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Department of the Environment and Heritage Annual Report 2003-04

Department of the Environment and Heritage, 2004
ISSN 1441 9335

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

4. Monitoring and compliance

Overview

The Department has continued to build on its compliance and enforcement efforts of previous years, with a significant focus placed this year on building compliance skills and capacity. In particular, the Department's investigative capacity has been significantly enhanced by the establishment of an Environment Investigation Unit working within Approvals and Wildlife Division to provide expertise in the investigation of potential breaches of the EPBC Act.

Other initiatives aimed at improving the Department's compliance and enforcement response have included continued support for the Department's Compliance Operational Network, undertaking a compliance activity risk assessment, developing improved compliance procedures and participating in the establishment of a cooperative network of state and Australian Government environmental law enforcement regulators. The Department also hosted the successful 16th International Conference on Wildlife Trade.

Environment Investigations Unit

During 2003-04, a dedicated Environment Investigations Unit was established within the Approvals and Wildlife Division. The formation of this unit was identified as a priority in the ongoing review of the Department's delivery of enforcement functions under the Compliance and Enforcement Strategy. The unit will provide specialised investigative skills to the Department, improving its capacity to undertake enforcement activities under the EPBC Act.

In particular, the establishment of the Environment Investigation Unit will enable the Department to retain an in-house capacity to carry out higher level law enforcement, including formal investigation and prosecution of environmental crime. The unit will be responsible for investigations and referrals to external agencies such as the Australian Federal Police, including the management of the Portfolio’s overarching relationships with external enforcement agencies and state enforcement bodies. The unit will also provide and maintain centralised case management and intelligence databases for the Department and undertake data analysis and reporting functions to provide strategic compliance and enforcement policy advice.

Risk assessment and audit

In accordance with the Department's Compliance and Enforcement Strategy, prepared in 2002-03, a risk management approach is taken to identify and address compliance risks for the EPBC Act. Risk assessments were undertaken for Parts 3, 9, 13, 13A and 15 of the Act, to identify and assess the risks associated with non-compliance.

The Performance Improvement and Audit Unit conducted a review of the Department's compliance and enforcement framework as part of the Department's 2003-04 Strategic Internal Audit Plan. The objectives of the audit include the review and evaluation of the Department's Enforcement and Compliance policies, strategies and procedures, including risk assessment procedures, against better practice principles.

Environmental law enforcement and regulators network

During 2003-04, the Department was involved in initial meetings to establish a network of environmental law enforcement and regulators. This network is being developed to promote dialogue and information exchange across all sectors of environmental law enforcement, including Australian Government, state and territory jurisdictions, with the aim of bringing together a wide range of investigative roles and expertise (compliance, enforcement, policy, licensing, audit and legal fields).

The network is being established in recognition of the borderless nature of environmental offences and the importance of establishing cooperative relationships between enforcement agencies. The network aims to establish Australian best practice standards for the use of intelligence, science, technology and expert advice in environmental law enforcement, as well as standards for information sharing and staff training. Another key goal is to raise the awareness of the seriousness of environmental offences throughout government and the broader community.

2003 Annual Wildlife Trade Conference

The Annual Wildlife Law Enforcement Officers Conference is a forum for inter-agency cooperation and provides an opportunity to identify and explore issues of mutual interest and concern in the area of wildlife enforcement. Representatives from a number of international wildlife enforcement agencies including the United Kingdom, United States, New Zealand and Canada, together with practitioners from throughout the Australasian region attended to share information and views on ways to achieve optimal compliance with wildlife trade laws.

Breaches of Part 3 of the EPBC Act

During 2003-04, the Department received more than 130 reports of incidents or activities potentially in breach of the provisions of Part 3 of the EPBC Act. Reports of this nature continued to come to the Department from a range of sources, including members of the public, non-government organisations and community groups, local governments and state agencies. The Department also continued to undertake its own monitoring of land development and other sectoral activities through a number of sources including local government notices and media reports.

All reports received underwent initial investigation to determine whether or not Part 3 of the EPBC Act applied. Over half of the public reports were ultimately considered unlikely to have a significant impact on matters of national environmental significance under the EPBC Act, and compliance action was not warranted. It was, however, recognised by the Department that such cases often present important opportunities for education and awareness raising in relation to the Australian Government's role under the EPBC Act, and the Department continued to provide information and advice about the operation and scope of the Act to a range of relevant parties in these instances.

In cases where initial investigation revealed that significant impacts are possible, the Department encouraged referral by the person responsible for the activity in order to allow formal consideration of whether assessment and approval was required under the EPBC Act. During 2003-04, a total of 26 EPBC Act referrals (or approximately nine per cent of all referrals received by the Department) were the result of compliance action.

In cases where a referral was not forthcoming, consideration was given to an escalated response, which can include use of the Minister's powers under section 70 of the EPBC Act to call in a referral. In some instances, where an action has already occurred, or imminent action is likely, higher level investigation with a view to the instigation of legal proceedings may be considered.

The findings of the risk assessment for Part 3 of the EPBC Act were used to prepare a Compliance and Enforcement Risk Treatment Strategy. This strategy will be used over the next reporting period to guide the conduct of a pilot project to measure compliance performance in selected locations, and to target compliance activities in specific areas or sectors where there is a high risk of non-compliance. These activities will help to achieve a more proactive and comprehensive monitoring reach and to augment reliance on third party reports of non-compliance.

As a growing number of proposals move through the referral, assessment, and approval phase of the EPBC Act statutory process, meeting the demands of the necessary increase in post-approval monitoring and auditing will challenge the capacity of existing resources. A risk assessment is completed for each proposal at the time of approval so that appropriate follow-up can be programmed (see further commentary in section 1.4 of this report).

Prosecutions in relation to Part 3

In 2003-04, the Department successfully investigated and took legal action against a land manager for taking an action that had a significant impact on a Ramsar wetland of international importance under section16(1) of the Act. In June 2004, the Federal Court of Australia made a decision in favour of the Minister, finding that the land manager and the company he controlled had acted in breach of the EPBC Act by undertaking clearing and farming activities within the Gwydir Wetlands Ramsar site (see case study).

Case study
The Gwydir Wetland Case: Minister for the Environment and Heritage (No 2) v Greentree & Ors [2004] FCA 741

The Gwydir Wetlands, near Moree, NSW, are recognised for their large breeding and feeding grounds for colonies of nesting water birds and a number of listed threatened species that visit the wetlands during large flood events. Parts of the Gwydir Wetlands were listed under the Ramsar Convention in June 1999, and are protected as a matter of national environmental significance under the EPBC Act.

In late 2003, the Department, on behalf of the Minister, commenced legal proceedings against a farm operator for land clearing and cropping activities undertaken in 2002 and early 2003, in and around part of the Gwydir Wetlands Ramsar site. The proceedings were the first civil action initiated by the Department in relation to the matters of national environmental significance set down in Part 3 of the EPBC Act. Further application was made to the court for a prohibitory injunction and additional remediation orders for the purposes of restoring the wetland. Prior to this application an interim injunction, limiting all farming activities in and near the wetland, had been sought and granted to prevent imminent further damage to the wetland.

On 11 June 2004, the Federal Court of Australia found that the activities undertaken had significantly impacted on the ecological values of the Ramsar site without the approval required under the EPBC Act, and that as such the farm operator and his company had breached section 16(1) of the Act. The breach carries a maximum penalty of $500 000 for an individual and $5.5 million for a body corporate. The case was adjourned, awaiting submissions on pecuniary penalty and rehabilitation orders.

Legal action seeking review of referral, assessment and approval decisions

During the year, two challenges to decisions made under the EPBC Act were heard. On 31 March 2004, the Federal Court dismissed an application by Dr Paul Mees under the Administrative Decisions (Judicial Review) Act 1977. The application was for review of a decision by the Minister that the proposal to construct the northern section of the Scoresby Freeway in Victoria was not required to undergo environmental assessment, and review of the Minister's finding that there was no basis for a reconsideration of that decision (Mees v Kemp [2004] FCA 356). An appeal filed by Dr Mees against the court's decision was listed for hearing by the full bench of the Federal Court on 25 August 2004.

On 19 December 2003, Justice Kiefel granted orders, as sought by the Queensland Conservation Council and WWF Australia, to set aside the Minister's decision that construction and operation of the Nathan Dam in central Queensland was not a controlled action in respect of potential impacts on the World Heritage values of the Great Barrier Reef and on listed migratory species, and the subsequent decision as to the level of environmental assessment (Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463). Justice Kiefel found that the Minister "did not undertake the full enquiry required"; by excluding from consideration the possible impacts of irrigation activities which the dam was likely to facilitate, and held that the Minister should exclude from consideration only "those possible impacts which lie in the realms of speculation".

On 28 January 2004, the Minister lodged an appeal to the full bench of the Federal Court, with the aim of obtaining clearer guidance on the scope of the impacts that must be considered in decision-making. On 30 July 2004, in upholding Justice Kiefel's judgement, the Court held that the impacts to be considered by the Minister include the indirect consequences of an action where the adverse affects "which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter."

The full bench of the Court also concluded impacts include "each consequence which can reasonably be imputed as within the contemplation of the proponent of the action, whether these consequences are within the control of the proponent or not." The Minister will now remake the controlled action and level of assessment decisions, taking the judgement into account.

Four further applications for judicial review of decisions of the Environment Minister under the EPBC Act were made under the Administrative Decisions (Judicial Review) Act 1977 during the year. The first application, brought by the Tasmanian Conservation Trust, sought review of the Minister's decision to approve, with conditions, the proposal to construct and operate the Meander Dam in northern Tasmania. Following confirmation that the threatened heath plant Epacris exserta was not going to be impacted by the construction and operation of the dam, the Minister, after a request from the Tasmanian Government, revoked all approval conditions relating to the plant. The Tasmanian Conservation Trust was subsequently granted leave by the court to discontinue their proceedings.

The second application, brought by Save the Ridge Inc, sought review of a decision by the Minister's delegate that the proposal to construct and operate the Gungahlin Drive Extenstion in the Australian Capital Territory was not a controlled action. On 6 February 2004, the Federal Court made an order, as sought by Save the Ridge, discontinuing these proceedings.

The third application, brought by a landholder, involves review of a reconsideration decision of the Minister's delegate under section 78 of the EPBC Act. The reconsideration decision confirmed the original decision that the proposal to construct and operate a transmission line between Millmerran and Middle Ridge in Queensland was not a controlled action provided it was taken in a particular manner. In a hearing on 30 April 2004, the Federal Magistrates' Court considered whether the applicant had standing to bring the proceedings. The court reserved its judgement on this issue.

A fourth application, which sought review of the decisions to approve and subsequently to vary the conditions for the construction and operation of a proposed dam on the Burnett River in Queensland, was withdrawn on 25 June 2004.

The Nathan Dam case finding that impacts include consequences which can reasonably be said to be within the contemplation of the proponent, whether these consequences are within the control of the proponent or not, has significant consequences for the referral, assessment and approval of actions. In addition, it is anticipated that decisions made under the EPBC Act will continue to be challenged legally until a body of precedents is established. These matters add to the pressures that the Department will need to manage in the future.

Species and communities (Part 13)

Prosecutions

An offender was prosecuted under the EPBC Act for a breach of Part 13 of the Act relating to injuring cetaceans. The offender was convicted and released on a $1000, five-year good behaviour bond.

The Department investigated a small number of incidents relating to listed species on Commonwealth land. None of these matters were of a serious nature and were dealt with through administrative compliance action.

As at 30 June 2004, activities by several Indonesian fishing vessels in the Commonwealth marine area in northern Australia were being investigated. These activities allegedly involved killing, injuring, or taking a cetacean, as the Australian Customs Service found dolphin meat on board these vessels. An alleged killing of a cetacean in Commonwealth waters in the Tasman Sea by a commercial fisher also was under investigation.

International wildlife trade (Part 13A)

Part 13A of the EPBC Act controls the export of Australian native wildlife and wildlife products; import of live animals and plants; and the import and export of all wildlife recognised internationally as endangered or threatened under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The Department is the lead agency that nationally coordinates the enforcement of Australia's wildlife trade laws by working cooperatively with other Australian Government agencies, international, state and territory wildlife agencies and non-government agencies interested in protecting wildlife. The Australian Customs Service provides the operational and investigation role for offences detected at the border.

During the year 21 charges were laid under the EPBC Act against 16 defendants and ten charges under the EPBC Regulations against four defendants. This included charges for attempting to smuggle stag beetles from Lord Howe Island, for the illegal export of native reptiles from Western Australian, and native birds and reptiles from New South Wales.

Case study
Exotic reptiles amnesty

The Department coordinated a national amnesty for holders of exotic reptiles to surrender their animals without prosecution, and conducted a major media awareness campaign for owners of exotic reptiles. The possession of illegally imported specimens (or their progeny) is an offence under the EPBC Act and similar offences also exist under state and territory laws.

The amnesty netted almost 40 reptiles including a number of boa constrictors, Bair's patch-nosed snakes, corn snakes and red-eared slider tortoises. It has been agreed by the states and territories that no future licences for private keeping of exotic reptiles be issued unless the animals have an Australian Government import permit for that purpose.

Protected areas (Part 15)

During 2003-04, a thorough review of Parks Australia's permits system was undertaken (and remains in progress) in response to an audit of the system conducted in mid-2003. Parks Australia continues to develop risk-based compliance and monitoring strategies for specific offences in Commonwealth reserves. After successful completion of accredited training, five wardens and 11 rangers were appointed under section 392 of the Act. Parks Australia conducted successful prosecutions of a pig hunter in Kakadu National Park, and a commercial fisherman, also in Kakadu. An Indonesian fisherman was successfully prosecuted for activities in a prohibited area of Ashmore Reef, and court action in response to illegal fishing in the Great Australian Bight Marine Park was successful (see case study).

Case study
Illegal shark fishing in the Great Australian Bight Marine Park

Each year, from winter to spring, southern right whales gather to breed at the Head of the Great Australian Bight, in the largest Australian aggregation of this endangered species. Historically, a small number of commercial shark fishers targeting school shark have set gill nets up to 4.2 kilometres long in these waters. In May 2000, following consultation with industry, the Australian Government instigated an annual 1 May to 31 October closure of part of the Great Australian Bight Marine Park, excluding shark fishers from the area of the Marine Park called the Marine Mammal Protection Zone. Shark fishers were notified, however, several reports of vessels ignoring the closure were received. Due to the identified high risk of illegal fishing and potential for whale entanglements, surveillance was increased and on 30 October 2001, a joint operation by the Australian Customs Service and South Australian National Parks and Wildlife service, intercepted two shark fisherman setting nets within the zone.

The Department's Marine Protected Areas Section investigated the incidents in collaboration with South Australian officials. There was a clear need to deter further breaches of the annual closure. The maximum criminal penalty available under the EPBC Regulations for this type of offence is $5500. In December 2002, the Minister applied to the Federal Court of Australia for civil penalties against each of the fishermen pursuant to section 354 of the EPBC Act, the first such action by the Minister under the Act. Following negotiation between the parties the matters were tried in Adelaide in December 2003. The Federal Court found that the fishermen had breached section 354. The court ordered the first fisherman to pay a penalty of $12 500 and the second fisherman to pay a penalty of $25 000 plus $7000 in costs. The Department considers that these penalties set a benchmark for future contraventions of the EPBC Act by commercial fishing operators in Commonwealth reserves.

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