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Department of the Environment and Heritage annual report 2004-05

Volume two
Department of the Environment and Heritage, 2005
ISSN 1441 9335

Legislation annual reports 2004-05 (continued)

Operation of the Environment Protection and Biodiversity Conservation Act 1999

4. Monitoring and compliance

Overview

The year has seen a significant increase in resources devoted to compliance and enforcement activity with the establishment and initial staffing of the Environment Investigations Unit in the Approvals and Wildlife Division now complete. The unit complements the work of the existing compliance team by providing a fully qualified and experienced investigation team to follow up on more serious contraventions and pursue matters to court if appropriate.

Other initiatives aimed at improving the department's compliance and enforcement response have included participation in the establishment of a cooperative network of state and Australian Government environmental law enforcement regulators, co-hosting of the inaugural Australasian Environmental Law Enforcement Conference, and the conduct of a compliance assurance pilot project.

Environment Investigations Unit

The Environment Investigations Unit completed its first full year of operation in 2004-05. The formation of the unit was a priority for the department's delivery of enforcement functions, providing specialised investigative skills for formal investigations and prosecution of environmental crime. The unit has recruited specialist investigators and hosts out-posted officers from the Australian Federal Police and Australian Customs Service. Further efforts are being devoted to increasing and improving cooperative activity with other external and state government environmental law enforcement agencies.

At 30 June 2005 23 investigations have been carried out so far for EPBC Act related matters and a further five investigations relating to other portfolio legislation. The EPBC Act investigations have related to matters of national environmental significance, incursions into protected areas, threatened species, ecological communities and wildlife matters. Of these cases, three have been referred to the Director of Public Prosecutions.

2004 Australasian Environmental Law Enforcement Conference

In November 2004 the department co-hosted the first Australasian Environmental Law Enforcement Conference, in Melbourne. A highlight of the conference was the launch of the Australasian Environmental Law Enforcement and Regulators Network. The network will promote dialogue and information exchange across all sectors of environmental law enforcement, including Australian Government and state and territory jurisdictions, with the aim of bringing together a wide range of investigative roles and expertise (in the compliance, enforcement, policy, licensing, audit and legal fields).

The network has been established in recognition of the borderless nature of many 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 awareness of the seriousness of environmental offences throughout government and the broader community.

Monitoring and compliance activities under Part 3

During 2004-05 the department received more than 150 reports of incidents or activities potentially in breach of the provisions of Part 3 of the EPBC Act. Reports of this nature come from a range of sources, including members of the public, non-government organisations, community groups, local governments and state agencies. The department also undertakes its own monitoring of land development and other sectoral activities.

Reports received undergo a preliminary screening to determine whether or not Part 3 of the EPBC Act applies. Many are ultimately considered unlikely to have a significant impact on matters of national environmental significance under the EPBC Act. Although enforcement action may not be warranted, the department takes the opportunity to provide information and advice about the operation and scope of the EPBC Act to relevant parties in these instances.

Where preliminary screening reveals that significant impacts are possible, the department encourages referral by the person responsible for the activity to allow formal consideration of whether assessment and approval is required under the EPBC Act. During 2004-05 a total of 47 EPBC Act referrals (or approximately 13 per cent of all EPBC Act referrals received by the department) were the result of compliance action. In some instances, where an action has already occurred or imminent action is likely, higher level investigation may be considered with a view to determining whether legal action is appropriate.

Compliance assurance pilot project

The department undertook a compliance assurance pilot project during the year to assess the level of compliance with Part 3 of the EPBC Act in selected areas. The aim of the project was to gauge the effectiveness of the department's monitoring, compliance and enforcement activities, and suggest improved approaches for targeting awareness raising or other compliance activities. The assessment was based on a comparison of referrals received by the department with actual development activity occurring where significant impacts on matters of national environmental significance are likely. In cooperation with the relevant councils, four local government areas were chosen where there are particular listed species or other matters protected by the EPBC Act, coinciding with development pressures or specific activities likely to require referral under the EPBC Act. While preliminary results have revealed no major or serious cases of non-compliance, several projects have been identified where the significance of impacts on matters of national environmental significance is unclear and further examination is warranted.

The Performance Improvement and Audit Unit is conducting a review of the Approval and Wildlife Division's compliance and enforcement activities as part of the department's Strategic Internal Audit Plan. The review will measure whether compliance activity is carried out in accordance with policies, strategies and procedures, against better practice principles.

Prosecutions under the EPBC Act

Requirements for environmental approvals (Part 3)

In late 2003 the minister initiated civil legal action under section 16(1) of the EPBC Act against a NSW farmer for taking an action that had a significant impact on a Ramsar wetland of international importance. In June 2004, the Federal Court made a decision in favour of the minister, finding that the landholder 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. In October 2004 the court handed down a record penalty of $150 000 for the landholder and $300 000 for his company.

During 2004-05 the department became aware of an investigation being undertaken by the Queensland Environmental Protection Agency into a land-clearing incident within the boundaries of a Queensland National Park, which was found to be part of the Central Eastern Rainforest Reserves of Australia World Heritage Area. The department conducted its own investigation and referred the matter to the Commonwealth Director of Public Prosecutions, who agreed that a breach of the criminal provisions of the EPBC Act had occurred. In this case, the department assisted in negotiating an environmental outcome by way of property transfer to the Crown of offset land area worth over $400 000 for inclusion in the World Heritage Area. The Commonwealth Director of Public Prosecutions and the department then agreed not to proceed with the criminal matter.

Species and communities (Part 13)

In 2004-05 the department undertook preliminary investigations into a small number of incidents relating to listed species on Commonwealth land, primarily related to Defence land or activities. An Indonesian fisherman was successfully prosecuted for a breach of Part 13 of the EPBC Act relating to the taking of a cetacean, with the charges resulting from and complementing a prosecution action taken by the Australian Fisheries Management Authority. Two other cases were referred to the Commonwealth Director of Public Prosecutions for possible prosecution.

International wildlife trade (Part 13A)

Part 13A of the EPBC Act controls the export of Australian native wildlife and wildlife products, the import of live animals and plants, and the import and export of all wildlife recognised internationally as endangered or threatened under CITES. 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.

International wildlife trade is controlled in close collaboration with the Australian Customs Service. Customs provides the operational and investigation role for offences detected at the border.

During the year 10 charges were laid under the EPBC Act against eight defendants and four charges under the EPBC Regulations against three defendants. A total of 3 902 seizure notices were issued.

Case study

Successful seizure of live birds

On the afternoon of Friday 13 May 2005 inspectors of the Environment Investigations Unit attended a location in Victoria and executed a monitoring warrant under the EPBC Act.

Located at the premises was a large collection of exotic birds, chicks and eggs. When questioned about the nature and origin of these specimens, the occupants were not able to satisfactorily answer these questions. The occupants also failed to produce any relevant documentation. As a result, 31 adult birds from eight species, including two species never recorded as being present in Australia, were seized.

The specimens are now the property of the Australian Government and are in the process of being re-housed. The value of the specimens has been estimated to be in excess of $400 000. It is important for owners to maintain records relating to breeding, purchase, trade and sale of their exotic birds, or they risk seizure.

Protected areas (Part 15)

During the year 27 wardens were appointed under section 392 of the EPBC Act, including 10 officers from the Australian Customs Service, 10 from the Northern Territory Police, and the balance from the department. Six rangers were also appointed, four to Uluru-Kata Tjuta National Park and two to Kakadu National Park.

Parks Australia conducted successful prosecutions of two men for using a vessel in a closed area of the South Alligator River in Kakadu National Park, and one man for using a crab pot and cast net to catch crocodiles on the East Alligator River, also in Kakadu.

In respect of Commonwealth marine reserves, compliance with the EPBC Act has been advanced by cooperative management arrangements with the Australian Customs Service and numerous state fishing and conservation agencies. Under these arrangements, law enforcement officers from many agencies are trained and authorised to conduct surveillance and investigate and respond to suspected offences.

A total of 92 wardens are authorised under the EPBC Act to conduct law enforcement work in respect of Australia's Commonwealth waters, including 48 officers from the Australian Customs Service, 29 from state agencies, and the balance from the department.

Review of EPBC Act decisions

Federal Court

During the year the Federal Court delivered judgements in two cases involving challenges to decisions made under the EPBC Act. On 30 July 2004 the full bench of the Federal Court upheld an earlier judgement of Justice Kiefel in relation to the construction and operation of the Nathan Dam in central Queensland. In upholding the earlier judgement, the Full Court clarified the judgement of Justice Kiefel and provided a set of workable principles to be used in determining if a proposed development requires approval under the EPBC Act. The minister remade the controlled action decision employing these principles and determined that the assessment and approvals process for the Nathan Dam should consider likely significant impacts on the World Heritage values of the Great Barrier Reef and on listed migratory species, in addition to listed threatened species and ecological communities.

On 11 February 2005 the full bench of the Federal Court upheld an earlier judgement of Justice Weinberg, dismissing an application by Dr Paul Mees under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The application was for review of a decision 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 finding that there was no basis for a reconsideration of that decision (Mees v Kemp [2005] FCAFC 5). On 11 March 2005 Dr Mees filed an application for special leave to appeal to the High Court against the judgement of the full bench of the Federal Court.

The year also saw the conclusion of another application for judicial review under the ADJR Act of a reconsideration decision made under the EPBC Act, which confirmed that the proposal to construct and operate a transmission line between Millmerran and Middle Ridge in Queensland did not need assessment and approval under the EPBC Act provided it was taken in a particular manner. On 26 November 2004 the Federal Magistrates Court held that the applicant did not have standing to bring the judicial review action under the ADJR Act.

One further application for judicial review was made under the ADJR Act during the year. On 13 April 2005 the Wilderness Society filed an application with the Federal Court for review of the terms of the minister's decision that the proposal by Gunns Ltd to construct and operate a pulp mill at Long Reach in Tasmania required assessment and approval under the EPBC Act, on the basis that it failed to take into account the impacts of the supply of timber for the mill that will occur after the expiry of the Tasmanian Regional Forestry Agreement in 2017.

Administrative Appeals Tribunal

On 18 March 2005 the Humane Society International lodged an application with the Administrative Appeals Tribunal for administrative review of the declaration that the Southern Bluefin Tuna Fishery is an approved wildlife trade operation in accordance with section 303FN of the EPBC Act. The matter has been listed for hearing 23-30 September 2005.

5. Reporting

State of the Environment reporting

The EPBC Act requires that a report on Australia's environment be prepared every five years. The second State of the Environment report was published on 19 March 2002. Preparation of the next report is continuing.

Section 516A reporting

Section 516A of the EPBC Act requires Australian Government organisations to include in their annual reports a section detailing the environmental performance of the organisation and the organisation's contribution to ecologically sustainable development. Through its web site, the department has available for agencies information on section 516A reporting. The information includes guidance on: