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WHAT ARE THE IMPLICATIONS OF ENVIRONMENTAL LEGISLATION IN AUSTRALIA?
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explicitly saves State law from being invalidated under Section 109 of the Constitution
where possible, unless there is a clear clash or contrary intention in the legislation
indicating that the clash can occur.
The EPBC Act provides for a range of different protections that can be undertaken.
It can provide for marine protected areas, and it can look at preventing or regulating
activities that are likely to have a significant environmental impact upon the marine
environment. Therefore, any action that would have a significant impact on the marine
environment now requires approval under the Act, potentially from the Minister for the
Environment and Heritage. The Act also provides for the establishment of management
plans for areas of environmental significance.
The Act does provide that the Minister can provide an exception for Defence or securityrelated
activities, although notably, unlike most other pieces of legislation affecting the
RAN, the Minister in this case is not the Minister for Defence, but rather the Minister
for the Environment and Heritage. Accordingly, it may be that things cannot be kept
in-house in terms of one department, but permission needs to be sought from another
department. The Minister for the Environment and Heritage can effectively authorise
a Defence activity, so if Defence wants to do something that might kill large numbers
of fish or damage a particular ecosystem, that activity would have a significant impact
and Defence might have to seek from the Minister for the Environment and Heritage
explicit permission. Requests for permission may be required to be shaped pursuant
to management plans that may constrain naval activities.
The EPBC Act sets up a national framework for the protection of the environment
by focusing on protecting matters of national environmental significance and the
conservation and protection of Australia’s biodiversity. Amongst the many objects of
the Act is the preoccupation to promote a cooperative approach to the protection and
management of the environment, specifically involving governments, the community,
landholders and indigenous peoples, and to assist in the cooperative implementation
of Australia’s international environmental responsibilities. Importantly, in the realm
of Commonwealth/State relations, it is explicitly stated that this Act is not intended
to exclude or limit the concurrent operation of any law of a State or Territory, except
so far as the contrary intention is expressed within its provisions.
The EPBC Act establishes a general prohibition on all actions, which have or may
have significant impact on certain areas of the environment. Such areas include world
heritage property listings; Ramsar Convention (The Convention on Wetlands 1971)
wetlands of international importance; nationally threatened species and communities;
migratory species protected under international agreements; and the Commonwealth
marine environment.
The Minister for the Environment and Heritage has issued administrative guidelines
on whether an impact is likely to be significant. Actions, however, are permitted in a
series of circumstances. The main exception involves specific circumstances where