The National Heritage List and Commonwealth Heritage List: 1 july 2008 30 june 2013

F Compliance with the Act

The Department’s approach to compliance and enforcement under the Act is outlined in its EPBC Act Compliance and Enforcement Policy, the objectives of which are to:

• help achieve the objectives of the Act

• maximise compliance with the Act

• enhance community capacity to protect the environment and heritage and conserve biodiversity, and

• be generally accepted as appropriate by stakeholders and the community.

Under the policy, the Department uses a number of flexible and targeted measures to promote self-regulation including education and awareness activities and the timely provision of advice and information about the Act.

If self-regulation fails, the policy provides for the use of the range of enforcement sanctions under the Act which escalate as the severity of the breach increases. They rely heavily on their deterrent effect, applying for example, penalty-based instruments such as suspension or cancellation of approval, remediation orders and determinations, pecuniary penalties, civil penalties, and criminal prosecution action.²

Referrals under the EPBC Act

Under the Act, a proposal affecting a national or Commonwealth heritage listed place must be referred to the Minister for assessment and approval if the proposed action has, will have, or is likely to have a significant impact on the national or Commonwealth heritage values of the place. These include actions taken:

• by a Commonwealth agency or constitutional corporation

• for trade or commerce between states and territories and with other countries

• in a Commonwealth area or a territory, or

• that have, will have or are likely to have a significant impact on national heritage values where they are Indigenous heritage values or in an area where Australia has obligations under Article 8 of the Biodiversity Convention.

The Department assesses the referral and passes its advice to the Minister or delegate, who decides whether or not the project requires approval, and if so the method of assessment, and, if approved, the conditions of the approval. There are four types of referral outcomes:

• “not controlled action” (or NCA), which means that approval is not required if the action is taken in accordance with the referral

• “NCA – particular manner”, a variant of NCA, which means that approval is not required if the action is taken in accordance with the manner specified by the Minister/delegate

• “controlled action” (or CA), which means that approval is required and the activity may be subject to specified conditions, or

• “not approved”, the project is not approved.

Referral of a project is a positive compliance outcome as it ensures that activities do not have a significant impact on a matter of national environmental significance (NES) or the environment on Commonwealth land. After their approval, referrals are monitored by the Department (including through random and strategic audits) to ensure the proponent complies with any conditions associated with the approval. Failure to comply is dealt with as a compliance incident.

During the reporting period there were 148 referrals potentially impacting on national heritage places. The vast majority of these related to proposals within or near the Great Barrier Reef.

There were 52 referrals potentially impacting on Commonwealth Heritage places. A summary of the referrals is provided at Table 1.

Table 1: Referrals potentially impacting National and Commonwealth Heritage Listed places.