This page provides information about how you can help ensure environmental laws are enforced by participating in the Environment Protection Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) process. If you would like to read more general information you can see our pages on environmental impact assessment under the EPBC Act or Commonwealth threatened species law.

There are a number of ways that the community can help to DEWHA to enforce the EPBC Act. This section provides an introduction to these opportunities.

If you are thinking of taking any sort of legal action, you should first seek professional legal advice. The information on these pages is not a substitute professional advice as it may not suit your circumstances.

The opportunities you have to help DEWHA enforce the EPBC Act include:

• Requesting that the Minister to 'call in' an action
• Reporting suspected breaches of the EPBC Act to DEWHA
• Requesting that the Minister reconsider decisions made under the Act
• Seeking injunctions under the EPBC Act
• Appealing permit decisions

The information on this page also relates to information on EPBC Act - Lobbying the Minister to call in a proposal and Opportunities to participate in the EPBC Act.

A member of the general public cannot refer another person's action to the Environment Minister. In other words, if you live down the road from someone who is planning to take an action that you believe triggers the EPBC Act, you cannot put in a referral for the action on their behalf even if you know they are unlikely to refer it themselves. However, you can ask the Minister for the Environment, Heritage and the Arts to “call in” the action.

When the Minister “calls in” an action, it means that a person will be requested to refer their action to DEWHA to determine whether it requires assessment by the Minister. The Minister is given this power in section 70 of the EPBC Act.

Members of the public cannot prosecute a person for breaching the EPBC Act - only the Australian Government can do that. However, members of the public can report suspected breaches of the EPBC Act to Australian Government Department of Environment Water Heritage and the Arts (“DEWHA”), and provide information so that DEWHA can investigate.

For example, information provided by WWF Australia and The Wilderness Society helped the Australian Government in its decision to take proceedings (and provided some of the evidence) against Ronald Greentree for clearing undertaken in the Gwydir Wetlands. Mr Greentree was found guilty of breaching s16 of the EPBC Act (Minister for the Environment and Heritage v Greentree (No2) [2004] FCA 741).

There are significant penalties attached to breaching the EPBC Act.

There are a number of different types of breaches that could be reported to DEWHA:

• The taking of an action that has had a significant impact on a matter protected under the EPBC Act without approval Australian Government approval
• The breaching of an approval condition
• Failing to take an action in the manner specified by DEWHA
• Failing to obtain or comply with a permit

Get your facts together about the suspected breach. The type of information you need to gather depends on the nature of the suspected breach. If it is a suspected breach of an approval condition, manner specified or permit condition, you will need to get a copy of this document as published by DEWHA in their Referrals Database, then gather information to support why you believe this has not been adhered to. Remember to always quote the referral's Reference Number and Title.

If you suspect someone has taken an action that has had a significant impact on a matter protected under the EPBC Act without Australian Government approval, then you will need to gather information about the type of action that has been taken (what, where, when and by whom). You need to establish that there are matters protected under Part 3 of the EPBC Act that have been impacted. The easiest place to start with this is to run a Protected Matters Search Report. And you will need to argue and provide evidence about how the action has had a ”significant impact” on those protected matters.

Put the information down in writing. Remember to frame your letter in such a way so as to say that you only suspect there has been a breach, rather than that there has absolutely been a breach. You are just providing the information you have so that DEWHA can further investigate. Remember to include your contact details in your correspondence. Also ask that DEWHA to let you know the outcome of their investigations

Send your letter to the DEWHA Compliance and Enforcement Section. If the matter is urgent, you could phone them, and fax the letter through to provide written evidence of your claims. For help and further information you can contact us.

Under the EPBC Act there is also provision for an “interested person” to seek an injunction to stop someone else taking an action that is having a significant impact on a matter protected under Part 3 of the EPBC Act. See the information on seeking injunctions in this section of our website for more on “interested persons” and seeking injunctions. However, we would strongly advise you to seek professional legal advice before embarking on any legal action.

Under the EPBC Act, the Minister has to decide whether an action is a 'controlled action'. The Minister is allowed to reconsider that decision if they receive substantial new information or if the circumstances surrounding the action change significantly.

Members of the public can get involved by providing new information to the Minister or informing the Minister of relevant changes in circumstances. For example, if it was discovered that, contrary to expectations, a proposal would affect a Ramsar wetland and the Minister had made their decision on the basis that only endangered species would be affected, that might be a reason for changing the Minister's decision.

If an action is a controlled action, the Minister must decide whether the action should be approved and, if so, on what terms. Again, the Act grants the Minister the power to reconsider this decision, either by varying the terms of the approval or by suspending or revoking the approval entirely.

Members of the public can help by bringing new information to the Minister's attention or by advising the Minister of non-compliance with the terms of the approval.

Writing a reconsideration letter is essentially the same as writing a letter asking the Minister to call in a proposal, except that you must either provide new information or explain how circumstances have changed and why that is relevant to the Minister. The relevant provisions are:

• Reconsideration of whether an action is a 'controlled action': s 78.
• Reconsideration of whether an action should be approved: s 143.

Members of the public cannot prosecute a person for breaching the EPBC Act - only the Australian Government can do that. However, the EPBC Act provides that if a person commits an offence or otherwise contravenes the EPBC Act, an “interested person” can apply to the Federal Court for an injunction.

Under the EPBC Act, an “interested person” is defined to include persons and companies who have engaged in a series of activities related to, and companies whose objects or purpose relate to, the protection or conservation of, or research into, the environment (including heritage values), in the 2 years prior to the application being made.

There are a number of EPBC Act cases where this broad standing has allowed interested persons to seek injunctions. A good example of this is the Booth v Bosworth case. In this case Dr Carol Booth was an ecologist and a member of the Queensland Conservation Council. This allowed her to seek an injunction against Mr Bosworth, who was a lychee farmer operating electric fencing to keep Spectacled Flying Foxes off his trees, without Australian Government approval.

The EPBC Act provides that the Federal Court may issue an injunction irrespective of whether it appears the perpetrator will continue to engage in the illegal conduct, or not. This removed the need to show that there is a real ongoing risk of the perpetrator engaging in an illegal act in the future.

Commencing proceedings in the Federal Court for an injunction can be a costly and draining process. In many instances, a real threat of legal action can be used as a bargaining chip to improve environmental outcomes. We would strongly recommend that you contact a qualified legal practitioner (such as the Environmental Defender's Office) before taking court action.

A person whose “interests are affected” by a decision to issue or refuse a permit under the EPBC Act can apply to the Administrative Appeals Tribunal (AAT) for the permit decision to be reviewed.

Appeals to the AAT are different from appeals to the Federal Court of Australia in a number of ways. Most importantly, the AAT conducts a “merits review” of the permit decision, while the Federal Court can only review matters relating to the law.

This means that the AAT is able to “stand in the shoes” of the original decision maker and consider all matters that were relevant to the original decision. In contrast, Federal Court reviews are confined to the issue of whether the original decision was made in accordance with the law.

Appeals to the AAT are usually cheaper and shorter than a Federal Court appeal. If you are considering commencing proceedings in the AAT, you should first see a qualified legal practitioner (eg. the Environmental Defenders Office).

This page includes some information originally created by the EPBC Project and website www.epbc.com.au. The EPBC Project has now come to a close and that website is no longer updated.

• View the whole Environment Protection and Biodiversity Conservation Act online via Austlii

• Australian Government Department of Environment Water Heritage and the Arts - Compliance and Enforcement section