FACT Sheet – Environment Protection and Biodiversity Conservation Act 1999
Operating in the Defence Estate
Introduction
It is a Defence requirement to comply with Commonwealth environmental legislation including the
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Significant amendments to the
EPBC Act commenced on 19 February 2007. The amendments were wide ranging and impact Defence in its
capacity as a landholder, occupier and user.
Purpose
The purpose of this Fact Sheet is to highlight the amendments likely to be most relevant to conducting and
managing activities on the Defence Estate.
Defence activities in existence before the EPBC Act
Defence activities in existence before 16 July 2000 can continue lawfully without the need for an assessment on
whether or not a referral to the Minister is required, unless there has been an intensification of the use. The
amended Act specifies two circumstances which would be an intensification of use:

First, an enlargement, expansion or intensification of use;

Second, a change in the location of the use or to the nature of the activities.
If either of these events occurs and there has been a substantial increase in the environmental impact, then the
use cannot continue lawfully without a referral and approval under the EPBC Act. The word substantial implies
the increase is to be considerable or material.
Landholder Responsibility
If Defence owns, occupies or leases land, then Defence is a landholder. Defence will be responsible as a
landholder for the acts of others on land which cause a significant impact on matters of National Environmental
Significance, cause an impact on the environment of Commonwealth land or contravene a condition attached to
an Approval. Defence will be liable as Landholder if it:

knew that or was reckless or negligent as to whether persons on its land were breaching the EPBC Act;
and

is found to have been in a position to influence the conduct of that person in relation to the breach of
the EPBC Act (for example, under a contract or Lease); and

failed to take all reasonable steps to prevent the contravention.
Defence may avoid liability by demonstrating that all reasonable steps were taken to prevent the contravention.
In assessing whether Defence took all reasonable steps a court will have regard to:

what action if any Defence took to ensure the other person had an appropriate system in place for
managing the environmental impacts of their activities; and

what action Defence took upon becoming aware that there was a substantial risk of a breach of the
EPBC Act.
This means that Defence as Landholder has a statutory obligation to ensure that its tenants, licencees and
contractors:

have management systems in place to prevent their activities from having a significant impact on the
environment on Commonwealth land or on matters of National Environmental Significance;

obtain and comply with any necessary Approvals and conditions of Approvals;

have response procedures in place to effectively respond to environmental incidents.
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FACT Sheet – Environment Protection and Biodiversity Conservation Act 1999
Defence as Landholder must also have systems in place to respond to any environmental incidents on its land
whether or not it is the cause. Defence must also ensure its employees and contractors are informed about the
conditions of any Approval.
Commenced activities having a greater impact on environment
Once an approval to undertake an action has been obtained, Defence may commence activity. If the Minister for
Environment and Water Resources is satisfied that the action has had a significant impact and the impact is
substantially greater than the impact identified during the assessment, the Minister has the authority to impose
additional conditions, vary conditions or revoke conditions of an Approval.
Commencing action before approval
Where a referral to the Minister of a Defence action or proposal has been made, Defence may not commence
that proposal or action (including preliminary site work) before either the Minister determines that approval is
not required or the action has been assessed by the Minister and approved. Work may not commence even if
such work would not have any significant impact on matters of National Environmental Significance or the
environment. Defence will therefore need to consider the scope of referrals to allow for low impact works to
proceed.
Changes to matters of national environmental significance after approval
Once Defence has obtained an approval and commenced an activity, the approval is not affected and cannot be
revoked, varied, suspended or challenged, reviewed or set aside because there is a later change in the matters of
National Environmental Significance or heritage places.
For example if the boundary of a World Heritage property is changed, this event will not invalidate a prior
approval. However the section works in two ways. Defence may benefit by holding a prior approval
notwithstanding the fact that land boundaries are altered so that part of the land falls within a Ramsar boundary.
Conversely, a condition attached to an approval aimed at protecting a Commonwealth Heritage value cannot be
called into question or revoked simply because values have been changed.
The section covers a wide range of events including new listings of World Heritage, National and
Commonwealth heritage; changes in values to these categories of sites; changes to their boundaries; new
listings of threatened species or communities or re-listing in a higher category and new listings of migratory
species.
Liability for the actions of others
The amending Act confirms that an injunction may be granted to prevent a Defence act that will have indirect
impacts on the environment or matters of National Environmental Significance and no referral has been made to
the Environment Minister. This will be the case even if the indirect impacts are actually caused by the actions
of a third party which was not directed or requested by Defence. However in that case the Defence action must
have facilitated to a major extent the third party action. Further, the third party action (and consequences) must
have been reasonably foreseeable by, or within the contemplation of Defence.
The application of this new definition to Defence proposals and actions is not straightforward and decisions on
what impacts might be relevant to an assessment should be considered carefully. The identification of all direct
and indirect impacts will be necessary to provide Defence managers with sufficient information to assess
proposals.
Strict Liability Offences
Strict liability now attaches to the taking of action that has (or is likely to have) a significant impact on a matter
of national environmental significance or the environment of Commonwealth land or a Commonwealth
Heritage place overseas. Strict liability in the EPBC Act removes the need for the prosecution to establish that a
person knew or was reckless to the fact that he/she was dealing with a protected matter. However the legislation
still requires the prosecution to prove that the person caused the impact, that they knew there was a risk of a
significant impact and that they were reckless as to that fact.
Commonwealth Heritage Places
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FACT Sheet – Environment Protection and Biodiversity Conservation Act 1999
Defence is no longer required to seek advice from the Minister before Defence takes an action that has or is
likely to have a significant impact on a Commonwealth Heritage Place, but in that case will have an obligation
to refer the action to the Minister under section 28 of the EPBC Act, as an action that is likely to have a
significant impact on the environment.
Definitions
The following definitions apply for the purposes of this Fact Sheet:

Approval: The approval of the Minister for Environment and Water Resources under Chapter 4 of the
EPBC Act for the taking of an action which would otherwise be unlawful.

Landholder: An owner, lessor, lessee or occupier of land.

Third party action: An action by a non Defence person such as a contractor or other person authorised
to be on Defence land.

A matter of National Environmental Significance is

O
the ecological character of a declared Ramsar Wetland;
O
the world heritage values of a declared World Heritage property;
O
the national heritage values of a National Heritage place;
O
a listed migratory species;
O
listed threatened species or communities;
O
the environment in a Commonwealth marine area;
O
the environment on Commonwealth Land;
O
the environment in a Commonwealth Heritage place outside the Australian jurisdiction;
O
a nuclear action; or
O
an action prescribed by the Regulations.
The Minister means the Minister for Environment and Water Resources.
Further Information
For further information contact Director Environmental Impact Management, Estate Policy and Environment
Branch on (02) 6266 8067
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