Failure to refer actions - implications

Failure to refer the action for the approval of the Minister for the Environment, Heritage and the Arts (the Minister) could result in a number of outcomes.

Penalties

Civil and criminal penalties may apply for breaches of the legislation:

Individuals: civil penalties are the equivalent of 5,000 penalty units. A conviction under the EPBC Act could result in imprisonment for a period of up to seven years, a fine of up to 420 penalty units, or both.
Body corporates: face fines of 50,000 penalty units. A conviction under the EPBC Act could result in a fine of up to 2,100 penalty units.
A director (or other executive officer) of a company could be held individually liable (for either criminal offences or civil penalties) where the company breaches the legislation in relation to matters of National Environmental Significance (NES).

Note: Penalty Units are defined in the Crimes Act 1914. 1 penalty unit currently = $110.

In the case of National Heritage values, these penalties can be applied to:

the actions of the Commonwealth and Commonwealth agencies
the actions of constitutional corporations
actions by a person in a Commonwealth area or a Territory
actions by a person for the purpose of trade or commerce between the states and territories or internationally
actions by a person which have a significant impact on Indigenous National Heritage values
actions by a person which are in breach of Australia's obligations under Article 8 of the Biodiversity Convention.

Civil and Criminal Penalties also apply in relation to actions taken by persons outside the Australian jurisdiction, which affect the environment in Commonwealth Heritage Places outside the Australian Jurisdiction.

Individual Penalty = up to 1, 000 penalty units (civil), 120 penalty units and / or 2 years imprisonment (criminal)
Penalty for body corporate = up to 10, 000 penalty units (civil), 600 penalty units (criminal)

If a member of the public believes that an action breaches the EPBC Act, they may contact the Department of Environment, Water, Heritage and the Arts (the Department) or write to the Minister to report the action. When reporting information on a possible breach of the legislation you may remain anonymous.

The Department takes compliance with the EPBC Act seriously and investigates alleged breaches.

Other procedures where an action is not referred

If a State, Territory or Australian Government agency is aware of a proposed action, a referral can be made if that State, Territory or agency has administrative responsibilities relating to the action. The Minister can request a person to make a referral. If that person fails to comply with the Minister's request, the Minister can determine that the EPBC Act has effect as if a referral had been made. Following a determination, the Minister will then proceed to make a decision on whether the action is a controlled action. The making of this decision will be undertaken in accordance with the existing processes relating to whether approval is required under the EPBC Act.

The Federal Court may order that the action cease

Without the benefit of an approval under the EPBC Act, the Minister, or an interested person or a person acting on behalf of an un-incorporated organisation may apply to the Federal Court for an injunction to prevent the action from proceeding.

Remediation

Where a person contravenes the Act by taking an action that has, will have or is likely to have a significant impact on any matter of NES, including National Heritage values, the person may be required to meet the costs of remedying the damage to the environment or the matter of NES, and preventing future damage.

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