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

This annual report is prepared in accordance with section 516 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). It reports on the operation of the Act from 1 July 2009 to 30 June 2010 against its main objectives, to:

The report also gives an overview of review activities related to the operation of the EPBC Act and changes made to the legislative framework in 2009-10 (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, the function and membership of advisory committees established under the Act, and a list of related publications produced in 2009-10 are in the Appendices.

Activities carried out as part of the operation of the EPBC Act are integral to achieving the department's contribution to portfolio outcomes on biodiversity and ecosystems. Consequently, some of these activities are also reported elsewhere in the annual report. Where appropriate, cross-references are made to the Corporate Outcome chapter.

Overview

The Environment Protection and Biodiversity Conservation Act 1999 (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 eight matters of national environmental significance to which the EPBC Act applies are:

In addition, the EPBC Act confers jurisdiction over actions that have a significant impact on the environment where the actions affect, or are taken on, Commonwealth land, or are carried out by a Commonwealth agency (even if that significant impact is not on one of the eight matters of 'national environmental significance').

The EPBC Act has been in operation since 2000 and has achieved real results in protecting the environment. It focuses on the protection of matters of national environmental significance, with the states and territories having responsibility for matters of state and local significance. The Act's provisions enable the Australian Government to cooperate with the states and territories in integrating processes associated with impact assessment and approval, heritage protection and biodiversity conservation.

The Act is a dynamic instrument, having been amended a number of times in response to ongoing examination of roles and responsibilities for protection of the environment by the Commonwealth. Most recently, on 25 November 2009, the Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 came into effect, 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 now apply where an action is likely to have a significant impact on the environment of the Great Barrier Reef Marine Park.

Other law changes that occurred in 2009-10 were: the EPBC Amendment (Recreation Fishing for Mako and Porbeagle Sharks) Act 2010, which commenced on 15 July 2010; and three EPBC Regulation amendments: one in November 2009 relating to the Australian Rail Track Corporation; one in December 2009 on fees for multiple-use export permits of regulated native specimens; and a third set in May 2010 to improve the operation of a wide range of regulatory provisions, and to support certain provisions that were inserted into the Act by the Environment and Heritage Legislation Amendment Act 2006.

The EPBC Act underwent a comprehensive and independent review of its first 10 years of operation, as required under section 522A of the Act. The review was undertaken during 2008 and 2009 by Dr Allan Hawke AC, supported by a panel of experts, with the department providing secretariat support. In particular, the review examined the operation of the Act, the extent to which its objectives had been achieved, the appropriateness of current matters of national environmental significance, and the effectiveness of biodiversity and wildlife conservation arrangements. The final report of the review was provided to the minister on 31 October 2009. The minister publicly released it on 21 December 2009.

Dr Hawke concluded that the EPBC Act has made a significant contribution to environmental regulation in Australia and is, in many respects, still regarded as world leading. However, he also noted that the Act is a product of its time and proposed a package of reforms that would build on the current Act and would better place Australia to manage the environmental challenges of the future. The government released the report in December 2009 and is expected to formally respond to it during 2010-11.

The Hawke Report made 71 primary recommendations as well as numerous conclusions and findings of an advisory nature. It recommends reforms that:

The report is publicly available at www.environment.gov.au/epbc/review. Further information on the EPBC Act review is in Section 3.

The department continued to assess large, complex and economically significant projects under the EPBC Act. This year 66 proposals were approved under the Act including high profile projects like the Gorgon gas development off the North-west coast of Western Australia and the Northern Victoria Irrigation Renewal Project. Three projects were rejected by the minister during 2009-10 including the proposed construction of the Traveston Crossing Dam on the Mary River in South East Queensland.

Providing an efficient, timely and effective assessment and approval process under the EPBC Act is a priority focus of the department. In 2009-10, 94 per cent of the statutory decisions under the EPBC Act were made within the statutory timeframes. Specifically, 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.

Numbers of referral actions decreased slightly in 2009-10, however, the complexity of referrals increased. In 2009-10, 36 per cent of projects referred under the EPBC Act were determined to require environmental impact assessment compared with 33 per cent in 2008-09.

In addition to the more traditional project-by-project assessment framework, the EPBC Act provides for strategic assessments that aim to address matters of national environmental significance protected by the Act on a landscape scale. This removes the need for multiple time-consuming and expensive assessments by each individual developer and provides certainty for all involved. This more collaborative approach has the capacity to streamline Commonwealth and state processes while achieving ecological sustainability through proper consideration of environmental assets at the landscape level.

Strategic assessment under the EPBC Act allows for individual future developments to proceed without further assessment if they are consistent with the approved strategic assessment. Environmental issues can be dealt with in a more holistic and proactive way, allowing for cumulative impacts to be considered early in the planning process.

The department has engaged with all state and territory governments during 2009-10 to promote the benefits of using strategic approaches under the EPBC Act. In a first in this area, in February 2010 the Minister for Environment Protection, Heritage and the Arts, the Hon Peter Garrett AM MP, endorsed the Victorian Government's program for the expansion of Melbourne's urban growth boundary. A further six strategic assessments are at present underway.

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). Action on most recommendations is now complete, with a significant element having been integrated as business-as-usual practice.

The EPBC Act establishes a strong framework for protecting the environment and conserving biodiversity by including a range of compliance and enforcement mechanisms.

EPBC Act compliance and enforcement activity is consistent with the department's Compliance and Enforcement Policy. The policy reflects the department's role as a flexible and strategic regulator with a focus on achieving environmental outcomes. The department considers all allegations of non-compliance with the Act. It has invoked 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. Some examples include:

To further encourage compliance, the department works in cooperative partnerships to build public awareness of the EPBC Act. For example during 2009-10 the department undertook a series of presentations directed at local councils, state agencies and non-government organisations throughout Australia. Training on awareness and use of EPBC Act compliance and enforcement powers, was provided to a number of co-regulator and partner agencies. The department also provides information to the general public to raise understanding of the Act and its operations, and policies and guidelines to provide guidance for stakeholders in determining whether a proposed action is likely to have a significant impact on the species. Publications produced this year are listed in Appendix C of this report.

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