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Department of the Environment and Heritage annual report 2005–06

Volume two
Department of the Environment and Heritage, 2006
ISSN 1441 9335

Legislation annual reports 2005-06 (continued)

Operation of the Environment Protection and Biodiversity Conservation Act 1999

4. Monitoring and compliance

Overview

The increased resources devoted to compliance and enforcement since 2004–05 have achieved useful outcomes. The number of investigations has increased and their calibre has improved. A comprehensive recording and tracking system for new reports and cases is now in operation.

A significant achievement has been the noticeable improvement in cooperation between agencies at all levels of government in relation to monitoring, compliance and enforcement of environmental legislation, flowing directly from the department’s initiatives. The work and cooperation achieved though the Australian Environmental Law Enforcement and Regulation Network is a telling example of this.

As a significant step in its increasing focus on compliance and enforcement, the department has adopted a more stringent approach to post referral and approval verification, monitoring and auditing. A draft audit strategy has been prepared and a programme for post-approval monitoring and audit developed.

Compliance

During 2005–06 the department consolidated its procedures for handling compliance incidents relating to Part 3 of the EPBC Act. The department dealt with 350 reports of incidents or activities potentially in breach of the provisions relating to activities that may have a significant impact on matters of national environmental significance and 210 of these warranted further inquiry. This was a result of increased awareness of the EPBC Act and an improved capacity to respond to reports. Reports come from a wide variety of sources and each report is carefully investigated to determine whether or not the EPBC Act does or should apply. The department increasingly focused on working cooperatively with other government agencies from both state and local jurisdictions to improve compliance with the Act.

In addition, the department receives many reports of activities that are primarily of state or local concern, but which nevertheless need to be investigated sufficiently to establish that the EPBC Act does not apply. Consistent with the department’s compliance and enforcement policy, a range of flexible and targeted measures are used to promote compliance and respond to breaches. Where compliance approaches fail, enforcement has been and will continue to be applied. This year for the first time a formal conservation agreement was used to achieve environmental remediation in response to a compliance matter (see Mount Buller case study).

Many compliance incidents dealt with by the department involve actions that have not yet taken place. In these cases, the department investigates to determine whether or not the activity should be regulated by the EPBC Act. In 2005–06, seven per cent of all referrals received by the department resulted from active compliance intervention.

Post referral and approval verification, monitoring and auditing

In order to ensure that the referral, assessment and approval regulatory system established under the EPBC Act is applied rigorously and is enforceable, the department has adopted a structured, compliance based approach. The department has established a compliance auditing programme to monitor adherence to approval conditions and particular manner decisions.

In developing this approach, the department liaised with other jurisdictions and members of the Australian Environmental Law Enforcement and Regulators Network. In a joint project with the network, a compliance audit training package is under development.

A pilot post-approval monitoring programme to measure adherence to approval conditions was carried out and the programme is being reviewed and refined before being fully implemented in 2006–07. A consultant has been engaged to assist in preparing an auditing strategy and audit plan for 2006–07.

In addition to ensuring that conditions of project approval are complied with, the monitoring and audit programme will provide important feedback for the assessment and approval process, and for refining condition-setting procedures.

2005 Australian Environmental Law Enforcement and Regulators Conference

The Australian Environmental Law Enforcement and Regulators network, launched in 2004 to promote cross-jurisdictional dialogue and cooperation for environmental law enforcement and regulation, achieved several milestones in 2005–06. The network now has 18 agency members, including at least one agency in every jurisdiction. Twelve agencies signed the network charter during 2005–06. Recognising the maturation of the network, the Australian Government, which has provided the chair since the network’s formation, will relinquish this role to a state agency in July 2006.

The network held its second national conference in Brisbane in November 2005 on the theme ‘Working Together for Regulatory Compliance’. The conference drew 232 delegates and included sessions on wildlife, water, native vegetation, pollution, cultural heritage and regulatory practice.

The network has established several working groups to undertake projects including training and establishing best practice. Through the training working group, the department took a lead role in setting national standards and consistency for customised environmental training and has developed two nationally accredited courses at certificate four level in statutory compliance and investigations. These courses were delivered to 25 departmental officers during 2005–06.

The network provides a national perspective and has helped promote a culture shift within government agencies in all jurisdictions so that it is becoming usual to work collaboratively towards regulating and protecting the environment.

Compliance assurance pilot project

The compliance assurance pilot project, initiated in 2004–05, was expanded from four to eight local government areas and the Northern Territory. The project was designed to sample the level of compliance with Part 3 of the EPBC Act and gauge the effectiveness of the department’s monitoring, compliance and enforcement activities. The project involved comparing referrals received by the department with development applications received at the local government level, in regions where high levels of development activity were occurring in sites containing matters of national environmental significance.

Some of the findings and recommendations of the project involve improving the links between the department and local governments or state agencies, particularly where development pressures coincide with matters of national environmental significance. These recommendations have fed into several initiatives undertaken in 2005–06 including strategic regional planning work in Bunbury and Busselton, Western Australia, Mission Beach and Magnetic Island in Queensland, and the Geelong–Surf Coast area, Victoria.

In Victoria, a number of compliance incidents and referrals to the south and west of Melbourne have concerned the critically endangered spiny rice-flower (Pimelea spinosa). The department worked closely with the Victorian Department of Sustainability and the Environment and several local governments and provided funds through the Natural Heritage Trust to improve knowledge of the plant’s distribution. This information will not only be used to assist in the department’s decision-making for the species but may also be used to inform planning and management measures that could prevent further loss of important populations of the species.

The department continued to educate and raise awareness about the requirements of the EPBC Act, particularly where clusters of compliance reports were received. Activities include written and telephone communications, site visits, seminars, and workshops with local government authorities and relevant industry and interest groups.

Investigations and enforcement

The department continued to operate in a tri-agency model of environmental investigations in conjunction with the Australian Federal Police and Australian Customs Service, and hosts outposted officers from these agencies. Efforts to increase and improve cooperation with other environmental law enforcement agencies are ongoing and have already yielded improvements in protection of the environment.

At 30 June 2006, 44 investigations had been carried out since 2000 for EPBC Act related matters and a further eight investigations relating to other portfolio legislation. The EPBC Act investigations related to matters of national environmental significance, incursions into protected areas, threatened species and ecological communities, and wildlife matters. Of these cases, five have been referred to the Director of Public Prosecutions and two to the Australian Government Solicitor.

The department has coordinated and delivered accredited training in investigations and statutory compliance to enhance the skills of all departmental areas with responsibilities to administer and enforce the EPBC Act and other legislation. The training was delivered in-house and formal qualifications issued by the partner registered training organisation.

Prosecutions under the EPBC Act

Requirements for environmental approvals (Part 3)

In July 2005 the Federal Court upheld on appeal its earlier decision that a New South Wales farmer had breached the EPBC Act by clearing and cropping within the Gwydir Wetlands Ramsar site. Penalties totalling $450 000 have now been paid for this breach.

A number of alleged breaches of the EPBC Act are under investigation.

Species and communities (Part 13)
Egg smuggling vest. Smugglers will go to great lengths to covertly export or import live wildlife specimens.

Egg smuggling vest. Smugglers will go to great lengths to covertly export or import live wildlife specimens. Photo: Australian Customs Service

The EPBC Act has investigation responsibilities outside Australia in relation to Australian citizens interacting with whales and other cetaceans. The department worked collaboratively with the Australian Federal Police and interviews were conducted in a Pacific island nation by the Federal Police. The investigation has been referred to the Commonwealth Director of Public Prosecutions.

International wildlife trade (Part 13A)

Part 13 A 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 under CITES as endangered or threatened.

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 2005–06, 15 charges were laid under the EPBC Act against 12 defendants. No charges were laid under the EPBC Regulations. A total of 5 165 seizure notices were issued.

Activities in protected areas (Part 15)

During the year 28 wardens were appointed under section 392 of the EPBC Act, including 13 from South Australian fisheries and conservation agencies and five from the department.

Seized illegally imported dietary supplements. Hoodia is a succulent plant endemic to the African Kalahari desert. It is purported to have natural appetite suppressing qualities and is widely promoted as a weight loss product. In an effort to ensure trade does not threaten the survival of hoodia in the wild, the plant is listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). A CITES permit is required before bringing products containing hoodia into Australia.

Seized illegally imported dietary supplements. Hoodia is a succulent plant endemic to the African Kalahari desert. It is purported to have natural appetite suppressing qualities and is widely promoted as a weight loss product. In an effort to ensure trade does not threaten the survival of hoodia in the wild, the plant is listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). A CITES permit is required before bringing products containing hoodia into Australia. Photo: Australian Customs Service

Parks Australia successfully prosecuted five residents of the Cocos (Keeling) Islands for possession of 216 dead booby birds and 14 dead frigate birds, both listed migratory species. All of the defendants pleaded guilty in the Cocos (Keeling) Islands Magistrate’s Court on 7 December 2005 and were convicted under section 211C of the EPBC Act and released on two-year ($5 000) good behaviour bonds. Each was ordered to pay legal costs of $2 173.92.

Parks Australia also prosecuted three men for offences involving the killing of 27 magpie geese in Kakadu National Park, possession of firearms and use of prohibited roads or tracks. All were convicted and fined on 8 August 2005 for possessing a firearm in a Commonwealth reserve and/or unauthorised access. Charges under sections 254A and 254C of the EPBC Act were withdrawn due to a witness changing his story.

Another man was convicted in Darwin Court of Summary Jurisdiction on 17 October 2005 of driving a vehicle on a restricted access road in Kakadu National Park, and fined $400. Parks Australia also attempted to prosecute a man for possessing and using firearms in Kakadu National Park. He failed to appear in Darwin Court of Summary Jurisdiction on 24 October 2005 in answer to a summons and a warrant to apprehend the defendant was issued.

The department investigated alleged illegal fishing in Mermaid Reef Marine National Nature Reserve. The case was referred to the department by Coastwatch who filmed the illegal fishing as it was occurring. The department has instituted proceedings through the Australian Government Solicitor.

Review of EPBC Act decisions

High Court/Federal Court

On 29 August 2005, the High Court dismissed an application by Dr Paul Mees for special leave to appeal to the High Court against the judgment of the full bench of the Federal Court in relation to an application under the Administrative Decisions (Judicial Review) Act 1977 for review of the minister’s decision that the northern section of the Scoresby Freeway proposal did not require environmental assessment under the EPBC Act (Mees v Kemp [2005] FCAFC 5).

On 15 June 2006, the Federal Court dismissed an application by the Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch for review under the Administrative Decisions (Judicial Review) Act of the decisions under the EPBC Act that the Isaac Plains Coal Project and the Sonoma Coal Project did not require assessment and approval. The Federal Court found that, contrary to the claims by the applicants, the decision-maker took into account the potential adverse impacts the coal projects may have on matters of national environmental significance protected by the EPBC Act.

Applications for judicial review under the Administrative Decisions (Judicial Review) Act were made in relation to the Bald Hills Wind Farm proposal. In particular, the Victorian Minister for Planning and Bald Hills Wind Farm Pty Ltd sought review of the minister’s decision not to approve the wind farm proposal.3

Administrative Appeals Tribunal

The Administrative Appeals Tribunal delivered judgments in two cases involving challenges to decisions made under the EPBC Act. On 3 April 2006, the tribunal confirmed the minister’s declaration that the Southern Bluefin Tuna Fishery is an approved wildlife trade operation in accordance with section 303FN of the
EPBC Act.

The RSPCA, the International Fund for Animal Welfare and the Humane Society International applied to the tribunal for review of the decision to issue permits under section 303CG of the EPBC Act to Taronga Zoo and Melbourne Zoo for the import of Asian elephants from Thailand. On 6 February 2006 the tribunal decided to allow the import of the elephants subject to a number of additional welfare related conditions.

On 12 December 2005, the Wildlife Protection Association applied to the tribunal for review of the minister’s decisions to declare two wallaby management plans in Tasmania (for harvesting wallabies on King and Flinders islands) as approved wildlife trade management plans. The tribunal refused the application to place a stay order on the implementation of the management plans. The matter is yet to be listed for hearing.


Footnote
3 On 4 August 2006 the minister and Bald Hills Wind Farm Pty Ltd agreed to settle the court case and for the minister to remake the approvals decision.

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