlled action can only be challenged in a court through judicial review. For further information about judicial review, see the Fact Sheet on ‘Judicial review and merits review’.​

  • In the case of an individual, an individual is an Australian citizen or a person who normally resides in Australia or an external Territory and who at any time in the previous 2 years has engaged in activities in Australia or an external Territory to protect, conserve or research the environment.
  • In the case of an organisation, an organisation or association is incorporated or otherwise established in Australia or an external Territory; and at any time in the previous 2 years has engaged in activities in Australian or an external Territory to protect, conserve or research the environment; and at the time of the decision, the objects and purposes of the organisation or associated included to protected, conserve or research the environment.

The Environment Protection and Biodiversity Conservation Act 1999 sets out the people called ‘persons aggrieved” who can apply for a judicial review of a decision by the Minister. A person aggrieved by a decision is:

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