ENVIRONMENTAL IMPACT ASSESSMENT UNDER THE EPBC ACT: REFERRAL, SCREENING, CONTROLLED ACTIONS AND THE ROAD TO APPROVAL
From identifying the legal action and federal trigger to building the evidence, screening the proposal, managing Commonwealth-State overlap and advising a real project team.
ENVIRONMENTAL PROBLEM → ACTOR / PROPONENT → ACTION → JURISDICTION → MNES / OTHER PROTECTED MATTER → CONTROLLING PROVISION → SIGNIFICANT IMPACT → REFERRAL → SCREENING → ASSESSMENT → APPROVAL / CONDITIONS / REFUSAL → COMPLIANCE → PROFESSIONAL ADVICE
Environmental impact assessment (EIA) is one of the most important practical mechanisms in environmental law because it forces environmental consequences to be identified before a project becomes legally and commercially irreversible. It is not simply a scientific report and it is not simply a permit application. It is a structured legal decision-making process: identify the potentially significant environmental consequences and risks of a proposal; obtain reliable information; test alternatives and mitigation; expose the proposal to scrutiny; and provide the statutory decision-maker with enough material to decide whether the action should proceed, proceed in a modified form or with conditions, or be refused.11. Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 11th ed, 2023); Gray v Minister for Planning [2006] NSWLEC 720, [116].
The immediate aim is therefore informational: identify consequences and risks so that the decision is informed. The ultimate aim is more ambitious: improve environmental outcomes by embedding ecologically sustainable development (ESD), avoidance and mitigation in project design, and by making the proponent take primary responsibility for understanding and minimising the environmental effects of its proposal. The Week 4 teaching materials emphasise an important professional lesson: EIA costs money and time, but early EIA can prevent far greater redesign, delay, enforcement and rehabilitation costs later. A sophisticated client does not ask, “How late can we do the environmental work?” It asks, “What environmental work must be done early enough to change the project intelligently?”
4.1 The generic EIA architecture — learn the sequence before the sections
Screening determines whether EIA is required and at what level. Scoping defines what must be investigated. Impact analysis predicts effects and evaluates their significance. Mitigation asks how effects can be avoided, reduced, repaired or otherwise managed. Reporting assembles the evidence. Review tests the adequacy of that material. Decision-making determines whether to approve, refuse or impose conditions. Follow-up monitors whether the proponent actually does what it promised and whether the impacts unfold as predicted.
This generic architecture is deliberately taught before the EPBC Act sections because it gives students a mental map. Once the map is understood, every statutory provision has a place. Section 68 is not an isolated number: it opens the Commonwealth referral gateway. Section 75 is not “the approval section”: it is the screening decision. Section 87 concerns the assessment approach once the action is controlled. Sections 133-134 belong to the later approval and conditions stage. This sequence prevents one of the most common examination errors — using the right statutory words at the wrong stage.
4.2 The Commonwealth question starts with jurisdiction, not with “environment” generally
The Commonwealth does not possess a free-standing general environmental head of power. The EPBC Act therefore works through constitutional and statutory “hooks”. The Week 4 seminar revisited the external affairs, corporations and trade and commerce powers because the architecture of Part 3 reflects those constitutional foundations. This is why superficially similar provisions can be drafted differently. A student should not merely memorise the nine matters of national environmental significance (MNES); they should ask why the Commonwealth can regulate this actor, this action and this environmental value.
At project level the practical federal question is usually: does the proposed action have, will it have, or is it likely to have a significant impact on a matter protected by Part 3? If so, the statutory pathway can become a “controlled action” pathway. The EPBC Act also regulates certain actions on or affecting Commonwealth land and actions by Commonwealth agencies. The Commonwealth pathway does not automatically displace Queensland or local-government law: s 10 preserves concurrent State/Territory operation unless a contrary intention appears.22. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 10.
4.3 The nine MNES — and why exact controlling provisions matter
| Protected matter | Core Part 3 provisions to check | Teaching point |
|---|---|---|
| World Heritage properties | ss 12, 15A | World Heritage values; strong international/external-affairs foundation. |
| National Heritage places | ss 15B, 15C | National Heritage values; statutory drafting uses constitutional hooks. |
| Ramsar wetlands | ss 16, 17B | Ecological character of a declared Ramsar wetland. |
| Listed threatened species and ecological communities | ss 18, 18A | Ask exactly which listed species/community and classification is protected. |
| Listed migratory species | ss 20, 20A | Often overlaps with Ramsar/wetland habitat questions. |
| Nuclear actions | ss 21, 22A | The protected matter is the environment in relation to the nuclear-action trigger. |
| Commonwealth marine area | ss 23, 24A | Can capture actions in the area and Australian-jurisdiction actions outside it that significantly affect its environment. |
| Great Barrier Reef Marine Park | ss 24B, 24C | Separate trigger from World Heritage status; analyse both where facts support both. |
| Water resources — unconventional gas / large coal mining | ss 24D, 24E | Specific water-resource trigger for specified resource development. |
The examination habit is: identify the environmental value → identify the exact controlling provision → identify the statutory words → identify the evidence required to connect the proposed action to the protected matter. Do not write “the project affects biodiversity” and stop. State which EPBC-listed matter is engaged and why.
4.4 What is the “action”?
Section 523 defines “action” broadly to include a project, development, undertaking, activity or series of activities, and an alteration, enlargement, expansion or intensification of such matters. Sections 524 and 524A then exclude specified governmental decisions/authorisations and specified governmental funding decisions from the concept of “action”.33. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 523-524A. This distinction is crucial in problem questions: a government may fund a project without the grant itself being the EPBC “action”, while physical works enabled by the funding may still constitute an action requiring analysis.
4.5 Controlled action, prohibition and referral — ss 67, 67A and 68
Section 67 connects controlled-action status to the Part 3 controlling provisions. Section 67A supplies the core prohibition against taking a controlled action without the required statutory basis. Section 68 then addresses referral by the person proposing the action: if that person thinks the proposed action may be or is a controlled action, it must be referred; even if the person thinks it is not controlled, the person may refer it to obtain a formal decision.44. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 67, 67A, 68.
The lawyer’s job is therefore not to wait until a client is certain there will be a significant impact. The statutory trigger is deliberately protective: if the action may be controlled, referral risk must be addressed. A prudent adviser maps all plausible protected matters, commissions fit-for-purpose evidence, tests avoidance and redesign, and documents why referral is or is not required.
4.6 Referral integrity: s 72, false or misleading information and project splitting
Referral is not a marketing brochure. The statutory form must describe the action and its environmental implications with enough candour and completeness for the statutory decision-maker to screen the proposal. Section 72 regulates form/content. Section 489 creates liability relating to false or misleading information. Section 74A allows the Minister to reject a component referral where the referred action is part of a larger action the same person proposes to take, and to request referral of the larger action.55. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 72, 74A, 489.
Material facts. VicRoads referred the Scoresby Freeway project. The referral stated that earlier strategies had referred to investigating a link between the Eastern Freeway and Metropolitan Ring Road but that the current government had clearly stated there was no proposal for the new link. Dr Mees argued that this presentation omitted the practical consequence that building the Scoresby Freeway would generate pressure for the missing freeway connection.
Issue. Could information be legally misleading even if the words used were not literally false, because the referral omitted a closely connected consequence of the project?
Reasoning. The Court examined the practical relationship between the referred freeway and the future connection. The concern was not semantic accuracy in isolation; it was whether the referral gave the Minister a materially accurate understanding of the action and its consequences. The Court found the omission misleading in context. The decision also illustrates a structural limitation at screening: the Minister is not conducting a roaming factual investigation that repairs an inadequate referral for the proponent.
Outcome and principle. The case demonstrates that legal completeness requires more than avoiding literal falsehoods. Material connected development can make an apparently accurate statement misleading if omitted.
Statutory connection. The later s 74A larger-action mechanism directly addresses the danger of piecemeal project presentation.
When to use it. Cite Mees where facts suggest staging, project splitting, induced infrastructure or an artificially narrow referral description.
Professional lesson. Before signing off a referral, ask: “What would an informed regulator say is missing if it saw the whole commercial project rather than the contract package placed in front of us?”
4.7 Public participation at screening — s 74 and the first legal opportunity to be heard
After an accepted referral is published, s 74(3) provides for public comment on whether the proposed action is a controlled action, ordinarily over 10 business days. The screening exercise is transparent because the referral and decision materials are made available through the EPBC public portal, subject to lawful confidentiality constraints. Public participation is not merely ceremonial: it can supply local knowledge, identify overlooked environmental values, expose weaknesses in the proponent’s evidence and improve accountability.
Section 75 requires the decision-maker to consider timely public comments when deciding whether the action is controlled. At screening, the focus is the adverse impact question. Beneficial project claims — jobs, tourism, revenue or renewable-energy branding — cannot be used to erase an otherwise significant adverse impact at the stage where the Act requires a raw assessment of protected-matter impacts.66. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 74(3), 75.
4.8 Section 75 — the screening decision
Section 75 asks two linked questions: (1) is the action a controlled action? (2) which Part 3 provisions are controlling provisions? If impacts are relevant, the decision-maker must consider all adverse impacts the action has, will have or is likely to have. This is a screening decision, not the final approval decision. If the action is controlled, the matter proceeds into assessment and ultimately the Part 9 decision. If it is not controlled, the Commonwealth controlled-action pathway ends on the referred facts, although State and local requirements remain.
The Week 4 teaching also connects s 75 to s 391. Under the current Act, the Minister (and, for specified decisions, the National EPA CEO) must take account of the precautionary principle for decisions identified by s 391. The principle is statutory, not merely aspirational: lack of full scientific certainty is not a reason to postpone protective measures where there are threats of serious or irreversible environmental damage.77. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 391.
4.9 “Likely” and “significant” — do not collapse two separate questions
A strong answer separately asks whether the impact is sufficiently possible and whether the impact, if it occurs, is important enough to be legally significant. The course materials use authorities such as Jarasius v Forestry Commission of NSW (1988) 77 LGRA 79 for the proposition that “likely” need not mean “more probable than not”, and Booth v Bosworth (2001) 114 FCR 39 for the concept of significance as something important, notable or consequential. The current statutory text and any applicable Significant Impact Guidelines must then be applied to the particular protected matter.
Evidence matters. A conclusion of “not significant” is only as reliable as the evidence beneath it. Survey design, seasonal timing, habitat function, hydrological pathways, cumulative effects and the quality of mitigation commitments can all affect whether the decision-maker has a defensible factual basis.
4.10 Possible screening outcomes
| Outcome | What it means | Client consequence |
|---|---|---|
| Not controlled action (NCA) | No Part 9 approval is required on the referred proposal. | Commonwealth screening ends, but State/local approvals remain. |
| NCA - particular manner | The action is not controlled provided it is carried out in the specified manner: s 77A. | The “manner” operates as a legally critical constraint; inconsistency can attract civil consequences. |
| Controlled action | One or more Part 3 controlling provisions apply. | Assessment under Part 8 and later Part 9 approval decision are required. |
| Clearly unacceptable | The Act’s early refusal pathway in Division 1A applies where unacceptable Part 3 impacts are clear on the referral material. | Project cannot proceed in current form; withdrawal, redesign/new referral or reconsideration options must be assessed. |
The 2021 Asian Renewable Energy Hub revised proposal is a powerful teaching example: a project can be environmentally beneficial in one dimension yet still be unacceptable because of serious impacts on Ramsar wetland and migratory-species values. “Renewable” is not a legal exemption.
4.11 No premature physical works — s 74AA
Once the statutory referral process is engaged, s 74AA can make it an offence to take the action while the referral decision-making process is still underway, subject to the statutory exceptions. This is a project-management provision as much as a criminal-law provision. A developer who treats the Commonwealth process as paperwork to be completed after mobilisation can destroy the very environmental values the Act is designed to assess. Legal advice must therefore be embedded in the construction programme, procurement sequence and contractor instructions.88. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 74AA.
4.12 Indirect and downstream impacts — the Nathan Dam lesson
Facts. The proposed Nathan Dam in central Queensland was intended to supply water, including water for large-scale irrigation. Environmental groups argued that the Commonwealth screening decision unlawfully ignored downstream consequences of agricultural use of the supplied water. The evidentiary chain included likely pesticide use on irrigated crops, river-system transport and potential effects on protected Great Barrier Reef values hundreds of kilometres downstream.
Issue. Is an “impact” of an action confined to the action’s immediate physical effects, or can indirect effects produced through later conduct by third parties form part of the impact analysis?
Reasoning. The Full Federal Court rejected an artificially narrow, site-bound conception of impact. The question was whether the consequence was sufficiently connected to the action and within the relevant contemplation/foreseeability framework. The whole commercial purpose of the dam mattered: downstream irrigation was not an unrelated coincidence.
Outcome. The challenge succeeded and the decision had to be reconsidered according to law; judicial review did not itself substitute the Court’s preferred environmental approval outcome.
Current statutory connection. Parliament later enacted s 527E. The section now provides the statutory framework for when consequences facilitated by the primary action are impacts, including the “major extent” and contemplation/reasonable foreseeability concepts.99. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 527E; Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190.
When to use it. Use Nathan Dam whenever facts contain downstream pollution, induced land use, new traffic/shipping, associated infrastructure, water supply, secondary development or another impact chain extending beyond the project footprint.
Professional lesson. Draw the causal chain on paper. If the project enables another activity, ask whether it facilitates that activity to a major extent and whether the secondary consequences are within contemplation or reasonably foreseeable.
4.13 EIA and ESD — Gray v Minister for Planning
Facts. The Anvil Hill open-cut coal mine proposal was assessed under NSW legislation. The environmental assessment addressed direct greenhouse emissions from mining but did not assess downstream emissions from burning the coal, including coal intended for power stations in Australia and Japan.
Issue. Was the assessment legally adequate where the statutory decision-making framework required ESD considerations but a major cumulative/downstream consequence had been omitted?
Reasoning. Pain J linked EIA to ESD, including integration, intergenerational equity and a precautionary approach. The Court treated prior assessment as a mechanism by which environmental consequences are placed inside the decision rather than considered after commitment.
Outcome. The impugned decision was held void. The Court did not itself approve or reject the mine; the legal defect concerned the decision-making process and the adequacy of the environmental assessment.
Why it matters here. Gray is a NSW case, not a substitute for the EPBC Act. Its teaching value is conceptual and comparative: EIA cannot rationally inform decision-making if material cumulative consequences are excluded at the outset.
When to cite it. Use it to explain the relationship between EIA, ESD and cumulative/downstream consequences, while anchoring an EPBC answer in the EPBC statutory provisions.
4.14 Exemptions must be proved — the Wielangta forestry litigation
Facts. The litigation concerned forestry operations in the Wielangta forest and potential impacts on the Tasmanian wedge-tailed eagle, broad-toothed stag beetle and swift parrot. Forestry Tasmania relied on the s 38 Regional Forest Agreement (RFA) forestry exemption.
First-instance issue and result. Marshall J examined whether the forestry operations were undertaken in accordance with the RFA and, on the first-instance construction of the agreement, held the exemption unavailable. The case materials highlight recovery/threat-abatement planning and whether promised species protection had actually been implemented.
Critical appellate qualification. The first-instance conclusion on the s 38 exemption was reversed on appeal in Forestry Tasmania v Brown [2007] FCAFC 186. The Full Court’s interpretation of the RFA/s 38 framework meant Forestry Tasmania could rely on the exemption. Students must not cite the first-instance exemption holding as if it remained the final legal position.
Why the pair matters. The cases teach two separate skills: (1) identify the precise statutory exemption and prove its legal conditions; and (2) always check the appellate history before using a case proposition.
Professional lesson. “We are in an exempt industry” is never enough. Ask: which section? what agreement/authorisation? what does it legally require? has any appellate authority changed the meaning?
4.15 Commonwealth-State overlap and Queensland coordinated projects
An action can require both Queensland and Commonwealth processes. The EPBC Act does not generally erase State law. The Commonwealth-Queensland assessment bilateral agreement can reduce duplication by allowing an accredited Queensland assessment — including an appropriate coordinated-project EIS process — to supply the assessment material used for the Commonwealth decision. That is not the same as saying Queensland “switches off” Commonwealth jurisdiction. The Commonwealth approval question under the EPBC Act remains unless a lawful approval-bilateral mechanism actually applies to the action.
4.16 From controlled action to assessment — s 87
If the action is controlled, the next legal question is how the impacts will be assessed. Section 87 determines the assessment approach under the statutory scheme. The assessment stage builds the evidentiary record for the later decision. Depending on the statutory pathway, this can involve accredited State assessment, preliminary documentation, a public environment report, an environmental impact statement, or another lawful assessment route. The key conceptual distinction is:
ASSESSMENT asks: “What evidence is required to understand the protected-matter impacts?”
APPROVAL asks: “Should the action be approved, refused, or approved subject to conditions?”
4.17 Approval, representations and conditions — ss 131AA, 133, 134 and 136
At the Part 9 stage, the Act provides procedural protection for the proponent. Before the Minister decides whether to approve the action and what conditions to impose, s 131AA requires the proponent/designated proponent to be informed of the proposed decision and proposed conditions and invited to provide written comments within 10 business days (measured in Canberra).1010. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 131AA.
Section 133 is the approval decision. Section 134 governs conditions. The condition power is broad but not unlimited: there must be the statutory nexus to protecting a matter protected by a Part 3 controlling provision or repairing/mitigating damage to such a matter caused by the action. The section contemplates mechanisms including securities/bonds and financial contributions where the statutory criteria are satisfied. Section 136 then governs matters to which the Minister must have regard in the approval/conditions decision, including relevant protected-matter impacts, economic and social matters, ESD and the assessment material prescribed by the section.1111. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 133-136.
This distinction is essential for conditions: a condition is not valid merely because it produces a generally desirable environmental outcome. Ask what protected matter the condition protects, repairs or mitigates; how the condition connects to the action; and why the chosen mechanism is within the statutory purpose.
4.18 Think like the environmental lawyer
| Role | Question | Expected reasoning |
|---|---|---|
| Student | What section applies? | Find exact Part 3 trigger, referral provision, screening criteria and current statutory wording. |
| Lawyer | What facts and evidence activate the section? | Define action, proponent, impact pathway, protected matter, likelihood/significance, indirect impacts and any larger action. |
| Adviser | What should happen next? | Sequence surveys, redesign, referral, State process, public engagement, assessment, representations on conditions and project commitments. |
| Board / C-suite | What decision must management make? | Do not commit capital/works until critical approval risk, timing, conditions, finance/security exposure and alternatives are understood. |
Environmental Impact Assessment Tutorial
Problem facts. In January this year, Resorts United Development Limited (RUD) released plans for a proposed ecotourism resort in South East Queensland, near but not within the Gondwana Rainforests of Australia (Main Range Group). The resort would accommodate up to 900 guests. Pristine Creek flows through the site and drains into a larger waterway that is a critical breeding area for Numenius phaeopus. The Queensland Government supports the $90 million project and proposes a $10 million development grant. RUD must construct a 9 km resort access road. The State has indicated that Transport and Main Roads will build a connector road through the Gondwana Rainforests, requiring substantial clearing of Durobby. Local growers along tributaries use bendosultan, a pesticide harmful to aquatic ecology and waterbirds. Council proposes to dam part of Pristine Creek to improve irrigation. The creek supports the Oxleyan Pygmy Perch, which requires shallow breeding waters; Council proposes translocation despite uncertainty about long-term success. A government consultant has also identified habitat of Murina florium (tube-nosed insect bat) that may be affected by the RUD development, with the species said to contribute to Gondwana Rainforest evolutionary processes through seed dispersal.
Which aspects (if any) of the proposed activities/commitments by RUD, the Queensland State Government and the Council discussed above should be referred under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)?
What bearing, if any, would the declaration of the project as a ‘coordinated project’ for which an environmental impact statement is required pursuant to Part 4 of the State Development and Public Works Organisation Act 1971 (Qld) have on assessment for the purposes of the EPBC Act? The project has not yet been declared, although some Queensland politicians supportive of the project have suggested that RUD should pursue such a declaration as it would enable the project to “avoid Commonwealth interference”. Are the politicians correct?
David Strong is a third-year environmental science student who works part-time as a policy officer with the Australian Conservation Foundation and attends a regional conservation forum. He is concerned about the Council’s proposed dam disrupting Oxleyan Pygmy Perch breeding habitat. If Commonwealth approval is granted and David wishes to challenge the Minister’s decision on the basis that the decision is not in accordance with the precautionary principle, does such an argument hold any merit? For this tutorial, do not consider standing.
The EIS process under the EPBC Act has been completed. RUD hears that an approval is likely subject to stringent conditions, including: (a) a $10 million bond to secure rehabilitation costs if construction encroaches into a protected buffer; and (b) a financial contribution to Council’s Mangrove Foreshore Rehabilitation Scheme. What opportunity, if any, will RUD have to make representations about these conditions and are such conditions within the Minister’s power?
Detailed Tutorial Model Answers
Question 1 — What should be referred?
Issue map. The problem deliberately contains multiple actors and multiple activities. The correct method is not to ask “is the resort referable?” as a single question. Separate: (1) RUD resort + access road; (2) State funding grant; (3) State/TMR connector road through the Gondwana Rainforests; and (4) Council’s Pristine Creek dam/irrigation proposal. Then ask whether each is an “action”, whether it may significantly affect a Part 3 protected matter, and whether a larger-action or indirect-impact analysis connects apparently separate activities.
RUD resort and access road. RUD is a corporate proponent and the physical resort/access-road works plainly fit the broad s 523 concept of action. The facts raise at least World Heritage values (because the project is near the Gondwana Rainforests and the bat evidence connects the project to evolutionary values), listed migratory species (the Whimbrel, Numenius phaeopus, is listed migratory) and potentially listed threatened species/ecological communities identified by proper protected-matters searching. The 9 km access road should not be artificially severed if it is functionally part of the resort development: s 74A makes the larger-action question explicit. If the combined resort/access action may be controlled, s 68(1) points strongly to referral.
The bat evidence. The problem gives an ecological-function pathway: habitat loss → reduced Murina florium population → reduced seed dispersal → possible degradation of evolutionary processes contributing to World Heritage values. Do not assume the fictional/teaching species is itself EPBC-listed unless the statutory list confirms it. The important legal question is whether its ecological function creates a significant-impact pathway to the World Heritage values protected by ss 12/15A. That requires expert evidence about habitat, dependence, magnitude and significance.
State $10 million grant. Do not call the grant itself a referable “action” without checking s 524A. The EPBC scheme excludes specified government funding decisions from the concept of action. The grant may be commercially important, but the physical development it facilitates remains separately subject to the Act. This is exactly why the actor/action distinction matters.
TMR connector road through the World Heritage property. Physical road construction and clearing are a distinct action capable of direct impacts on World Heritage values and possibly threatened/migratory species. A State may refer under s 69. The fact that a State agency is the proponent does not create immunity from the EPBC scheme. The road’s relationship with the RUD resort should also be tested: if one action facilitates the other, the indirect-impact/larger-action analysis becomes important.
Council dam. The dam is a physical action. The Oxleyan Pygmy Perch (Nannoperca oxleyana) is EPBC-listed endangered, so ss 18/18A are directly relevant if significant impact is possible. The uncertainty surrounding relocation is not a reason to assume the species is safe; it raises an evidentiary/precautionary issue. The dam also facilitates increased irrigation. Under the Nathan Dam/s 527E framework, ask whether the dam facilitates secondary irrigation to a major extent and whether pesticide runoff consequences are within contemplation or reasonably foreseeable. The critical breeding area for the listed migratory Whimbrel raises ss 20/20A as well.
Conclusion. RUD should prepare one legally coherent referral for its resort/access-road action if the current evidence supports the “may be controlled” threshold. The State should separately address referral of the connector road; Council should address referral of the dam. The funding grant is not itself the physical action. Before any conclusion, the legal team should run current protected-matters searches, obtain species/World Heritage-value evidence, map the action boundaries and causal links, and prohibit premature works pending the statutory pathway.
Strong counterargument. RUD may argue that it does not construct the State connector road and cannot be responsible for every downstream activity. That is relevant, but not decisive. The lawyer must distinguish the identity of each action/proponent from the separate statutory concept of impact. Nathan Dam and s 527E are used to test whether consequences of another actor’s conduct are sufficiently connected to the primary action.
Question 2 — Queensland coordinated project and the Commonwealth assessment
Issue. Does a Queensland declaration under Part 4 of the State Development and Public Works Organisation Act 1971 (Qld), with an EIS, remove the need for EPBC assessment/approval?
Rule. No general “State approval defeats Commonwealth approval” rule exists. EPBC Act s 10 preserves concurrent State/Territory law. The Commonwealth and Queensland have an assessment bilateral agreement under Part 5 of the EPBC Act. Where its requirements are met, an accredited Queensland process can be used to assess the impacts for Commonwealth purposes, reducing duplication. The final Commonwealth approval decision under Part 9 is still a Commonwealth statutory decision unless a separate lawful approval-bilateral mechanism applies.
Application. A coordinated-project declaration can be strategically useful because the Coordinator-General’s EIS process may be accredited for Commonwealth assessment. Instead of two full assessment documents/processes, the State EIS can develop the evidence needed for both regimes. But the Commonwealth controlling provisions do not vanish. The Commonwealth decision-maker must still decide the federal approval question under the EPBC Act on the accredited assessment material.
Are the politicians correct? No. Saying the State process would “avoid Commonwealth interference” confuses assessment integration with jurisdictional displacement. It may streamline assessment; it does not automatically extinguish Commonwealth protected-matter jurisdiction.
Professional advice. RUD should pursue coordinated scheduling if commercially useful, but the project programme should show both State and Commonwealth decision gates. The legal team should verify that the precise action and EIS pathway fall within the current bilateral agreement and that the EIS terms of reference capture every EPBC controlling provision.
Question 3 — Precautionary principle challenge
Issue. Could an approval be legally vulnerable if the decision-maker failed to take account of scientific uncertainty concerning serious/irreversible damage to Oxleyan Pygmy Perch habitat?
Exact law. Section 391(1) requires the Minister to take account of the precautionary principle for the decisions listed in s 391(3), including the s 75 controlled-action decision and s 133 approval decision. Section 391(2) states the statutory principle: lack of full scientific certainty should not be used to postpone a measure to prevent environmental degradation where there are threats of serious or irreversible environmental damage. Section 136 also embeds ESD considerations in the approval/conditions stage.
Application. The facts give both components that make precaution legally important: potentially serious/irreversible consequences for an endangered species with a very restricted distribution, and material scientific uncertainty about whether translocation will work. The European example does not eliminate uncertainty; the facts expressly say the long-term outcome remains unknown. A decision that treated that uncertainty as a reason to do nothing, without genuinely considering precautionary protective measures, would present a plausible judicial-review argument.
But precaution is not an automatic veto. David cannot simply say “there is uncertainty, therefore approval is unlawful”. The legal question is whether the statutory decision-maker took account of the principle and lawfully evaluated the threats and available measures. An approval supported by robust avoidance, habitat protection, conditions, adaptive management and evidence can still be consistent with the precautionary principle. Judicial review polices legality, not whether the Court would make a more environmentally protective merits decision.
Authority connection. Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 is a useful Australian teaching authority on precaution under scientific uncertainty. Gray reinforces the role of prior EIA and ESD. But for an EPBC problem, start with s 391 because it is the governing Commonwealth statutory command.
Conclusion. The argument can have real merit if the record shows the Minister failed to take account of the statutory precautionary principle or misunderstood its role. Its success depends on the reasons and evidentiary record, not merely on the existence of ecological uncertainty.
Question 4 — Proposed bond and rehabilitation contribution
Issue 1: procedural opportunity to respond. Section 131AA requires the Minister, before deciding approval and conditions, to inform the person proposing the action/designated proponent of the proposed decision and proposed conditions and invite written comments within 10 business days. RUD therefore has a statutory opportunity to make targeted representations. It should not use the response merely to say the conditions are expensive; it should address statutory power, nexus, proportionality/practical operation, drafting clarity, duplication and alternative mechanisms.
Issue 2: $10 million rehabilitation bond. Section 134 authorises conditions with the required connection to protecting a matter protected by a controlling provision or repairing/mitigating damage to that matter. The statutory condition framework contemplates security/bond mechanisms. A rehabilitation bond linked to potential encroachment into a legally protected buffer is therefore capable of falling within power if the buffer protects the relevant Part 3 matter and the quantum/mechanism serves the statutory protective/repair purpose. RUD should test the evidence supporting the $10 million figure, trigger for calling the security, release mechanism and whether the condition is drafted with sufficient certainty.
Issue 3: contribution to the Mangrove Foreshore Rehabilitation Scheme. A financial contribution can be within s 134’s condition framework, but the existence of a general Council environmental programme does not itself establish validity. The Minister must connect the contribution to the protected matter(s) and the action. If the scheme protects/repairs/mitigates the same Ramsar, migratory, threatened-species, World Heritage or other controlling values affected by the action, the nexus can be strong. If it is merely a useful unrelated local project, RUD has a stronger argument that the condition exceeds the statutory purpose.
Issue 4: decision-stage considerations. Section 136 is relevant to the approval/conditions reasoning, and s 391 remains important where the approval decision engages precaution. The assessment report and public material form part of the decision record.
Conclusion/advice. RUD should make s 131AA representations. It should accept conditions that are demonstrably tied to the protected matters while negotiating drafting, amount, triggers and delivery mechanics. It should challenge or seek redrafting of a contribution condition if the Commonwealth cannot demonstrate the statutory nexus to the impacts of RUD’s action.
Chapter 4 Precision Consolidation: Every Referral Step Taught in Week 4
4.20 Referral duty, content, variation and candour — ss 68, 72, 156A and 489
| Provision | Exact role in the problem | Lawyer's question |
|---|---|---|
| s 68(1) | A person proposing to take an action must refer the proposal if the person thinks the action may be or is a controlled action. | Has the proponent identified a real possibility that a Part 3 controlling provision is engaged? |
| s 68(2) | Permits referral where the person is unsure whether the action is a controlled action. | Is uncertainty itself commercially significant enough that a referral should be made to obtain a decision? |
| s 68(3) | The referral must state whether the proponent believes the action is a controlled action. | Is the stated position defensible on the evidence and consistent with the rest of the referral? |
| s 72; s 72(3) | Controls form/content; the course materials emphasise that alternatives in location, timing or activities may be specified. | Have realistic alternatives been described so the decision-maker sees the true project choices rather than an artificially narrow proposal? |
| s 156A | Provides the statutory mechanism relevant to varying a referral. | If the design changes, can the change lawfully be dealt with as a variation or does it alter the project so fundamentally that fresh referral thinking is required? |
| s 489 | Creates criminal exposure for recklessly or negligently providing false or misleading information in the statutory information context taught in the referral materials. | Has every material project dependency, impact pathway and factual statement been checked before submission? |
These provisions work together. A technically polished referral is not enough if it describes the wrong project, omits a foreseeable connected component or understates an impact pathway. Mees v Roads Corporation is therefore not a free-standing “case about misleading words”; it teaches why project definition and statutory disclosure must be read together with ss 68, 72 and 74A.
4.21 Public comment, information and the s 75 decision — ss 74(3), 75(1A), 75(2), 75(5), 76
Section 74(3) underpins the public-comment step taught in the seminar. Public participation matters because s 75(1A) requires the Minister to consider relevant public comment when deciding whether approval is required. The decision is not a merits balancing exercise at this stage: under s 75(2)(a) the Minister must consider the adverse impacts of the action on protected matters, while s 75(2)(b) prevents beneficial impacts from being used in the screening decision in the manner prohibited by the Act. Section 76 allows further information to be sought, and s 75(5) supplies the decision timeframe subject to statutory timing rules.8989. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 74(3), 75(1A), 75(2), 75(5), 76.
Why these authorities are paired in the course. They separate two different threshold words. “Likely” does not require proof that the impact is more probable than not; the course frames it as a real and not remote chance or possibility. “Significant” asks whether the impact is important, notable or of consequence having regard to context/intensity. A strong answer must apply both concepts rather than compressing them into “there might be some impact”.
Application. For a threatened-species project, first prove the pathway by which the action could affect habitat/population. Then assess the probability of that pathway and separately assess the seriousness of the consequence. A low-probability but catastrophic/irreversible pathway may still demand careful treatment under the statutory and precautionary framework.
4.22 Project splitting, early works and decision outcomes — ss 74A, 74AA, 74B-74C and 77A
Section 74A allows the Minister to deal with a referral that is merely a component of a larger action. Section 74AA protects the screening process against physical commencement while the referral decision process is still underway in the circumstances specified by the section. Sections 74B-74C create the “clearly unacceptable” pathway. Section 77A allows a “not controlled action if undertaken in a particular manner” outcome, which operates in practice like a tightly specified pathway the proponent must follow.
Do not solve a program-delay problem by beginning clearing, access roads or other irreversible works while the legal status of the action is unresolved. The correct response is to align project definition, ecology, referral timing and construction gates. A board should have a documented “no physical works” gate where s 74AA risk exists.
4.23 Reconsideration and later information — ss 77(4), 78, 78A and 158A
The Week 4 live seminar specifically emphasises that the referral decision is not always the end of the screening story. Section 77(4) is relevant to reasons; s 78 gives the Minister a statutory reconsideration power where the statutory preconditions are met; s 78A enables a person to request reconsideration in the circumstances set out by the Act; and s 158A limits reconsideration merely because a species or other matter is subsequently listed after the referral point in the way explained in class.9090. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 77(4), 78, 78A, 158A.
Why it matters. For proponents this is a certainty/risk-management issue; for regulators and community participants it is an integrity mechanism. Advice should therefore preserve a clear factual record showing what was known, what was represented and whether later information is genuinely new or merely better evidence of an impact pathway that existed all along.
4.24 Exemptions — prove the statutory doorway before relying on it
The Week 4 materials identify limited exemptions in Chapter 2 Part 4, including provisions such as ss 29, 33, 38 and 43 in the course's exemption map. The professional rule is strict: identify the exact exemption, every statutory condition and any incorporated agreement/plan before advising that Part 3 approval is unnecessary. The forestry litigation illustrates the danger of treating an exemption label as automatic protection.
Connection to legislation. The argument depended upon the Regional Forest Agreement exemption. The case teaches that an exemption can fail where the legal conditions supporting it are not satisfied. It must also be read with its appellate history.
Client advice. Build an “exemption proof file”: the statutory provision, agreement/plan relied on, factual preconditions, current status, maps and compliance evidence. If any limb is doubtful, advise on the Part 3/referral pathway rather than assuming immunity.
4.25 Consequences, remedies and what is — and is not — a Week 4 remedy
At this stage of the course, the immediate legal consequences taught are primarily prohibition/offence exposure for taking a controlled action without approval under s 67A, exposure associated with premature works under s 74AA, referral-integrity exposure including s 489, and statutory reconsideration under ss 78/78A. Broader injunction, judicial-review, merits-review and enforcement architecture is dealt with later in the subject. The exam-safe method is therefore to identify the remedy or consequence the taught provision actually supplies instead of inventing common-law damages where the statute provides a public-law or regulatory response.
Strong conclusion formula. State (1) whether the action should be referred; (2) which Part 3 matters/provisions are plausibly engaged; (3) whether the impact evidence makes controlled-action status reasonably likely; (4) what the proponent must not do yet; (5) what additional evidence is required; (6) the most likely statutory pathway; and (7) the immediate legal/commercial next step.
Chapter 4 FAQs — Questions
Chapter 4 FAQs — Answers
Chapter 4 Multiple Choice Questions
- A developer believes an action probably will not have a significant impact but accepts there is a credible possibility. Which response best reflects s 68?
A. Referral is impossible unless the developer believes the action is definitely controlled.
B. If the developer thinks the action may be controlled, it must refer.
C. Only a State can refer the proposal.
D. Referral itself grants approval. - At the s 75 screening stage, which is the best statement?
A. The Minister decides the final conditions of approval.
B. The Minister decides whether the action is controlled and which Part 3 provisions control it.
C. State approvals cease to apply.
D. The proponent’s economic benefits automatically outweigh environmental harm. - RUD separates its access road from the resort referral even though both are functionally integrated. Which provision should immediately be checked?
A. s 74A.
B. s 391 only.
C. s 134 only.
D. s 10 only. - The strongest lesson from Mees is:
A. a referral is safe if no sentence is literally false.
B. material omission can make referral information misleading in context.
C. the Minister must independently reconstruct every missing fact.
D. project staging is always unlawful. - Nathan Dam is most useful where:
A. the only impact is immediate excavation.
B. a project facilitates downstream/secondary activity that may harm a protected matter.
C. there is no causal connection at all.
D. the student wants to avoid applying s 527E. - A renewable-energy project has serious Ramsar impacts. Which statement is strongest?
A. Renewable status exempts it.
B. Climate benefits guarantee approval.
C. It must still be tested under the EPBC Act and can be clearly unacceptable.
D. Ramsar only applies to fossil-fuel projects. - A Queensland coordinated-project EIS is accredited for Commonwealth assessment. What follows?
A. Commonwealth approval jurisdiction necessarily disappears.
B. The State assessment can be used for Commonwealth purposes, reducing duplication, but the Commonwealth approval decision remains unless another lawful mechanism applies.
C. EPBC Part 3 no longer applies.
D. The proponent may ignore Commonwealth conditions. - Under s 391, scientific uncertainty means:
A. approval must always be refused.
B. uncertainty is irrelevant.
C. lack of full certainty is not a reason to postpone protective measures where threats of serious/irreversible damage exist.
D. only State decision-makers consider precaution. - RUD receives proposed Commonwealth conditions. What is its clearest statutory opportunity to respond?
A. s 131AA written comments within 10 business days.
B. no opportunity exists.
C. only a post-approval appeal.
D. s 68 referral comments. - A $10m bond condition will be valid simply because rehabilitation is environmentally desirable.
A. True.
B. False — the condition must be within s 134 and have the necessary nexus to a protected matter/action.
Chapter 4 Multiple Choice Answers
Chapter 4 Short Answer Questions
- Explain the relationship between ss 67, 67A and 68.
- Explain the difference between screening, assessment and approval under Chapter 4 of the EPBC Act.
- Explain why s 74A matters to project definition.
- Explain how Mees changes the way a lawyer should review a referral.
- Explain how Nathan Dam and s 527E should be used together.
- Explain the relationship between s 10 and a Queensland coordinated-project EIS.
- Explain the statutory role of the precautionary principle in an EPBC approval decision.
- Explain why a s 134 condition needs a statutory nexus.
Chapter 4 Short Answer Model Answers
Chapter 4 Professional Problem Questions
A listed threatened species may occur on land proposed for a 90-hectare residential project. The company has only a winter desktop assessment and wants to clear an access track while its federal referral is pending. Advise the board.
A proponent wants to refer only dredging while separately contracting later berths, roads and shipping infrastructure. All components are commercially dependent. Advise on project definition and referral risk.
A major renewable-energy hub delivers substantial emissions benefits but permanently disturbs habitat within and adjacent to a Ramsar wetland used by migratory birds. Management says the project’s climate benefits should guarantee approval. Advise.
A controlled action is likely to be approved subject to a large rehabilitation bond, a contribution to an off-site conservation scheme and seasonal no-work windows. The board asks whether it can refuse the conditions after approval and litigate later. Advise on the pre-decision strategy.
Chapter 4 Detailed IRAC Model Answers
IRAC 1 — Early clearing and seasonal survey
Issue. Whether referral is required, whether evidence is adequate and whether the access clearing can begin while referral screening is underway.
Law. Identify the threatened-species controlling provision (ss 18/18A as applicable), then ss 67, 67A and 68. If the action/larger action has been referred, s 74AA is critical. The definition of action in s 523 and project-splitting mechanism in s 74A must be considered.
Application. A winter desktop review is not a reliable ecological absence finding if the species is seasonal, cryptic or habitat-dependent. The access track may be part of the larger action rather than a harmless preliminary project. Clearing can also irreversibly destroy the evidence/habitat being assessed. The legal team should stop physical works, commission properly timed field surveys, map habitat and test avoidance/redesign before making the significance assessment.
Counterargument. Management may say the track is minor. That is factual, not dispositive. The question is whether the track is part of the action/larger action and whether it can affect the protected matter.
Conclusion/advice. Do not commence irreversible works merely to protect the construction timetable. Align ecology, referral and construction programming first; document the legal go/no-go gate for the board and contractors.
IRAC 2 — Split port referral
Issue. Whether dredging can be referred as a standalone action without creating s 74A / misleading-referral risk.
Law. Section 74A allows the Minister to reject a component referral where it is part of a larger action the same person proposes. Mees emphasises contextual completeness. Section 527E is relevant to consequences facilitated by the primary action.
Application. Commercial dependence is strong evidence that the components form one project. Separate contracts are not decisive. Map whether dredging is useful only because the berth/road/shipping changes follow, and whether cumulative marine, traffic and habitat consequences arise from the combined development. A referral that describes dredging in isolation risks delay, loss of credibility and a request for the larger action.
Advice. Define and refer the legally coherent project. Explain staging honestly, distinguish genuine future alternatives from committed components, and assess combined impacts.
IRAC 3 — Renewable hub and Ramsar wetland
Issue. Whether broad climate benefit defeats the Ramsar/migratory-species screening and approval risks.
Law. Apply the Ramsar and migratory controlling provisions, ss 67-75 and, if controlled, the later Part 8/9 framework. At s 75, adverse protected-matter impacts are the focus. The clearly-unacceptable pathway can apply despite the project’s positive purpose.
Application. Quantify wetland ecological character, migratory habitat use, footprint, alternatives and mitigation. The Asian Renewable Energy Hub revised proposal is a real demonstration that renewable branding cannot displace the statutory protected-matter test.
Conclusion/advice. Redesign should prioritise avoidance of the protected wetland values. Broader benefits may be relevant at later decision stages where the Act permits them, but cannot be used as a shortcut around the controlling provisions.
IRAC 4 — Conditions and board strategy
Issue. How should a proponent respond to proposed conditions and what makes those conditions lawful?
Law. Section 131AA gives the proponent 10 business days to comment on the proposed approval/conditions. Section 134 governs condition power and nexus; s 136 governs approval/condition considerations.
Application. Waiting until after approval wastes the best statutory opportunity to fix ambiguity, excessive security mechanics or a weak nexus. The board should instruct legal/technical teams to prepare evidence-based representations: identify which conditions are accepted, propose drafting alternatives, challenge conditions with no Part 3 nexus, and show how equivalent protection can be achieved more efficiently where appropriate.
Conclusion/advice. Treat s 131AA as a negotiation-and-record-building stage. Preserve legal rights, but use the statutory comment process to improve the decision before resorting to litigation.
Chapter 4 Attack Sheet
1. Identify every actor/proponent. 2. Define each “action” and larger-action possibility. 3. Identify jurisdiction and Commonwealth constitutional/statutory hook. 4. Identify exact MNES / Part 3 provision. 5. Draw direct + indirect impact pathways. 6. Ask whether the action may be controlled → s 68. 7. Check disclosure, s 74A and no early works/s 74AA. 8. At s 75 identify controlling provisions, adverse impacts, public comments and s 391 precaution. 9. If controlled, identify s 87 assessment route. 10. At approval map ss 131AA, 133, 134, 136 and conditions. 11. Separately map Queensland/local approvals and any bilateral-assessment pathway. 12. Give practical advice: evidence, timing, redesign, risk, next decision.
Mees: referral candour / omission / larger project. Nathan Dam: indirect and downstream impact; now read with s 527E. Gray: EIA as an ESD mechanism and cumulative consequences (NSW comparative authority). Brown (No 4) + Forestry Tasmania v Brown: exemptions and the essential discipline of checking appellate history. Leatch: precautionary reasoning under scientific uncertainty; for EPBC problems start with s 391.
Mid-semester Weeks 1-4 consolidation
By the end of Week 4, the student should be able to move from the broad evolution and values of environmental law, through Commonwealth/State constitutional responsibility and international environmental law, into the actual statutory mechanics of a major-project referral. The exam skill is integration: do not write four disconnected mini-essays. Use the facts to move through jurisdiction → exact law → authority → evidence → application → counterargument → conclusion.
Open-book strategy. Index your notes by issues, not merely weeks. Your first tabs should be: Commonwealth power / EPBC architecture; MNES + controlling provisions; “action” ss 523-524A; ss 67-68; ss 74-75; s 74A; s 74AA; s 77A; s 87; s 391; Nathan Dam/s 527E; Commonwealth-State/bilateral assessment; approval conditions ss 131AA, 133-136. That lets you reach the legal test quickly under exam time pressure.
Authoritative resources
Environment Protection and Biodiversity Conservation Act 1999 (Cth) — current authorised compilation
EPBC Act Public Portal — referrals, decisions and project documents
Commonwealth-Queensland EPBC assessment bilateral information
State Development and Public Works Organisation Act 1971 (Qld)
Mees v Roads Corporation [2003] FCA 306
Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190
Gray v Minister for Planning [2006] NSWLEC 720
Brown v Forestry Tasmania (No 4) [2006] FCA 1729
Forestry Tasmania v Brown [2007] FCAFC 186
Before a client commits to works, you should be able to answer: What is the action? Who is the proponent? What Part 3 matters can be affected? What evidence supports significance? What cannot lawfully happen yet? What assessment pathway follows? What State process runs alongside it? What conditions/security could affect project economics? What is the next legal decision gate?