Address: Main Office: John Gorton Building
Breaches and investigations
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- Bu səhifədəki naviqasiya:
- 3. EPBC Act Review and law changes EPBC Act Review
- Appendix A—Statistics Table 1: Overview of referrals
- 3 982 Referrals withdrawn before (controlled action) decision 22 144
- 3 744 Approval required—controlled action 150 1 022
- Table 2: Reconsideration of decisions
- Reconsideration decisions made Total 16
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 Of these one has been approved, two were withdrawn, 22 were determined to be controlled actions and four were determined not to be controlled actions provided the actions were undertaken in a particular manner.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:
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:
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.
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:
The review had regard to key Australian Government policy objectives, including to:
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:
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:
Appendix A—Statistics Table 1: Overview of referrals
Table 2: Reconsideration of decisions
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