Annual reports

Department of the Environment, Water, Heritage and the Arts annual report 2007–08

Volume two
Department of the Environment, Water, Heritage and the Arts, 2008
ISSN 1441-9335

Legislation annual reports 2007-08 (continued)

Operation of the Environment Protection and Biodiversity Conservation Act 1999 (continued)

4. Monitoring, compliance and legal actions

Highlights

Monitoring and compliance

The department’s compliance and enforcement activities, post-approval monitoring and auditing were boosted following a substantial increase in resources and the establishment of a branch dedicated to these functions in July 2007. The Compliance and Enforcement Branch currently comprises more than 50 officers undertaking monitoring, audit, compliance and investigation functions, and providing compliance support across the department. As at 30 June 2008 22 officers in the branch were authorised as inspectors under the EPBC Act.

The February 2007 amendments to the EPBC Act established new compliance and enforcement options as an alternative to court proceedings. The amendments also enhanced enforcement action to address minor breaches of approval conditions by allowing the use of a new set of reduced penalties. The amendments broadened the minister’s powers to require remediation action where matters of national environmental significance have been affected, without the need for court action.

The new provisions have increased the department’s compliance and enforcement capability through:

Department and agency staff training

The department continued to lead in developing education and training tools for compliance and enforcement, particularly through the Australian Environmental Law Enforcement and Regulators Network training subcommittee. The department provided in-house training in the form of three Certificate IV courses in Government (Statutory Compliance) and a corresponding diploma level course, and contributed to a diploma course held in Brisbane in May 2008.

The department worked with state and local government regulating agencies to develop a Certificate IV in Compliance Auditing especially designed to address the auditing of statutory compliance with conditions of approvals or permits. The department successfully ran the pilot program in November 2007. Staff from Queensland state and local government agencies took part, as well as the department’s EPBC Act auditors.

All operational monitoring and audit team members in the department have received audit training, some up to lead-auditor standard.

Working with state and local government

The department plays a key role in the Australian Environmental Law Enforcement and Regulators Network. The network has 31 agency members, with representation from all state and territory jurisdictions and the Australian Government, as well as some local government organisations. Six New Zealand environmental agencies are affiliate members. The department is a major sponsor of the network, funding secretariat support and participating in a number of the network’s subcommittees.

The network held its fourth annual conference in Adelaide in November 2007. The conference was opened by the secretary of the department, Mr David Borthwick, and attracted more than 270 delegates, with 55 papers presented on the conference theme of ‘innovative compliance’.

Outside the formal structure of the Australian Environmental Law Enforcement and Regulators Network, the department works with state agencies and local government, sharing information and raising awareness of the department’s regulatory role. The department worked closely with the New South Wales Department of Environment and Climate Change investigating land clearing that has allegedly affected the migratory species using the Gwydir Wetlands. Both agencies are pursuing separate enforcement actions. The department also worked closely with local government and state agencies investigating land clearing at Clarkes Cove in north Queensland.

Where appropriate, investigative activities are undertaken in conjunction with the Australian Federal Police and Australian Customs Service. The department hosts an outposted officer from the Australian Federal Police.

The department provided investigative support to the United States Fish and Wildlife Service on three allegations of unlawful hunting made against Australian citizens. Two of those matters were referred to the Commonwealth Director of Public Prosecutions.

A Wildlife Taskforce was launched in December 2007, with the Victorian Department of Sustainability and Environment, to investigate alleged contraventions of the EPBC Act relating to the possession of illegally imported wildlife. Investigations have been directed towards a consolidated series of prosecutions under Commonwealth legislation. Four briefs of evidence were provided to the Commonwealth Director of Public Prosecutions on 30 June 2008.

The department formed a marine investigations team to investigate breaches of the EPBC Act’s marine provisions. The team took part in compliance operations within Australia’s marine reserve estate and worked with the Australian Fisheries Management Authority on investigations into illegal fishing in Commonwealth waters. Three matters were referred to the Commonwealth Director of Public Prosecutions.

The compliance support unit coordinates compliance and enforcement activities across the department, developing capacity and working with external enforcement agencies and state enforcement bodies.

Compliance assurance projects

Compliance assurance projects test community awareness of the EPBC Act and help evaluate the department’s effectiveness in administering the Act. During 2007–08 the department began two projects to examine levels of compliance with the Act.

The two projects compared referrals received by the department under the EPBC Act with development applications received by local or state agencies. One project followed up work begun in 2004, examining 5 local councils (3 in WA, 1 in NSW and 1 in SA), to compare levels of compliance between years; the other examined projects approved by state and local government in a specific Queensland biogeographical region, the Condamine Natural Resource Management Region.

The projects will help identify whether actions affecting matters of national environmental significance are being referred or not. The department will use the results to improve and prioritise compliance activities, including targeting education and awareness work with stakeholders to ensure matters of national environmental significance are protected and conserved.

Post-approval monitoring

The department devoted extra resources to post-approval monitoring to ensure compliance with approval conditions, as well as compliance with other decisions involving environmental commitments made by proponents, such as ‘particular manner’ decisions. In addition to desktop monitoring of reporting requirements, the department began a program of site inspections to verify proponents’ compliance with commitments.

Five site inspections were carried out on projects with high or medium risk ratings. A site inspection of a waste facility in Victoria was coordinated with the state’s inspection for its permit requirements, which enabled agencies to share information and was more convenient for the permit holder.

Audit program

The department focussed on increasing its monitoring and auditing capacity through recruitment and intensive training. A compliance audit plan was implemented. It comprised a risk based random compliance audit program and a focused strategic audit program (in development). The compliance audit plan aims to:

The random compliance audit program audited a further nine projects from a list of 110 possible projects selected in October 2006, when the random audit program commenced. Audited projects this year included the building of the new National Portrait Gallery, several housing developments, a water supply infrastructure project, a sand quarry and an aquaculture facility.

In general the audits identified a high level of compliance with conditions. Some non-compliances were identified and rectified. The audits’ recommendations enable the department to improve its processes, develop more effective conditions and improve compliance with the EPBC Act. Another benefit of the audit program is increased liaison with co-regulators such as state and local government agencies, enabling joint audits to be carried out and improving information sharing.

The strategic audit program will focus on specific areas such as industry sectors, geographical areas, or protected matters and will be operational by the end of 2008. Both programs will run concurrently and continue to feed information to the department on its processes and condition setting.

A summary of the results of each audit is published on the department’s website.

Potential breaches

In 2007–08 the department received almost 1000 reports about 600 incidents or activities representing potential breaches of Part 3 of the EPBC Act. This is a significant increase on 2006–07 figures (580 reports about 370 incidents) and reflects an increased awareness of the Act and the department’s improved capacity to respond to reports.

Incident reports come from a variety of sources and each report is carefully investigated to determine whether or not the Act does, or should, apply. The outcomes of all completed investigations are provided to the person or organisation making the initial report. The most frequently affected matters of national environmental significance reported include the southern cassowary and the Great Barrier Reef World Heritage Area in Queensland, the western ringtail possum and Carnaby’s black cockatoo in Western Australia, the grey headed flying fox in New South Wales (and parts of Queensland) and the growling grass frog in Victoria.

Consistent with the department’s compliance and enforcement policy, a range of flexible and targeted measures are used to promote compliance and to respond to breaches. Where these fail, enforcement sanctions are applied.

Many reports involve actions that have not yet taken place. In these cases, the department investigates to determine whether or not the activity should be regulated by the EPBC Act. During 2007–08, 34 referrals were received as a result of departmental intervention, of which 17 required approval, one was a ‘particular manner’ decision and one was refused.

Investigations

If preliminary investigations determine that an activity is potentially in breach of the EPBC Act, the matter is referred to the department’s environmental investigations unit. The unit uses multidisciplinary teams drawing on knowledge both within the department and externally, depending on each specific investigation.

As at 30 June 2008 there were nine investigators in the unit, all authorised officers under the EPBC Act with formal qualifications and/or skills and experience in law enforcement and compliance. There are also two team members with legal qualifications, who assist in coordinating investigations. Investigations comply with Australian Government Investigations Standards, and the department works with the Australian Federal Police to ensure policies and methodology are best practice.

In 2007–08 the unit commenced 19 new investigations. The majority related to alleged breaches of Part 3 of the EPBC Act (protection of matters of national environmental significance), three related to alleged breaches of Part 7 (‘particular manner’ decisions) and one related to the commencement of an action before a decision is made in relation to a referral. More than half of the cases related to the clearing of habitat for threatened species.

Investigations are conducted to ensure that all options for proceeding are left open. This includes investigation of civil and criminal offence provisions where appropriate.

Compliance in Commonwealth Reserves and Commonwealth Marine Areas

Wardens are appointed under the EPBC Act to exercise enforcement powers for Commonwealth reserves. Members of the Australian Federal Police and Australian Customs Service are ex officio wardens. The minister may also appoint officers from other state and Australian Government partner agencies as EPBC Act wardens. Prior to appointment, all wardens are required to hold certain qualifications, while specialised training is also provided on the practical enforcement of the EPBC Act in Commonwealth reserves.

In 2007–08, 14 wardens were appointed from four state partner agencies to undertake compliance and enforcement activities in Commonwealth marine reserves. Officers from six state partner agencies were trained in readiness for future appointment. Five wardens and 13 rangers were appointed in terrestrial Commonwealth reserves. All ongoing staff members at Booderee National Park are now wardens. Training was provided for compliance staff to gain a Statement of Attainment towards Certificate IV in Government (Statutory Compliance or Investigation).

The department also trained Australian Customs Service officers who will be performing regular enforcement activities for Commonwealth reserves, and Australian Fisheries Management Authority officers to enable better joint enforcement and investigation for offences that contravene both the Fisheries Management Act 1991 and the EPBC Act, particularly those involving foreign fishers. Training was also given to senior officers in the Royal Australian Navy to assist in reporting incidents of non-compliance observed during their patrols.

The department’s monitoring and compliance activities in Australia’s marine jurisdiction include scheduled and targeted vessel patrols and air surveillance flights as well as analysis of data to track activity in Commonwealth marine reserves.

The department has partnerships with a number of Commonwealth and State Government agencies to implement these activities, including:

A new vessel named the Ashmore Guardian was deployed in April 2008 under contract to the Australian Customs Service, to provide near-continuous compliance monitoring and enforcement of the EPBC Act in the Ashmore Reef National Nature Reserve.

Two targeted tactical surveillance operations were undertaken in Commonwealth marine reserves. One encountered minor breaches of the EPBC Regulations on recreational fishing gear restrictions. Another encountered a breach of the EPBC Act involving a listed threatened species, and that has proceeded to investigation. Another routine patrol by a state partner agency identified two further breaches of the Act – fishing activities in a no-take zone; these are also being pursued as formal investigations.

The department provided high level representation to the Strategic Maritime Management Committee and its working groups on a range of civil maritime surveillance issues, including those affecting the environment and enforcement of the EPBC Act, such as threat assessment, surveillance planning, legislative review and operational readiness.

Management arrangements progressed for the South-east Commonwealth Marine Reserve Network, which was proclaimed on 28 June 2007 and came into effect on 3 September 2007. The network covers an area of over 226,000 square kilometres of marine environment off the coasts of Tasmania, Victoria, eastern South Australia and far south New South Wales. The department has developed partnerships with key stakeholders in the region to provide vessel patrols and surveillance flights, share compliance data and intelligence, and respond to incidents of non-compliance.

Legal actions by the department

The department monitors investigations by state and local government that have an EPBC Act component and decides whether additional action under the EPBC Act is appropriate. If a matter under investigation is deemed to warrant criminal charges, it is referred to the Commonwealth Director of Public Prosecutions. For civil actions, the department instructs its legal services provider, currently the Australian Government Solicitor.

During 2007–08 two matters of alleged breaches of Part 3 of the EPBC Act were referred to the Commonwealth Director of Public Prosecutions and one matter was referred to the Australian Government Solicitor for advice on civil proceedings.

Two cases of unlawful hunting initiated by the United States Fish and Wildlife Service against Australian citizens, were referred to the Commonwealth Director of Public Prosecutions.

Three cases of illegal fishing in Commonwealth waters were referred to the Commonwealth Director of Public Prosecutions as a result of joint investigations by the department and the Australian Fisheries Management Authority.

There were several prosecutions for breaches of the EPBC Act in Commonwealth reserves. Four people were prosecuted for taking squid in excess of the recreational limit of 10 in Booderee National Park. Two persons were prosecuted for illegally carrying out works in the Solitary Islands Marine Reserve (Commonwealth Waters) when undertaking dive operations. Both pleaded guilty and received fines of $300 each plus court costs.

In February 2008 the minister issued a remediation order under the new enforcement provisions of the EPBC Act. The remediation order required property owners at Clarkes Cove on the Whitsunday Coast to make good damage caused by unauthorised land clearing. The land was cleared of native forest without Commonwealth approval. The unauthorised clearing posed a risk to the Great Barrier Reef World Heritage Area by exposing marine waters to increased soil runoff and sediment build-up.

One evidentiary certificate was issued for land clearing in South Australia affecting the red-tailed black-cockatoo. Legal action on this matter has commenced.

An investigation has been completed that will result in an enforceable undertaking under the EPBC Act.

Legal actions by third parties

There were other legal actions not initiated by the department. In 2006 Senator Bob Brown applied for an injunction to restrain forestry operations by Forestry Tasmania in the Wielangta State Forest, on the basis that the operations contravene the EPBC Act. The Commonwealth was given leave to intervene to argue points related to the operation of the EPBC Act and the Tasmanian Regional Forest Agreement. In December 2006 Justice Marshall of the Federal Court held that the operations had a significant impact on certain threatened species and were not in accordance with the Tasmanian Regional Forest Agreement. Justice Marshall granted an injunction restraining Forestry Tasmania from conducting the operations without an approval under the EPBC Act.

In 2007 Forestry Tasmania appealed this decision to the Full Federal Court. The Commonwealth was again granted the status of an intervener by the Court. On 30 November 2007 the Full Bench of the Federal Court upheld Forestry Tasmania’s appeal, overturning the injunction against forestry operations in Wielangta.

Senator Brown’s application to the High Court for special leave to appeal the Federal Court’s decision was dismissed on 23 May 2008.

On 15 January 2008, the Federal Court granted Humane Society International a declaration that Japanese whaling company Kyodo Senpaku Kaisha had breached the EPBC Act by taking whales in the Australian Whale Sanctuary. The Court issued an injunction restraining the company from doing so in the future. This case was a private action, and the Commonwealth was not a party to it. Enforcement of the injunction is a matter for Humane Society International.

Review of decisions

The decision to approve the New South Wales kangaroo management plan was appealed to the Administrative Appeals Tribunal. The hearing took place 31 March–4 April 2008 and a decision was pending as at 30 June 2008.

The following court actions were commenced in 2007–08.

Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts WAD 135/2007

Phosphate Resources Ltd challenged the former minister’s decision to refuse to approve a proposal for further phosphate mining on Christmas Island, in the Federal Court. At 30 June 2008 this matter was still before the Court.

Westerley Projects Pty Ltd v Minister for the Environment, Heritage and the Arts QUD 99/2008

Westerley Projects Pty Ltd challenged the minister’s delegate’s decision to confirm that a proposed action is a controlled action under the EPBC Act. The proposed action related to a proposed residential development at the Isley Hills area, south of Cairns, Queensland. At 30 June 2008, this matter was still before the Court.

Blue Wedges Inc. v Minister for the Environment, Heritage & the Arts, & Ors [2008] FCA 8 (15 January 2008)

Blue Wedges Inc. was formed in 2003 in response to a proposal to use a dredging process to deepen shipping channels in Port Philip Bay and the Yarra River. It challenged the minister’s jurisdiction to make an approval decision for the dredging of Port Philip Bay by the Port of Melbourne Corporation (EPBC 2002/576). Blue Wedges argued in particular that the project had changed substantially between the original referral in 2002, and the final ministerial decision to approve the project, which was made in 2007. The Federal Court dismissed the challenge without costs, holding that the minister’s approval decision was lawful. The Court also acknowledged that changes to proposed actions between the referral and approval stages are inevitable, particularly in cases where the environmental approval process for a major project can take a number of years.

Blue Wedges Inc. v Minister for the Environment, Heritage & the Arts [2008] FCA 399 (28 March 2008)

Blue Wedges Inc. also separately sought judicial review of the minister’s decision to approve the proposal to use a dredging process to deepen shipping channels in Port Philip Bay and the Yarra River. Blue Wedges argued that the minister failed to take relevant considerations into account and acted unreasonably when making his decision. On 28 March 2008, the Federal Court dismissed Blue Wedges’ application on all grounds with costs, and confirmed that the minister acted in accordance with the administrative law principles and the requirements of the EPBC Act when making his decision to approve the project.

Anvil Hill Project Watch Association Inc. v Minister for the Environment and Water Resources [2007] FCA 1480 (20 September 2007)
Anvil Hill Project Watch Association v Minister for the Environment and Water Resources [2008] FCAFC 3 (14 February 2008)

Anvil Hill Project Watch Association challenged a decision by the minister’s delegate that the Anvil Hill Project involved was not a controlled action. The challenge was dismissed. Anvil Hill Project Watch Association appealed the decision to the Full Court of the Federal Court. The appeal was dismissed with costs.

Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 (9 August 2007) and
Wilderness Society Inc v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCAFC 175 (22 November 2007)

The Wilderness Society Inc. challenged the former minister’s controlled action decision and assessment approach decisions for the proposal by Gunns to construct and operate a pulp mill in Bell Bay (EPBC 2007/3385). The challenge was dismissed with costs. The Wilderness Society Inc. appealed the decision to the Full Court of the Federal Court. The appeal was dismissed with costs.

The Investors for the Future of Tasmania Inc. v Minister for the Environment and Water Resources [2007] FCA 1179 (9 August 2007)

The Investors for the Future of Tasmania Inc. challenged the former minister’s controlled action decision and assessment approach decisions for the proposal by Gunns to construct and operate a pulp mill in Bell Bay (EPBC 2007/3385). The challenge was dismissed with costs. This case was run concurrently with Wilderness Society Inc. v The Hon. Malcolm Turnbull, Minister for the Environment and Water Resources [2007] FCA 1178 above.

Lawyers for Forests Inc. v the Minister for the Environment, Heritage and the Arts and Gunns Ltd VID 1112 of 2007

Lawyers for Forests Inc. are challenging the former minister’s decision to approve with conditions the proposal by Gunns Ltd to construct and operate a pulp mill in Bell Bay (EPBC 2007/3385). At 30 June 2008 this matter was still before the Court.

Harry Lansen and Others v Commonwealth Minister for the Environment and Heritage and McArthur River Mining Pty Ltd No NTD 4 of 2007

Harry Lansen and a number of other native title claimants challenged the former minister’s decision to approve the McArthur River Mine expansion (EPBC 2003/954). On 13 June 2008 Justice Mansfield dismissed the challenge on all grounds. At 30 June 2008, a decision was yet to be made about costs. On 30 June 2008 the applicants appealed the decision to the Full Court of the Federal Court. The appeal will be heard in the 2008–09 financial year.

Your Water Your Say Inc. v Minister for the Environment, Heritage and the Arts [2008] FCA 670

Community organisation ‘Your Water Your Say Action Group Inc’ (YWYS) sought judicial review of two decisions made by a delegate of the minister under the EPBC Act concerning the proposed construction of desalination plant and supporting infrastructure, consisting of an 85km pipeline and an electricity supply, on the Bass Coast near Wonthaggi, Victoria.

The delegate’s decisions were that the proposal was a controlled action under the EPBC Act; and the potential environmental impacts of the proposal on matters of national environmental significance would be assessed through preparation of an environmental effects statement under Victorian legislation. YWYS argued that the decisions were invalid because the delegate failed to take relevant considerations into account, including the possible impact of preliminary works on matters of national environmental significance. On 16 May 2008, the Federal Court dismissed the application on all grounds and confirmed that the delegate had acted in accordance with the requirements of the EPBC Act. Costs were later awarded to the minister.

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