Guidance Note 12 - Staged Developments - Split referrals: Section 74A of the EPBC Act
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 help identify whether a referred action is a ‘split referral’ and, if so, whether it should be treated as part of a larger non-referred action or treated separately as a component of a larger action.
Section 74A of the Environment Protection and Biodiversity Conservation Act 1999 ('the EPBC Act') provides that the Minister responsible for the administration of that Act or the Minister's delegate (the Minister), may refuse to accept a ‘split referral’. However, in practice, the proponent is frequently encouraged to withdraw and re-submit their referral.
The making of a section 74A decision in relation to a referral is discretionary rather than mandatory, and a ‘split referral’ is not automatically rejected. Where an action is referred that appears to be part of a larger action, a decision to accept a ‘split referral’ could be considered where it is likely to promote the objects of the EPBC Act. Examples of how to approach potential ‘split referrals’ are provided throughout this Guidance Note.
As with the other Guidance Notes on issues relating to the operation of the EPBC Act, this Guidance Note refers and is directed towards ‘departmental officers’ involved in the preparation of material for decisions by the Minister, and the Minister's delegates within the department. However, except where there is a reference in the Guidance Notes to the exercise of a delegated power by a Ministerial delegate, references to departmental officers do not imply that these officers will make a decision under the EPBC Act.