Annual reports

Department of the Environment, Water, Heritage and the Arts Annual Report 2009-10

Department of the Environment, Water, Heritage and the Arts, 2010
ISSN 1441-9335

Corporate Outcome - Improving organisational effectiveness (continued)

External scrutiny

Courts and tribunals

The High Court delivered its decisions in the following matters:

ICM Agriculture Pty Ltd v Commonwealth

On 9 December 2009 the High Court, by majority, rejected the challenge to a funding agreement between the Chief Executive of the National Water Commission (acting on behalf of the Commonwealth) and New South Wales, under the National Water Commission Act 2004 and relevant New South Wales laws. Under the funding agreement New South Wales agreed to reduce entitlements to groundwater under New South Wales legislation, and the Commonwealth provided financial assistance for payments to affected entitlement holders. The plaintiffs argued that the reduction in water entitlements amounted to an acquisition of property other than on just terms, contrary to s 51(xxxi) of the Commonwealth Constitution. That section provides that the Commonwealth may make laws with respect to acquisition of property on just terms.

A majority of the High Court found that since 1966, under New South Wales legislation, the right to the use, flow and control of groundwater has been vested in the state. The reduction in the plaintiffs' entitlements to groundwater by operation of NSW law therefore conferred no identifiable benefit on New South Wales (or anyone else) that New South Wales did not already have. There was therefore no acquisition of the plaintiffs' property within the meaning of s 51(xxxi) of the Commonwealth Constitution. Justice Heydon dissented.

Arnold v Minister Administering the Water Management Act 2000

The Arnold case was heard after ICM Agriculture Pty Ltd v Commonwealth as it also concerned the funding agreement between the Commonwealth and New South Wales, which provided for New South Wales to reduce groundwater entitlements. The High Court delivered its judgment in this case on 10 February 2010.

The appellants challenged the validity of the funding agreement, claiming that it was contrary to s 51(xxxi) of the Constitution because it provided for an acquisition of property without just terms. A majority of the High Court (Justice Heydon dissenting) rejected this claim for the same reasons given in the ICM case (discussed above).

The appellants also challenged the funding agreement claiming that it was contrary to s 100 of the Constitution. Section 100 prohibits the Commonwealth abridging 'the rights of a State or the residents therein to the reasonable use of the waters of rivers for conservation or irrigation'. The judges comprising the majority rejected this argument on the basis that the phrase, 'waters of rivers' does not include the underground waters at issue in this case.

The judgments in the ICM and Arnold cases are available on the High Court's website: www.highcourt.gov.au 

Federal Court - Campisi v Commonwealth

The applicant sought to raise a number of questions in the proceedings regarding the validity of the Water Act 2007 and s 10 of the Constitution. On 16 April 2010 Justice Tracey summarily dismissed the case, finding that the applicant had not identified an immediate right, duty or liability for the Court to determine. The judgment is available on the Federal Court's website at www.fedcourt.gov.au 

Other Federal Court decisions involving the department can be found in the legislation reports contained within this annual report.

Commonwealth Ombudsman

No formal reports were issued.

The department received 68 notifications of investigations, of which 57 related to economic stimulus and energy efficiency programs. These complaints related primarily to processing delays and handling of client enquiries. Eleven findings of administrative deficiency were recorded by the Ombudsman. Outstanding matters were transferred to the Department of Climate Change and Energy Efficiency in March 2010.

The Ombudsman has commenced an own motion investigation of the department's procedures for handling complaints.

Freedom of Information

This section is presented in accordance with the requirements of section 8 of the Freedom of Information Act 1982 (the FOI Act). The FOI Act gives the Australian community the right to access information held by the Australian Government. The only limits are exemptions needed to protect essential public interests and privacy.

Members of the public seeking access to documents under the Act make a request in writing to the department and enclose the $30 fee. Requests must include contact details and an Australian address to which notifications can be posted.

Applications received

The department received 76 applications pursuant to the Act during 2009-10. Fourteen of these applications were transferred to the Department of Climate Change and Energy Efficiency as a result of the machinery of government changes in March 2010. There were also four requests for internal review and two requests for review by the Administrative Appeals Tribunal.

Information about the department

Under section 8 of the FOI Act, the department has to make available information about its functions, organisation, operations and powers that affect members of the public. The executive summary presents an overview of this information.

Information about categories of documents

Under section 8 of the FOI Act, the department has to report details of certain categories of documents it maintains. The department holds a large range of documents in the following categories:

General policy: administrative files, consultants' reports, memorandums of understanding, agreements, permits, licences, submissions, guidelines for programs, grant documents, financial records, staffing records, instructions of the secretary, legal documents, and tender evaluations

Specific: Australian Antarctic Division records, committee records, and court documents and records

Parliamentary: briefing documents, Cabinet documents, ministerial submissions, policy advice, ministerial correspondence, explanatory memorandums to Acts, Ordinances and Regulations

Manuals: in accordance with section 9 of the FOI Act, the department maintains a list of unpublished manuals and other documents used by departmental staff members, as a guide to procedures and practices to be followed when dealing with the public. The list is available on request from: the Freedom of Information Coordinator, any office of the National Archives of Australia (NAA), or the NAA website at www.naa.gov.au 

Some documents may have been transferred into archival custody or destroyed in accordance with the Archives Act 1983.

Arrangements for outside participation

Under section 8 of the FOI Act, the department has to report details of arrangements whereby members of the public can participate in certain kinds of decision making.

The department consults members of the public, and bodies outside the Australian Government's administration, when developing policy and programs, and in administering legislation and schemes. In addition to general public consultation, which may be a requirement of particular legislation, the department and the relevant minister receive advice from various scientific and expert committees and other bodies. A list is available at www.environment.gov.au/about/councils/index.html

Generally, people can participate by making oral or written representations to the minister or the department, or by putting submissions to the various working groups chaired by the department.

Formal arrangements under the Environment Protection (Sea Dumping) Act 1981, Sea Installations Act 1987, Environment Protection and Biodiversity Conservation Act 1999, and the environmental impact assessment provisions of the Antarctic Treaty (Environment Protection) Act 1980, provide for proposals to be examined publicly and for comments to be received.

Formal arrangements under the Territory of Heard Island and McDonald Islands Environment Protection and Management Ordinance 1987, provide for public consultation during the development of management plans.

Formal arrangements under the Environment Protection (Alligator Rivers Region) Act 1978, provide for public consultation on scientific research programs and the effects of uranium mining operations on the environment in the Alligator Rivers region.

Procedures for gaining access to information

Freedom of information matters within the department, are handled by the Legal section in the Policy and Communications Division. Contact details for the Freedom of Information Coordinator are:

Phone: (02) 6275 2721
Fax: (02) 6274 1587
Email: foi@environment.gov.au

Written requests for access to documents should be addressed to:

Freedom of Information Coordinator
Legal Section
Policy and Communications Division
Department of Sustainability, Environment, Water, Population and Communities
GPO Box 787
Canberra ACT 2601

Auditor-General reports

The Australian National Audit Office (ANAO) released two reports of relevance to the department during 2009-10.

ANAO Audit Report No. 26: Administration of Climate Change Programs
Tabled: 20 April 2010

The majority of recommendations from this report apply to programs now administered by the Department of Climate Change and Energy Efficiency. The report contained one recommendation for DEWHA to improve its administration of grants by the establishment of a grants policy unit or similar entity. The department has made significant progress in this regard with the co-location of procurement, grants and risk management in a new governance branch from 30 June 2010.

ANAO Audit Report No. 21: Administration of the Water Smart Program
Tabled: 4 February 2010

This report found that the program has been effectively administered by DEWHA and the National Water Commission. There were no recommendations. In its response, the department welcomed the overall conclusions of the audit and indicated that it will work to ensure the good practices and lessons learned from the Water Smart Australia program are used to inform the design and implementation of other programs it administers, including Water for the Future programs.

Parliamentary committees

This section provides an overview of the department's contribution and responses to parliamentary committee inquiries during 2009-10, and the findings of any reports issued during the year.

Senate Standing Committee on Environment, Communications and the Arts
Inquiry into the Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2009

The Senate Standing Committee on the Environment, Communications and the Arts report on the Environment Protection (Beverage Container Deposit and Recovery Scheme) Bill 2009 was tabled on 17 September 2009. The department's response to the report was tabled on 23 June 2010. The Bill was not passed consistent with the recommendation by the committee, which found that although there is community support for action there is currently insufficient information to quantify the benefits of a container deposit scheme. To address these information gaps and enable a decision on the basis of a robust analysis, the Environment Protection and Heritage Council agreed in July 2010 to undertake a Consultation Regulatory Impact Statement on a range of national measures to address packaging waste, including a container deposit scheme.

Inquiry into the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Bill 2010

The Senate Standing Committee on the Environment, Communications and the Arts report on the Inquiry into the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Bill 2010 was tabled on 1 June 2010. The committee considered the provisions of the Bill and determined there were no substantive matters that required examination. The amendments in this Bill address a number of issues that have arisen in the operation of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 since its enactment in 1989, particularly in relation to compliance and enforcement.

Inquiry into Water Licences and Rights

This committee is conducting an inquiry into the ability of the Commonwealth to sustainably manage water resources across state borders in the national interest, with particular focus on the:

The department submitted a written submission in October 2009 and appeared before a public committee hearing on 15 December 2009. The committee is expected to announce its findings during 2010-11.

Senate Select Committee on Agricultural and Related Industries Inquiry into the incidence and severity of bushfires across Australia
Inquiry into the incidence and severity of bushfires across Australia

The department assisted the committee in this inquiry on two separate occasions. In August 2009 the department coordinated a submission to the committee from relevant Australian Government departments and agencies at the request of the Commonwealth Victorian Bushfires Ministerial Taskforce. A joint submission was provided with the Department of Families, Housing, Community Services and Indigenous Affairs and the Bureau of Meteorology (BoM). The department's input into the submission specifically related to the Environment Protection and Biodiversity Conservation Act 1999 and the Caring for our Country program.

A public hearing in March 2010 was convened to provide further advice on the joint submission. The department was represented by a deputy secretary and senior officials from BoM. During the course of the public hearing, the department and BoM took seven questions on notice collectively. A response to each question on notice was provided to the committee on 14 April 2010.

The committee is expected to release its final report during 2010-11.

Joint Standing Committee on Treaties (JSCOT)
Amendments to Appendixes I and II of the Convention on the Conservation of Migratory Species of Wild Animals

The Convention on the Conservation of Migratory Species of Wild Animals (CMS) obliges Parties to protect migratory species listed in the appendixes to the Convention that live within, or pass through, their jurisdiction. Australia has been a party to the Convention since 1 September 1991. At the 9th CMS Conference of Parties in December 2008 three shark species were added to Appendix II of CMS namely; porbeagle (Lamna nasus), shortfin mako (Isurus oxyrinchus) and longfin mako (Isurus paucus). Australia is a range state for these three species. Australia's treaty making process requires that international treaty actions - including amendments - are presented to JSCOT for consideration for a period of at least 15 sitting days before the treaty action comes into force. Amendments to the CMS automatically enter into force for all Parties 90 days after the meeting at which they were adopted. Given the complexities associated with the listing of these species, the department took several months to work through the implications. These included consideration of the domestic obligations resulting from the listings by the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, and legal advice on implementation options. As a result, the government was not in a position to inform JSCOT of these details prior to the amendments coming into force. The amendments were tabled in parliament on 25 November 2009.

The committee noted that public comments suggested the department's consultation processes on the amendments should be improved and recommended the department review them to ensure effective consultation with stakeholders. The department committed to improving consultative processes in the future. The committee supported the amendments to the CMS but expressed concerns with the delay in tabling the amendments in parliament.

Report 101 - Convention on the Protection and Promotion of the Diversity of Cultural Expressions

The United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions is an agreement to affirm the right of state parties to protect and promote a diversity of cultural expressions. It recognises the value of cultural goods, services and activities as carriers of meaning and identity and their integral role in sustainable cultural and economic development.

The committee was of the view that the convention would help to develop and maintain cultural industries and protect valuable cultural expressions in Australia and abroad. The committee considered that accession to the convention would demonstrate to the international community Australia's commitment to cultural diversity and expand Australia's active engagement with UNESCO.

The committee supported the Convention on the Protection and Promotion of the Diversity of Cultural Expressions and recommended that binding treaty action be taken.

The treaty was tabled on 3 February 2009 and Australia acceded to the convention on 18 September 2009.

In this section

Contents