Section 28 — Environment Protection and Biodiversity Conservation Act 1999: Requirement for approval of activities of Commonwealth agencies significantly affecting the environment

(1) The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction. Civil penalty: (a) for a Commonwealth agency that is an individual—1,000 penalty units; (b) for a Commonwealth agency that is a body corporate—10,000 penalty units. Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place from an action taken by the Commonwealth or a Commonwealth agency, because the heritage values of a place are part of the environment. See the definition of environment in section 528. Note 2: This section does not apply to decisions to authorise activities. See Subdivision A of Division 1 of Part 23. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the Commonwealth or Commonwealth agency is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the Commonwealth or Commonwealth agency take the action without an approval under Part 9 for the purposes of this section; or (ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or (c) the action is one declared by the Minister in writing to be an action to which this section does not apply; or (d) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or (e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). (3) The Minister may make a written declaration that actions are actions to which this section does not apply, but only if he or she is satisfied that it is necessary in the interests of: (a) Australia’s defence or security; or (b) preventing, mitigating or dealing with a national emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates. (4) The Minister may make a written declaration that all actions, or a specified class of actions, taken by a specified Commonwealth agency are actions to which this section does not apply. (5) The Minister may make a declaration under subsection (4) relating to a Commonwealth agency’s actions only if he or she is satisfied that: (a) in taking the actions to which the declaration relates, the agency must comply with the law of a State or Territory (including a law of a State that is applied to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act 1970), that has either or both of the following objects (whether express or implied): (i) to protect the environment; (ii) to promote the conservation and ecologically sustainable use of natural resources; and (b) the impacts that the actions have, will have or are likely to have on the environment, are adequately addressed under the State or Territory law.