Annual reports

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

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

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

2. Promoting ecologically sustainable development

The EPBC Act promotes ecologically sustainable development using approaches such as strategic assessments and bilateral agreements. This section of the report describes the work in these areas, which substantially benefits EPBC Act administration by increasing intergovernmental cooperation and reducing duplication of environmental assessment processes and also reports on project-specific environmental impact assessments.

2.1 Strategic approaches

Strategic assessments

Under section 146 of the EPBC Act, the minister may agree to assess the impacts of actions under a policy, plan or program. This includes but is not limited to: regional-scale development plans and policies; large-scale industrial development and associated infrastructure; fire; vegetation/resource or pest management policies, plans or programs; water extraction/use policies; infrastructure plans and policies; and industry sector policies.

The Victorian Government's program Delivering Melbourne's Newest Sustainable Communities (December 2009) was endorsed under the strategic assessment provisions of the EPBC Act on 2 February 2010. The program provides 284,000 homes over the next 20 years in four new growth areas, and up to 75,000 houses in 28 current suburban precincts. It also includes major public infrastructure such as the Regional Rail Link (Stage 2) for which the Australian Government has committed $3.2 billion through the Building Australia Fund. The program will account for over 50 per cent of Melbourne's projected growth.

Implementation of the endorsed program will achieve real and substantial environmental gains, including creation of 15,000 hectares of reserves for listed native grasslands to the west of Werribee. Such gains would be impossible to achieve through the 'business as usual' approach of individual development assessments.

The minister approved the first 'class of actions' under the EPBC Act related to the Regional Rail Link on 11 June 2010. The 'class of actions' is all activities including clearing, construction and operation associated with the Regional Rail Link as well as all development (housing, public infrastructure, services and employment precincts) associated with the 28 new suburban precincts. The minister also issued a proposed approval for housing development in the 28 current precincts on 18 June 2010. The final approval was made on 8 July 2010.

The Commonwealth has now entered into agreements with the responsible state government agencies to conduct strategic assessments of the Western Sydney Growth Centres in New South Wales, a Fire Management Policy in South Australia, the Midlands Water Scheme in Tasmania, the Mount Peter Master Planned Area in Queensland, the Liquefied Natural Gas Precinct Plan in Western Australia and urban development of the Molonglo region in the Australian Capital Territory.

Bilateral agreements

The EPBC Act provides for the Australian Government to enter into bilateral agreements with states and territories. There are two forms of bilateral agreement: assessment agreements and approval agreements.

The Australian Government finalised assessment bilateral agreements with all state and territory governments in 2008-09. Assessment bilateral agreements recognise the environmental assessment processes of a state or territory for certain actions. Proponents prepare and submit one set of assessment documentation to the state, with the transparency of the process maintained through comprehensive public consultation requirements. Under an assessment bilateral agreement the Commonwealth minister retains the responsibility for making the decision on whether to approve the project under the EPBC Act.

The assessment bilateral agreement between the Commonwealth and the State of Queensland had been reviewed early in 2009 and replaced with a new agreement, which came into effect on 11 August 2009.

On 18 December 2009 Queensland repealed the Queensland Integrated Planning Act 1997 and replaced it with the Sustainable Planning Act 2009. The minister determined that minor amendments could be made to the bilateral agreement to accommodate the changes in the Queensland legislation and as a result the agreement was amended to reflect the new legislation.

The amendments mean that the Queensland assessment bilateral agreement allows for the Sustainable Planning Act 2009 to be utilised to assess controlled actions under the EPBC Act. The bilateral agreement will continue to apply to actions that had already commenced to be assessed under the Integrated Planning Act 1997 prior to the transfer of the relevant provisions to the Sustainable Planning Act 2009.

2.2 Environmental impact assessment

The department works closely with proponents to ensure that the requirements of the environmental assessment process under the EPBC Act are well understood. It strongly encourages proponents to discuss projects early in their development so that EPBC related issues can be highlighted and taken into account in a project's decision making and planning.

Projects that most quickly achieve regulatory certainty under the EPBC Act consistently display the following characteristics:

The proponent initiates this process by submitting a referral for a determination on whether approval is necessary and, if so, the type of assessment to be undertaken. Following assessment of the proposed action the minister, or delegate, will decide whether to approve the action. The EPBC Act provides for a case-by-case assessment by either the Australian Government or an accredited assessor of state and territory processes under a bilateral agreement.

Only those projects that have a controlled action decision require assessment and approval under the EPBC Act. The Act allows for selection of an assessment approach that is most appropriate to the complexity and scale of the project.

In 2009-10 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 73 per cent of the time.

Of the decisions that ran over the statutory timeframe, almost two-thirds were made within a further 10 business days of the statutory due date. In most cases the decision was only one day late.

Detailed statistics relating to referrals, assessments and approvals are at Appendix A.

Referrals

In 2009-10, 422 actions were referred to the Australian Government for decision on whether approval was required under the EPBC Act. This was a decrease of three per cent on the previous year; however, the complexity of referrals is increasing. Twelve per cent of referrals were the result of compliance actions by the department. The most referrals received were from Queensland with 20 per cent of the total. Across Australia, the figures show an increase in referrals relating to mining and land transport, with decreases in the residential development and renewable energy generation and supply categories.

The possible outcomes of a referral are:

In 2009-10 decisions involving referrals were as follows:

In 2009-10, 36 per cent of projects where referral decisions were made under the EPBC Act were determined to require environmental impact assessment compared with 33 per cent in 2008-09. The highest number of controlled action decisions was for mining projects.

Twenty-nine referrals were withdrawn before a controlled action decision, 18 were withdrawn after a controlled action decision and 10 lapsed after a controlled action decision. Seventeen reconsideration requests were received during the year and 13 decisions were made.

Under section 158 of the Act the minister may exempt a person proposing to take an action from the requirement to conduct an environmental assessment and/or obtain approval in relation to the action if he is satisfied that it is in the national interest to do so. Three EPBC Act exemptions were issued in 2009-10 for:

Meeting statutory timeframes for referrals

In 2009-10 the department met the 20 business day statutory timeframe for a referral decision 75 per cent of the time. This year 94 referral decisions were made outside the statutory timeframe. Seventeen per cent of the late referral decisions were made within one business day of the required statutory timeframe and the majority of late decisions were made within 10 business days of the statutory due date.In most cases the decisions were only one day late. The main factors contributing to late referral decisions related to administrative delays, the need to obtain sufficient information to make an informed decision and clarifying or consulting on information received.

Assessments and Approvals

For projects determined to be controlled actions, a decision is made on the approach by which the environment impact assessment is conducted (the 'assessment approach' decision). There are five different levels of assessment, depending on the significance of the project and how much information is already available. Each level involves considering technical information assembled by the proponent and comments made by the public.

Where appropriate, assessment bilateral agreements which 'accredit' a particular state and territory assessment processes may be used to reduce duplication of environmental assessment and regulation between the Commonwealth, states and territories. Twenty-six projects were assessed under assessment bilateral agreements with the states this year. A further 90 projects are under assessment using a bilateral agreement as at 30 June 2010, increases of 19 and seven respectively from the previous year.

This year 66 controlled actions were approved and two were not approved. Conditions attached to approvals included: managing the environmental effects of construction; providing compensatory habitat to offset impacts on listed species; monitoring programs to ensure water quality is maintained; the use of independent audits; and measures for managing effects on cetaceans.

Decisions made, notices issued and invitations to comment under the EPBC Act are published on the department's website at www.environment.gov.au/epbc/notices/index.html

Meeting statutory timeframes for assessment approach and approval decisions

Thirty-five of the 105 assessment approach decisions (33 per cent of the total) were made outside the statutory timeframe. The main factors contributing to late decisions were administrative delays. Of the late decisions the majority of the assessment approach decisions were made within 10 business days of the statutory due date. In most cases the assessment decisions were no more than two business days late.

Nineteen of the 68 approval decisions (28 per cent of the total) were made outside the statutory timeframe. In most cases the approvals were no more than three business days late. These delays were largely due to negotiations with the proponent over approval conditions.

Case Study: Controlled Action - the Australian Super Hornet flying operations at RAAF base Amberley in Queensland

The Department of Defence referred the flying operations of a new aircraft, the Australian Super Hornet, at and around the RAAF Base Amberley near Ipswich in south east Queensland. The Australian Super Hornet will replace the F-111. This will change the current noise profile for aircraft activity due to the different military purpose and fuel range of the new aircraft. These changes will mean that some areas, on and around Amberley, will experience greater aircraft noise and some areas will receive reduced noise levels. The likely noise impacts of the proposal have been primarily considered through noise modelling. The assessment found that the new aircraft will result in a net reduction in the number of people currently affected by high noise levels; however, there will be more flights to the south, north and west of the base resulting in people being exposed to higher levels of noise than experienced during F-111 operations. The proposal was approved with conditions. The conditions will ensure noise impacts on the community around Ipswich are minimised and that arrangements are in place to respond to ongoing monitoring or community complaints.

Case study: Refusal of approval - Traveston Crossing Dam, Mary River, Queensland

Queensland Water Infrastructure Pty Ltd proposed a 153,000 megalitre dam on the Mary River, near Gympie in Queensland. The dam would flood approximately 3,000 hectares, including 36.5 kilometres of the Mary River and its tributaries. In 2006, it was determined that the project was a 'controlled action' requiring assessment and approval under the EPBC Act before it could proceed.

The matters of national environmental significance listed were specifically the aquatic species present in the Mary River and its tributaries, to be inundated by the dam. These species were the endangered Mary River Turtle and Mary River Cod and the vulnerable Australian Lungfish.

In assessing the likely impacts of the dam, information was considered from a range of sources, including: the proponent, the Queensland Government; more than 10,000 public submissions; and advice from independent experts.

The assessment process highlighted the critical importance of the Mary River as habitat for the key threatened species. The dam was considered likely to alter this habitat in such a way as to have serious and irreversible consequences for these species and most likely lead to their decline. The precautionary principle was also taken into account, as the probable success of many of the proposed mitigation measures was unknown or unproven. Accordingly, the minister found the proposal would be likely to have unacceptable impacts on matters of national environmental significance and the proposal to construct and operate the dam was refused.

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 Act also confers jurisdiction over actions that have a significant environmental impact on Commonwealth land, or that are carried out by an Australian Government agency.

In 2009-10, 13 controlled action determinations were made relating to Commonwealth land and four controlled action determinations were made relating to actions by Australian Government agencies.

Australian Government agencies must seek advice from the minister before authorising any of the following actions if it is likely to have a significant impact on the environment:

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 2009-10 advice was requested three times by the Department of Infrastructure, Transport, Regional Development and Local Government for proposals on Commonwealth airports. The minister's delegate determined that advice was not required for any of those proposals.

Statements of reasons

Sections 77(4) and 78C(4) of the EPBC Act allow people to request a statement of reasons about controlled action decisions and reconsideration of controlled action decisions respectively. In 2009-10, 30 requests under these provisions were received and 28 statements of reasons were provided. Separately people are able to request a statement of reasons for any administrative decision under the Administrative Decisions (Judicial Review) Act 1977.

Reconsideration of a decision

Reconsideration of a decision is available in a limited set of circumstances and is the only way to revoke and remake a decision. Reconsiderations are undertaken on request where there is substantial new information or a substantial change in the likely effects on matters protected been taken or has been fully assessed and approved with conditions by the minister.

In 2009-10, 13 decisions were reconsidered by the minister or his delegate and seven decisions were revoked and new decisions made.

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 estates. It does this through: development and implementation of overarching policies; development and maintenance of relationships with other compliance and enforcement agencies, both Commonwealth and state; initiating investigations for referral to the Commonwealth Director of Public Prosecutions in certain cases; and reporting on compliance and enforcement issues.

EPBC Act compliance and enforcement activity is consistent with the department's Compliance and Enforcement Policy, which was updated in December 2009 following approval by the Attorney General's Department and adoption by the minister. The policy reflects the department's role as a flexible and strategic regulator with a focus on achieving environmental outcomes. The policy is publicly available at www.environment.gov.au/about/publications/compliancepolicy.html

More information on EPBC Act compliance and enforcement activities is in the Cross-cutting activities section of the Corporate Outcome chapter and the annual report of the Director of National Parks.

Working with others

The department has an active EPBC Act compliance and enforcement program. During the year a series of presentations on the EPBC Act was conducted for local governments throughout Australia, state agencies and non-government organisations, to encourage greater awareness of and compliance with the EPBC Act.

The department engages with other environmental regulators, particularly state and territory environmental agencies, through the Australasian Environmental Law Enforcement and Regulators Network (AELERT), by sharing information and undertaking joint enforcement operations. Training on awareness and use of EPBC Act compliance and enforcement powers was provided to a number of co-regulator and partner agencies authorised to take action under the EPBC Act.

Arrangements have been established with Australian government and state government agencies for the provision of compliance services relating to the EPBC Act such as the Australian Customs and Border Protection Service, which maintains a near permanent compliance and surveillance presence at Ashmore Reef, the Australian Fisheries Management Authority and the Australian Quarantine Inspection Service. Cooperative arrangements are in place with a number of state agencies to provide compliance and enforcement services in Commonwealth marine reserves adjoining state waters.

Joint search warrant actions were undertaken with other Commonwealth and state agencies, including the Australian Quarantine Inspection Service, the Australian Fisheries Management Authority and the Therapeutic Goods Administration.

Specifically in relation to the management of the South-east Commonwealth Marine Reserves Network, the department has annual business agreements in place with the Tasmanian Police Services, New South Wales Department of Industry and Investment, New South Wales Marine Parks Authority and the South Australian Department of Primary Industries and Resources for the delivery of compliance services such as ship patrols and air surveillance activity. Aerial surveillance has been maintained across the Commonwealth marine estate, including regular surveillance flights over Ashmore, Cartier, Ningaloo and Mermaid Reefs, and has resulted in a number of possible breaches of the EPBC Act being reported and investigated.

Operation GrAB VII was conducted over three days from 24 to 26 October 2009 in the Great Australian Bight Marine Park with the maritime surveillance and interdiction capability provided by FPV Southern Ranger. The purpose of Operation GrAB VII was to ensure full compliance with the closure of the Marine Mammal Protection Zone of the Park to all vessels from 1 May to 31 October each year. The Marine Mammal Protection Zone is particularly used by commercial shark fishers during the open season. One Coastwatch flight was conducted over the Great Australian Bight Marine Park on 28 April 2010, covering both the Marine Mammal Protection Zone and the Benthic Protection Zone.

Compliance audit plan

The department has a compliance audit plan comprising random audits and a strategic risk-based audit program to:

Under the program of random compliance audits, the department audited, or commenced auditing, projects selected from approvals made since the inception of the EPBC Act. Audited projects this year were a sewer transfer pipeline in Victoria, a sewage treatment plant in Queensland and a follow-up audit of the Department of Defence headquarters near Bungendore, New South Wales.

The strategic risk-based audit program focused on specific areas such as industry sectors, geographical areas and protected matters. During 2009-10 the program focused on the mining industry, seismic surveys and residential development. The department audited or commenced auditing eight projects including a coal export facility in New South Wales, two seismic surveys conducted off the coast of Western Australia, and a zinc and lead mine in the Northern Territory in partnership with an auditor from the Supervising Scientist Division of the department.

In general the audits identified a substantial level of compliance with conditions. Where instances of non-compliance were identified they were addressed in accordance with the department's Compliance and Enforcement Policy. The results of audits enable the department to improve its processes, develop more effective conditions and improve compliance with the EPBC Act.

Another benefit of the audit programs is increased liaison with co-regulators, such as state and local government agencies, 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 at www.environment.gov.au/epbc/compliance/auditing.html

The department has a program of actively monitoring projects post-approval to ensure adherence to conditions attached to approvals, and fulfilment of requirements attached to particular manner decisions. Variations of conditions attached to 12 approvals were processed in 2009-10. As at 30 June 2010, 400 projects were being monitored. In December 2009, following a preliminary desktop audit by the department, Koolan Iron Ore Pty Ltd was directed to undertake an environmental audit following concern that it was not meeting the approval conditions, particularly for quarantine measures to protect the Northern quoll (Dasyurus hallucatus).

Breaches and Investigations

The department received 945 reports about 532 new incidents or activities representing potential breaches of Part 3 of the EPBC Act in 2009-10. This is similar to the figures for 2008-09 (925 reports and 522 incidents). Eighty site visits were undertaken to obtain information to assess whether alleged non-compliance actions had occurred.

Incident reports come from a variety of sources and 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 in Queensland, Natural Temperate Grasslands of the Victorian Volcanic Plain in Victoria, and Carnaby's and Baudin's black-cockatoos in Western Australia.

Many reports involve actions that have not yet taken place. In these cases, the department investigates to determine whether or not the activity should be regulated, and, if so, whether the EPBC Act applies. During 2009-10, 52 referrals were received as a result of departmental intervention, of which one was determined to be clearly unacceptable, one was refused, five were withdrawn, 20 were determined to be controlled actions, five determined not to be controlled actions provided the actions were undertaken in a particular manner, and nine were determined not to be controlled actions. The remaining 11 were yet to be determined as at 30 June 2010.

If preliminary investigations determine that an activity is potentially in breach of the EPBC Act, the matter is referred to the department's environment investigations unit. As at 30 June 2010 there were 10 investigators in the environment investigations unit, all of whom were authorised officers under the EPBC Act, with formal qualifications and/or skills and experience in law enforcement and compliance. Investigations comply with Australian Government Investigations Standards, and the department works with the Australian Federal Police to ensure policies and methodology meet best practice standards. EPBC Marine Wardens from various state departments have been appointed to conduct compliance activities on behalf of the department at Mermaid Reef, Ningaloo Reef, Lord Howe Island, Solitary Islands and Elizabeth Middleton Reef.

Investigators may draw on the investigative instruments available under the EPBC Act such as notices to produce, monitoring warrants and search warrants, to collect admissible evidence. In 2009-10, eight monitoring warrants were obtained under the EPBC Act and four EPBC Act search warrants were executed. Eighteen notices to produce books and records under section 486F of the EPBC Act were issued.

In 2009-10 the unit commenced 70 new investigations under the EPBC Act:

In accordance with the department's Compliance and Enforcement Policy, civil and criminal offence provisions are used in response to breaches of the EPBC Act where appropriate. In 2009-10, 16 successful court proceedings were brought under the EPBC Act, being 14 criminal offences and two civil actions. Information on these proceedings is provided in the Cross-cutting activities section of the Corporate Outcome chapter.

Legal actions

The department monitors investigations by state and local governments that relate to the matters protected under the EPBC Act and decides whether additional action under the Act is appropriate. If a matter under investigation is deemed to warrant criminal charges, it is referred to the Commonwealth Director of Public Prosecutions. For civil actions, the department instructs its legal services provider, currently the Australian Government Solicitor.

The following legal actions occurred in 2009-10.

Sweetwater Action Group Incorporated v Minister for the Environment, Heritage and the Arts and Huntlee Holdings Pty Ltd (NSD 1136/2009)

On 8 October 2009, Sweetwater Action Group Incorporated filed an application in the Federal Court in Sydney for review of the minister's decision of 29 June 2009 to approve the Huntlee New Town residential development at North Rothbury, New South Wales. This application followed proceedings in the New South Wales Land and Environment Court for review of the state's approval of the Huntlee development concept plan and decision to amend the state environmental planning policy.

The New South Wales Land and Environment Court made declarations, including a decision that the state approval of the concept plan was void and of no effect. Prior to the Federal Court proceedings, the minister's delegate revoked the EPBC Act approval for the development and the proceedings were subsequently discontinued by consent.

Alan Oshlack v Minister for Environment Protection, Heritage and the Arts and Quasar Resources Pty Ltd (NSD 1271/2009)

On 29 October 2009, Mr Oshlack filed an application for judicial review of the minister's decision of 13 July 2009 to approve the Four Mile Extension to the Beverley Uranium Mine. The approval holder, Quasar Resources Pty Ltd, later joined as a party to proceedings. The matter was part heard on 25 March 2010 in the Federal Court in Sydney and subsequently discontinued by consent on 13 April 2010.

Nic Capozzi v Minister for the Environment, Heritage and the Arts (AAT 2010/0780)

On 26 February 2010 Mr Capozzi lodged an application with the Administrative Appeals Tribunal (AAT) for review of a decision by the minister's delegate, on 16 February 2009, to refuse an application made on 31 December 2009 for a CITES import permit. A preliminary conference was held on 7 May 2010 in Perth. On 18 May 2010 the application was withdrawn.

Anzbrook Pty Ltd t/as Cairns Marine Aquarium Fish v Minister for the Environment, Heritage and the Arts [2010] FMCA 34

On 14 April 2009 Cairns Marine Aquarium Fish lodged an application in the Federal Magistrates Court for review of the minister's decision to refuse to grant a permit to export CITES II listed freshwater sawfish to an aquarium in Dubai. Cairns Marine's application included a number of grounds, including claims that there was a breach of natural justice and that the minister erred in law. The matter was heard in the Cairns Federal Magistrate's Court on 29 October 2009. On 22 January 2010 the Federal Magistrate quashed the minister's decision and remitted it back for a new decision. Among other things, the Federal Magistrate found that there had not been a breach of procedural fairness, though the minister had erred in law in making his decision.

Lawyers for Forests Inc. v the Minister for the Environment, Heritage and the Arts and Gunns Ltd [2009] FCAFC 114

Lawyers for Forests Incorporated challenged the minister's decision to approve with conditions the proposal by Gunns Ltd to construct and operate a pulp mill in Bell Bay, Tasmania. On 9 April 2009, Justice Tracey dismissed Lawyers for Forests' application on all grounds. In a decision of 8 May 2009, the applicant was ordered to pay the minister's and Gunns Ltd's costs. On 30 April 2009 Lawyers for Forests appealed Justice Tracey's decision to the Full Federal Court. On 3 September 2009, the appeal was dismissed and the appellant ordered to pay the minister's and Gunns Ltd's costs for the appeal.

The Hour Glass (Australia) Pty Ltd v The Minister for the Environment, Heritage and the Arts (AAT 2009/3015 & AAT 2010/1625)

The Hour Glass (Australia) Pty Ltd applied to the AAT on 29 June 2009, seeking review of two decisions: to refuse to return seized specimens and to refuse to grant a multiple-use import permit. The applicant subsequently requested that the application for review of the seizure matter be withdrawn and the AAT dismissed the application without review. On 23 April 2010, the Hour Glass (Australia) Pty Ltd sought a further review of a deemed decision to refuse to grant a further multiple-use import permit in January 2010. Both applications for review are being dealt with concurrently. As at 30 June 2010 both applications were still before the AAT.

Glenn Parker and Others v The Minister for Environment Protection, Heritage and the Arts (VID 869 of 2009)

On 3 December 2009 four individual cat breeders made an application about the minister's decision of 2 August 2008 to amend the EPBC Act to ban importation of any cats containing serval genes (including the Savannah cat, a domestic cat crossed with an African serval). The application seeks a declaration that the legislative instrument made by the minister is invalid, and requests an injunction restraining the respondent from implementing the legislative instrument. As at 30 June 2010 the application was still before the Federal Court.

Pacific Reef Fisheries (Bowen) Pty Ltd v Minister for Environment Protection, Heritage and the Arts (QUD180/2010)

On 24 May 2010, Pacific Reef Fisheries (Bowen) Pty Ltd filed an application in the Federal Court (Brisbane) for judicial review of the minister's decision of 4 March 2010 to approve the Guthalungra Aquaculture Facility, north of Bowen, Queensland, subject to conditions. As at 30 June 2010 the application was still before the Federal Court.

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