Department of Sustainability, Environment, Water, Population and Communities, 2012
Outcome 5: Operation of the Environment Protection and Biodiversity Conservation Act 1999
2. Promoting ecologically sustainable development
Section 516A of the EPBC Act requires the department to report on how the department’s activities and administration of the Act accorded with the principles of ecologically sustainable development (ESD). The principles of ESD embodied in Section 3A of the EPBC Act are:
- decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations
- if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation
- the principle of inter-generational equity-that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations
- the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making
- improved valuation, pricing and incentive mechanisms should be promoted.
These principles are relevant to all activities and decisions made by the minister and the department in relation to the operation of the EPBC Act. These principles were complied with in all portfolio activities and decisions under the EPBC Act in 2011-12. In addition, the minister and the department have emphasised approaches such as strategic assessments, bilateral agreements between the Commonwealth and other jurisdictions, and reform of regulatory arrangements, as means of better meeting the principles of ESD in the current and future operation of the EPBC Act. This section of the report describes the department’s work in these areas in 2011-12, specific environmental impact assessments, and the department’s compliance and enforcement activities.
2.1 Strategic Approaches
Strategic assessments under the EPBC Act provide a tool for reducing regulatory burden by considering Commonwealth and state and territory environmental planning issues in a single assessment process. These assessments give greater certainty to developers, landholders, planners, industry, governments and the community. Strategic assessments work at the landscape and planning scale and explicitly consider cumulative environmental impacts, including impacts on small patches of native vegetation that might not otherwise be regulated under the EPBC Act because they are below significance thresholds. Under Section 146 of the EPBC Act, the minister may agree to assess the impacts of actions under a policy, plan or program.
- regional-scale development plans and policies
- large-scale industrial development and associated infrastructure
- fire management policies
- vegetation/resource or pest management policies, plans or programs
- water extraction/use policies
- infrastructure plans and policies
- industry sector policies.
The Commonwealth entered into four new strategic assessments in 2011-12.
- A comprehensive strategic assessment for developments and activities that may impact on the Great Barrier Reef World Heritage Area. The comprehensive strategic assessment comprises separate agreements with the Queensland Government and the Great Barrier Reef Marine Park Authority (GBRMPA) to assess:
- the GBRMPA’s management arrangements for the Great Barrier Reef World Heritage Area
- Queensland’s coastal zone planning and development framework for the area adjacent to the Great Barrier Reef World Heritage Area.
- The Perth and Peel region urban development strategic assessment with the state of Western Australia.
- The development of Heathcote Ridge in Sutherland Shire, Sydney, with the Gandangara Local Aboriginal Land Council in New South Wales.
The minister has endorsed and/or approved the following strategic assessments:
- Molonglo Valley plan, Australian Capital Territory
- Western Sydney growth centres, New South Wales
- Midlands water scheme, Tasmania (involving three stages, with two stages approved as of 30 June 2012).
The department completed a review of strategic assessments to inform best practice. The report, A guide to undertaking strategic assessments (2011),is available on the department’s website at www.environment.gov.au/epbc/publications/guide-to-strategic-assessments.html.
Case Study 1: Western Sydney’s growth centres program strategic assessment
In December 2011 the Sydney growth centres strategic assessment program was endorsed under the EPBC Act and, in February 2012, actions taken in accordance with the endorsed program were approved (except those on Commonwealth land or by Commonwealth agencies). This means individual urban development projects do not need any further approval under the EPBC Act if undertaken in accordance with the approved program. The department estimated this would save up to 500 individual project referrals.
Sydney’s population will be nearly six million people by 2036. Proposed Greenfield housing associated with this population increase will focus on the north-west and south-west growth centres, where more than 180000 new homes are planned for 500000 people. Approval of the strategic assessment paves the way for 30 years of sustainable growth in western Sydney. This approval will help streamline the delivery of affordable new homes within a carefully planned framework that balances infrastructure, employment, land development and environmental protection.
A key issue to consider was impact on Cumberland Plain Shale Woodlands and Shale-Gravel Transition Forest (the ‘Cumberland Plain Woodland’), listed as critically endangered under the EPBC Act. The growth centres contain 2185 hectares of Cumberland Plain Woodland, of which 1187 hectares will be cleared and 998 hectares conserved. This loss is 11 per cent of the remaining 10703 hectares of Cumberland Plain Woodland.
The strategic assessment avoids impacts on the highest quality areas of Cumberland Plain Woodland and generates a $530 million Growth Centres Conservation Fund to offset impacts by investing in the best quality remnant areas on the Cumberland Plain in western Sydney. These areas have been identified as the Priority Conservation Lands in the New South Wales Cumberland Plain recovery plan.
Cumberland Plain Shale Woodlands and Shale Gravel Transition Forest, Mt Annan. (Matthew White)
Case Study 2: Molongolo Valley Strategic Assessment
On 7 October 2011 the Minister for Sustainability, Environment, Water, Population and Communities endorsed the Australian Capital Territory Government’s Molonglo Valley plan for the protection of matters of national environmental significance. On 20 December 2011 the minister approved actions associated with urban development in East Molonglo as described in the plan.
The Australian Capital Territory’s population is projected to increase from the current 361900 to between 389000 and 460000 people by 2032. The lower Molonglo Valley, comprising the East and West Molonglo strategic assessment area, is one of the few remaining undeveloped areas within the Australian Capital Territory suitable for large-scale urban development capable of accommodating Canberra’s growing population.
The lower Molonglo Valley landscape.
The strategic assessment of the plan achieved holistic environmental outcomes for matters of national environmental significance and addressed cumulative impacts at the landscape level across the strategic assessment area. The plan avoids, where possible, impacts on matters of national environmental significance by concentrating development away from areas of high conservation value. Where avoidance has not been possible, effective mitigation measures are employed, and offsets consolidated into large contiguous planned reserves and parks that are adaptively managed to maintain and enhance the ecological values of matters of national environmental significance. These include the ecological communities Box-gum Woodland and Natural Temperate Grassland. They also include species pink-tailed worm lizards, and swift and superb parrots species.
The strategic assessment process also commits the Australia Capital Territory Government to develop an adaptive management strategy to set the framework for achieving the plan’s commitments. The strategy focuses on identifying and delivering specific, measurable outcomes for matters of national environmental significance and will ensure a consistent, integrated and efficient application of adaptive management principles and practices to achieve long-term conservation outcomes.
Marine bioregional planning
Marine bioregional plans are being prepared under Section 176 of the EPBC Act, which requires the minister to have regard to a bioregional plan in making any decision for which the plan has relevance. Marine bioregional plans, once finalised, will present a consolidated description of the marine environment and conservation values of each marine region, and will provide a framework for strategic intervention and investment by government to meet its policy objectives and statutory responsibilities.
As part of the marine bioregional planning process, new networks of Commonwealth marine reserves (also called marine protected areas or marine parks) are being identified. These reserves will protect examples of Australia’s diverse marine ecosystems and will help meet Australia’s international and national commitments to establish a national representative system of Marine Protected Areas by 2012.
The marine bioregional planning process is targeted at Commonwealth waters between the outer limit of state/territory waters (usually 3 nautical miles offshore) and the outer limits of Australia’s exclusive economic zone, 200 nautical miles offshore.
Draft marine bioregional plans and marine reserve network proposals for the North-west and North regions were released for public consultation in August 2011. A draft marine bioregional plan and marine reserve network proposal for the Temperate East region, and a Coral Sea Commonwealth Marine Reserve proposal, were released for public consultation in November 2011. Public consultation on the draft South-west Marine Bioregional Plan and marine reserve network proposal concluded in August 2011. The final Commonwealth marine reserves proposals for all regions were publicly released in June 2012 ahead of the statutory process to proclaim the new reserves under the EPBC Act. Processes to develop management plans under the EPBC Act for the new Commonwealth marine reserve networks will commence after the regional networks have been proclaimed.
A key function of bilateral agreements is to reduce duplication of environmental assessment and regulation between the Commonwealth and the states and territories. Bilateral agreements allow the Commonwealth to accredit particular state and territory assessment processes and, in some cases, state and territory approval decisions. To be accredited, state and territory processes need to meet best practice criteria set out in the EPBC Act and its regulations.
If proposed actions are covered by an assessment bilateral, then they are assessed under the accredited state and territory processes. After assessment, the proposed actions still require approval from the Commonwealth minister under the EPBC Act.
If proposed actions are covered by an approval bilateral, then they will be assessed and approved by the states and territories in accordance with accredited management arrangements or authorisation processes. No further approval is required from the Commonwealth minister under the EPBC Act.
On 13 April 2012 the Council of Australian Governments (COAG) reaffirmed its commitment to high environmental standards, while reducing duplication and streamlining environmental assessment and approval processes. COAG agreed that governments will work together to achieve reform outcomes. This work will include fast-tracking the development of bilateral arrangements for accreditation of state and territory assessment and approval processes, with frameworks to be agreed by December 2012 and all agreements to be finalised by March 2013.
On 21 March 2012 a new bilateral agreement was entered into by the State of Western Australia and the Commonwealth and replaced the previous bilateral agreement. This followed changes to Western Australian environmental legislation in 2010 which introduced a new environmental impact assessment process. The new bilateral accredits this process under the Environmental Protection Act 1986 (WA).
The bilateral agreement between the Commonwealth and Queensland accredits specified Queensland environmental impact assessment processes in assessing actions under the EPBC Act. On 14 June 2012 the bilateral agreement was amended to strengthen cooperative arrangements between the Commonwealth and the Queensland Government. In particular, the amended agreement provides a mechanism to ensure that if the Queensland Government believes that the agreed requirements cannot be met, then it will provide early written notification and seek the Commonwealth’s agreement to complete the environmental assessment work.
As of 30 June 2012 bilateral agreements under the EPBC Act were in place between the Commonwealth and all jurisdictions except New South Wales. The New South Wales bilateral agreement expired in January 2012, and a new agreement is being negotiated between the Commonwealth and New South Wales as part of the expedited arrangements agreed by COAG.
2.2 Environmental impact assessment
The department works closely with proponents, state, territory and local governments, and other stakeholders, including consultants, to ensure that the requirements of the environmental assessment process under the EPBC Act are understood. The department encourages proponents to discuss projects early in their development so that EPBC Act-related issues can be highlighted and taken into account in a project’s decision making and planning.
Projects that most effectively achieve regulatory certainty under the EPBC Act are consistently characterised by:
- proponents engaging early with the department to ensure that EPBC Act obligations are fully understood
- proponents seeking to address EPBC Act requirements at the same time as state or territory requirements, to maximise the opportunity to use accredited state and territory assessment processes
- projects using environmentally conscious design that avoids or minimises habitat clearing
- proponents providing high-quality information to regulatory agencies
- proponents engaging positively with the community
- project outcomes clearly maintaining and enhancing the environment, including, where appropriate, providing additional habitat for threatened species.
The EPBC Act provides for a case-by-case assessment by either the Australian Government or an accredited assessor under state and territory processes under a bilateral agreement. (See also the Bilateral Agreements section of this report.)
The proponent initiates this process by submitting a referral for a determination on whether a proposed action will have a significant impact on a matter of national environmental significance and, if so, whether further assessment and approval is necessary (which involves a decision on whether the action will be a controlled action). The EPBC Act allows for selection of an assessment approach that is most appropriate to the complexity and scale of the project.
After the proposed action is assessed the minister or delegate then decides whether to approve the action.
In 2011-12 the statutory timeframes for the three key decision points in the environmental assessment process—a decision on whether the action is a controlled action, an assessment approach decision, and the approval decision—were met 63 per cent of the time. Of the decisions that ran over the statutory timeframe, 70 per cent were made within a further 10 business days of the statutory due date.
Detailed statistics relating to EPBC Act referrals, assessments and approvals are in Appendix A.
In 2011-12, 412 actions were referred to the Australian Government for decision on whether approval was required under the EPBC Act. This was a small decrease of 3.7 per cent on the previous year. Thirty-two referrals were the result of compliance actions by the department. Western Australia accounted for the highest proportion of referrals, 24 per cent of the total actions referred. On a national basis referrals relating to residential development, renewable energy generation and supply, energy exploration, mining, natural resources management and tourism, were heavily represented in the total actions referred, reflecting broader trends within Australia’s economy.
The possible outcomes of a referral are listed below.
- Not a controlled action: no approval required as the action described in the referral will not have a significant impact on matters of national environmental significance.
- Not a controlled action/particular manner: no approval required but the action must be undertaken in the manner specified in the referral. This provision may be used when there is clear evidence that a particular mitigation or avoidance measure will reduce or 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, without further assessment, to have an unacceptable impact on one or more matters of national environmental significance.
In 2011-12, decisions involving referrals were as follows:
- 151 actions were determined to be not controlled actions and to require no further assessment
- 94 actions were determined to be not controlled actions if carried out in a particular manner
- 132 actions were determined to be controlled actions and to require further assessment and approval decision.
- one action was determined to be clearly unacceptable.
The highest number of controlled action decisions (44) related to mining projects.
Thirty referrals were withdrawn before a controlled action decision, 23 were withdrawn after a controlled action decision and 10 lapsed after a controlled action decision. Five reconsideration requests were received during the year and four decisions were made.
Assessments and approvals
Once a project is determined to be a controlled action under the EPBC Act, further assessment of the likely impacts to matters of national environmental significance is undertaken. A decision is made for all controlled action determinations on the approach by which this assessment is conducted (the ‘assessment approach decision’). There are five different levels of assessment. When deciding on the assessment approach the department considers factors such as the scale of the project, the likely impacts, and the amount of information already provided. Each level requires technical information provided by the proponent to be considered and each allows for a public comment period. Comments received during this time are then considered as part of the impact assessment.
Where appropriate, assessment by bilateral agreements which accredit a particular state and territory assessment process may be used to reduce duplication of environmental assessment and regulation between the Commonwealth and the states and territories. The assessments of 17 projects were completed under bilateral agreements in 2011-12 and a further 91 projects were under assessment using a bilateral agreement as of 30 June 2012.
Following assessment, the minister, or the minister’s delegate, will decide whether to approve the proposed action and the conditions applied to that action. In 2011-12, 75 controlled actions were approved, a decrease (27 per cent) on the 103 controlled actions approved in 2010-11. No controlled actions were not approved in 2011-12. Conditions attached to approvals may include requirements to:
- manage the environmental effects of construction
- provide compensatory habitat to offset impacts on listed species
- establish monitoring programs to ensure water quality is maintained
- use independent audits
- manage effects on cetaceans.
Decisions made, notices issued and invitations to comment under the EPBC Act are published on the department’s website.
Case Study 3: Regional Rail Link
The Regional RailLink will provide up to 50 kilometres of dual-track rail link from West Werribee to central Melbourne via Sunshine. The project includes a new set of dedicated tracks which will allow regional services to run directly into Melbourne. Regional Rail Link will be funded by the Australian and Victorian governments, with the Australian Government contributing $3.2 million to this project from the Nation Building Program. The department has assessed and approved two sections of the project under different parts of the EPBC Act.
Regional Rail Link Section 1 (Moonee Ponds Creek to 2 kilometres beyond Deer Park Bypass) was referred to the minister on 28 June 2011. On 22 February 2012 a delegate of the minister approved this action with conditions under Part 9 of the EPBC Act. Section 2 of the Regional Rail Link project (West of Werribee to Deer Park) was approved under Part 10 Assessment Process of the EPBC Act on 11 June 2010, if undertaken in accordance with the endorsed strategic assessment program for Delivering Melbourne’s newest sustainable communities.
Regional Rail Link Section 1 will permanently protect and manage the last known population of the endangered Sunshine diuris (Diuris fragrantissima). The approval of Regional Rail Link Section 1 was achieved through good communication between the department and stakeholders and keeping to tight timelines whilst managing and protecting impacts on matters of national environmental significance.
The Regional Rail Link project as a whole demonstrates a collaborative approach and consistent approvals decision process between Part 9 and Part 10 assessment processes of the EPBC Act. This project has led to a refined approach to assessment under the EPBC Act to deliver approvals for a significant Victorian infrastructure project.
Meeting statutory timeframes for assessment approach and approval decisions
The assessment approach and approval decisions made under the EPBC Act are governed by statutory timeframes. Forty-six of the 106 assessment approach decisions were made outside the prescribed statutory timeframes. The majority of late assessment approach decisions were made within 10 business days of the statutory due date.
Forty-two of the 73 approval decisions were made outside the statutory timeframe.
Further information on statutory timeframes for referral, assessment and approval decisions are provided in Table 14 at Appendix A.
Actions by the Australian Government and actions on Commonwealth land
In addition to the eight matters of national environmental significance protected by the EPBC Act, the EPBC Act also regulates actions that have a significant environmental impact on Commonwealth land, or that are carried out by an Australian Government agency.
In 2011-12, one controlled action determination was made relating to Commonwealth land and seven controlled action determinations were made relating to actions by Australian Government agencies.
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 2011-12, advice was requested on three occasions by the Department of Infrastructure and Transport and the Civil Aviation Safety Authority for proposals involving Commonwealth airports. The minister’s delegate determined that advice was not required for two of those proposals, and the requirements for advice on one proposal was still to be determined as of 30 June 2012.
Case Study 4: BP seismic survey referral decision under the EPBC Act
On 4 August 2011 the minister determined that a proposal by BP Exploration (Alpha) Ltd (BP) to undertake a marine seismic survey in Commonwealth waters in the Great Australian Bight (GAB), approximately 400 kilometres west of Port Lincoln, did not require further assessment under the EPBC Act, provided it was undertaken in a particular manner. Marine seismic surveys use a technique that directs acoustic energy (sound) into the rock beneath the sea floor from equipment towed behind a purpose-built seismic vessel. The loudest sound sources used in seismic survey operations are produced by air guns which generate short, intense pulses of sound directed at the seafloor.
The proposed survey location posed several challenges. The survey area overlapped a potential feeding area for the endangered blue whale (Balaenoptera musculus) and the endangered southern right whale (Eubalaena australis), the latter of which could potentially migrate through the area to calve at the Head of the Bight. In addition, the survey area partly overlapped with the GAB Commonwealth Marine Park, which meant that approval by the Governor-General was also required for the proposal to proceed.
In assessing the referral, the department developed precautionary management measures that ensured that listed threatened and migratory species and the environment of the Commonwealth marine area would not be significantly impacted by the survey. These measures included not undertaking survey operations during the peak southern right whale calving period, and only proceeding with surveys within 300 kilometres of southern right whale calving areas where noise loggers confirmed that sound was below 120 decibels. This is a sound level at which whale behaviour is not expected to be affected. In addition, four marine mammal observers are required on board the seismic vessel to observe for whales, and the sound source is required to be shut down if whales are spotted within 3 kilometres.
The department worked with BP to develop approaches to the survey structure and timeframes that would minimise interactions with whales, and to encourage innovative approaches to prevent significant impact on other protected matters. BP was able to commence the survey on schedule using precautionary management measures. On 1 September 2011 the Governor General approved the seismic survey, taking into account the referral assessment and decision as well as the assessment of the proposal against the provisions of the Great Australian Bight Commonwealth Marine Park Management Plan.
Case Study 5: Chevron Wheatstone approval under the EPBC Act
On 22 September 2011 the minister approved the Wheatstone project to be undertaken by Chevron Australia Pty Ltd. This project entails the construction and operation of a multi-train liquefied natural gas and domestic gas plant approximately 12 kilometres south-west of the town of Onslow in the Pilbara, Western Australia.
The matters protected under the EPBC Act for this project were listed threatened and listed migratory species (such as whales, dolphins, turtles, sawfish and dugongs) and the environment of the Commonwealth marine area. As the project included an offshore facility and pipeline in Commonwealth waters, the project was assessed via a coordinated assessment between the Australian and Western Australian governments, and Chevron prepared a single assessment document for both the state and federal assessment requirements.
Due to the scale and complexity of the project, a range of potential impacts needed to be addressed, including impacts:
- on coral and sea grass and foraging habitat for dugong, turtles and sawfish from the three-to-five year dredging program
- on marine fauna (whales, dolphins, dugongs and turtles) from construction activities
- from recreational activities, such as four-wheel-driving and boating, generated by the large workforce of 5000 people.
The 70 conditions imposed by the minister protect listed threatened and migratory species and the Commonwealth marine area from these impacts. The conditions include the requirement to optimise the dredging methodology and to minimise habitat disturbance. They also required an adaptive management approach that uses expert panels using the results of further dugong research to better inform and improve management plans. In addition, Chevron is also required to educate its workforce on the significance of environmental values of the area and their shared responsibility to protect those values, including through a code of conduct, to manage fishing and recreational activities by employees.
The conditions of approval include the development of a comprehensive and innovative offsets package. This package requires Chevron to establish a regional Indigenous sea ranger program for the life of the project, to minimise any impacts to marine species and their coastal habitats, and help enforce the code of conduct. The offsets also include funding from Chevron for research into sea grass ecology and the removal of barriers to the movement of sawfish.
Statements of reasons
Sections 77(4) and 78C(4) of the EPBC Act allow persons to request a statement of reasons about controlled action decisions and reconsideration of controlled action decisions respectively. Under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) a statement of reasons can also be requested for administrative decisions made under legislation. In 2011-12, 33 requests were received and 32 statements provided under the ADJR Act and the EPBC Act. (The statutory timeframe for providing one of the statement of reasons requested in 2011-12 carried into 2012-13.)
Reconsideration of a decision
Reconsideration of a decision is available in limited circumstances and is the only way to revoke and remake a decision. Typically, reconsiderations are undertaken on request when there is substantial new information or a substantial change in the likely effects on matters protected.
In 2011-12, four decisions were reconsidered by the minister or his delegate and three decisions were revoked and new decisions made.
The Environment Protection (Sea Dumping) Act 1981 fulfils Australia’s international obligations under the London Convention and Protocol, which aims to protect and preserve the marine environment from pollution, especially from dumping at sea. During 2011-12, 14 sea dumping permits were issued by the department.
2.3 Compliance and enforcement
The department takes a strategic approach to ensure that EPBC Act compliance and enforcement is consistent, efficient and effective across the marine and terrestrial environments. This approach includes the development and maintenance of relationships with other compliance and enforcement agencies of the Commonwealth, states and territories.
The EPBC Act provides a range of approaches for compliance issues, including prevention, remediation, civil penalties and criminal prosecutions for more serious breaches, and reporting on compliance and enforcement issues. The department makes full use of all available remedies, with a particular emphasis on education and selecting remedies that achieve good environmental outcomes.
EPBC Act compliance and enforcement activity is consistent with the department’s overarching Compliance and Enforcement Policy, which was updated in December 2009 following approval by the Attorney General’s Department and adoption by the minister. This policy provides regulated entities, stakeholders and the wider community with clear advice on how the department exercises its compliance and enforcement responsibilities across the entire range of legislation administered by the department. The policy is available on the department’s website at www.environment.gov.au/epbc/publications/epbc-compliance-enforcement-policy.html.
The department adopted the new EPBC Act Compliance and Enforcement Policy on 21 February 2012. The new policy sits underneath the overarching Compliance and Enforcement Policy and is specific to the EPBC Act. The policy describes the department’s approach to, and the principles that guide, compliance and enforcement activities under the EPBC Act, promotes a consistent, transparent and fair approach to EPBC Act compliance and enforcement activities, and provides guidance for stakeholders and the wider community about how the department addresses potential contraventions of the EPBC Act.
Information on EPBC Act compliance and enforcement activities in terrestrial reserves is in the annual report of the Director of National Parks.
Working with others
The department has an active EPBC Act compliance and enforcement program. During 2011-12 the department gave a series of presentations on the EPBC Act throughout Australia for local governments, state agencies and non-government organisations, to encourage greater awareness of and compliance with the EPBC Act.
The department shares information and undertakes a variety of joint enforcement operations with other state and territory environmental regulators through the Australasian Environmental Law Enforcement and Regulators Network (AELERT).
AELERT is a network of local, state, territory and Australian Government and New Zealand agencies that share information and develop cohesive regulatory practices. Joint compliance and enforcement operations are undertaken by AELERT members in priority operational areas.
The department continues to work closely with the Interpol Environment Crime Program. Numerous briefings on issues relating to the suspected illegal international movement of wildlife and products were provided in 2011-12 for intelligence and investigation purposes.
Operation CETUS, a national operation by Australian Government and state conservation and environment agencies under the AELERT banner was undertaken between May and November 2011. Operation CETUS aimed to protect migrating whales from undue disturbance and enforce whale approach limits, particularly at whale-watching hotspots. As well as compliance and enforcement activities, Operation CETUS promoted responsible whale-watching practice and raised awareness about the Australian national guidelines for whale and dolphin watching 2005. Forty-five incidents were detected, the majority involving a breach of minimum approach distances. The operation highlighted that the level of awareness of whale-watching regulations is low among recreational boaters.
The department has established relationships with other Australian Government and state agencies for the provision of EPBC Act regulatory services such as the Australian Customs and Border Protection Service, the Australian Fisheries Management Authority and the Australian Quarantine Inspection Service. Cooperative arrangements are in place with several state agencies to provide compliance and enforcement services in state waters adjoining Commonwealth marine reserves. In November 2011 the department entered into a memorandum of understanding with the Queensland Department of Environment and Heritage Protection to ensure the timely exchange of information relevant to coal seam gas projects in that state.
The department launched an awareness program designed to provide information about the recent listing of the koala under the EPBC Act. As part of this program, the department is staging a series of presentations to New South Wales and Queensland councils, relevant state government departments and non-government organisations. The presentations will include details of the listing rationale, significance and interim referral guidelines, the assessment and approval process, and the compliance and enforcement provisions of the EPBC Act which relate to the koala.
Compliance audit plan
The department’s compliance audit plan comprises a random audit program and a strategic risk-based audit program to verify compliance with conditions of approval and particular manner requirements. The compliance audit plan also evaluates the effectiveness of the conditions and requirements for protecting matters of national environmental significance.
In 2011-12 the department audited, or commenced auditing, six projects under the random compliance audit program. These projects were selected from approvals made since the inception of the EPBC Act and included a residential development in Western Australia, two coalmines in Queensland, a surface-water management scheme in Victoria, a dam upgrade in Queensland and the relocation of a Victorian wholesale market.
The strategic risk-based audit program focuses on specific areas such as industry sectors, geographical areas and protected matters. During 2011-12 the program focused on 13 projects, including seven in the mining and exploration industries, a residential development, an industrial development and a review of four approvals that included conditions requiring the establishment and management of habitat reserves and offsets. Overall, the audits identified a substantial level of compliance with conditions. Instances of non-compliance were addressed in accordance with the department’s Compliance and Enforcement Policy.
The audit programs have also increased cooperation with state and local government co-regulators, enabling joint audits to be carried out and improving information sharing. A summary of the findings of each completed audit is published on the department’s website www.environment.gov.au.
The department has a program of actively monitoring projects after approval to ensure adherence to conditions attached to approvals and fulfilment of requirements attached to particular manner decisions. Variations of conditions attached to 16 approvals were processed in 2011-12. One project had its approval revoked in August 2011 following three suspensions over three years. As at 30 June 2012, 900 projects were being monitored by the department.
Breaches and investigations
The department examined 448 new incidents or activities representing potential breaches of part 3 of the EPBC Act in 2011-12. This shows a decreasing trend from the 466 incidents examined in 2010-11 and 532 incidents examined in 2009-10. Sixty site inspections were undertaken to obtain information to assess whether alleged non-compliance actions had occurred. The decreasing trend in incidents examined since 2009-10 may be attributed to the department’s increased involvement in proactive enforcement and awareness-raising with key stakeholders, and the department’s escalation of its enforcement activities in response to serious contraventions of national environmental law. The department promotes compliance outcomes which send a strong message of deterrence to potential contraventions of the EPBC Act.
Incident reports are carefully examined to determine whether or not the EPBC Act applies. The person or organisation making the initial incident report is advised of the outcome of the completed matter. The most frequently reported matters relate to impacts on the southern cassowary (Casuarius casuarius johnsonii) in Queensland, Natural Temperate Grasslands of the Victorian Volcanic Plain in Victoria, and Carnaby’s black cockatoos (Calyptorhynchus latirostris), Baudin’s black cockatoos (Calyptorhynchus baudinii) and forest red-tailed black cockatoos (Calyptorhynchus banksii naso) in Western Australia. Many reports involve actions that have not yet commenced. In these cases the department investigates them to see if the activity should be regulated. During 2011-12, 32 referrals were received as a result of departmental intervention. Of these, one has been determined clearly unacceptable under Section 74B, 13 were determined to be controlled actions and four were determined to be not controlled actions provided the actions were undertaken in a particular manner. Seven were determined to be not controlled actions. As of 30 June 2012, the remaining seven are yet to be determined.
The department began 15 new cases of alleged breaches of the EPBC Act. Of these there were:
- two relating to Part 13A of the EPBC Act (illegal international movement of wildlife specimens)
- five relating to Part 3 of the EPBC Act (significant impact on matters of national environmental significance)
- eight relating to EPBC Act marine issues (marine reserve offences and marine species protection).
The department executed five monitoring warrants and seven search warrants under the EPBC Act. Seventeen notices to produce books and records under Section 486F of the EPBC Act, and one notice to attend, were also served.
Enforcement outcomes included 14 successful criminal prosecutions, six infringement notices, one enforceable undertaking and one conservation agreement as follows:
- July 2011: A Bathurst resident received a conviction and a $2,500 fine after pleading guilty in the Downing Centre Local Court, Sydney, to three charges of possessing illegally imported wildlife under the EPBC Act. The conviction follows a successful joint operation by federal and state environment authorities and the NSW Police during July 2010. The Court found that the person was in possession of a number of illegal wildlife specimens, including two leopard geckos, a veiled chameleon and a boa constrictor.
- July 2011: Quanstruct Pty Ltd was issued one infringement notice of $6,600 for contravening a condition attached to their approval to construct a dog training facility at Bulla, Victoria, and consequently impacted upon a nationally threatened ecological community.
- August 2011: Two persons entered guilty pleas to offences under the Historic Shipwrecks Act 1976 and the Historic Shipwrecks Regulations 1978 for illegally diving on a historic shipwreck, the Florence D, and removing relics from the wreck. The court ordered that each person be placed on a 12-month good behaviour bond with a $500 surety. No convictions were recorded.
- August 2011: Two persons entered guilty pleas to offences under the Historic Shipwrecks Act 1976. The court imposed fines totalling $1,750 after the pair undertook an illegal dive inside the wreck of the SS Yongala in the Great Barrier Reef marine park.
- August 2011: Departmental officers involved in Operation BONAPARTE seized a vast collection of allegedly illegal wildlife products. This was one of the largest wildlife seizures in Australia and followed detailed monitoring and investigative work by departmental officers. The matter is currently under review for criminal prosecution.
- October 2011: Centennial Coal, in mitigating damage caused by its mining operations on a nationally threatened ecological community on Newnes Plateau, NSW, entered into an enforceable undertaking with the minister in which it committed to pay $1.45 million towards a four-year research program. The program is being administered by the Fenner School of Environment and Society at the Australian National University.
- January 2012: Cairns Regional Council was issued one infringement notice valued at $6,600 for contravening a condition attached to its approval to upgrade the Cooper Creek Crossing in far north Queensland.
- February 2012: Santos was issued with three infringement notices valued at $6,600 each for contravening conditions attached to their approval. Santos received fines totalling $19,800.
- March 2012: Two persons entered guilty pleas to offences related to the possession of illegally imported wildlife specimens, including exotic fish, toads and turtles. One person was given a good behaviour bond of $5,000 and the other was given a good behaviour bond of $1,000.
- April 2012: A conservation agreement was entered into with a Bingle Bay banana farmer to restore corridors used by the endangered southern cassowary as a response to unauthorised clearing.
- April 2012: Seven individuals appeared in the Port Lincoln Magistrates Court where they received a total of $22,000 in fines for killing listed migratory species and other (fisheries-related) offences. This was the result of a joint investigation by the department and Australian Fisheries Management Authority.
- April 2012: The Gladstone Ports Corporation Ltd was issued with an infringement notice of $6,600 when a load of dredge spoil was dumped outside the approved disposal area, contravening a condition attached to their approval.
The following legal actions occurred in 2011-12.
Tasmanian Conservation Trust Inc v The Minister for Sustainability, Environment, Water, Population and Communities (Federal Court Proceeding ACD 24/2011)
On 6 June 2011 the Tasmanian Conservation Trust Inc. challenged the minister’s various decisions of 10 March 2011 to vary certain conditions attached to the approval for the Gunns’ Bell Bay Pulp Mill and to approve modules under the conditions of that approval. The Federal Court made consent orders on 19 September 2011 that the proceedings be discontinued.
The Western Australian Land Authority (Landcorp) v The Minister for Sustainability, Environment, Water, Population and Communities  FCA 226
The Western Australian Land Authority (Landcorp) made an application in the Federal Court for a review of the controlled action decision made by a delegate of the minister in respect of the Mandurah Junction Landcorp Development.
On 15 March 2012 Justice Gilmour found in the department’s favour that it had: not taken an irrelevant consideration into account; taken into account all relevant considerations; not made a decision so unreasonable that no reasonable person could have made the decision.
Justice Gilmour found that the department had breached the rules of procedural fairness by not: providing the applicant with relevant sections of the 2009 and 2012 Draft Guidelines; clearly informing the applicant that the cumulative impact of a number of approvals for developments in the area was a consideration which the decision maker was taking into account; providing the applicant with an opportunity to respond to the cumulative impact consideration; assuming that the expert report had not considered the cumulative impact of the development without asking the applicant if this was the case.
Justice Gimour made orders quashing the decision and referring the matter to the respondent for reconsideration according to law.
The Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population & Communities (WAD250/2011)
The Western Australian Land Authority (Landcorp) made an application to review the minister’s approval decision. However, this matter was held in abeyance pending the outcome of  FCA 226. Now that  FCA 226 has been decided, the parties will need to resolve how this application will be finalised.
Pacific Reef Fisheries (Bowen) Pty Ltd v Minister for Environment Protection, Heritage and the Arts (‘Guthalungra’)(QUD 180/2010)
On 26 May 2010 Pacific Reef Fisheries lodged a challenge in the Federal Court to the minister’s approval decision concerning the construction and operation of a black tiger prawn aquaculture facility and associated treatment ponds near Bowen, Queensland. The Federal Court made consent orders on 15 November 2011 dismissing the proceedings.
Glenn Parker & Others v Minister for Sustainability, Environment, Water, Population and Communities (VID869/2009 & VID1428/2011)
Glenn Parker & Others challenged the minister’s decision to amend the List of Specimens Suitable for Live Import into Australia to exclude the saannah cat. Justice Bromberg handed down his judgment on 18 November 2011 dismissing the application. Glenn Parker & Others appealed to the Full Federal Court and the three Full Federal Court judges handed down a unanimous judgment on 29 June 2012 that dismissed the appeal.
Buzzacott v Minister for Sustainability, Environment, Water, Population & Communities (No 2).  FCA 403
Mr Buzzacott filed an application for judicial review of the minister’s decision to approve the expansion of the Olympic Dam processing plant, subject to conditions. On 20 April 2012 Justice Besanko dismissed the application. Mr Buzzacott appealed the decision.
The appeal was heard by the Full Federal Court on 21 June 2012 in Adelaide. No decision has been handed down.
Secretary to the Department Of Sustainability And Environment (Vic) v Minister For Sustainability, Environment, Water, Population and Communities (Cth) (VID180/2012)
The Secretary to the Department of Sustainability and Environment (DSE), Victoria, made an application to the Federal Court of Australia to review a decision of the minister that the DSE proposed action, to conduct a research trial involving cattle grazing within the Alpine National Park, will have clearly unacceptable impacts on a matter protected by Part 3 of the EPBC Act. This matter was heard on 3 August 2012.