Law and policy developments
In the legislature
Cost recovery for environmental assessments
Amendments to the Environment Protection and Biodiversity Conservation Act 1999 and supporting regulations allowing the Commonwealth Government to recover the cost of environmental and strategic assessments from proponents came into effect on 1 October 2014.
The amendments introduce a referral fee of $7,352, and a scale of assessment fees determined by the number and complexity of components involved in the assessment. Fees will not be charged retrospectively for any stages of the assessment process that have already been completed, or for projects where the applicant has an annual turnover less than $2 million. Applications for fee waiver may also be made.
For more information, see the Department of Environment website.
Senate motion opposes whaling in the Southern Ocean
At its recent annual meeting, the International Whaling Commission (IWC) passed a resolution, proposed by New Zealand and supported by Australia, giving the IWC’s Scientific Committee a greater role in issuing scientific permits and determining whether proposed research programmes meet the criteria set down by the International Court of Justice. Despite this ruling, the Japanese Government confirmed at the meeting that it plans to submit a new research plan, with the aim of resuming whaling in the Antarctic Ocean in 2015.
On 24 September 2014, the Australian Senate passed a motion calling on the Japanese Government to “respect the IWC motion and not to recommence a lethal 'scientific' whaling program in the Southern Ocean in 2015”.
Australian Capital Territory
New EPA Bill tabled before the Legislative Assembly
On 18 September 2014 the Environmental Protection Amendment Bill 2014 was tabled in the ACT Legislative Assembly. The Bill was drafted in the light of the 2012-13 review of the Environmental Protection Act 1997 (ACT) and its subordinate legislation.
The ACT government has issued a release stating the Bill will introduce major amendments to implement the recommendations that were made during the review. Such recommendations include broadening the definition of environmental harm to include ‘likely or potential harm’ and the removal of Government immunity.
New Nature Conservation Bill tabled before the Legislative Assembly
On 18 September 2014 the Nature Conservation Bill 2014 was tabled in the ACT Legislative Assembly. The ACT Government’s Bill intends to achieve an expansion of the role of the Conservator of Flora and Fauna, to align the ACT legislation with the Environmental Protection and Biodiversity Act 1999 (Cth), and introduce new approaches to the management of species and ecosystems.
Mineral and Energy Resources (Common Provision) Bill 2014
Recent last-minute amendments to this Bill by Queensland mines minister Andrew Cripps have removed long-standing public rights to object to large mines. The changes affect public notification and objection rights for the two major approvals needed by a mine at a state level in Queensland: a mining lease and an environmental authority.
Water Reform and Other Legislation Amendment Bill 2014
This Bill was introduced on 11 September 2014. It proposes to amend the Water Act 2000 (Qld) in order to greater facilitate the use of water for agricultural purposes. To this end, it intends to introduce streamlined systems for gaining entitlements to use water.
The Bill will also reform the water rights access system for the resources sector. In particular, it will require mining operators to enter into make good arrangements with the owners of water bores.
Queensland Heritage and Other Legislation Amendment Bill 2014
This Bill was introduced on 9 September 2014, and will amend the Queensland Heritage Act 1992 (Qld). The objectives of the bill are to:
Improve community collaboration;
Streamline the process for entering properties into the register;
Encourage appropriate development of heritage places;
Strengthen protection of most important heritage places; and
Provide greater flexibility for local governments.
Urban Renewal Act 1995
The Housing and Urban Development (Administrative Arrangements) (Urban Renewal) Amendment Act 2013 was proclaimed on 18 September 2013.
The Act amends the name of the Housing and Urban Development (Administrative Arrangements) Act 1995 to the Urban Renewal Act 1995 and inserts new provisions into allowing for the declaration of precincts. The intent of these new provisions is to allow precinct areas to be master-planned and developed by a single precinct authority which can, by way of authorisation through regulations, exercise many of the roles and functions of a council and State government entities.
The Amendment Act is available here.
Protest laws to be amended
Earlier this month, the Legislative Council refused to send the Workplace (Protection from Protesters) Bill 2014 to Committee for review, with several members saying the anti-protest Bill required a complete re-write before being seriously considered.
On 24 September 2014, the Tasmanian government announced that the controversial Workplace (Protection from Protesters) Bill 2014 would be amended, following the Legislative Council’s refusal to send the Bill to Committee for review. The Bill, which has been widely criticised for the breadth of its application and severity of its penalties, will be amended to exclude protests staged at public places, professional offices, shops or markets. Changes to the penalties and prosecution powers are also proposed, however the government intends to retain provisions imposing mandatory 3 month sentences for second time offenders. Details of the amendments will be introduced before the Bill is debated in October.
Opponents of the Bill, including conservation groups, the Law Society and Civil Liberties Australia, have criticised the government’s proposal, saying that the amendments will not address their concerns and calling for the Bill to be withdrawn.
Environment Protection Amendment (Validation) Bill
The WA State Government has introduced legislation to validate environmental approvals, following a review of the independent Environmental Protection Authority (EPA)’s conflict of interest procedures.
The purpose of this Bill is to amend the Environmental Protection Act 1986 to effectively provide that the rights, obligations and liabilities of all persons shall be the same as if each relevant action of the EPA and subsequent environmental approval had been validly done.
The Bill follows the Supreme Court finding on 19 August 2013 regarding the validity of State environmental approvals for the Browse LNG Precinct. The Court found that the EPA failed to comply with section 12 of the Act when members who held shares in companies with a commercial interest in the outcome of the Browse LNG Precinct assessments participated in the assessment. Because the share-holding members were sometimes required to form a quorum, there was also a failure to comply with section 11 of the Act. As a consequence of the failure to comply with these provisions, the Court held that the environmental approvals which followed the EPA's purported assessment were invalid.
See the Bill here.
In the courts
Suspended sentence for failure to revegetate
In 2006 as a result of successful enforcement proceedings undertaken by the Native Vegetation Council against the respondent pursuant to section 31A of the Native Vegetation Act 1991 (SA) for clearing native vegetation contrary to that Act, Mr Wandel was ordered by the Environment, Resources & Development Court to make good his breaches by, amongst other things, revegetating and rehabilitating the cleared areas in accordance with a revegetation plan.
This Order was not fulfilled and Mr Wandel was charged with contempt of Court Orders.
In The Registrar, Environment, Resources & Development Court v Wandel  SAERDC 3, the Court found Mr Wandel, the Respondent, guilty of the charge and, in the The Registrar, Environment, Resources & Development Court v Wandel (No 2)  SAERDC 13, the Court imposed an order committing the respondent to prison for six months, suspended on condition that he revegetate the land as per the original Order and imposing a fine of $5,000.
Policy developments and other news
Review of Commonwealth marine reserves
The Federal government has announced a review of the comprehensive network of Commonwealth marine reserves, and associated management plans, developed under the former Labor government. The proposed reserves, covering approximately one third of Commonwealth waters and establishing some no-take zones, were due to come into effect on 1 July 2014. However, following its election in 2013, the Liberal government set aside the management plans for review.
The Government has established an Expert Scientific Panel and five Bioregional Advisory Panels to conduct the review. These bodies will:
provide advice on “areas of contention within the marine reserves”,
outline options for zoning, and zoning boundaries, and allowed uses,
identify future priorities for scientific research and monitoring relating to marine biodiversity within the marine reserves, and
make recommendations for improving the inclusion of social and economic considerations into decision-making for marine reserves.
The panels are set to report to the Government by mid-2015. For more information about the Review, see the Department of Environment website.
Report finds threatened species laws inadequate
A recent report by the Australian Network of Environmental Defenders Offices compares State and Territory threatened species and planning legislation against national standards. The report concludes:
Click here for a summary of the report’s findings.
Coastal flooding could cost billions
The Climate Council’s latest report, Counting the Costs, highlights the significant risks to homes, infrastructure and biodiversity from coastal flooding. The key findings of the report include:
Sea level has risen and continues to rise due to climate change. Climate change exacerbates coastal flooding from a storm surge.
Australia is highly vulnerable to increasing coastal flooding, as our population and critical infrastructure are mainly located on the coast. Australia’s infrastructure is unprepared for rising sea level.
Coastal flooding is a “sleeping giant”. The projected increases in economic damage caused by coastal flooding are massive.
Rising sea levels pose risks for many of Australia’s species and iconic natural places, such as Kakadu National Park and the Great Barrier Reef.
Rising sea level is eroding the viability of coastal communities on islands in the Torres Strait and the Pacific, and in low-lying areas of Asia, increasing the likelihood of migration and resettlement.
We need deep and urgent cuts in greenhouse gas emissions this decade and beyond if we are to avoid the most serious risks from rising sea levels and coastal flooding.
Click here to read the full report.
End in sight for EPBC "one stop shop"?
The Greens have secured the support of the Palmer United Party for the disallowance of EPBC approval bilateral agreements between the Federal Government and the State and Territory Governments when they are tabled in the Senate. Labor has also said it opposes the agreements, which means the Senate is likely to vote in favour of rendering them invalid. This would mean the end of the Federal Government's attempt to minimise its involvement in issuing environmental approvals.
For more information click here.
Australian Capital Territory
ACT Offsets Policy
The ACT Government has recently developed an Environmental Offsets Policy as part of their ‘one-stop-shop’ assessment and approval process. The offsets were introduced as a means to provide ‘environmental compensation’ for development impacts on sites that contain matters of national environmental significance.
A number of organisations do not support these offsets, recommending that the ACT Government places at the centre of the offsetting scheme the achievement of positive biodiversity outcomes based on robust and objective science. See the EDO’s submission that further suggests that the recommendations of the Senate (Environment and Communications Committee) Environment Offsets Report are taken into account when developing the offset framework
Bilateral Approval Agreement
The ACT Government intends to enter into a Bilateral Approval Agreement with the Commonwealth Government as part of the new ‘one-stop-shop’ assessment and approval process. This agreement will see ACT Government take on environmental approvals that were previously the responsibility of the Commonwealth.
New South Wales
New process for wind farm assessments
The NSW Minister for Planning has announced that all applications for wind farm developments will be referred to the Planning Assessment Commission for determination.
The changes will affect all new and current applications already being reviewed by the Department of Planning and Environment.
For more information about this development, click here.
Ranger Uranium Mine Investigation
The Report by the Supervising Scientist on the impacts of a leach tank failure resulting in a slurry spill at Ranger uranium mine in December 2013 has been released.
The Report is available here.
Developing Northern Australia
The final report of the Australian Parliament’s Northern Australian Committee was released on 4 September 2014, and is available here.
Third party planning appeals to be restricted
The Tasmanian government has released a consultation paper outlining a range of proposed changes to the Land Use Planning and Approvals Act 1993 (Tas), including doubling the appeal fee for third parties other than adjoining neighbours. The fee increase is designed to “deliver on the Government’s commitments in regard to limiting unreasonable third party appeals”. During Budget Estimates, the Planning Minister confirmed that a second phase of reforms would be proposed in 2015 restricting appeal rights and converting the costs presumption in the Resource Management and Planning Appeal Tribunal from each party bears their own costs to costs following the event.
A copy of the consultation paper is available here.
WA EPA recommends Shark Hazard Mitigation Drum Line Program should not be implemented
The EPA has recommended against implementation of Shark Hazard Mitigation Drum Line Program proposed by the WA Department of the Premier and Cabinet. The proposal involved temporary deployment of drum lines in response to an identified shark threat or incident anywhere in State waters at any time of the year until 30 April 2017.
Following examination of the proposal, EPA Chairman Dr Paul Vogel said a high degree of scientific uncertainty remains about impacts on the south-western white shark population, with available information and evidence failing to provide the EPA with a high level of confidence.
The EPA assessed the program as a Public Environmental Review (PER) – the highest and most thorough level of Environmental Impact Assessment. The proposal attracted 6,751 public submissions as well as two petitions.
The independent board tested the potential impacts of the proposal against the environmental objective for Marine Fauna, which is to “maintain the diversity, geographic distribution and viability of fauna at the species and population levels”. The assessment had particular regard to the white shark because it is listed as a migratory species and ‘vulnerable’ under both state and commonwealth environment legislation.
For more information click here.
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