Department of the Environment

About us | Contact us | Publications

About us header images - leftAbout us header images - centreAbout us header images - right

Publications archive - Annual reports

Disclaimer

Key departmental publications, e.g. annual reports, budget papers and program guidelines are available in our online archive.

Much of the material listed on these archived web pages has been superseded, or served a particular purpose at a particular time. It may contain references to activities or policies that have no current application. Many archived documents may link to web pages that have moved or no longer exist, or may refer to other documents that are no longer available.

Department of the Environment and Heritage Annual Report 2002-03

Department of the Environment and Heritage, 2003
ISSN 1441 9335

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

3. Monitoring and compliance

The Department made significant progress in improving its compliance and enforcement effort during the Act's third year of operation. A three-year Compliance and Enforcement Strategy for the portfolio is now in place and covers all portfolio legislation with compliance provisions, including the Act. The strategy sets out a work program for ensuring that a consistent policy approach is in place across the portfolio. The strategy requires that for each Act administered by the portfolio risk assessments have been undertaken, appropriate standards and procedures are in place, adequate staff training and development is provided, and compliance assurance and performance measures are implemented.

A new Compliance Executive Committee has been established, meeting three times a year, to monitor compliance governance and performance in the Department, including progress on implementation of the strategy. Day-to-day coordination and implementation of the strategy is managed by the Compliance Operational Network, made up of operational level staff from all relevant areas of the Department.

As part of the work of the strategy, a public Compliance and Enforcement Policy was finalised during the year and is now available on the Department's web site. The policy provides the general framework to guide the Department's approach to achieving compliance with the law and informs the public of the factors that will be taken into account in determining appropriate responses to contraventions, including whether legal proceedings will be pursued. The policy recognises that a range of mechanisms are necessary for an effective and flexible regulatory system that allows the most appropriate response to be made to a given issue or incident.

The Compliance Executive Committee agreed to proceed with the establishment of a central Environment Investigations Unit in 2003-04 to improve the Department's capacity to enforce legislation where legal action is appropriate. The unit will carry out investigation tasks or, where appropriate, refer matters to external enforcement agencies, provide centralised case management and intelligence databases, and manage portfolio relationships with external agencies.

The compliance regime contained in the Act applies to four main areas: matters of national environmental significance and activities of Commonwealth agencies or on Commonwealth land (Part 3), listed species in Commonwealth areas (Part 13), international wildlife trade (Part 13A), and Commonwealth reserves (Part 15).

Requirements for environmental approvals (Part 3)

The Department received more than 130 reports of activities potentially in breach of provisions of Part 3 of the Act. Reports came from a variety of sources, including members of the public and government and non-government organisations. All reports received are investigated to determine whether the Act applies. The Department also undertakes its own monitoring of land development and other activities. In many cases the incidents or proposals are considered not likely to have a significant impact and, apart from provision of advice and information about the Act, no further compliance action is taken. The majority of incidents reported concerned potential impacts on listed threatened species, but many also related to World Heritage properties, Ramsar wetlands, listed threatened communities and migratory species.

Where the impacts of a proposal are likely to be significant, the Department seeks to encourage referral so that formal consideration of whether the Act applies can take place. During 2002-03, 27 referrals (or about 8 per cent of all referrals) were received as a result of compliance action. Consideration is given to an escalated response if a referral is not forthcoming. In December 2002, for example, the Minister used powers under section 70 of the Act to call in a referral for a development proposal in the Kingston and Arthur's Vale Heritage Area on Norfolk Island.

A small number of cases, mainly where the action has already taken place, warrant more serious detailed investigation potentially leading to legal proceedings. Investigation may include site visits, and further enquiries about the nature of the incident and the potential for impacts on the particular species or other matter of national environmental significance. Departmental officers executed monitoring warrants under section 409 of the Act to gain site access on two occasions during 2002-03.

In February 2002, following the seizure of approximately 1000 stag beetles from two Japanese citizens at Sydney airport, the first charges were laid under the World Heritage provisions of Part 3 of the Act. The particular beetles involved were from Lord Howe Island, a World Heritage property, and live in rotting timber that had to be broken open to collect them, substantially damaging the ecosystem.

The ANAO's report on referrals, assessments and approvals under the Act made recommendations concerning strengthening of monitoring and compliance activities. The Department has put in place several initiatives to address these recommendations, primarily through the implementation of the Compliance and Enforcement Strategy. In particular, compliance risk assessments are now largely complete for all areas of the Act and work in the coming year will focus on implementation of work plans setting out compliance risk priorities. The strategy has also set targets for the completion of standard practices and procedures and improved coordination of delegation of powers to enforcement officers of other agencies.

As part of efforts to improve awareness of the Act among other agencies, the Department has played an active role in an Environmental Crime Working Group recently established by the Hobart office of the Australian Federal Police. The aim of the working group is to improve cooperation and coordination between environment enforcement agencies in Tasmania, at the state and Australian Government levels, so as to improve compliance outcomes overall in the environmental crime area.

Wild dog baiting program, Queensland

In May 2003, the Queensland Department of Natural Resources and Mines announced a major wild dog baiting program on state lands, in conjunction with an Environment Protection Agency baiting campaign involving local councils and adjoining landholders. A number of representations were received from interested parties concerned about the potential impact of aerial distribution of 1080 baits on threatened species, including the listed spotted-tailed quoll. Following consultation with the relevant Queensland agencies, the Department received a referral under the Act for the program.

As a result of this intervention, improved procedures were introduced to determine risk of baiting programs for listed non-target species, including pre-program surveys, improved documentation of procedures and improved baiting practices.


Species and communities (Part 13)

The Department has undertaken preliminary investigations into a small number of incidents relating to listed species on Commonwealth land, primarily related to Defence land or activities. Although two such matters are still under investigation, there have been no prosecutions in this area so far.

In the Commonwealth marine area in northern Australia, several Indonesian fishing vessels intercepted by the Australian Customs Service were found to have dolphin meat on board. There have been three successful prosecutions relating to these incidents for offences involving killing, injuring, or taking a cetacean. The individuals involved received custodial sentences. A further unrelated incident, involving the alleged shooting of a listed marine species in Commonwealth waters by a commercial fisher, is still under investigation.

Residential development, central coast, New South Wales

The central coast of New South Wales is one of the key areas on the eastern seaboard where urban expansion is placing increasing pressure on remnant vegetation and threatened species reliant on these habitats. Following reports from a member of the public, the Department contacted the developers of a residential estate during its construction phase and just prior to the loss of numerous swamp mahogany trees, an important food source during drought conditions for the endangered swift parrot.

The company involved had been unaware of the potential application of the Act and work was halted so that a referral could be made. Follow-up liaison with local councils helped to raise the profile of the Act in the region and the awareness of habitat requirements of the swift parrot. A number of other referrals for similar development activity have now been received from the area, enabling impacts on this and other species to be properly considered and minimised earlier in the process.


Protected areas (Part 15)

During 2002-03, Parks Australia's Compliance and Enforcement Manual was approved by the Director. Risk-based compliance strategies for specific offences in specific Commonwealth reserves are now being developed. Parks Australia has implemented a system of monthly reporting of compliance and other incidents in Commonwealth reserves to the Director and provides six-monthly compliance accountability reports to the Department. Parks Australia appointed seven wardens and 11 rangers under section 392 of the Act. Twenty-five additional wardens were appointed from the Northern Territory Police force, under section 393.

Legal action in relation to referrals, assessment and approvals

On 12 February 2003, the Federal Court refused an application for review under the Administrative Decisions (Judicial Review) Act 1977 and the common law, in relation to the national approach for the management of two threatened species of flying-foxes (Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64). The Court found that the Environment Minister can issue guidelines to assist orchardists in deciding whether they should refer their actions for approval under the EPBC Act. In accordance with the Court decision, the Environment Minister included an additional explanation in the guidelines, which makes it clear that orchardists must make individual decisions about whether or not to refer their actions under the Act.

Two applications for judicial review of decisions of the Environment Minister under the EPBC Act were made under the Administrative Decisions (Judicial Review) Act during the year. The first application, brought by Queensland Conservation Council Inc and World Wide Fund for Nature Australia, seeks review of the Minister's decisions on controlling provisions and level of environmental assessment for the action to construct and operate the Nathan Dam in Central Queensland. The case is scheduled to be heard in the Federal Court in September 2003. The second application, brought by Dr Paul Mees, involves review of the Minister's decision that the proposal to construct the northern section of the Scoresby Freeway in Victoria is not a controlled action under section 75 of the EPBC Act. The case is likely to be heard in the Federal Court in November 2003.

Challenge to Flying Fox guidelines - Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64

Both the spectacled and grey-headed flying foxes are listed as threatened species under the EPBC Act. The Minister issued guidelines to assist fruit farmers to decide whether crop-protection measures needed to be referred. The Commonwealth and states had agreed on a limit on the total numbers of spectacled and grey-headed flying foxes that would be allowed to be killed under state permits. The guidelines reflected the Minister's view that this number could be killed without having a 'significant impact' on the species.

The Court decided that the formulation of a policy about the numbers that can safely be culled and the cooperative agreement with the states were within the objects of the Act. The Minister can form an opinion about actions that will or will not have a significant impact, and communicate that opinion in guidelines. The issuing of such guidelines is not subject to review under the Administrative Decisions (Judicial Review) Act 1977.

However, the Court considered that a statement in the guidelines, that no referral under the EPBC Act would be needed if a person killed flying foxes in accordance with a state permit, went further than providing advice. The Court held that this statement amounted to a purported exemption from a person's obligation under the EPBC Act to consider the effects of his or her actions and, if necessary, to refer them to the Minister. The Court made a declaration that this statement was not authorised by law, but vacated it after amendment of the guidelines by the Minister.