Department of the Environment, Water, Heritage and the Arts, 2009
Legislation annual reports 2008-09 (continued)
Operation of the Environment Protection and Biodiversity Conservation Act 1999 (continued)
2. Promoting ecologically sustainable development
The EPBC Act promotes ecologically sustainable development using strategic planning and assessment tools such as strategic assessments and bilateral agreements. This section of the report describes the work in these areas, which substantially benefits EPBC Act administration by increasing intergovernmental cooperation and reducing duplication of environmental assessment processes.
This section also reports on project-specific environmental impact assessment, compliance and enforcement regimes and community information activities.
- Strategic assessments were signed with the Victorian and Australian Capital Territory governments for major urban development proposals in those regions.
- Assessment bilateral agreements commenced in July 2008 with South Australia and in June 2009 with Victoria and the Australian Capital Territory. Assessment bilateral agreements are now in place with all state and territory governments for the first time.
The department promotes the use of the Act's strategic approaches to state, territory and local governments. The provisions: encourage early consideration of matters of national environmental significance in planning processes; provide greater certainty to communities and developers over future development; reduce the administrative burden for proponents and government; and are expected to result in more desirable environmental outcomes.
Strategic approaches include the development of conservation agreements, policy statements and strategic assessments.
The department worked with the Western Australian, Victorian and New South Wales governments to encourage greater consideration of matters protected under the EPBC Act in state planning processes. Work focused on reducing duplication between Australian Government and state processes, providing certainty for developers and making allowance for metropolitan growth.
This is consistent with the department's work on the Council of Australian Governments' reform agenda, aimed at achieving a system of environmental assessment and approval that meets all Australian Government and state and territory requirements.
Agreements were signed with the Victorian and Australian Capital Territory governments to undertake strategic assessments of major urban development proposals.
The strategic assessment of the Victorian Government's program to revise Melbourne's urban growth boundary is progressing, with the department providing input on measures to protect matters of national environmental significance, particularly the critically endangered Natural Temperate Grassland of the Victorian Volcanic Plain. Draft reports on the program's impacts were released for public comment in June 2009.
The department engaged with key non-government organisations in Victoria on the Melbourne strategic assessment and EPBC Act processes.
In September 2008 the minister signed an agreement with the Australian Capital Territory Government to undertake a strategic assessment of urban development and infrastructure proposed under the Molonglo and North Weston Structure Plan.
In Western Australia the site selection process for a common-user liquefied natural gas hub in the Kimberley occurred, following the signing of a strategic assessment agreement by the Australian and Western Australian governments in February 2008. James Price Point (60 kilometres north of Broome) was identified for further detailed investigation.
The department has a senior advisor out-posted in Perth to promote strategic assessments and other EPBC Act related matters.
Strategic assessments are being investigated in all other states and territories. In Queensland, strategic assessments are being considered to align EPBC Act environmental assessment with assessment of a nominated State Development Area and associated infrastructure corridor. In New South Wales and Tasmania, landscape scale assessment incorporating cumulative environmental impacts represents a sensible approach to environmental assessment of major natural resource development activities.
Melbourne strategic assessment
In March 2009 the minister entered into an agreement with the Victorian ministers for planning and environment to undertake a strategic assessment under the EPBC Act of the program to revise Melbourne's urban growth boundary and major transport corridors.
Melbourne is predicted to grow by 1.8 million people in the next 30 years, with an additional 600,000 dwellings over approximately the next 20 years.
The department has worked with several Victorian agencies. Departmental input has helped to reduce impacts on matters of national environmental significance and achieve good biodiversity outcomes.
Reports describing the program of urban expansion and transport infrastructure, together with an impact assessment report, were released for public consultation in mid-June 2009.
This strategic assessment is the first to reach this significant milestone since amendments to the Act were made in 2007.
The assessment is expected to be complete by the end of 2009 and may lead to grassland reserves being set aside to protect a number of listed species and a critically endangered ecological community.
The EPBC Act provides for the Australian Government to enter into bilateral agreements with states and territories. There are two forms of bilateral agreement: assessment agreements and approval agreements.
The Australian Government has now finalised assessment bilateral agreements with all state and territory governments. The South Australian bilateral agreement commenced on 2 July 2008, while the Australian Capital Territory and Victorian assessment bilateral agreements commenced on 4 and 20 June 2009, respectively. Prior to finalisation of these agreements, duplication was significantly reduced using case-by-case accreditation of the state's assessment approaches. During 2008-09, 36 projects (including seven completed, two withdrawn and 27 assessments in progress at 30 June 2009) were assessed on a case-by-case basis, an increase of two from the previous year.
Assessment bilateral agreements recognise the environmental assessment processes of a state or territory for certain actions. This means that certain actions that would require assessment under both the EPBC Act and state or territory legislation can be assessed using a single assessment and public consultation process. Proponents prepare and submit one set of assessment documentation, with the transparency of the process maintained through comprehensive public consultation requirements. The Australian Government minister is still required to decide whether to approve and impose conditions for projects that will, or are likely to, have a significant impact on matters of national environmental significance. This reporting year seven assessments were completed under bilateral agreements, with a further 83 projects being assessed under a bilateral agreement as at 30 June 2009, an increase of two and 17, respectively, from the previous year.
The bilateral agreement with Queensland will expire on 13 August 2009 after five years of operation. A review of this agreement and development of a new one is expected to be completed in mid-August 2009, taking into account public comments received during a consultation process in May-June 2009.
A conservation agreement is a legally binding agreement between the minister and another person for the protection and conservation of biodiversity in an area of land or sea.
Since the EPBC Act came into force in 2000, 12 conservation agreements have been entered into to protect matters of national environmental significance. No new conservation agreements were agreed to during 2008-09.
Conservation agreements have proven to be a successful strategic tool in New South Wales and Queensland, where they have secured biodiversity conservation while providing clarity for developers. All conservation agreements are published on the department's website.
- 438 actions were referred to the Australian Government for decision on whether approval was required under the EPBC Act.
- 52 controlled actions were approved, with various conditions attached to minimise the environmental impacts.
- One controlled action was not approved.
- Five actions that were referred were determined to be clearly unacceptable.
The EPBC Act provides a comprehensive environmental impact assessment regime to ensure actions do not have a significant impact on matters of national environmental significance. The proponent initiates this process by submitting a referral for a determination on whether approval is necessary and, if so, the type of assessment to be undertaken. Following the assessment of the proposed action the minister, or his delegate, will decide whether to approve the action. The EPBC Act provides for case-by-case assessment by the Australian Government or an accredited assessment of state and territory processes under a bilateral agreement.
In 2008-09, 438 actions were referred to the Australian Government for decision on whether approval was required under the EPBC Act; that is, whether that action is likely to have a significant impact on a matter of national environmental significance. This was an increase of five per cent on the previous year. Approximately 14 per cent of referrals were the result of compliance actions by the department. Most referrals received were from Queensland, with 25 per cent of the total.
Of the 393 referrals where a decision has been made this year, 33 per cent were determined to be controlled actions and 25 per cent determined to be not, 'controlled actions', if taken in a particular manner. Forty per cent of referral decisions were determined not to be controlled actions and those actions required no further assessment. One action was an exemption from the EPBC Act for all actions taken in response to the February 2009 bushfires in Victoria.
These numbers and percentages are consistent with previous years. Referral numbers have increased over the last two years by 26 per cent and the percentage of referral matters determined to be controlled actions has also increased over the last two years by 75 per cent, being a 46 per cent increase from 2006-07 to 2007-08 and a 19 per cent increase from 2007-08 to 2008-09.
The department continues to seek to process referrals more efficiently. The quality and reliability of statutory performance data have been improved through regular review of data held in databases, including of historical data, enabling increasingly accurate statutory reporting.
In 2008-09, the statutory timeframe for the three key decision points in the environmental assessment process - decision on whether action is a controlled action, assessment approach decision and the approval decision - were met 76 per cent of the time. Of the decisions that ran over the statutory timeframe, 60 per cent were made within a further five business days.
A referral for a proposed action is submitted to the department to identify whether that action is likely to have a significant impact on a matter of national environmental significance.
In 2008-09 the department received 438 referrals for decision on whether approval was required under the EPBC Act including one request for an exemption. Across Australia, the figures show an increase in referrals relating to mining, with decreases in the residential development, exploration (in marine areas, for minerals, oil and gas) and land transport categories. These shifts have translated into the highest number of controlled action decisions being for mining projects.
The possible outcomes of a referral are:
- not controlled action: there is no approval required as the action as described in the referral will not have a significant impact on a matter of national environmental significance
- not controlled action particular manner: there is no approval required but the action must be undertaken in the particular manner specified in the referral. This provision may be used when there is clear evidence that a particular mitigation or avoidance measure will avoid significant impacts. Penalties apply to breaches of 'particular manner' decisions
- controlled action: approval is required through the assessment and approval process under the EPBC Act
- clearly unacceptable: the proposal is determined to have an unacceptably significant impact on a matter of national environmental significance.
In 2008-09 there were decisions involving referrals as follows:
- 160 determined to be not controlled actions and to require no further assessment
- 99 determined to be not controlled actions if taken in a particular manner
- 129 determined to be controlled actions and to require further assessment and approval
- five determined to be clearly unacceptable.
Twenty-three referrals were withdrawn or lapsed before a controlled action decision, 17 were withdrawn after the controlled action decisions, and 14 were reconsiderations.
Of these referrals, 61 were the result of compliance action taken by the department (14 per cent of all referrals compared to eight per cent in 2007-08).
Nobbys Headland redevelopment, Newcastle, New South Wales
In May 2008 the minister refused a proposal for development next to the lighthouse at Nobbys Headland, New South Wales. The lighthouse is on the Commonwealth Heritage List.
The proponent then worked with the department to design options for a new development which would reduce or avoid impacts on the lighthouse. The department received a new referral from the proponent in December 2008.
In the referral, the proponent specified actions to ensure that the project would avoid having a significant impact:
- There would be no significant disturbance of existing undeveloped site areas and any additions and new construction would be to site areas that are currently occupied.
- Structures such as the lighthouse and signal station, and the heritage values inherent in those structures, would be required by the terms of the lease to be maintained and unaffected by the proposed work.
- Existing redundant cottages would be retained, repaired and restored.
The project was determined by the minister to be not a controlled action because the proponent had demonstrated it could undertake the action in a way that would not have a significant impact on the Commonwealth heritage values of this listed place.
Case study: Controlled action
Fiona Stanley Hospital, Perth, Western Australia
The Western Australian Department of Housing and Works referred the development of Fiona Stanley Hospital in the City of Melville, Perth. The project required clearing 25 hectares of native vegetation which provides foraging habitat for the listed endangered Carnaby's black-cockatoo. The project was determined to be a controlled action requiring thorough environmental assessment and approval.
Following significant negotiation with the proponent during the assessment phase, the minister found that the proposal, which included significant on-site mitigation and offsets, would deliver acceptable environmental outcomes, and approved the project on 7 July 2008. The final approved action included conditions requiring:
- rehabilitation of 51 hectares of native foraging habitat in the nearby Beeliar Regional Park and land adjacent to the development site
- incorporation of 41.2 hectares of breeding and limited foraging habitat into the Clackline Nature Reserve, to be managed by the Western Australian Department of Environment and Conservation
- retaining nine hectares of foraging habitat next to the development site to be protected under the EPBC Act
- retaining three hectares of foraging habitat on site
- the Western Australian Department of Housing and Works contributing $275,000 to research and $575,000 to community participation programs related to the Carnaby's black-cockatoo.
The Fiona Stanley Hospital project has become a benchmark for future projects affecting Carnaby's black-cockatoos.
Case study: Clearly unacceptable
Connection and upgrade of Tessmanns Road, Kingaroy, Queensland
South Burnett Regional Council in Queensland proposed to upgrade 350 metres of an unformed section of Tessmanns Road and associated stormwater works. The proposal involved clearing 500 square metres of vegetation, excavating soils and developing a bitumen sealed road.
The main matter of national environmental significance affected by this proposal was the Mount Berryman phebalium, a critically endangered flora species listed under the EBPC Act. At the time of the referral there were approximately 1,000 known plants in south-east Queensland. The proposed road upgrade would involve removal of at least 140 plants and have a potential adverse impact on another 90 plants through ongoing maintenance, hydrological changes and weed invasion.
In January 2009 it was determined that the proposed action could lead to the loss of about 23 per cent of the known population of Mount Berryman phebalium.
On this basis the minister's delegate determined that the proposed upgrade of Tessmanns Road and associated stormwater works required a 'clearly unacceptable' decision.
Meeting statutory timeframes for referrals
The EPBC Act allows 20 business days from receipt of a valid referral for deciding whether an action requires approval. This includes a 10-day public comment period. This year there were 87 late decisions (22 per cent of the total). Because more referrals in 2008-09, this was a notable improvement on last year (99 late decisions).
The majority of decisions made outside the statutory timeframes were still made within 30 business days of receipt of the referral. These delays were due to the need to obtain sufficient information to make an informed decision, clarifying/consulting on information (on preliminary documents), administrative delays and waiting for advice from other government agencies.
Only those projects that are likely to have a significant impact on a matter of national environmental significance require further assessment and approval under the EPBC Act before they can proceed. The Act allows an assessment approach to be selected that is most appropriate to the complexity and scale of the project.
The department works closely with proponents to ensure the requirements of the environmental assessment process under the EPBC Act are well understood, and strongly encourages companies to discuss projects early in their development so that issues can be highlighted for companies in their decision-making and planning.
Projects that most quickly achieve regulatory certainty under the EPBC Act consistently display the following characteristics:
- proponents engage early with the department to ensure EPBC Act obligations are fully understood
- proponents address EPBC Act requirements at the same time as state or territory requirements, to maximise the opportunity for joint assessment
- projects use environmentally conscious design that avoids or minimises habitat clearing
- proponents provide high quality assessment information
- proponents engage positively with the affected community
- project outcomes clearly maintain and enhance the environment, including, where appropriate, providing additional habitat for threatened species.
The assessment of the potential environmental impacts of proposed actions uses the best available science, with comments and analysis sought from relevant experts within the department, other Australian Government or state and territory government agencies and, when necessary, external scientific institutions and organisations.
The EPBC Act provides a range of assessment approaches to ensure that an environmental assessment reflects: the nature of the proposed actions; the quality of the information already available; the level of public interest; and the nature and scale of the likely effects. Actions can be assessed using one of the following assessment approaches:
- accredited assessment: for example bilateral agreements which the Australian Government establishes with state and territory governments to accredit environmental assessment processes that meet set standards. This allows a single assessment process, avoiding duplication
- assessment on referral information: assessment undertaken solely on the information provided in the referral form. This is appropriate where the degree of public concern is relatively low and where likely significant impacts are relatively confined
- assessment on preliminary documentation: assessment is made on the information available in the referral form or with any other relevant material identified by the minister as being necessary to adequately assess a proposed action
- assessment by Environmental Impact Statement or Public Environment Report: assessment based on the assessment document prepared by the proponent. The environmental impact statement is generally wider and more encompassing than a public environment report
- assessment by public inquiry: assessment undertaken by a commission appointed by the minister to conduct the inquiry and report back on the proposed action.
In 2008-09 the department completed four assessments on referral information, 28 by preliminary documentation and two by a public environment report. No assessments were completed by an environmental impact statement. A further 214 assessments were in progress at 30 June 2009. Decisions on the assessment approach and the status of assessments are summarised in Table 5.
Meeting statutory timeframes for assessments
Twenty four out of 92 decisions on the appropriate assessment approach (26 per cent of the total) were made outside the statutory timeframe. The main factors contributing to late decisions were administrative delays and the need to wait for states to advise whether or not the project would be assessed under a bilateral agreement.
The EPBC Act requires the minister to prepare written guidelines for the content of public environment reports and environmental impact statements within 20 business days from the date on which the assessment approach was decided. The department prepared guidelines for four public environment reports. Three guidelines for environmental impact statements were finalised.
Once the minister has accepted final preliminary documentation, a finalised public environment report, or a finalised environmental impact statement, a recommendation report must be prepared for the minister within the period specified in section 130 of the EPBC Act. Where an assessment is being done under a bilateral agreement, the state must prepare an assessment report. When the minister has received the assessment report, he must make a decision within the specified timeframe. This year there were four late recommendation reports out of 27 for assessment by preliminary documentation. Delays generally arose from the need for additional stakeholder consultation and time required to consider all relevant material. There were no late reports for assessment by public environment report.
This year, 52 controlled actions were approved and one not approved. Conditions attached to approvals included managing the environmental affects of construction, providing compensatory habitat to offset impacts on listed species, monitoring programs to ensure water quality is maintained, the use of independent audits, and measures for managing effects on cetacean species.
Meeting statutory timeframes for approvals
In 2008-09, 15 out of 53 approval decisions (28 per cent of the total) were made outside the statutory timeframe. These delays were largely due to negotiations with the proponent over approval conditions.
Hunter River dredging, Newcastle
On 30 May 2007 the department approved a proposal for large-scale dredging to expand the coal export capacity of the Port of Newcastle.
The proposal, referred by the Newcastle Port Corporation, involved three corporations with an interest in the expansion: Port Waratah Coal Services, Newcastle Coal Infrastructure Group and BHP Billiton.
The project triggered the EPBC Act and the three coal companies also required permits to dispose of dredged material at sea under the Environment Protection (Sea Dumping) Act 1981.
The dredging proposal was subject to a rigorous assessment to ensure environmental protection for the Hunter River and surrounds. The area includes the Hunter River Estuary Ramsar site, of particular importance for palaearctic shorebirds and other migratory bird species. In addition, the largest population of the vulnerable green and golden bell frog in the Hunter region lives at this Ramsar site.
The assessment was complicated due to high levels of PAH contaminants (polycyclic aromatic hydrocarbons) in the riverbed, a historic remnant of the now closed BHP Steelworks. The department required comprehensive mapping of the contaminated zones by BHP Billiton.
The expansion works were further delayed when BHP Billiton sought approval of a sea dumping disposal option, which the department refused after receiving independent technical advice that it would risk contamination of the marine environment.
The department worked closely with all parties, including allowing a staged dredging and development process.
Coordination with other government agencies, including the New South Wales Department of Environment and Climate Change, has enabled environmental approvals and conditions to be consistent at the state and Australian Government levels.
Statements of reasons
A statement of reasons may be requested by an 'aggrieved person' or by a person who is formally notified of a decision on a referral. They may request reasons for the decision that the proposed action is or is not a controlled action, the assessment approach decided upon, or the approval decision.
Thirty-three requests for statements of reasons were received, all under the Administrative Decisions (Judicial Review) Act 1977. Statements of reasons were requested by more than one party for the Sugarloaf Water Pipeline project in Victoria (eight requests).
Two statements of reasons were provided outside statutory timeframes because of the need to seek legal advice.
Reconsideration of decisions
The number of reconsiderations is small in comparison with the total number of referral decisions. Reconsiderations are undertaken on request where there is substantial new information or a substantial change in the likely effects on matters protected by the EPBC Act.
In 2008-09, 14 referral decisions were reconsidered by the minister or his delegate, including nine decisions revoked and new decisions substituted.
The minister may revoke a controlled action decision if:
- substantial new information has become available, or there is a substantial change in circumstances that was not foreseen at the time the first decision was made and which is likely to have an impact on matters of national environmental significance
- the minister was satisfied that the action would be taken in a manner identified but in light of new information the minister believes that the action is not being taken, or will not be taken, in this manner
- the action was not a controlled action because of a provision in a bilateral agreement or a declaration in the EPBC Act.
Reconsideration is only available in a limited set of circumstances and is the only way to revoke and remake a decision. Reconsideration cannot be considered if the action has already been taken or has been fully assessed and approved with conditions by the minister.
Reconsideration allows the decision-maker to confirm the original referral decision.
Actions by the Australian Government and actions on Commonwealth land
The EPBC Act confers jurisdiction over actions that have a significant environmental impact on Commonwealth land, or that are carried out by an Australian Government agency (even if that significant impact is not on one of the seven matters of national environmental significance).
In 2008-09, 11 actions were determined to require approval under the EPBC Act because of likely significant impacts on the environment on Commonwealth land, and a further five actions by Australian Government agencies were determined to be controlled actions.
An example of one action on Commonwealth land involved undertaking remediation of contaminated soil on a site at the Belconnen Naval Transmitting Station within the Australian Capital Territory. Following remediation, the site, owned by the Department of Defence, will be disposed of in accordance with Commonwealth Property Disposals and earmarked for future residential development. The proposed remediation had the potential to affect a number of matters of national environmental significance, including the golden sun moth and the Natural Temperature Grasslands and Yellow-Box Blakely's Red Gum Woodland endangered ecological communities. Further, the site is listed under the Commonwealth Heritage List as the Royal Australian Naval Transmitting Station. To minimise any potential impact on site, a rehabilitation management plan was put forward with a number of mitigation measures targeted for all sensitive habitats.
Australian Government agencies must seek advice from the minister before authorising one of the following actions if it is likely to have a significant impact on the environment:
- providing foreign aid
- managing aircraft operations in airspace
- adopting or implementing a major development plan for an airport
- an action prescribed by the EPBC Regulations.
The relevant Australian Government agency or employee must inform the minister of such a proposal and the minister must assess the action before advising the agency or employee on how to proceed.
In 2008-09, advice was requested three times by the Department of Infrastructure, Transport, Regional Development and Local Government for proposals on Commonwealth airports. Further, from requests received during 2007-08, the department determined during 2008-09 that three advices were not required and two were required. One assessment and advice in this category was completed.
One proposal, to undertake major developments at Melbourne Airport, Victoria, required advice and was assessed through the accredited assessment process. As the department identified that the proposed site may potentially contain both the Natural Temperate Grassland of the Victorian Volcanic Plain, (listed as critically endangered under the EPBC Act), and the golden sun moth, it was recommended that further studies be undertaken. If these protected matters are present, an approval under Part 9 of the EPBC Act is required to allow the action to proceed.
- The department, in conjunction with the Queensland Parks and Wildlife Service, undertook monitoring of commercial whale watching in south-east Queensland for compliance with the relevant regulations, raising awareness of the EPBC Act among industry operators.
- The Australian Government appointed two rangers and four wardens in the Commonwealth terrestrial reserves, with one prosecution.
- During 2008-09 the strategic audit program focused on the mining industry, seismic surveys and residential development, with audits occurring in Western Australia and the Northern Territory.
- The department continued to develop education and training tools for compliance and enforcement and worked with portfolio agencies to raise their awareness and appreciation of the civil enforcement aspects of environmental legislation.
- A number of significant investigation-related activities occurred for the first time, including joint department investigation, enhanced processes and use of a directed audit.
Monitoring and compliance
The department aims to be a proactive and innovative regulator that is prepared to encourage compliance with a range of administrative measures, such as communication, education and cooperation, before pursuing stronger enforcement actions such as civil or criminal penalties. The EPBC Act includes a number of compliance and enforcement options which can be used as an alternative to court proceedings. These include remediation orders, remediation determinations, and enforceable undertakings.
The department's post-approval monitoring and auditing includes a random audit program and a strategic audit program, which focus on mining projects, commercial and residential projects in coastal areas, and seismic surveys. A site inspection program allows for closer monitoring of specific approved projects. Nine site inspections were carried out during 2008-09.
The Compliance Support Unit provides compliance support across the department.
As at 30 June 2009, 26 officers in the Compliance and Enforcement Branch were authorised as inspectors under the EPBC Act.
Compliance in Commonwealth reserves
The department works with other compliance and enforcement agencies, both Australian Government and state, on compliance and enforcement in Commonwealth marine reserves. Activities in 2008-09 included:
- regular surveillance flights over Coringa-Herald and Lihou Reef national nature reserves
- terrestrial and marine surveys as part of regular monitoring of the Lihou Reef National Nature Reserve
- six wardens appointed from the Western Australian Department of Fisheries and Department of Environment and Conservation to conduct compliance activities on behalf of the department at Mermaid Reef and Ningaloo
- 19 wardens appointed from three state partner agencies to undertake compliance and enforcement activities in Commonwealth marine reserves
- five compliance patrols at Mermaid Reef and 20 at Ningaloo
- a near-permanent compliance and surveillance presence at Ashmore Reef by the Customs vessel Ashmore Guardian
- regular surveillance flights over Ashmore, Cartier and Mermaid Reefs.
Aerial surveillance of marine reserves has significantly increased. Cooperative arrangements are in place with a number of state agencies to provide compliance and enforcement services in Commonwealth marine reserves adjoining state waters.
The department continued to train Australian Customs and Border Protection Service officers who perform regular enforcement activities for Commonwealth reserves, and Australian Fisheries Management Authority officers, to enable better joint enforcement and investigation of 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. This training led to the department's first prosecution under section 229 of the EPBC Act (killing or injuring a cetacean).
In October 2008 departmental officers, in conjunction with the Queensland Parks and Wildlife Service, undertook monitoring of commercial whale watching in south-east Queensland to check for compliance with the relevant regulations. The exercise raised awareness of the EPBC Act among operators in this industry. No offenders were identified.
The department provided high level representation to the Strategic Maritime Management Committee and its working groups on 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.
The South-east Commonwealth Marine Reserve Network, which came into effect on 3 September 2007, covers an area of over 226 000 square kilometres of marine environment off the coast of Tasmania, Victoria, eastern South Australia and far south New South Wales. The department worked 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.
In 2008-09, two rangers and four wardens were appointed in the Commonwealth terrestrial reserves and one prosecution occurred. An individual was convicted on two counts under section 211 of the EPBC Act (killing a listed migratory species), for taking saltwater crocodiles within Kakadu National Park, and fined $500 on each count.
Compliance in Commonwealth reserves is reported in more detail in the annual report prepared by the Director of National Parks.
Joint investigation with the Australian Fisheries Management Authority
In early April 2009 the Royal Australian Navy's HMAS Larrakia intercepted an Indonesian longline fishing boat in Australia's Exclusive Economic Zone.
Navy boarding party officers reported the boat's alleged involvement in illegal fishing, and a protected cetacean (dolphin) caught in the vessel's nets.
For the first time, the department's marine investigation team undertook a joint investigation with the Australian Fisheries Management Authority's Darwin office. The potential offence under the EPBC Act related to section 229A (killing or injuring a cetacean in Commonwealth waters) or section 230 (possession of a cetacean).
This matter was heard in the Darwin Magistrates Court in April 2009. The Master of the FFV Sinar Dobo II pleaded guilty and was fined $1,000 for breaching section 229A of the EPBC Act.
This was the first prosecution under this provision of the EPBC Act and strengthened the department's working relations with the Australian Fisheries Management Authority and the Commonwealth Director of Public Prosecutions.
Compliance audit plan
The department has implemented a compliance audit plan comprising a risk-based random compliance audit program and a focused strategic audit program. The compliance audit plan aims to:
- optimise the use of departmental resources
- systematically identify auditable areas/tasks through risk evaluation and priority ranking
- monitor compliance with conditions of approval and 'particular manner' requirements
- evaluate how easily the conditions and requirements attached to audited projects can be understood and complied with
- evaluate the effectiveness of the conditions and requirements in protecting the relevant matter of national environmental significance for each audited project
- review the department's processes and systems with a view to continual improvement.
The random compliance audit program audited or commenced auditing nine projects selected from approvals since the inception of the Act with high, medium and low risk ratings. Audited projects this year included a gas pipeline in Tasmania, residential subdivisions in Western Australia and Queensland, aerial dog baiting in the Snowy Mountains and the construction of the new Department of Defence headquarters near Bungendore, New South Wales.
The strategic audit program focuses on specific areas such as industry sectors, geographical areas, or protected matters. During 2008-09 the program focused on the mining industry, seismic surveys and residential development. Audited projects included iron ore mines in Western Australia and the Northern Territory (in partnership with auditors from the Supervising Scientist Division of the department), residential developments in Queensland and seismic surveys off the coast of Australia. The strategic audit program completed eight projects and commenced a further three for completion in late 2009.
In general, the audits identified a high level of compliance with conditions. Some non-compliances were identified and rectified. The auditors' recommendations enable the department to improve its processes, develop more effective conditions and improve compliance with the EPBC Act. Another benefit of the audit programs is increased liaison with co-regulators such as state and local government agencies, enabling joint audits to be carried out and improving information sharing.
A summary of the results of each audit is published on the department's website at www.environment.gov.au/epbc/compliance/auditing.html.
Environmental audit partnership with the Supervising Scientist Division
In December 2008 the department's environmental audit team joined forces with an auditor from the Supervising Scientist Division to audit the Fortescue Metals Group Cloudbreak Mine, an iron ore mining facility in the Pilbara, Western Australia.
The project was selected for audit as part of the strategic audit program, which has identified mining in general as an industry worthy of focus.
The Supervising Scientist Division's certified auditors routinely audit the workings of the Ranger uranium mine. Certified environmental auditors are required to carry out a certain number of audits annually to maintain certification. Being experienced in mining audits, Supervising Scientist Division auditors undertook to mentor departmental auditors while leading the department's mining audits, to assist the division's auditors in maintaining their own certification requirements. Departmental officers planned the audit and prepared all relevant documentation under the watchful guidance of the Supervising Scientist Division lead auditor. On site, the lead auditor led the opening and closing meetings and the majority of the interviewing.
The audit found no non-compliances in the mine's operation and concluded that the company has developed, and is continuing to build on, a solid understanding of the site and its surrounding environment and the impacts of mining operations.
While on site, the lead auditor coached the department's environmental audit team on auditing mining operations, particularly mining-related water quality issues.
Several more mining audits are scheduled to be carried out with assistance from the Supervising Scientist Division.
Mandatory conditions are attached to permits issued by the department authorising international wildlife trade under the EPBC Act. These conditions aim to protect the environment and ensure international wildlife trade is conducted in accordance with legal requirements and at a level that is not detrimental to the survival of species in the wild.
During 2008-09, 12 reviews of wildlife permit holder compliance were completed. Findings and recommendations have been provided to industry operators.
Working with others
Department and agency staff training
The department continued to develop education and training tools for compliance and enforcement, particularly through the Australasian Environmental Law Enforcement and Regulators Network training subcommittee. The department facilitated training in the form of two Certificate IV courses in Government (Statutory Compliance/Investigations). It also supported the corresponding diploma level course, which was held in Adelaide in May 2009.
The department worked with portfolio agencies to raise their awareness and appreciation of the civil enforcement aspects of environmental legislation.
Working with state and local government
The department works with government agencies in Australia and overseas, conducting joint investigations, sharing information and raising awareness of the department's regulatory role. In March 2009 the department contributed to the Oceania CITES Enforcement Capacity Development Workshop held in Brisbane. This workshop was coordinated and convened by the department, targeting Customs and CITES management officers from nearby Pacific nations.
The department engaged in a joint compliance project with three New South Wales agencies to examine the legality and impacts of water diversion structures in the Macquarie River floodplain. The participating agencies were the Department of Water and Energy, the Department of Environment and Climate Change and the Department of Primary Industries.
Where appropriate, investigations are undertaken in conjunction with the Australian Federal Police and Australian Customs and Border Protection Service. During 2008-09 the department hosted an out-posted officer from the Australian Federal Police.
Australasian Environmental Law Enforcement and Regulators Network
The department participated in and provided funding for the network's secretariat. The network promotes cross-jurisdictional dialogue and cooperation for environmental law enforcement and supports agencies working together through subcommittees, such as training, compliance and audit, and legal. It also engages local government agencies through state-based forums, and the department participates in these forums by invitation.
The network has more than 40 agency members, with representation from all state and territory jurisdictions, the Australian Government, local government authorities and New Zealand. The department has taken the lead in bringing the network under the auspices of the Council of Australian Governments and will accommodate the network's secretariat/project officer from 1 July 2009.
The network held its fifth annual conference in Fremantle in October 2008. The conference attracted over 200 delegates, with more than 30 papers presented on the conference theme of 'The Way Forward - Risks and Opportunities'.
Breaches and investigations
In 2008-09 the department received 925 reports about 522 new incidents or activities representing potential breaches of Part 3 of the EPBC Act. This is similar to the figures for 2007-08 (1000 reports and about 600 incidents).
Incident reports come from a variety of sources and each report is carefully examined to determine whether or not the EPBC Act does, or should, apply. The outcomes of completed matters are provided to the person or organisation making the initial report. The most frequently reported matters include the southern cassowary and the Great Barrier Reef World Heritage Area in Queensland, and Carnaby's and Baudin's black-cockatoos in Western Australia.
Following the listing of the Natural Temperate Grassland of the Victorian Volcanic Plains endangered ecological community on 21 June 2008, the department has dealt with 43 reports of potential breaches of the EPBC Act in relation to this community and/or the species associated with it. The listing is likely to have contributed to reports from Victoria increasing from 14 per cent of total reports in 2007-08 to 21 per cent in 2008-09, while in New South Wales a drop in incident reports from 25 per cent of total to 18 per cent is not attributable to any single factor. More than half of the incident reports for Western Australia (52 of 99) relate to impacts on Baudin's or Carnaby's black-cockatoos, while in Queensland, the southern cassowary accounted for 34 reports out of a total of 138. There are no other significant trends in the matters reported, and numbers of reports, in other states and territories.
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 2008-09, 61 referrals were received as a result of departmental intervention, of which one was rejected as unacceptable, three were withdrawn, 25 were made controlled actions, seven were deemed not to be controlled actions provided the actions were undertaken in a particular manner, and 13 were deemed not to require approval. The remaining 12 were yet to be determined as of 30 June 2009.
Natural Temperate Grassland of the Victorian Volcanic Plain
A challenging issue facing the department is how to increase awareness of the EPBC Act as it applies to broadacre listed ecological communities in the rural and agricultural sectors.
The size and variety of the sectors, with a relatively small number of farmers managing a large percentage of Australia's environment, pose a significant challenge in ensuring compliance with the Act.
In June 2008 the Natural Temperate Grassland of the Victorian Volcanic Plain was listed as a critically endangered ecological community. The grassland was formerly extensive on the volcanic plain bioregion but now comprises mostly small, highly fragmented remnants in a landscape that has largely been cleared for agriculture. The grassland is important for the region's biodiversity and supports a variety of listed threatened fauna species, such as the striped legless lizard and golden sun moth, and more than 20 threatened flora species, including the critically endangered spiny rice-flower.
During 2008-09 the department consulted extensively in the rural community. A comprehensive brochure explaining how to identify and manage the grassland was prepared and 2000 copies were directly mailed to key stakeholders. The department held information sessions in regional centres that attracted more than 250 people, including representatives from more than 30 councils, the Country Fire Authority, regional staff of the Victorian Department of Sustainability and Environment and the Department of Primary Industries, as well as VicRoads, Melbourne Water and non-government organisations.
The information sessions highlighted the ecological community's importance to the region's biodiversity and explained the Australian Government's role in protecting the environment. The department used case studies of compliance incidents to demonstrate how the Act may apply in the rural sector and showed examples of how to manage works to avoid significant impacts.
Since the listing, the department has received more than 40 reports of potential compliance incidents relating to the grassland, including clearing for agricultural or residential development. The department developed a case prioritisation and assessment model to ensure prompt follow-up and identification of potential breaches of the Act. As at 30 June 2009, 23 cases had been closed because either they were not likely to be significant, occurred before the grassland was listed or were exempt due to prior authorisation. Referral under the Act is being sought for four proposals, while 13 incidents are being investigated as potential breaches of the Act. The outcomes of these investigations may include prosecution or a negotiated administrative penalty under the Act, such as a remediation determination or enforceable undertaking. The remaining cases are at the preliminary inquiry stage.
The department considers that its efforts in publicising the grassland listing have been successful in raising the profile and importance of the ecological community and that a similar approach for other broadacre ecological communities may be appropriate. The department will continue raising awareness in rural areas where threats to broadacre ecological communities are highest.
If preliminary investigations determine that an activity is potentially in breach of the EPBC Act, the matter is referred to the department's environment investigations unit. The unit uses multidisciplinary teams drawing on knowledge both within the department and externally, depending on each specific investigation. Investigation teams may draw on the coercive powers available under the EPBC Act, such as notices to produce, monitoring warrants and search warrants, to collect admissible evidence.
As at 30 June 2009 there were eight investigators in the unit, all authorised officers under the EPBC Act with formal qualifications and/or skills and experience in law enforcement and compliance. 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 2008-09 the unit commenced 23 new investigations. The majority related to alleged breaches of Part 13A of the EPBC Act (international movement of wildlife specimens) with three Part 3 matters (protection of matters of national environmental significance) referred for investigation.
Investigations are conducted to ensure that all options for proceeding are left open. This includes using civil and criminal offence provisions where appropriate.
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.
The department had a number of significant 'firsts' during 2008-09:
- The first criminal prosecution under Part 7 of the EPBC Act related to a residential development at Mission Beach, Queensland. A company director and project manager pleaded guilty to breaching section 74AA of the Act, after the project was commenced before approval had been granted. Fines totalling $45,000 were imposed.
- The first criminal prosecution under section 229A of the EPBC Act related to offences by an Indonesian longline fishing vessel found in possession of a cetacean. Criminal prosecutions were pursued by the department in conjunction with the Australian Fisheries Management Authority. The master of the vessel was found guilty of two offences under the Fisheries Management Act 1991 and section 229A of the EPBC Act.
- The department used the enforceable undertaking powers in the EPBC Act for the first time. This was in relation to the clearing of up to eight hectares of habitat for the listed vulnerable striped legless lizard at Barunah Plains in Victoria. The enforceable undertaking requires the landowner to pay $20,000 over four years to the Victorian Department of Sustainability and Environment, with the funds going towards protection and conservation of the striped legless lizard.
- The minister is able to direct the holder of an approval under the EPBC Act to appoint an environmental auditor to carry out an audit, where it is suspected that an approved action is having impacts greater than anticipated when the action was assessed. The directed audit powers were used for the first time in relation to the Reef Cove Resort at False Cape near Cairns, Queensland. The directed audit followed concern that the proponent was not meeting the conditions of their approval, resulting in sediment runoff affecting the Great Barrier Reef.
- The minister suspended an approval under the EPBC Act for the first time. This was in relation to the Reef Cove Resort at False Cape.
- The minister used provisions in the EPBC Act to vary approval conditions to enforce compliance outcomes for the first time. Sylvatech Pty Ltd admitted to breaches of their approval conditions for the Tiwi Islands Plantation Forestry Project. The breaches related to incursions into buffer zones required to protect important rainforest and wetland habitats. The new conditions require all incursions to be identified and rectified, payment of a $1 million bond and contribution of $1.35 million to the Tiwi Islands Indigenous Ranger Program.
Five cases of illegal fishing in Commonwealth waters were referred to the Commonwealth Director of Public Prosecutions as a result of investigations by the department in partnership with state agencies. Three cases were dealt with by a formal warning and two were prosecuted for breaches of the EPBC Act in Commonwealth reserves:
- A recreational fisher from New South Wales was charged under Regulation 12.23 of the EPBC Regulations for being in possession of rigged fishing equipment in the Cod Grounds Commonwealth Marine Reserve. The charge was dismissed pursuant to section 19B(1)(c) of the Crimes Act 1914 on the basis of the defendants good character and the minor nature of the offence.
- A commercial fisher from New South Wales was charged under section 354A(1) of the EPBC Act for attempting to kill and take native fish species at Pimpernel Rock in the Solitary Islands Marine Reserve (within a sanctuary inside a marine reserve). The defendant received a conviction and $500 fine.
By third parties
There were other legal actions not initiated by the department. On 24 December 2008, following the Full Federal Court's decision to invalidate the former minister's approval of the McArthur River Mine expansion, Harry Lansen and a number of other native title claimants sought an injunction to prevent McArthur River Mining from continuing with its action to expand the McArthur River Mine. The applicants withdrew the application following Minister Garrett's new decision on 20 February 2009 to approve the mine expansion with conditions.
On 7 October 2008 the Wide Bay Burnett Conservation Council applied to the Federal Court for a declaration and an injunction against Burnett Water Pty Ltd. The declaration sought concerns the meaning of a condition of the EPBC Act approval for the construction and operation of the Burnett River Dam and relates to lungfish. At 30 June 2009, this matter was still before the court.
Wildlife Protection Association Inc. and Minister for the Environment, Heritage and the Arts and Director-General of the Department of Environment and Climate Change (NSW) (Party Joined)  AATA 717 (15 August 2008)
The Administrative Appeals Tribunal delivered its final decision on 2 December 2008 on the appeal by the Wildlife Protection Association Inc. on the minister's decision to approve the New South Wales Kangaroo Management Plan. The former minister's decision was affirmed and the Tribunal recognised that the harvest was sustainable and met the animal welfare requirements of the EPBC Act. However, the Tribunal was concerned that the management plan did not include adequate response measures to an unusual decline in population numbers and the plan was amended to include trigger points and the actions to be taken when the trigger points are met.
New Zealand Bloom Ltd v Minister for the Environment, Heritage and the Arts (finalised by AAT consent decision, 19 January 2009)
On 4 June 2008 the applicant sought review by the Administrative Appeals Tribunal of the delegate's decision of 28 May 2008 to refuse an application for an export permit for Australian native flora products under section 303DG of the EPBC Act. The permit was refused on the basis of the applicant's previous non-compliance with issued permits. Member Webb, of the Tribunal, conducted a neutral evaluation (an alternative dispute resolution process in which a Tribunal member investigates the facts and law at issue in the dispute and provides a non-binding opinion on the likely outcomes) and released a report (confidential) on 27 October 2008. On 14 November 2008 the department (on behalf of the minister) made a limited offer to the applicant, following the recommendations in the neutral evaluation report. The parties agreed that an export permit would be issued once the applicant met certain conditions. The matter was finalised by private Administrative Appeals Tribunal consent decision on 19 January 2009, under section 34D of the Administrative Appeals Tribunal Act 1975. There were no costs issues in this matter.
Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No. 2)  FCA 1521
In the Federal Court, Phosphate Resources Ltd challenged the former minister's decision to refuse to approve a proposal for extended phosphate mining on Christmas Island. On 13 October 2008 the court found for Phosphate Resources Ltd and set aside the former minister's decision.
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. challenged the former minister's decision to approve with conditions the proposal by Gunns Ltd to construct and operate a pulp mill in Bell Bay. On 9 April 2009 Justice Tracey dismissed Lawyers for Forests' application for review of the former minister's decision to approve the pulp mill with conditions on all grounds. On 30 April 2009 Lawyers for Forests appealed Justice Tracey's decision to the Full Federal Court. At 30 June 2009 this matter was still before the Full Federal Court.
The following actions were commenced in 2008-09:
Anzbrook Pty Ltd t/a Cairns Marine Aquarium Fish v Minister for the Environment, Heritage and the Arts (BRG 258/09)
On 14 April 2009 Cairns Marine Aquarium Fish lodged an application in the Federal Magistrates Court for review of the minister's decision to refuse to grant a permit to export CITES II listed freshwater sawfish to an aquarium in Dubai. As at 30 June 2009 this matter was still before the court.
Zapirain v Minister for the Environment, Heritage and the Arts  AATA 1047 (21 November 2008)
The Administrative Appeals Tribunal reviewed decisions to refuse to issue permits under section 303GB of the EPBC Act for the export of household pets, in this case an application for a permit to export 14 galahs and six rosellas. The Tribunal found there was no evidence relating to the birds' health or welfare to support a conclusion that special circumstances existed, and affirmed the decision to refuse a permit.
Hand v Minister for the Environment, Heritage and the Arts  AATA 893 (25 August 2008)
The case concerned a single rainbow lorikeet. The Administrative Appeals Tribunal determined that there were special circumstances relating primarily to the bird's neurological deficits and separation anxiety, such that a permit to export should be granted.
Waratah Coal Inc. v Minister for the Environment, Heritage and the Arts  FCA 1870 (10 December 2008)
On 3 October 2008 Waratah Coal Inc. filed an application in the Federal Court in Queensland seeking judicial review of the minister's decision under section 74B that Waratah's proposed Galilee Basin Project was 'clearly unacceptable'. The proposed action was for the development of a new coal mine, railway and port near Alpha, Queensland. The application for review included a number of grounds, each of which was based on the allegation that because the 'clearly unacceptable' decision was made more than 20 days after the referral was received it was invalid, and the minister must instead make a decision pursuant to section 75 of the EPBC Act that the action is a 'controlled action'. The matter was heard in the Brisbane Federal Court on 10 November 2008 and the court's decision was handed down on 10 December 2008. The court rejected the applicant's arguments and dismissed the application with costs.
Recognising the importance of the rural sector, the department has had an environment liaison officer working with the National Farmers' Federation for some years. The officer works with state farm organisations, individual farmers, state government officers and other natural resource managers to give assistance on national environmental issues. A new one-page guide to the EPBC Act for farmers was developed and publicised widely online, in print and radio and at agricultural conferences, trade shows and field days throughout Australia.
The department also has a senior advisor for the EPBC Act out-posted in Perth to promote strategic assessments and other EPBC Act related matters.
Freedom of information
The department received 21 freedom of information requests related to the EPBC Act decision-making process.
Conferences, seminars and workshops
Departmental staff took part in workshops and conferences on national environmental and assessment issues, including:
- the Fenner Conference on the Environment
- the Melbourne Planning Summit. Staff met with non-government organisations in Victoria on the Melbourne strategic assessment and EPBC Act processes
- the Queensland Coastal Conference 'Waves of Change' on the benefits of a more strategic approach in the coastal zone
- a series of workshops to support the Kimberley liquefied natural gas hub strategic assessment process
- workshops on Australian Government objectives and priorities for wetland management including the way Ramsar wetlands are protected under the EPBC Act, and on developing the great white shark recovery plan
- the Oceania CITES Enforcement Capacity Development Workshop with CITES management officers from nearby Pacific nations to aid in joint investigations, awareness raising and sharing information
forums to advise stakeholders on the changes to the management arrangements in the Ningaloo Marine Park.
The list of publications produced this year is at Appendix C.
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