EPBC

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Prior authorisation and continuing use exemptions - Sections 43A and 43B

Department of the Environment and Heritage, January 2005

The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) came into effect on 16 July 2000. The EPBC Act applies nationally and provides protection to matters of national environmental significance. Matters of national environmental significance include World Heritage properties, National Heritage places, Ramsar wetlands, nationally threatened species and ecological communities, migratory species and Commonwealth Marine areas. The EPBC Act also applies to actions involving Commonwealth land and actions by Commonwealth agencies.

Under the EPBC Act, any activities that may have a significant impact upon matters of national environmental significance should be referred to the Minister for the Environment and Heritage for assessment and approval.

However, the EPBC Act allows for some exemptions to the assessment and approval provisions. The purpose of this fact sheet is to explain these exemptions.

The prior authorisation and continuing use exemptions

Sections 43A and 43B of the EPBC Act (Appendix 1) exempt certain actions from the assessment and approval provisions of the EPBC Act. They apply to lawful continuations of land use that started before 16 July 2000 or actions that were legally authorised before 16 July 2000, the date of commencement of the EPBC Act.

These exemptions allow for the continuation of activities that were fully approved by State and Local Governments before the EPBC Act came into force, or unauthorized, but lawful, activities, which commenced before the EPBC Act came into force, and which have continued without substantial interruption.

Do the prior authorisation and continuing use exemptions apply to you?

Under the prior authorisation exemption, assessment and approval under the EPBC Act are not required if:

Environmental authorisation means an authorisation under a law of the Australian Government, a State or a self-governing Territory that is intended to protect the environment or promote the conservation and ecologically sustainable use of natural resources.

An example of an activity that could be exempted under the prior authorisation provision is cattle grazing in accordance with a crown land licence issued under the Victorian Land Act 1958.

Under the continuing use exemption, assessment and approval under the EPBC Act are not required if:

Any enlargement, expansion, or intensification of an existing use is not a continuation of a use. If you propose to enlarge, expand or intensify your action it is not covered by this exemption and, if the enlargement, expansion or intensification is likely to have a significant impact on a matter of national environmental significance, you should refer the action for assessment and approval.

Examples of activities that could be exempted under the continuing use provision are:

What if a new threatened species or a national heritage place is listed?

New listings of threatened animal or plant species or ecological communities or national heritage places would not affect the application of exemptions to activities that are covered by the exemptions outlined above.

What if my action is not exempt under these provisions?

If your action is not covered by one of the exemptions outlined above and is likely to have a significant impact on a matter of national environmental significance or the environment on Commonwealth land, you need to refer your action to the Australian Minister for the Environment and Heritage.

An online tool is available to help you identify what matters of national environmental significance occur in a given area. This tool can be found on the Department's web site at:

The process for making a referral under the EPBC Act is easy and without charge. All you have to do is complete and submit the relevant form, which can be obtained from the Department of the Environment, Water, Heritage and the Arts.

For further information

Please contact the Department of the Environment, Water, Heritage and the Arts.

Appendix 1: Sections 43A and 43B of the EPBC Act

43A Actions with prior authorisation

  1. A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
    1. the action consists of a use of land, sea or seabed; and
    2. the action was specifically authorised under a law of the Commonwealth, a State or a self governing Territory before the commencement of this Act; and
    3. immediately before the commencement of this Act, no further environmental authorisation was necessary to allow the action to be taken lawfully.
  2. In this section:
    environmental authorisation means an authorisation under a law of the Commonwealth, a State or a self-governing Territory that has either or both of the following objects (whether express or implied):
    1. to protect the environment;
    2. to promote the conservation and ecologically sustainable use of natural resources.

43B Actions which are lawful continuations of use of land etc.

  1. A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act. For this purpose, an enlargement, expansion or intensification of use is not a continuation of a use.
  2. However, subsection (1) does not apply to an action that was specifically authorised under a law of the Commonwealth, a State or a self-governing Territory before the commencement of this Act.

Note: Section 43A applies to actions that were specifically authorised under a law before the commencement of this Act.