Guidance Note 11 - Prior Authorisation and Continuing Use Exemptions: Sections 43A and 43B of the Environment Protection Biodiversity Conservation Act 1999
About the guidance note
This Guidance Note is intended for use by staff of the Department of Sustainability, Environment, Water, Population and Communities. It should not be relied upon by any other person. This Guidance Note does not represent legal or professional advice. The policies and procedures included in this Guidance Note are intended to serve as guidance only and should be applied consistently with the requirements of the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) (EPBC Act) and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cwlth) (EPBC Regulations). To the extent of any inconsistency, the EPBC Act and EPBC Regulations will prevail over this Guidance Note. If Departmental officers consider that this Guidance Note may be inconsistent with the EPBC Act or the EPBC Regulations, please contact the Legislation Policy Section. This guidance note may be subject to change at any time.
The purpose of this Guidance Note is to assist with the interpretation of sections 43A and 43B of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) as to whether a particular action is subject to the ‘prior authorisation’ and ‘existing use’ exemptions.
Consideration of whether these exemptions apply should be made in relation to any action that commenced before 16 July 2000, or was subject to an environmental authorisation granted under any law (refer to subsection 43A(2)) prior to 16 July 2000 (which is the commencement date of the EPBC Act).
This Guidance Note is relevant to:
- the provision of advice on referrals potentially subject to a pre-EPBC Act existing environmental authorisation or subject to a continued usage exemption
- the requirement on the proponent to refer an action under the EPBC Act
- the decision under section 75 of the EPBC Act whether or not a referred action is a controlled action, and
- compliance and enforcement of matters that do not have EPBC Act approvals or exemptions.
The application of sections 43A and 43B depends on the facts and circumstance of each matter. If you require clarification of the advice in this Guidance Note or you are uncertain about the potential application of sections 43A and 43B, advice should be sought from the department's Legal Section. Departmental officers should not provide advice on the application of sections 43A and 43B to proponents without first seeking this advice.