Environment Protection and Biodiversity Conservation Act 1999

The Environment Protection and Biodiversity Conservation Act 1999 is an act of the Parliament of Australia that provides a framework for protection of the Australian environment, including its biodiversity and its natural and culturally significant places. Enacted on 16 July 2000, it established a range of processes to help protect and promote the recovery of threatened species and ecological communities, and preserve significant places from decline. The act is as of 2024 administered by the Department of Climate Change, Energy, the Environment and Water. Lists of threatened species are drawn up under the act, and these lists, the primary reference to threatened species in Australia, are available online through the Species Profile and Threats Database.
As an act of the Australian Parliament, it relies for its constitutional validity upon the legislative powers of the Parliament granted by the Australian Constitution, and key provisions of the act are largely based on a number of international, multilateral or bilateral treaties. A number of reviews, audits and assessments of the act have found the act deeply flawed and thus not providing adequate environmental protection.

History

The Environment Protection and Biodiversity Conservation Act 1999 replaced the National Parks and Wildlife Conservation Act 1975, after this legislation was repealed by the Environmental Reform Act 1999. The Environmental Reform Act also repealed four other acts: Environment Protection Act 1974; Endangered Species Protection Act 1992; World Heritage Properties Conservation Act 1983; and the Whale Protection Act 1980. This Act also made consequential changes to other legislation, and various administrative arrangements, required by the new scheme introduced by the act.
The act received royal assent on 16 July 1999 and commenced on 16 July 2000.
The Environment Protection and Biodiversity Conservation Regulations 2000 also commenced on 16 July 2000,. The purpose of the regulations is to give effect to the provisions of the act.
The legislation has had many amendments through its lifetime. Significant amendments include the following:

The National Heritage List was established by an amendment in September 2003.
Amendments passed in February 2007 aimed to make the act "more efficient and effective through the use of, in part, strategic approaches to environmental issues, reducing the time and cost of processing, and stronger enforcement provisions".
Significant amendments to the act became law on 22 June 2013, known as the "Water trigger", making water resources a matter of national environmental significance, in relation to coal seam gas and large coal mining development.

On 16 October 2013 the environment minister announced that the government had approved a framework for a "one-stop shop" environmental approval process to accredit state planning systems under national environmental law, "to create a single environmental assessment and approval process for nationally protected matters". On 16 June 2014 the proposed amendments passed the House of Representatives, despite opposition from environmental campaigners and significant legal commentators who criticised the bill and expressed concerns about the delegation of Commonwealth environmental approval powers. Two different types of bilateral agreements with each state and territory provided for the approvals process, depending on differing requirements, to result in either two approval decisions and two sets of conditions, or only one decision, which includes conditions, being made.

The act

The act established the use of Environment Protection and Biodiversity Conservation Regulations, which have provided for the issuing of approvals and permits for a range of activities on Commonwealth land and land affecting the Commonwealth. For example, commercial picking of wildflowers is regulated under the act, and cannot be undertaken without an appropriate permit. Failure to comply with the act can result in penalties including remediation of damage, court injunctions, and criminal and civil penalties.
the legislation is administered by the Department of Climate Change, Energy, the Environment and Water.

Matters of National Environmental Significance

, the act identifies nine Matters of National Environmental Significance :

World Heritage properties
National heritage places including overseas places of historic significance
Wetlands of international importance
Nationally threatened species and ecological communities
Migratory species
Commonwealth marine areas
The Great Barrier Reef Marine Park
Nuclear actions
A water resource, in relation to coal seam gas development and large coal mining development.

The list must be reviewed every five years, and the government can add new matters to this list by regulation. "If a proposed action is likely to have a significant impact on any of the areas, it may require Commonwealth approval before it can begin. It is illegal to undertake such an action without that Commonwealth approval." The Matters of National Environmental Significance: Significant impact guidelines 1.1 "provide overarching guidance on determining whether an action is likely to have a significant impact on a matter protected under national environment law".

Threatened species

Lists of threatened species, such as threatened fauna, are drawn up under the act and these lists are the primary reference to threatened species in Australia and are available online through the Species Profile and Threats Database.

Treaties

As an act of the Australian Parliament, it relies for its Constitutional validity upon the legislative powers of the Parliament granted by the Australian Constitution, which does not expressly refer to the environment. As such, key provisions of the act are largely based on a number of treaties including:

Ramsar Convention – The Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971
World Heritage Convention – The Convention for the Protection of the World Cultural and Natural Heritage, 23 November 1972
Convention on International Trade in Endangered Species of Wild Fauna and Flora – Washington, DC, 3 March 1973
Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979
Convention on Biological Diversity – Rio de Janeiro, 5 June 1992

Bilateral agreements concerning migratory bird conservation include:

Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment, 1974
Agreement between the Government of Australia and the Government of the People's Republic of China for the protection of Migratory Birds and their Environment, 1986
Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds, 2006.
Amendments

2012

The Environment Protection and Biodiversity Conservation Amendment Act 2012, assented to in October 2012, amended the act to require that the "Minister must obtain advice from Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development".

2013

Significant impacts on MNES trigger assessment under the act. A new assessment trigger was added to the act in mid-2013, via the Environment Protection and Biodiversity Conservation Amendment Act 2013. The amendment relates to significant impacts on water resources, for example where actions by a large coal mining development, in particular coal seam gas may adversely affect groundwater in the area. The amendment was introduced by Tony Windsor, an independent Member of Parliament. This became known as "water trigger".
, the Australian Conservation Foundation is taking the Morrison government to court for failing to apply the water trigger when it assessed Adani's North Galilee Water Scheme, part of its essential infrastructure for the proposed Carmichael coal mine.

2020

On 27 August 2020, the minister for the environment, Sussan Ley, introduced the Environment Protection and Biodiversity Conservation Amendment Bill 2020, which for the most part reflects reforms to the bilateral approval agreement provisions first proposed in 2014. The proposed changes would make it easier to establish bilateral approval agreements between federal and state governments, and also to make it harder to challenge the devolution process under the law (by clarifying that an action cannot be referred under part seven of the act if it is covered by a bilateral approval agreement. Other changes include allowing minor changes to state and territory assessment processes without impacting the bilateral agreement, and the prohibition on matters involving the "water trigger" will be removed, so that states can make their own decisions when assessing applications by large coal mines and coal seam gas projects that can impact water resources. The proposed changes do not include the promised prototype national standards.

2025

On 27 November 2025, the Albanese government struck a deal with the Greens in the Senate that allowed the passage of a new environmental act to replace this legislation. The new legislation aims to speed up approvals of projects including new energy developments and housing, create a new body called the Environment Protection Authority which can immediately order a business to stop work if it finds a breach of the rules. The government has also included $300million to support jobs and maintain modern equipment in the forestry industry. The government also removed the exemption for high-risk land clearing and regional forestry agreements.

Assessments

A large number of studies, audits, reviews and parliamentary inquiries have examined various aspects of the legislation over the years. Section 522A of the act requires that an independent review is conducted every ten years, to examine its operation and the extent to which its objects have been met.
A 2005 study looked specifically at threatened species recovery.
In 2006 Chris McGrath examined the constitutional validity of the act and its effectiveness at regulating non-compliance after two recent publications had called for major changes, concluding that it is indeed constitutionally valid and that it is making an important contribution to Australian environmental law, and its gains should be retained if and when any reforms are made.