Publications archive

Department of the Environment and Water Resources annual report 2006–07

Volume two
Department of the Environment and Water Resources, 2007
ISSN 1441-9335

Legislation annual reports 2006–07 (continued)

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

4. Monitoring and compliance

The department's post referral and approval verification, monitoring and auditing effort increased. Teams of audit staff were trained and a full programme of audits undertaken. Amendments to the EPBC Act introduced important new investigative powers, increased the Act's effectiveness and increased the range of enforcement responses.

In-house compliance and enforcement training increased. Investigation and monitoring operations conducted in collaboration with others increased. This has meant a more effective use of resources in Australia and overseas.

Australasian Environmental Law Enforcement and Regulation Network

The Australasian Environmental Law Enforcement and Regulation Network, launched in 2004, continued to successfully promote cross-jurisdictional dialogue and cooperation for environmental law enforcement and regulation. The network now has 24 agency members, including at least one agency in every Australian jurisdiction.

The network held its 3rd national conference in Sydney in November 2006 on the theme 'working together for regulatory compliance'. The conference drew over 250 delegates, another record registration. Participants attended almost 60 presentations on such issues as regulatory management and theory, audit and monitoring, training, and evidence collection.

The network has several working groups, and through the Audit Working Group the department worked with partner agencies to develop a national training programme for member agencies and agreed national standards for compliance audits. The network is an excellent forum for sharing experience and provides a range of benefits through co-regulation and joint compliance activities.

Audit programme

The department commenced its compliance auditing programme in July 2006 to:

The initial compliance audit programme involved 110 projects. These were projects judged at the time of approval to have a higher than average risk of non-compliance. From these, 12 randomly selected projects were audited. These included a seismic survey, aerial baiting, construction of a school building, extension of an existing coal mine, a new mining operation, replacement of bridges, rail link construction, road works, sewerage and irrigation.

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

All employees involved in undertaking audits have received training, including taking part in audits by state agencies.

Compliance

In 2006—07 the department worked to develop a database to streamline and support its procedures for responding to the growing number of reports of alleged breaches of Part 3 of the EPBC Act. As a result of increased awareness of the Act and an improved capacity to respond to reports, the department dealt with over 580 reports about 370 incidents or activities potentially in breach of provisions relating to activities that may have a significant impact on matters of national environmental significance. These reports come from a variety of sources and each report is carefully investigated to determine whether or not the Act does or should apply. The department works cooperatively with state and local government agencies to improve compliance with the Act.

The department receives many reports of activities that are primarily of state or local concern, but which nevertheless need to be investigated sufficiently to establish that the EPBC Act does not apply. As a result of the enhanced procedures to manage the volume of compliance work, recording and tracking of all new reports and cases through the relevant databases is now comprehensive.

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 compliance approaches fail, enforcement sanctions are applied. The recent amendments to the EPBC Act have considerably increased the investigative tools, compliance approaches and enforcement sanctions available.

Many compliance incidents dealt with by the department 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. In 2006—07, approximately 15 per cent of all referrals received by the department resulted from active compliance intervention.

Case study: Facilitating voluntary compliance

The department encourages and assists people planning developments which may impact on protected matters to engage with the requirements of Part 3 of the EPBC Act.

The department often receives reports about developments which may require regulation under the Act. Such reports come from many sources including neighbouring residents, local environment groups, environmental experts, rival companies, and local and state governments.

In March 2007 the department was notified that a subdivision that could affect a substantial area of known southern cassowary habitat was proposed near Kuranda, Queensland. The southern cassowary is listed as endangered under the Act. The subdivision had the potential to isolate about 150 hectares of essential habitat in addition to alienating the 50 hectares of the subdivision itself.

The department contacted the developer's planning consultant to alert them to the potential application of the Act. The consultant responded with appreciation, as these requirements had been overlooked in the planning process, which to date had been concerned with local and state development controls.

Subsequently, the proposal was referred under Part 7. The proposal was determined to be a controlled action as it would be likely to have a significant impact on the southern cassowary. Assessment under Part 8 of the Act began immediately.

This sequence is typical of many reports that the department investigates each year before the substantial action has taken place. The department's capacity to respond to reports in this way ensures that proposals such as this are captured before a breach occurs and enables proper consideration to be given to impacts on matters of national environmental significance through environmental impact assessment.

The department undertook a risk assessment of administration of Parts 3, 7, 8 and 9 and related sections of the Act. The assessment documented known risks and established a framework for reducing potential risks. A major factor identified in the risk assessment and in the Australian National Audit Office's audit of the administration of the EPBC Act was the lack of resources available for compliance and enforcement work. Additional resources were therefore provided in the 2007—08 Budget. The department has developed plans for the most effective use of the additional resources that will enable a considerable increase in compliance and enforcement in 2007—08.

Investigations

The department continued to operate its investigative activities in conjunction with the Australian Federal Police and Australian Customs Service, and hosts outposted officers from these agencies. Efforts to increase and improve cooperation with other environmental law enforcement agencies are ongoing and have already yielded improvements in protection of the environment.

In 2006—07 the department's Environment Investigations Unit investigated 44 cases. Investigations commenced following a variety of information reports that originated from the general public, and state, territory and Australian Government partner agencies. The unit uses multi-disciplinary teams drawing on knowledge from within the department and externally, depending on each specific investigation.

Matters of national environmental significance

At 30 June 2007 the department was investigating 19 allegations of non-compliance with Part 3 of the EPBC Act. The allegations relate to non-compliance with conditions of EPBC Act approvals and permits and taking of actions likely to have a significant impact on a protected matter without EPBC Act approval.

Allegations include impacts on listed threatened species and ecological communities, world heritage properties and wetlands of international importance, and allegedly occurred in Queensland, the Northern Territory, Western Australia, the Australian Capital Territory and New South Wales. Persons under investigation include individuals and companies.

Investigations comply with Australian Government Investigations Standards, and the department works with the Australian Federal Police to ensure policies and methodology are best practice.

Marine

The Environment Investigations Unit worked with the department's Marine Division, conducting investigations and training wardens throughout Australia. The unit advised the division on incident management, risk assessment and pre-operational issues.

A Marine Operations Team was formed to improve the department's management of incidents and investigations that breach marine provisions of the Act. The team worked with the Australian Fisheries Management Authority on investigations into illegal fishing in Commonwealth waters.

International wildlife trade

There was an increase in the number of monitoring warrants executed, mainly in the exotic bird keeping industry, to check for compliance with EPBC Act provisions.

The department participated in joint investigations with state co-regulators resulting in several prosecutions. The department has found that whilst joint investigations can provide some management challenges they are resource efficient and broaden the range of statutory responses.

The department provided investigative support to the United States Fish and Wildlife Service in relation to two allegations of unlawful hunting made against Australian citizens. The department has also jointly managed intelligence probes into exotic reptile smuggling, coordinating the activities of Australian Government and state and territory agencies with New Zealand's Wildlife Enforcement Group.

Education and policy development

The department continued to be a leader in developing educational and training tools for compliance and law enforcement. The department worked to refine the existing Certificate IV in Investigations and Statutory Compliance, aiming to make the course more streamlined, shorter and less disruptive to participants' work. The department has moved to develop a Diploma in Government (Investigations) to better equip senior investigations personnel. It is intended to offer the diploma through the Australasian Environmental Law Enforcement and Regulation Network.

Recognising that multidisciplinary teams outperform individuals acting alone or in larger organisational groupings, especially when performance requires multiple skills, judgment and experience, the department developed multidisciplinary team protocols in relation to departmental compliance and enforcement actions. The protocols will apply throughout the department, and across jurisdictions in the network.

The department is also developing guidelines for providing in-house expert opinion on the environmental legislation it administers. The guidelines incorporate current case law relating to expert witness evidence and will increase consistency in expert witness management across the department, and across jurisdictions in the network. After a period of field testing, the guidelines may be published for wider use next year.

Prosecutions

The Commonwealth Director of Public Prosecutions has responsibility for prosecuting criminal EPBC Act offences referred by investigating agencies. EPBC Act charges can be brought by state police and other agencies, and prosecutions can be conducted by state prosecutors.

Sixteen matters were commenced under the EPBC Act in 2006—07 and eight were commenced under the Regulations. Seventeen matters were successfully finalised under the Act and 17 of 18 proposed for prosecution under the Regulations were successfully finalised.

Requirements for environmental approvals (Part 3)

The department continued to be a responsive regulator resorting to prosecution in the most appropriate cases. 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. Such a case was the alleged clearance of native grassland containing the spiny rice-flower (Pimelea spinosa). A Victorian council sought an enforcement order that prevents further development and vests the site in the Crown. That application is currently subject to appeal.

Another investigation related to the alleged illegal clearing of a listed threatened ecological community and its associated impacts on a listed threatened species on an airport site. The matter has been referred to the Commonwealth Director of Public Prosecutions for consideration of criminal contraventions of the EPBC Act.

A third investigation related to a residential property developer in Western Australia. The developer engaged consultants who advised against the development proceeding without modification. The developer is alleged to have ignored this advice and completed the project. The matter has been referred to the Commonwealth Director of Public Prosecutions for consideration of criminal contraventions of the EPBC Act.

Particular manner decisions (Part 7) and conditions on environmental approvals (Part 9)

The department investigated a number of alleged breaches of particular manner decisions. In one example a residential property developer in northern Queensland agreed that he had not complied with the condition. The department is now seeking an enhanced environmental outcome.

The department also investigated a number of alleged breaches of conditions of approval.

It is expected that the enhanced audit programme will result in the department responding to more such instances in the coming year.

Species and communities (Part 13)

The department continued to work with the Australian Fisheries Management Authority in relation to illegal fishers and EPBC Act offences. Prosecutions against five alleged illegal fishers began. There is some overlap between the EPBC Act and fisheries legislation and the department is clarifying the circumstances in which an EPBC Act prosecution should be preferred.

International wildlife trade (Part 13A)

In 2006—07 two charges were laid under the EPBC Act by the department against two defendants and a further four defendants are expected to be charged with multiple wildlife offences following an extensive investigation into the illegal exotic bird trade in Australia. No charges were laid under the EPBC Regulations. A total of 7,533 seizure notices were issued.

The Australian Customs Service used the criminal offence provisions in the EPBC Act to prosecute individuals with offences relating to the illegal import and export of wildlife. The penalties for wildlife offences include fines and imprisonment.

Activities in protected areas (Part 15)

Twelve rangers and two wardens were appointed in 2006—07. Six people were prosecuted for taking squid in Booderee National Park in excess of the recreational limit of 10. Four prosecutions involved taking migratory species (red-footed boobies and frigatebirds) in the Territory of Cocos (Keeling) Islands contrary to the provisions of Part 13 of the Act. One person was convicted of seven offences in relation to commercial crabbing at Field Island, Kakadu National Park.

The department successfully made a civil penalty application against the skipper of a commercial fishing vessel for illegal fishing in the Mermaid Reef Marine National Nature Reserve. A pecuniary penalty of more than $50,000 was imposed by the Federal Court.

In the amendments to the EPBC Act a new criminal penalty provision was created to broaden the range of regulatory options for deliberate commercial incursions into Commonwealth marine protected areas.

Review of decisions

High Court and Federal Court

The Wilderness Society and Investors for the Future of Tasmania challenged the validity of the delegate's decision regarding assessment of a referral submitted by Gunns Ltd of a proposal to construct and operate a kraft pulp mill in the Tamar Valley in Tasmania. This followed withdrawal of a previous referral which was to be assessed by the Tasmanian Resource Planning and Development Commission as part of an integrated impact assessment process. This matter is set down for hearing commencing 3 July 2007.

Anvil Hill Project Watch Association sought review of the minister's decision that the Anvil Hill coal project is not a controlled action. This matter is scheduled to be heard in August 2007.

Mr Lansen and others applied for review of the 13 February 2007 decision to approve with conditions the McArthur River mining proposal under the EPBC Act. The applicants are the registered native title claimants in the land affected by the mining proposal.

The Humane Society International applied for an injunction under the EPBC Act to restrain a Japanese company from conducting whaling activities in the Exclusive Economic Zone adjacent to the Australian Antarctic Territory. On 14 July 2006 the Full Federal Court upheld an appeal to allow Humane Society International to serve the application on Kyodo Senpaku in Japan, and to seek an injunction from the Federal Court. On 2 February 2007 the court made orders regarding the mode by which service of the originating process was to be effected. This matter was listed for further directions on 24 July 2007.

Senator Bob Brown applied for an injunction to restrain forestry operations by Forestry Tasmania in the Wielangta area on the basis that the operations contravene the EPBC Act. The Commonwealth was given leave to intervene to argue points related to the operation of the EPBC Act and the Tasmanian Regional Forest Agreement. The Federal Court held that the operations had a significant impact on threatened species and were not in accordance with the Tasmanian Regional Forest Agreement, and granted an injunction restraining Forestry Tasmania from conducting the operations without an approval under the EPBC Act. Forestry Tasmania appealed the decision to the Full Federal Court. The Commonwealth sought to be joined as a respondent to the appeal but the Court has instead allowed the Commonwealth the status of an intervener only. The appeal will be heard in the Full Court in Hobart in August 2007.

In 2005—06 applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 were made in relation to the Bald Hills Wind Farm proposal. In particular, the Victorian Minister for Planning and Bald Hills Wind Farm Pty Ltd sought review of the minister's decision not to approve the wind farm proposal. On 4 August 2006 the minister and Bald Hills Wind Farm Pty Ltd agreed to settle the court case and for the minister to remake the approvals decision.

Administrative Appeals Tribunal

On 10 November 2006 the tribunal decided to uphold the minister's decision of 30 November 2005 to approve two wallaby management plans in Tasmania (for harvesting wallabies on King and Flinders islands) as approved wildlife trade management plans with the proviso that the management plans be amended to require the Tasmanian Government to gather and record information on the sex and estimated age of the harvested animals.

On 27 February 2007 the Wildlife Protection Association of Australia lodged an appeal against the minister's decision to approve the New South Wales kangaroo management plan. At the time of writing, the matter was yet to be listed for hearing.

Humane Society International sought review of the minister's decision to declare the Southern and Eastern Scalefish and Shark Fishery an approved wildlife trade operation under section 303FN of the EPBC Act. A hearing date on this matter had not been set as at 30 June 2007.

Nature Conservation Council of NSW Inc sought a review of the minister's decision of 27 July 2006 to declare the harvesting of specimens taken in the New South Wales Ocean Trap and Line Fishery to be an approved wildlife trade operation under section 303FN of the EPBC Act. A decision on this matter was still to be handed down as at 30 June 2007.

Freedom of information

Thirty-three requests under the Freedom of Information Act 1982 were processed by the department during 2006—07. Eight of these requests related to EPBC Act decision-making processes.