Address: Main Office: John Gorton Building

Breaches and investigations

The department received 657 reports covering 466 new incidents or activities representing potential breaches of Part 3 of the EPBC Act in 2010–11. This is comparable to the 945 reports and 532 incidents reports in 2009–10 and the 925 reports and 522 incidents in 2008–09. Forty-seven site inspections were undertaken to obtain information to assess whether alleged non-compliance actions had occurred.

Incident reports are carefully examined to determine whether or not the EPBC Act applies. The person or organisation making the initial incident report is advised of the outcome of the completed matter. The most frequently reported matters relate to impacts on the Southern Cassowary in Queensland, Natural Temperate Grasslands of the Victorian Volcanic Plain in Victoria, and Carnaby’s and Baudin’s black cockatoos in Western Australia.

Many reports involve actions that have not yet commenced. In these cases the department investigates them to see if the activity should be regulated. During 2010–11 60 referrals were received as a result of departmental intervention. Of these one has been approved, two were withdrawn, 22 were determined to be controlled actions and four were determined not to be controlled actions provided the actions were undertaken in a particular manner. Twelve were determined not to be controlled actions. The remaining 19 were yet to be determined as at 30 June 2011.

In 2010–11 the department began 21 new cases of alleged breaches of the EPBC Act. Of these there were:

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  nine relating to Part 13A of the EPBC Act (illegal international movement of wildlife specimens)
  
• 
  five relating to Part 3 of the EPBC Act (protection of matters of national environmental significance)
  
• 
  seven relating to EPBC Act marine issues (marine reserve offences and marine species protection).
  

In 2010–11 the department executed five monitoring warrants and five search warrants under the EPBC Act. Seven notices to produce books and records under section 486F of the EPBC Act were also served.

In 2010–11 investigation outcomes included three successful criminal prosecutions, three remediation determinations, three infringement notices, two enforceable undertakings and an interim injunction, as follows:

• 
  September 2010—a NSW man entered a plea of guilty to two counts of possessing illegally imported reptiles and was fined $3 000. This prosecution resulted from a joint investigation with the NSW Department of Environment, Climate Change and Water.
  
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  November 2010—the department accepted an enforceable undertaking from Geelong City Council to pay $131 000 for clearing 0.8 hectares of Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community.
  
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  November 2010—the delegate for the minister imposed a remediation determination of $180 000 on Giovanni Nominees Pty Ltd for clearing four hectares of Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community and destroying up to 15 Spiny rice-flower plants.
  
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  December 2010—Stuart Petroleum Pty Ltd entered a plea of guilty in the Darwin Magistrates Court for taking an action before a referral decision had been made and was fined $102 750.
  
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  December 2010—an interim injunction under the EPBC Act was granted to prevent further clearing of Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community on a property at Parwan in Victoria. The injunction will remain in force until the matter is resolved in the Federal Court.
  
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  March 2011—Australian Rail Track corporation entered into an Enforceable Undertaking with the department to a total value of $207 000 in relation to impacts upon the Natural Temperate Grasslands of the Victorian Volcanic Plains ecological community and Spiny rice-flower plants.
  
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  March 2011—the delegate for the minister issued a remediation determination on Singleton Council (NSW) to pay $100 000 to repair and manage the critically endangered Weeping Myall–Coobah–Scrub Wilga Shrubland of the Hunter Valley ecological community.
  
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  April 2011—the Queensland Gas Corporation was served with three infringement notices to the value of $6 600 (total value $19 800) for not adhering to the conditions of their approval.
  
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  May 2011—a remediation determination was imposed on Douglas Rutledge of Warren, NSW, requiring him to remediate and manage 30 hectares of endangered Weeping Myall Woodland ecological community which was cleared on his property.
  
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  May 2011—a NSW man entered a plea of guilty to three counts of possession of illegally imported reptile specimens and was fined $2 500. This prosecution resulted from a joint investigation with the NSW Department of Environment, Climate Change and Water.
  

Legal actions

The following legal actions occurred in 2010–11.

Anzbrook Pty Ltd t/as Cairns Marine Aquarium Fish v Minister for the Environment, Heritage and the Arts [2010] FMCA 34

On 14 April 2009 Cairns Marine Aquarium Fish lodged an application in the Federal Magistrates Court for judicial review of the minister’s decision to refuse to grant a permit to export CITES II-listed freshwater sawfish to an aquarium in Dubai. The matter was heard in the Cairns Federal Magistrate’s Court on 29 October 2009. On 22 January 2010 the Federal Magistrate quashed the minister’s decision and remitted it back for a new decision. The remitted decision was remade on 6 July 2011 and authorised the export of four of the eight sawfish specimens.

The Hour Glass (Australia) Pty Ltd v The Minister for the Environment, Heritage and the Arts (AAT 2009/3015 & AAT 2010/1625)

On 29 June 2009 The Hour Glass (Australia) Pty Ltd applied to the Administrative Appeals Tribunal, seeking merits review of two decisions: to refuse to return seized specimens and to refuse to grant a multiple-use import permit. The proceedings were dismissed on 13 August 2010 via consent orders agreed to by both parties. On 24 August 2010 Hour Glass applied for an ex-gratia payment for their legal costs, associated with the AAT proceedings, on the basis that the department had not complied with its obligation as a model litigant. On 29 March 2011 the Department of Finance and Deregulation rejected the application.

Glenn Parker and Others v the Minister for Environment Protection, Heritage and the Arts (VID 869 of 2009)

On 3 December 2009 four individual cat breeders made an application to the Federal Court for judicial review of the former minister’s decision of 2 August 2008 to amend the EPBC Act to ban importation of any cats containing serval genes (including the Savannah cat, a domestic cat crossed with an African serval). The matter was heard in the Federal Court on 12 and 13 May 2011. As at 30 June 2011 the matter remains reserved pending a decision.

No Ship Action Group and the Minister for the Environment, Water, Heritage and the Arts & Anor (N1149/2010)

On 23 March 2010 the No Ship Action Group applied to the Administrative Appeals Tribunal for merits review of the minister’s decision to grant a permit for the placement of the ex-HMAS Adelaide as an artificial reef off Avoca Beach, NSW. The matter was heard on 5–8 July and 16 July 2010. On 15 September 2010 the tribunal upheld the minister’s decision but attached additional conditions to the permit to further address the potential for pollution from polychlorinated biphenyls or lead paint. The vessel was scuttled on 13 April 2011.

Pacific Reef Fisheries (Bowen) Pty Ltd v Minister for Environment Protection, Heritage and the Arts (QUD 180/2010)

On 24 May 2010 Pacific Reef Fisheries (Bowen) Pty Ltd filed an application in the Federal Court of Australia for judicial review of the former minister’s decision of 4 March 2010 to approve the Guthalungra Aquaculture Facility, north of Bowen, Queensland, subject to conditions. As at 30 June 2011 the application was still before the court.

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts and the Royal Botanic Gardens and Domain Trust [2011] FCA 113

On 16 July 2010 Bat Advocacy NSW Inc applied to the Federal Court of Australia for judicial review of the former minister’s decision of 13 May 2010 to approve the relocation of bats away from the Royal Botanic Gardens in Sydney. On 17 February 2011 the court ordered that the application be dismissed. On 10 March 2011 the applicant appealed the court’s decision. The appeal was heard by the court on 8 April 2011 and the appeal was dismissed with written reasons for the court’s decision handed down on 6 May 2011. On 7 July 2011 the court ordered that Bat Advocacy NSW Inc pay the costs of the respondents in relation to the appeal proceedings, and as at 30 June 2011 costs in relation to the initial proceedings were still before the court.

Western Australian Land Authority and Minister for Sustainability, Environment, Water, Population and Communities (WAD 379/2010 and WAD 250/2011)

On 7 December 2010 the Western Australian Land Authority (Landcorp) filed an application in the Federal Court of Australia for judicial review of the controlled action decision for a residential retail and office development at Mandurah in Western Australia (EPBC 2010/5410). The action was approved subject to conditions on 6 April 2011. A further hearing is pending.

On 28 June 2011, Landcorp filed a second application with the Federal Court of Australia (WAD 250/2011) for judicial review of the approval decision for the project on the basis that the approval decision was based upon a previous decision to treat the action as a controlled action, which was incorrect at law. A further hearing is pending.

Tasmanian Conservation Trust Inc v Minister for Sustainability, Environment, Water, Population and Communities (ACD 24/2011)

On 6 June 2011 the Tasmanian Conservation Trust Inc applied to the Federal Court of Australia for an order of judicial review of various decisions made by the minister on 10 March 2011 relating to the existing approval for Gunns Ltd to operate a pulp mill at Bell Bay, Tasmania. As at 30 June 2011 the matter was still before the court.

3. EPBC Act Review and law changes

EPBC Act Review

On 31 October 2008 the minister commissioned an independent review of the operation of the EPBC Act, the first since the Act commenced on 16 July 2000. Under section 522A of the EPBC Act, a review is required every 10 years from the Act’s commencement.

The review was undertaken by Dr Allan Hawke AC with support from a panel of experts and included an extensive consultation process. Significant input from all levels of government and industry groups, environmental groups, businesses, academics and members of the general public was received during the review. All submissions are publicly available on the EPBC Act review website.

In particular the review examined the:

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  operation of the EPBC Act generally
  
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  extent to which the objectives of the EPBC Act have been achieved
  
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  appropriateness of current matters of national environmental significance
  
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  effectiveness of the biodiversity and wildlife conservation arrangements.
  

The review had regard to key Australian Government policy objectives, including to:

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  promote the sustainability of Australia’s economic development to enhance individual and community well-being, while protecting biological diversity and maintaining essential ecological processes and systems
  
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  work in partnership with the states and territories within an effective federal arrangement
  
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  facilitate delivery of Australia’s international obligations
  
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  progress the Australian Government’s deregulation agenda to reduce and simplify the regulatory burden on people, businesses and organisations while maintaining appropriate and efficient environmental standards
  
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  ensure that activities under the Act represent the most appropriate, efficient and effective ways of achieving the government’s outcomes and objectives in accordance with the Expenditure Review Principles.
  

During 2008 the Senate Standing Committee on Environment, Communications and the Arts also undertook its own inquiry into the operation of the EPBC Act. The committee delivered its findings and recommendations in two reports, published on 18 March 2009 and 30 April 2009. Dr Hawke considered the committee’s reports as part of his review.

In accordance with the terms of reference, the final report of the EPBC Act Review was provided to the minister on 30 October 2009. The report is publicly available on the department’s website.

The key findings of Dr Hawke’s review recognise that the Act has many positive features that should be retained. The report also indicates areas for improvement, making 71 primary recommendations as well as numerous conclusions and findings of an advisory nature. The report recommends reforms that:

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  promote the sustainability of Australia’s economic development
  
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  reduce and simplify the regulatory burden
  
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  ensure activities under the Act represent the most efficient and effective ways of achieving desired environmental outcomes
  
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  are based on an effective federal arrangement.
  

During the year the Australian Government gave careful consideration to the report and the minister undertook extensive stakeholder consultations on the recommendations contained in the review report. Stakeholder consultations have involved almost 70 organisations including industry, business, environmental, non-government, academics and scientific organisations.

The government formally responded to the review after the end of the reporting year. The government response is available on the department’s website.

Legislation amendments

During 2010–11 two private member’s bills were introduced in the Senate proposing amendments to the EPBC Act, and two private member’s bills were introduced in the House of Representatives proposing amendments to this Act. The bills were:

• 
  The Environment Protection and Biodiversity Conservation Amendment (Prohibition of Support for Whaling) Bill 2010, introduced by Senators Brown and Siewert on 29 September 2010. This bill proposed creating the offence of providing any service, support or resources to organisations engaged in whaling. The Bill remained before the Senate as at 30 June 2011.
  
• 
  The Environment Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill 2010, introduced by Senator Colbeck on 2 March 2011, proposed that marine bioregional plans made by the minister under the EPBC Act should be disallowable by Parliament. The Bill remained before the Senate as at 30 June 2011.
  
• 
  The Environment Protection and Biodiversity Conservation Amendment (Public Health and Safety) Bill 2010, introduced by Mr Hartsuyker, MP on 15 November 2010, proposed deeming the relocation of the flying fox colony in Maclean, NSW, to be approved upon completion of state approval by the NSW Government. This Bill was passed by the House of Representatives on 10 February 2011 and was before the Senate as at 30 June 2011.
  
• 
  The Environment Protection and Biodiversity Conservation Amendment (Abolition of Alpine Grazing) Bill 2010, introduced by Mr Brandt, MP on 28 February 2011. This bill proposed that the minister should be deemed to have decided that a trial of cattle grazing in the Alpine National Park referred by the Victorian Government is clearly unacceptable. The Bill remained before the House of Representatives as at 30 June 2011.
  

Appendix A—Statistics

Table 1: Overview of referrals

Referrals	2010–11	Total since commencement of EPBC Act in 2000
Referrals being processed at 1 July 2010	92
Total referrals received	428	3 982
Referrals withdrawn before (controlled action) decision	22	144
Referrals where a decision has been made (including reconsiderations)	400	3 744
Approval required—controlled action	150	1 022
Approval not required—action to be taken in a particular manner	104	751
Approval not required—no conditions on action	146	1 964
Action clearly unacceptable	0	7
Referrals lapsed after (controlled action) decision	6	37
Referrals withdrawn after (controlled action) decision	18	182
Referrals being processed at 30 June 2011	108

Table 2: Reconsideration of decisions

Reconsideration of decisions	Decisions
Reconsideration decisions being processed at 1 July 2010			5
Reconsideration requests received 2010–11			11
Reconsideration decisions made	Total 16
Original decision confirmed		3
Decision revoked and new decision substituted		13
Decision changed from CA to NCA	1
Decision changed from NCA to NCA	1
Decision changed from NCA to CA	1
Decision changed from NCA (particular manner) to CA	3
Decision changed from NCA (particular manner) to NCA	1
Decision changed from NCA (particular manner) to new manners	6
Reconsiderations pending at 30 June 2011			0