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
This annual report is prepared in accordance with section 516 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It covers the operation of the Act from 1 July 2008 to 30 June 2009. Annual Reporting of environmental performance against section 516A is contained in Volume 1.
The report examines the operation of the EPBC Act against its main objectives:
- to provide a clear role for the Australian Government in the protection of the environment, especially matters of national environmental significance, to enhance the protection of important natural and cultural places, and to conserve biodiversity (see section 1.1 of the report)
- to control the international movement of wildlife trade, and ensure the sustainable management of wildlife industries (section 1.2)
- to protect and manage marine and terrestrial areas (section 1.3)
- to work towards promoting ecologically sustainable development through increased intergovernmental cooperation and reduced duplication in environmental impact assessment (section 2.1)
- to provide an efficient and effective assessment and approval process (section 2.2)
- to implement a comprehensive monitoring, audit, compliance and enforcement regime (section 2.3)
- to increase public awareness of the Act and decisions taken (section 2.4).
The report also gives an overview of review and evaluation activities (section 3). The EPBC Act requires the annual report to include statistics on the operation of the Act, particularly compliance with statutory timeframes. This information, as well as a full list of the functions and membership of advisory committees established under the EPBC Act, and a list of EPBC Act related publications are in the Appendices and also referred to throughout this report.
The EPBC Act is the Australian Government's central piece of environmental legislation. It provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places - defined in the Act as matters of national environmental significance.
The seven matters of national environmental significance to which the EPBC Act applies are:
- World Heritage sites
- National Heritage places
- wetlands of international importance, or Ramsar wetlands
- nationally threatened species and ecological communities
- migratory species
- Commonwealth marine areas
- nuclear actions.
In addition, the EPBC Act confers jurisdiction over actions that have a significant environmental impact on Commonwealth land, or that are carried out by a Commonwealth agency.
In November 2008 the Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 was passed, establishing the environment of the marine park as a new, eighth, matter of national environmental significance. As a result, the environmental impact assessment and approval provisions of the EPBC Act will, from 25 November 2009, apply where an action is likely to have a significant impact on the environment of the Great Barrier Reef Marine Park.
The EPBC Act has been in operation since 2000 and has achieved real results in protecting the environment. The EPBC Act enables the Australian Government to cooperate with the states and territories in integrating impact assessment and approval processes, heritage protection and biodiversity conservation. The Act focuses Australian Government interests on the protection of matters of national environmental significance, with the states and territories having responsibility for matters of state and local significance.
To ensure that these processes are as streamlined as possible, the department has worked with all its state and territory counterparts to draw up a series of bilateral agreements. Under these agreements, certain actions that would require assessment under both the EPBC Act and state or territory legislation, can now be assessed using a single assessment and public consultation process. For the first time, EPBC Act assessment bilateral agreements are now in place with every state and territory. Proponents need only prepare and submit one set of assessment documentation, with the transparency of the process maintained through comprehensive public consultation requirements. The Minister for the Environment, Heritage and the Arts is still required to decide: whether or not to approve the proposed action; whether conditions need to be imposed; and the terms of any conditions.
The department has engaged with all state and territory governments to promote the benefits of using strategic approaches under the EPBC Act for addressing cumulative environmental impacts early in the planning process. At 30 June 2009, three strategic assessments were under way for the Kimberley liquefied natural gas hub proposal in Western Australia, the Melbourne urban growth boundary in Victoria, and the Molonglo/Weston urban development in the Australian Capital Territory.
There are several advisory committees established under the EPBC Act and their work is reported under relevant sections of this report. The Indigenous Advisory Committee, however, has a broad role advising the minister on the wider operation of the EPBC Act, taking into account Indigenous people's knowledge of land management and the conservation and sustainable use of biodiversity. The committee met in September 2008 in Broome, Western Australia, and in March 2009 in Canberra. The Committee, over the course of 2008-09, advised the department on Indigenous issues, including the EPBC Act review and the Kimberley liquefied natural gas hub proposal; championed the Indigenous National Caring for Country Strategy; established a joint Indigenous Advisory Committee and Indigenous Protected Areas sub-group; and was represented at international conferences, including the conference of the parties to the Convention on Biological Diversity.
Now entering its tenth year, the EPBC Act is undergoing its first major comprehensive independent review. The review, which commenced in October 2008, will assess the operation of the Act and the extent to which its objectives have been achieved. The review is being undertaken by Dr Allan Hawke in conjunction with a panel of experts (a full list of review panel members can be found at Appendix B). In October 2008 a discussion paper for the review was publicly released and 220 comments were received. In June 2009 the review panel released an interim report, outlining the major themes emerging from the panel's consultations. Public comment has been sought on the interim report. Further information on the EPBC Act review is in section 3.
During the reporting year the Senate Standing Committee on Environment, Communications and the Arts also undertook its own inquiry into the operation of the EPBC Act. The committee delivered its findings and recommendations in two reports, published on 18 March 2009 and 30 April 2009 respectively. Dr Hawke is considering the committee's report as part of his review.
The department has continued to implement the recommendations of the Australian National Audit Office report of 2006-07 (The Conservation and Protection of National Threatened Species and Ecological Communities). In May 2009, the department reviewed its progress and is well on track with addressing all eight of the report's recommendations. These were across four key areas: listing of marine species; threatened species noted; recovery planning and auditing; and compliance and promotion of awareness of the EPBC Act. Action has been taken to address the nine commercial fish species noted in the report as having delays in their listing: three species have been listed and priority assessments have been scheduled for those remaining which are to be completed between September 2009 and September 2010. Comprehensive reviews and prioritisation of threatened species lists and recovery plans have been undertaken with significant progress made on the Species Information Partnerships Program. Under this program, there have been audits of, and processes agreed, for listing priority state and territory ecological communities, endorsed by the Threatened Species Scientific Committee. There has also been engagement with states and territories to improve communications relating to listings of threatened species.
Rigorous timetables have been established for completion and review of recovery plans. The department has actively managed priority recovery actions with states and territories to ensure more integrated and comprehensive approaches. Thirty new recovery plans were adopted in 2008-09, with a further 259 recovery plans in preparation covering 347 species and 22 ecological communities.
In relation to auditing and increased compliance through better promotion of the EPBC Act, the department has taken further steps to strengthen working relationships with agencies at all levels of government. Significant progress has also been made with the department's monitoring and audit program, including the endorsement of a strategic audit program focussing on specific matters such as industry sectors, geographical areas or protected matters.
To ensure a continued focus on improving the department's ability to administer the EPBC Act effectively, a new branch was created in October 2008 in the Approvals and Wildlife Division. The role of the Business Systems and Governance Branch is to help improve the way the division, which has general policy oversight of the administration of the EPBC Act, performs the statutory business processes required to administer the Act.
Providing an efficient, timely and effective assessment and approval process under the EPBC Act is a priority focus of the department, particularly given continually increasing workloads.
Referrals and referral decisions are on upward trends. During 2008-09 the department met all of the statutory timeframes under the EPBC Act 93 per cent of the time, while it met its statutory timeframe for the three key decision points in the environmental assessment process 76 per cent of the time. Refer to Output 1.5 - Human Settlements chapter in Volume 1 for reporting against performance indicators from the Portfolio Budget Statements 2008-09.
The department continues to support the Minister for the Environment, Heritage and the Arts, the Hon Peter Garrett AM MP, in his decision making under the EPBC Act. During 2008-09 the minister made a number of key policy decisions, which were founded on high quality, timely advice and recommendations made by the department. These decisions included: developing a new recovery plan for albatrosses and giant petrels; making amendments to the live import list to include the common eggfly butterfly; banning import of the savannah cat and large earth bumblebee; and entering into a conservation agreement with the New South Wales Government to deliver significant protection for the Cumberland Plain Woodland, through improved management and establishment of a regional park.
The minister also made a number of significant decisions that advance the objectives of the EPBC Act, including:
- entering into an agreement with the Victorian ministers for planning and environment to undertake a strategic assessment to revise Melbourne's urban growth boundary and associated major transport infrastructure corridors
- adding eight new ecological community listings
- adding three places to the National Heritage List and developing plans for a number of Commonwealth Heritage List sites in the Australian Capital Territory and New South Wales and on Norfolk Island
- recognising the role Indigenous people play in the conservation and ecologically sustainable use of Australia's biodiversity by developing a wildlife conservation plan for the dugong.
The department is committed to advancing the international obligations of the Australian Government associated with the EPBC Act. Australia is a signatory to a number of international conventions, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Convention on Wetlands of International Importance (or Ramsar Convention) and the Convention Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention). Highlights this year included:
- hosting an Oceania Capacity Building Workshop in March 2009 under CITES, bringing together CITES parties and non-party participants from across the region
- holding the inaugural Australian World Heritage Advisory Committee meeting in April 2009, to provide Australian Government and state heritage ministers with advice on national and cross-cutting issues affecting Australia's World Heritage properties.
The EPBC Act establishes a strong framework for protecting the environment and conserving biodiversity by including a range of enforcement mechanisms. The department investigates all allegations of non-compliance, and the Act provides a range of enforcement mechanisms for managing suspected or identified instances of non-compliance, and for reviewing the compliance of referred projects. These mechanisms include environmental audits, civil or criminal penalties for contraventions of the Act, and remediation orders and determinations to repair or mitigate environmental damage. This year the department:
- undertook 5242 seizures of wildlife and wildlife products and 13 successful prosecutions under Part 13A of the EPBC Act
- participated in the Australasian Environmental Law Enforcement and Regulators Network, promoting cross-jurisdictional dialogue and cooperation for environmental law enforcement
- continued its random audit program and implemented a site inspection program for closer monitoring of specific approved projects
- used a number of compliance provisions in the EPBC Act for the first time; including the power to direct an environmental audit, to suspend an approval, to accept an enforceable undertaking and to vary approval conditions following compliance action.
Flowing from the department's EPBC Act compliance and enforcement activities, and given the department also administers 14 other pieces of legislation that create compliance and enforcement responsibilities, the department created the Compliance Support Unit within the Approvals and Wildlife Division to: provide general support for departmental compliance activities; and additional investigative resources. Further information on departmental compliance and enforcement is in section 2.3 of this report.
The effectiveness of the EPBC Act is strongly dependent on how effectively the powers and obligations it creates are communicated to its stakeholders. To this end, the department continues to produce and publish a large suite of information resources tailored for a range of stakeholders, including state, territory and local governments, industry, farmers and the public. The department provides assistance and guidance to stakeholders who need to understand how EPBC Act provisions might apply to them. The department also provides information to the general public to raise understanding of the Act and its operations. During 2008-09 the department:
- developed 10 mini-documentaries on National Heritage List places for screening in late 2009, to increase awareness of Australia's national heritage
- released updated information on wetlands conservation, management and education, to coincide with World Wetlands Day on 2 February 2009
- hosted a national workshop to develop a new recovery plan for the great white shark, listed as vulnerable under the EPBC Act
- continued to advertise in magazines to raise awareness of issues affecting wildlife, wildlife trade and exotic birds
- met with proponents before referral to provide early advice on the acceptability of their proposals
- continued to support an outposted officer at the National Farmers' Federation to work with the rural sector on national environmental issues
- continued to produce publications explaining the operation of the EPBC Act (see Appendix C).
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