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2022-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
The Environment Protection and Biodiversity Conservation Amendment
(Reconsideration of Decisions) Bill 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Colbeck)
The Environment Protection and Biodiversity Conservation Amendment
(Reconsideration of Decisions) Bill 2024
OUTLINE
The Environment Protection and Biodiversity Conservation Amendment (Reconsideration of
Decisions) Bill 2024 seeks to strengthen the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) through the introduction of limitations on timeframes
permissible for reconsideration of decisions, and on those who may seek reconsideration after
a period of three years.
The power to vary or substitute decisions under the current EPBC Act is limited to where the
Minister is satisfied that revocation and substitution is warranted by the following three
criteria:
• the availability of substantial new information about the impacts that the action has or
will have, or is likely to have on a protected matter (paragraph 78(1)(a)); or
• a substantial change in circumstance that was not foreseen at the time of the first
decision and relates to the impacts of the action has or will have, or is likely to have
on a protected matter (paragraph 78(1)(aa)); or
• the action is not being, or will not be, taken in the manner identified in the decision
notice (sub-paragraph 78(1)(b)(ii)).
Under the current provisions for reconsideration of decisions within the Act, the request for
reconsideration of a decision under section 78A does not provide limitations to or restrictions
on the length of time for a decision to be reconsidered or, critically, by whom such
reconsideration of decisions can be requested (other than to provide that such a request may
not be made by a Minister of a State or self-governing Territory).
The Environment Protection and Biodiversity Conservation Amendment (Reconsiderations of
Decisions) Bill 2024 seeks to set clear time limits and cut-off periods for decisions to be
reconsidered as well as clear limits as to who is permitted to do so by law. This Bill would
introduce a timeframe of 36 months from the day of the decision for a request for
reconsideration of the decision to be made by a person who is not relevant minister of a state
or self-governing territory. After the 36-month period has passed, the authority to request
reconsideration of the decision becomes the exclusive purview of a relevant minister from the
state or territory in which the environmental approval applies.
BACKGROUND
In 2012, it was determined, under section 75 and 77A of the Environment Protection and
Biodiversity Conservation Act 1999 that the proposed Marine Farming Expansion, Macquarie
Harbour, Tasmania (EPBC 2012/6406) was not a controlled action if undertaken in a
particular manner. In November of 2023, 11 years after this approval was given, the current
Minister for the Environment and Water opened the reconsideration of this approval for
consultation, at the behest of three activist groups. The precedent created by this action casts
doubt over the certainty of every approval granted under the EPBC Act. To create greater
certainty for those in receipt of approvals, the Bill limits the timeframe to request the
reconsideration of an approval granted under the EPBC Act after a period of 36 months from
the date of the approval. After this period has elapsed, only the minister of the relevant state
or self-governing territory may request the reconsideration of an approval granted under the
EBPC Act.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. The Bill would commence the day after it receives the Royal Assent
Clause 3 - Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Environment Protection and Biodiversity Conservation Act 1999
Item 1 - Subsection 78(1) (note 2)
4. This item would amend the second note to subsection 78(1) to make it consistent with
the new restrictions on who may request the Minister to reconsider their decision under
section 78A.
Item 2 - Section 78A (heading)
5. This item would amend the heading of section 78A to make it consistent with the new
restrictions on who may request the Minister to reconsider their decision under the section.
Item 3 - Subsection 78A(1)
6. This item would make consequential amendments to subsection 78A(1) in light of the
amendments made by item 5.
Item 4 - Subsection 78A(1) (note)
7. This item would replace the existing note with one that clarifies the sections under
which the Minister of a State or self-governing Territory may request the Minister to
reconsider their decision.
Item 5 - Subsection 78A(1A)
8. This item would insert a new subsection to provide that the ability of State and self-
governing Territory Ministers is limited to requesting reconsiderations of decisions on actions
that are proposed solely in their jurisdiction. For example, a Tasmanian Minister could not
ask the Minister to reconsider an approval granted for an action to be taken solely in
Queensland.
Item 6 - Paragraph 78A(2)(ba)
9. Item 6 would insert a new paragraph and two new subparagraphs to make the ability
of people (other than State and self-governing Territory Ministers) to request the Minister
reconsider an approval conditional on the request being made within 36 months of the
approval being granted. After the 36 months has elapsed, the ability to make a request for
reconsideration becomes exclusive to the Minister of a State or self-governing Territory in
which the action is proposed to be taken.
Item 7 - Subsection 78B(5A)
10. This item would insert a new subsection 78B(5A) to provide that the Minister is not
required to inform the appropriate State or self-governing Territory Minister of a request for
reconsideration or invite them to give comment if the request was made by that particular
State or self-governing Territory Minister.
Item 8 - Paragraph 78C(2)(d)
11. This item would amend paragraph 78C(2)(d) to provide that the Minister is not
required to send a notice of the outcome of a reconsideration decision to a State or self-
governing Territory Minister, if the request for reconsideration was made by that particular
State or self-governing Territory Minister.
Item 9 - Application of amendments
This item would provide that requests made before the commencement of the item are not
retroactively affected by the amendments proposed by this Bill.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Environment Protection and Biodiversity Conservation Amendment
(Reconsideration of Decisions) Bill 2024
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
This Bill proposes to limit who is able to request the Minister to reconsider approvals granted
for proposed actions. Once 36 months elapse after an approval has been granted, the right to
request the reconsideration of an approval is made exclusive to the appropriate State or self-
governing Territory Minister where the action is proposed to be taken.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator Colbeck