Department of the Environment, Water, Heritage and the Arts, 2009
Managing the department (continued)
During the year, the Federal Court determined a number of applications for review of Ministerial decisions. These included the Gunns Pulp Mill (Lawyers for Forests v. Minister for the Environment, Heritage and the Arts); Christmas Island (Phosphate Resources Ltd v. Minister for the Environment, Heritage and the Arts); and McArthur River Mining (Lansen v. Minister for the Environment and Heritage, Full Federal Court).
These decisions, and others, are set out in more detail in the second volume of this set of annual reports.
In June 2009, the Commonwealth Ombudsman released a report into delays in preparation of heritage strategies by Australian Government agencies concerning compliance with s 341ZA of the Environment Protection and Biodiversity Conservation Act 1999. The report was the result of an 'own motion' investigation by the Ombudsman. It highlighted the lack of awareness by Australian Government agencies of their obligations in relation to preparation of a heritage strategy, as a result of insufficient or unclear advice provided by the department. Consistent with the recommendations of the report, the department will write to Australian Government departments to clarify their obligations. It will also recommend that obligations for heritage strategies be reviewed, as part of the Independent Review of the EPBC Act. The department will report to the Ombudsman within 18 months on the progress of Government agencies in completing heritage strategies.
There was one finding of administrative deficiency in the processing of a Freedom of Information request.
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.
The department received 49 applications pursuant to the Act during 2008-09. There was one request for review by the Administrative Appeals Tribunal. This request was by a third party, about the department's internal review decision to release documents.
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. Relevant information is contained elsewhere in this annual report (the executive summary presents an overview).
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.
Water Act 2007
Several formal arrangements under the Water Act 2007 exist to facilitate input from Basin States, members of the public and other bodies. Basin States refers to New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory.
Basin Plan Consultation
The Act provides for public consultation and submissions on the development of the Basin Plan, once the new Murray-Darling Basin Authority (the Authority) comes into being (s 43(4)).
An invitation to the public will be published in the Gazette, in newspapers and on the Authority's website (s 43(5)). The public will also be invited to make submissions on any proposed amendment to the Basin Plan (s 47(4)).
The Authority must consult with the Basin States, the Basin Officials Committee and the Basin Community Committee, when preparing the Basin Plan (s 42(1)) or an amendment to it (s 46(1)).
The Basin states must also be given the opportunity to make submissions on the proposed Basin Plan (s 43(3)) or a proposed amendment to it (s 47(3)).
A plain English summary of the proposed Basin Plan, or a proposed amendment to it, must be provided to the relevant state ministers and made available to the public at the same time that submissions are sought (s 43(2) and s 47(2)).
At least 16 weeks must be allowed for members of the public and Basin states to make submissions on the proposed plan and eight weeks for submissions on a proposed amendment.
All submissions from the Basin states and members of the public must be considered by the Authority (s 43(10)(a) and s 47(10)(a)).
Note also that section 49 of the Water Act 2007 provides that regulations may be made under that Act, providing that the Authority may make specified kinds of minor or non-substantive amendments to the Basin Plan, in accordance with a process set out in the regulations. Such minor or non-substantive amendments will not be subject to the consultation arrangements specified in sections 46, 47 and 48 of the Act.
The Authority must review the Basin Plan if all of the Basin states request it to do so (s 50(2)(b)). There are some limitations on when the states can request such a review.
Water Resource Plan consultation
During the formulation of a water resource plan, if the Minister gives the plan back to the Authority with suggestions under the Water Act 2007, it must undertake such consultations about the suggestions as it considers necessary and appropriate (s 69(2)(b)).
If the water resource plan is adjacent to another water resource plan, located in another Basin state, the Authority must prepare the plan in consultation with that Basin state (s 68(10)). The same consultation must occur where there is a plan prepared by a Basin state, which needs to be accredited and that plan is adjacent to another water resource plan (s 63(2)).
Other consultation areas under the Water Act 2007
Public consultations, consultations with Basin states and with irrigation infrastructure operators, are also to be undertaken in the making, amending or revoking of water charge rules, and water market rules (s 93(6) and 98(5)).
The Authority must also consult with: holders of environmental water; owners of environmental assets; and managers of planned environmental water; in implementing the environmental watering plan (s 29).
In the preparation of the National Water Information Standards, the Director of Meteorology must consult with the states and territories (s 132(1)), as well as undertake such other consultation as the director considers appropriate (s 132(2)).
Where the Act is reviewed under s 253, such a review must occur in consultation with the states.
Procedures for gaining access to information
Freedom of information matters within the department, are handled by the Legal Section in the Policy Coordination Division. Contact details for the Freedom of Information Coordinator are:
Phone: (02) 6275 2721
Fax: (02) 6274 1587
Written requests for access to documents should be addressed to:
The Freedom of Information Coordinator
Department of the Environment, Water, Heritage and the Arts
GPO Box 787
Canberra ACT 2601
The department responded to the Privacy Commissioner's survey on the use of portable storage devices containing personal information.
The department was included in the Australian National Audit Office (ANAO) Report Number 14 on the Audits of the Financial Statements of Australian Government Entities, for the period ended 30 June 2008. The report was tabled in parliament on 17 December 2008. Financial statement audits are an independent examination of the financial accounting and reporting of public sector entities.
The report recognised that the machinery of government changes that occurred in 2007-08, and resulted in the department gaining responsibility for the heritage and cultural entities from the former Communications, Information Technology and the Arts portfolio, had added a significant workload to the department's finance and corporate areas.
No significant or moderate audit issues were identified during the audit of the department's 2007-08 financial statements.
The department's sustainability guidelines are referred to in ANAO Report Number 25 on Green Office Procurement and Sustainable Office Management. The report was tabled in parliament on 11 March 2009. Ninety-five per cent of the Australian Government agencies audited stated that they found the Department of the Environment, Water, Heritage and the Arts' website on sustainability in government, to be of use. This is an improvement on the 2005 survey results, where only 73 per cent of agencies found the website guidance of use.
Senate Standing Committee on the Environment, Communications and the Arts
Management of Australia's waste streams (including consideration of the Drink Container Recycling Bill 2008)
The Senate Inquiry was undertaken in response to the introduction of the Drink Container Recycling Bill 2008 into the Senate on 13 March 2008, by the Family First Party. The Senate referred the matter to the Senate Committee for Environment, Communications and the Arts for further inquiry, and expanded the terms of reference to consider the management of Australia's waste streams.
The report was tabled on 3 September 2008, and highlighted the complexity of waste management. Its 18 recommendations are broad, reflecting this sector's diversity. Twelve recommendations were referred to the Environment Protection and Heritage Council for consideration. Key themes included:
- the importance of developing national approaches to dealing with waste management policy
- the need for waste management policy to be grounded in rigorous cost-benefit analysis
- the need for the expedited establishment of Extended Producer Responsibility arrangements, for products of national significance
- the importance of setting national waste reduction standards, and
- the re-establishment of a national waste data scheme.
Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008
The Senate Standing Committee on Environment, Communications and the Arts inquired into the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008. The department made a submission and appeared before a public hearing of the committee, which reported to the Senate on 15 September 2008. The Bill was passed with amendments on 24 November 2008.
Save Our Solar (Solar Rebate Protection) Bill 2008 [No. 2]
The Senate Standing Committee on Environment, Communications and the Arts report on the Inquiry into the Save Our Solar (Solar Rebate Protection) Bill 2008 [No. 2], was tabled on 25 August 2008. The Bill was not passed, consistent with a recommendation by the committee. The department made a submission to the inquiry, and also appeared before a committee public hearing. The committee's report included a minority report from the Australian Greens.
The Operation of the Environment Protection and Biodiversity Conservation Act 1999 (First Report)
The Senate Standing Committee on Environment, Communications and the Arts held an inquiry into the operation of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and other natural resource protection programs. The department made a written submission and, upon request, a supplementary written submission and written responses to questions from the committee. The department also appeared before a public hearing of the committee.
The committee produced two reports - the first tabled on 18 March 2009 and the second and final report on 30 April 2009. Both reports included additional comments from the Coalition Senators and the Australian Greens.
The committee's recommendations have been referred to Dr Allan Hawke for consideration as part of his independent review of the EPBC Act. Dr Hawke will report to the minister towards the end of 2009.
Senate Standing Committee on Rural and Regional Affairs and Transport
Water Management in the Coorong and Lower Lakes (including consideration of the Emergency Water (Murray-Darling Basin Rescue) Bill 2008)
In 2008-09, the Senate Standing Committee on Environment, Communication and the Arts completed one report and the Senate Standing Committee on Rural and Regional Affairs and Transport, two reports relevant to the department's work on water.
Inquiry into the Water Amendment (Saving the Goulburn and Murray Rivers) Bill 2008
The Senate Standing Committee on Environment, Communication and the Arts report into the proposed private member's Bill, the Water Amendment (Saving the Goulburn and Murray Rivers) Bill 2008, was tabled on 7 May 2009. The committee recommended that the Bill should not be passed. The report included a minority report by the Liberal Party, National Party, Australian Greens and Independent Senator Xenophon, recommending that the Bill be passed.
Inquiry into the Water Amendment Bill 2008
The Senate Standing Committee on Rural and Regional Affairs and Transport report into the Water Amendment Bill 2008, was tabled on 21 November 2008. The committee found that the Bill would enable water resources in the Murray-Darling Basin to be managed in the national interest, optimising environmental, economic and social outcomes. It considered that the Bill represents the basis for the long-term reform of water management in the Murray-Darling Basin. The committee noted that the Bill allows the Basin Agreement to be independently and regularly amended, and considered that this would ensure that future issues were dealt with expeditiously and efficiently. The committee found that while a number of issues were raised about the legislation during the inquiry, the benefits of the Bill would materialise in the implementation of the agreement and the development of the plan. The committee agreed that the Bill should be passed.
The report included additional comments from the Liberal Party and National Party members of the committee and a minority report from the Australian Greens and Independent senator Xenophon.
The Senate passed the Bill on 4 December 2008 and it received assent on 8 December 2008.
Inquiry into water management of the Lower Lakes and Coorong
The Senate Inquiry considered water management in the Coorong and Lower Lakes, including consideration of the private members Bill, the Emergency Water (Murray-Darling Basin Rescue) Bill 2008. The committee found that there was not enough water in the system and that this was the result of historic over-allocations, the current unprecedented drought, and the emerging impacts of climate change. The committee made a number of recommendations for action by governments, including that: impediments to trading water should be lifted to allow a more efficient water market; the value of bioremediation of exposed acid sulphate soils should be investigated further; and if the admission of seawater into the lower lakes becomes necessary, the potential environmental impact should be subject to further investigation and community consultation. These three recommendations have been the subject of further action by the government.
The report included additional comments from Liberal Party and National Party members of the committee and a minority report from the Australian Greens and Independent senator Xenophon.
Joint Standing Committee on Treaties (JSCOT)
Report 93: Review into Treaties tabled on 12 March and 14 May 2008.
Australia, as a Party to the Convention on the International Trade in Endangered Species (CITES), is obliged to regulate trade in CITES-listed species, in accordance with the Convention. At the CITES 14th Conference of the Parties (CoP14) Australia proposed an amendment to the US/Kenya proposal to list all species of sawfish in Appendix I and to list pristis microdon (freshwater sawfish) in Appendix II, with an annotation allowing only trade in live animals. The amendment was sought on the grounds that a small and highly regulated trade in pristis microdon from robust populations, such as in Australia, is sustainable, and also has an important conservation benefit. Amendments adopted at CoP14 entered into force automatically 90 days after CoP14, that is, 13 September 2007.
The Joint Standing Committee on Treaties (JSCOT) reviewed and agreed with the amendments. It made four recommendations about the freshwater sawfish listing and CITES administration, and these were included in report 93: Review into Treaties tabled on 12 March and 14 May 2008, which was tabled on 4 September 2008.
The department prepared the whole-of-government response to the recommendations of JSCOT. In preparing the response, the department consulted with the Attorney General's Department and the Departments of Finance and Deregulation; Foreign Affairs and Trade; Agriculture, Fisheries and Forestry (Australian Fisheries Management Authority); Prime Minister and Cabinet; and the Treasury.
The government agreed in part with recommendation 1, citing existing assessment processes and funding of research projects to fill information gaps about population status and the impacts of threats on freshwater sawfish.
The government did not agree with recommendation 2, saying that inviting appropriately qualified non-government organisation representatives to meetings of the CITES Conference of Parties, contributes significantly to open and transparent government.
The government agreed in part with recommendation 3, citing provisions for public comment on most non-detriment findings and the utilisation of this mechanism where the freshwater sawfish was concerned.
The government did not agree with recommendation 4, as existing processes for approvals under the EPBC Act are considered appropriate and sufficient.
The response was tabled in parliament on 19 March 2009.
Parliamentary Standing Committee on Public Works
Inquiry into Energy Efficiency in Government Operations
The Energy Efficiency in Government Operations (EEGO) policy requires the department to provide advice to the Parliamentary Standing Committee on Public Works, on energy efficiency issues in agency submissions for new buildings and major refurbishment works. In 2008-2009, the department reviewed nine agency submissions. For each of these, the department provided comments on their compliance with the EEGO policy and, if necessary, suggestions for further improvement in the energy efficiency of the proposed projects.
Senate Standing Committee on Finance and Public Administration
Inquiry into the Appropriation (Nation Building and Jobs) Bill (No. 1) 2008-09 and 5 related bills.
The department appeared before the Senate Standing Committee on Finance and Public Administration inquiry into the Appropriation (Nation Building and Jobs) Bill (No. 1) 2008-2009 and 5 related bills. Officials of the department's Renewables and Energy Efficiency Division gave evidence on elements of the Energy Efficient Homes Package, including the Home Insulation Program and Solar Hot Water Rebate programs. The committee report, tabled 10 February 2009, recommended passage of the Bills as a matter of urgency. A dissenting report was tabled by Liberal and National Party Committee members.
House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts
Inquiry into the Resale Royalty Right for Visual Artists Bill 2008
The House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts held an inquiry into the Resale Royalty Right for Visual Artists Bill 2008. The department made a written submission and appeared before a public hearing of the committee.
The committee reported to the House on 20 February 2009. The report made 10 recommendations and the committee concluded that, subject to its recommendations, the Bill should proceed.
The government response was tabled on 28 May 2009.
The Bill is currently before the House for consideration.
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