Law and policy developments
In the legislature
Illegal Logging Prohibition Amendment Regulations 2014
This Regulation sets out the relevant accreditation frameworks and country and State-specific guidelines which must be complied with in order for timber to be lawfully imported from Indonesia, the Solomon Islands and other regional countries.
The Regulations follow the announcement by Hon Greg Hunt MP and Senator Richard Colbeck of $6M in funding to implement the third phase of the Responsible Asia Forestry and Trade (RAFT) program.
Australian Capital Territory
Environment Protection Act 1997 amended
The Environment Protection Amendment Act 2014, introduced following a review of the Environment Protection Act 1997, has been passed. The Bill introduces significant amendments giving the Environment Protection Authority more effective powers to deal with polluters, broadening the definition of ‘environmental harm’ to include ‘likely’ or ‘potential’ harm, and removing Government immunity from criminal liability.
Nature Conservation Bill 2014
The Nature Conservation Bill 2014 was passed in the Legislative Assembly on 27 November 2014, with all but one amendment passed with tri-partisan support. The Bill was amended significantly to address concerns raised by a number of organisations, such as adopting an ecosystem approach to complement existing provisions for identifying, listing and managing threatened species and habitats. The Bill also strengthens the role of the Conservator (see below for information about the new Conservator) and provides for greater transparency and more timely review of documents such as the Nature Conservation Strategy, Action Plans and Plans of Management.
New South Wales
Self-assessable codes for managing native vegetation
The NSW Government has released three new self-assessable codes for managing native vegetation:
Clearing of paddock trees in a cultivation area
Thinning of native vegetation
Clearing of invasive native species
They are the first of a series of self-assessable codes announced as part of the changes to the regulation of native vegetation clearing in NSW.
Petroleum (Onshore) Amendment (NSW Gas Plan) Bill 2014
This Act amends the Petroleum (Onshore) Act 1991 to provide for certain pending applications for petroleum titles (where the applicant is not currently the title holder) to be expunged. The Bill has passed both houses, but is yet to receive assent.
Prevention of Cruelty to Animals
The following Private Member’s Bills have been introduced to amend the Prevention of Cruelty to Animals Act 1979:
Prevention of Cruelty to Animals Amendment (Repeal of Game Park Prohibitions) Bill 2012 - seeks to repeal prohibitions on the use and operation of game parks.
Prevention of Cruelty to Animals Amendment (Restrictions on Fowl Keeping) Bill 2014 – seeks to prohibit the use of cages for laying fowl and de-beaking practices
Prevention of Cruelty to Animals Amendment (Restrictions on Pig Keeping) Bill 2014 – seeks to require pig keepers to provide appropriate accommodation for pigs.
The text of these Bills is not currently available online.
State Energy and Water Utilities Protection (Referendum) Bill 2014
A Private Member’s Bill has been introduced seeking to prevent the privatisation of State energy and water utilities without the approval of a referendum.
Fisheries Management Amendment Bill 2014
This Bill proposes to loosen the licensing arrangements for commercial fishing boats, allowing the Minister to make orders in relation to possession limits (irrespective of the limits set by regulation), requiring registration of share dealings and online trading, and prohibiting shark finning.
The Bill is currently in the Legislative Assembly awaiting its second reading.
Environmental Offsets Act 2014 amended
Amendments to the Environmental Offsets Act 2014 were formally assented to on 7 November 2014. The amendments make a number of significant changes to remove duplication of offset conditions between Commonwealth, State and local government requirements, provide flexibility regarding financial offsets and extend the period in which an offset delivery plan can be negotiated.
Water Reform and Other Legislation Amendment Act 2014
Following the release of a parliamentary report recommending its passage (with Labor members dissenting), the Water Reform and Other Legislation Amendment Act 2014 was passed on 25 November 2014. The Act amends the Water Act 2000 by replacing the existing two-stage planning framework with a single water plan process and allowing the Minister to reduce public consultation requirements. The amendments also:
allow mines to use and manage groundwater without a licence, subject to the preparation of impact reports, baseline assessments and monitoring requirements;
allow large water infrastructure projects to receive a ‘water development option’ authorising access to water before the environmental impact assessment is completed;
establish a fast-track process for converting site-specific water licences to tradeable water allocations, potentially without hydrological modelling.
Ports Bill 2014
The Ports Bill was also introduced to Parliament on 25 November 2014. The Bill seeks ‘to stimulate Queensland’s economic growth while protected and managing Queensland’s outstanding environmental assets’ (cl 2). This acknowledges the increasing tension between port development and environmental concerns in the Great Barrier Reef World Heritage Area (‘GBRWHA’). According to the explanatory notes, the Bill will ‘deliver greater certainty for industry about the future development of ports’ (p 1).
The explanatory notes state that the Bill will address UNESCO concerns regarding the GBRWHA by prohibiting dredging within and adjoining the GBRWHA until 2024. This is expressed to apply to new developments and expansions of existing developments. However, this prohibition only applies outside Priority Port Development Areas, which are Abbot Point, Gladstone, Hay Point, Mackay and Townsville. Therefore, dredging will still be permitted in the most controversial areas.
Land Use Planning and Approvals (Streamlining of Process) Amendment Bill 2014
The Land Use Planning and Approvals (Streamlining of Process) Amendment Bill 2014 was passed on 20 November 2014. The Bill makes a number of amendments to Tasmania’s principal planning legislation to reduce approval timeframes for strategic planning and development assessment decisions. The Bill also allows interim planning schemes to be introduced without full public hearings in a range of circumstances, and introduces a new process to assess whether proposed scheme amendments are in the “public interest”.
A summary of the changes introduced by the Bill is available here.
Anti-protest bill passes
On 25 November 2014, Parliament passed the controversial Workplace (Protection from Protesters) Bill 2014. A range of amendments made by the Tasmanian upper house were accepted by the Lower House in approving the revised legislation.
The Act, principally designed to reduce protest activities in relation to forestry and mining, has been criticised for the breadth of its application and its chilling effect on public debate. The revised Act narrows the premises that are subject to the new laws, including key industries (forestry, agriculture, mining, manufacturing and construction) and government businesses, but excluding shops, public places and warehouses (previously included). The revised Act also removes the proposed mandatory sentencing for offences, but significantly increases the maximum penalties available. Protesters now face fines of up to $10,000 or up to 4 years in prison for obstructing protected business premises.
Click here for an analysis of the implications of the laws in relation to free speech.
In the courts
Canadian Judge rules landowner may sue Government over CSG
A landmark court challenge to the regulation of hydraulic fracturing in Canada has seen the Alberta Chief Justice rule that Jessica Ernst, a landowner and oil patch consultant, may proceed with legal action against Alberta Environment, the Energy Resources Conservation Board, and one of Canada's largest unconventional gas drillers over the contamination of her well water.
Ernst alleges the government failed to properly investigate the contamination and will argue that Canada’s laws do not indemnify the government against such a failure.
UK government ordered to clean up air pollution
The European Court of Justice delivered a judgment on 19 November 2014 which will require the UK government to take action to reduce nitrogen dioxide emissions "as soon as possible". The case considered whether current plans implemented by the UK were sufficient to address public health concerns and the deadline for emissions reduction previously set by the European Union in the 2008 Air Quality Directive.
For more information, click here.
Wind Farm challenge rejected
The 35 turbine Stony Gap wind farm in SA's mid-north has been given the go-ahead by the SA Environment, Resources and Development Court, subject to 32 conditions. The objections to the wind farm were based on the potential for negative impacts on health and the fact that the turbines could be seen from nearby homesteads.
While the Court acknowledged that objecting to a wind farm’s visual impact in a rural setting was understandable, the Court determined that they were a desirable form of development and the benefits outweighed the negative visual impact. The Court also heard evidence that the predicted noise emissions from the turbines were within levels established in a 2009 South Australian Guideline.
The Court was critical of the respondent’s health experts, saying that the experts’ testimony did not contain any evidence of a causal link between the operation of wind turbines and the potential health problems that were identified by the Respondents in their challenge of the wind farm.
Click here to read the full decision in Tru Energy Renewable Developments Pty Ltd v Regional Council of Goyder & Ors  SAERDC 48.
South Australian Potato Company Pty Ltd & Temuka Farms Pty Ltd v Minister for Sustainability, Environment & Conservation (No 2)  SAERDC 50
The SAERDC has determined a preliminary question concerning the Minister’s ability to vary a water allocation made under the Natural Resources Management Act 2004 – in particular whether the Minister was empowered to exercise a discretion in this regard. In this matter, the Minister submitted that he was legally bound by the Act to vary the allocation provided to the Appellants, while the Appellants submitted that the Minister could exercise discretion.
The Court held that its jurisdiction to hear an appeal pursuant to s.156 of the Act was limited to the merits of a variation of a water allocation by the Minister, and did not extend to the question of whether the Minister’s decision was within power or not.
To read this case, click here.
Policy developments and other news
China and US make climate commitments
On 12 November 2014, the US and China both announced substantial climate change commitments. The announcements are significant as the USA and China account for one third of global greenhouse gas emissions (for a comparison of Australia’s emissions and those of the US and China, click here).
The USA introduced a new target to cut greenhouse gas emissions to 26-28% of 2005 levels by 2025, while China has announced plans to peak CO2 emissions by 2030 and to increase the share of non-fossil fuel energy to 20% by 2030. The announcement is the first time that China has agreed to peak its emissions, and the White House expects China will succeed in achieving the 2030 target based on its economic reform program.
G20 Endorses Principles on Energy Collaboration, Commits to Phase Out Fossil Fuel Subsidies
Despite “difficult discussions” and the defence of the coal industry by Prime Minister Tony Abbott, the final G20 Leaders Communique includes a significant passage on climate change. The communique includes a recommendation for nations to commit funds to the UN’s Green Climate Fund, which Australia had failed to do at the recent UN climate summit in New York.
The Communique also endorses the G20 Principles on Energy Collaboration and contains a commitment to rationalise and phase out inefficient fossil fuel subsidies that encourage ‘wasteful consumption’. Under the Principles, the leaders committed to encouraging and facilitating the ‘design, development, demonstration and widespread deployment of innovative energy technologies, including clean energy technologies’.
Expert panel reports on supertrawler
The Expert Panel appointed to review the Small Pelagic Fishery Declaration banning the operation of a supertrawler in the fishery has released its final report. In respect of the impacts of direct interaction with protected species (such as seals and seabirds) and localised depletion, the report concludes:
there remains considerable uncertainty about the level of direct interactions that would result in an adverse environmental impact on pinnipeds, cetaceans and seabirds, but there are opportunities for research and monitoring that could reduce [these] uncertainties
localised depletion was unlikely to have a significant impact on target fish species, but has the potential to have adverse impacts on some protected foraging species. The panel noted that such impacts were unlikely to be detected under existing monitoring regimes.
The first ban expired on 19 November 2014. The second ban, which extends to the operation of supertrawlers as ‘motherships’, will expire in April 2015. The Expert Panel will report in respect of the second ban before that date.
The government has yet to formally respond to the Expert Panel report.
Wind farm inquiry to proceed
On 24 November 2015, cross bench Senators received support to establish the Select Committee on Wind Turbines to “inquire into and report on the application of regulatory governance and economic impact of wind turbines by 24 June 2015”. The inquiry will specifically address the following matters:
the effect on household power prices, particularly households which receive no benefit from rooftop solar panels, and the merits of consumer subsidies for operators;
how effective the Clean Energy Regulator is in performing its legislative responsibilities and whether there is a need to broaden those responsibilities;
the role and capacity of the National Health and Medical Research Council in providing guidance to state and territory authorities;
the implementation of planning processes in relation to wind farms, including the level of information available to prospective wind farm hosts;
the adequacy of monitoring and compliance governance of wind farms;
the application and integrity of national wind farm guidelines;
the effect that wind towers have on fauna and aerial operations around turbines, including firefighting and crop management;
the energy and emission input and output equations from whole-of-life operation of wind turbines; and
any related matter.
The inquiry follows a number of other investigations, inquiries and reports at the State and Federal level examining issues associated with wind farms, from planning, health and economic perspectives.
Productivity Commission finds strong grounds for environmental law advocacy
The Productivity Commission released its Access to Justice Arrangements report on 3 December 2014. The report makes broad ranging recommendations regarding the funding and operation of the legal assistance sector, specifically noting the role of EDOs in promoting public interest environmental outcomes. The Commission concluded that there are “strong grounds for the legal assistance sector to receive funding to undertake strategic advocacy, law reform and public interest litigation including in relation to environmental matters.”
To read the full report, click here.
Climate and Energy Reports
A range of reports have recently been released addressing Australia’s energy and climate change policies.
The Climate Council has released the following reports
The Business Council of Australia has also released Australia’s Energy Advantages, a report which sets out the Council’s vision for energy policy in Australia and an action agenda to “maximise the benefits of the nation’s energy for all Australians.”
Australia’s Biosecurity Future
The CSIRO has released a report, Australia’s Biosecurity Future, which systematically examines the “12 biosecurity mega-shocks” liked to affect Australia in the next 20-30 years. The report assesses what needs to be done in Australia to minimise these shocks and protect the environment, industries, people and way of life.
The Australia We Love: A Report on Key Issues affecting nature and society in Australia
The Places You Love Alliance has released a new report compiling the findings of a survey of Australia’s natural systems - rivers, energy, climate, food, forests, waste and pollution, land management, oceans and reefs. The report notes the high, and increasing, consumption of natural resources in Australia and the loss of biodiversity and ecosystem resilience that results from this consumption.
Wentworth Group Releases Blueprint for a Healthy Environment and a Productive Economy
The Wentworth Group of Concerned Scientists has released a blueprint which describes the magnitude of the environmental challenges facing Australia and the long-term institutional and economic reforms that the Wentworth Group believes are essential to achieve environmental and economic prosperity. These reforms address:
Reactive land and water use planning
Using markets more effectively
Conserving natural capital
Regionalising management and planning processes
Creating environmental accounts.
The blueprint was authored by the Wentworth Group in consultation with a number of experts, including the Hon Paul Stein AM QC, Mr Martijn Wilder AM and Dr Ken Henry AC FASSA.
Collaborative Australian Protected Area Database 2014 released
Every two years, the Australian Government collates information on protected areas from state and territory Governments and other protected area managers in the Collaborative Australian Protected Area Database (CAPAD). The CAPAD provides a national perspective of the conservation of biodiversity in protected areas, and contributes to Australia’s reports to the World Database on Protected Areas.
Click here to access the 2014 updated CAPAD.
Australian Capital Territory
New Conservator appointed
Dr Annie Lane has recently been appointed by the ACT Environment and Planning Directorate as the new Conservator of Flora and Fauna. Dr Lane brings a wealth of experience to the position, having previously worked as the Regional Manager of the South Australian Department of Environment, Water and Natural Resources. Dr Lane and is a well-respected leader in the environmental conservation industry.
New South Wales
Warkworth mine recommended for approval
IThe NSW Department of Planning and Environment has recommended the approval of Rio Tinto's Warkworth coal mine expansion near the village of Bulga in the Hunter Valley, despite court rulings in favour of Bulga residents. The NSW Planning Assessment Commission (PAC) will now assess and determine the project, with a hearing to be held in Singleton on 18 December 2014.
Read more about the previous Land and Environment Court and Court of Appeal decisions.
Proposed coastal reforms
The NSW Government has announced the second stage of its reforms to coastal management law, including:
a proposed new Coastal Management Act to replace existing legislation;
new arrangements to support council decision making, including a decision support framework, a new coastal management manual, and improved technical advice; and
changes to funding and financing for coastal management activities.
The reforms will be developed with input from the Coastal Expert Panel, and public consultation is expected to occur in future. Read more about the reforms here.
Proposed planning reforms
The Government has also announced reforms to streamline the planning system, including:
Introducing clear timeframes for the Planning Assessment Commission (PAC) and other assessment processes;
Appointing case managers from the Department of Premier and Cabinet to manage planning applications through complex government processes;
Establishing a whole-of-government approach to assessing State significant mining applications;
Setting up a panel of independent experts to advise the Government and the PAC on technical issues;
Giving clearer guidance to the PAC on the application of government policies;
Engaging better with communities affected by mining proposals by providing clearer information and more opportunities for community questions to be answered; and
Appointing additional compliance officers in regional areas.
Fracking inquiry report expected soon
The Commissioner appointed to conduct an inquiry into Hydraulic Fracturing in the NT, Dr Alan Hawke, has handed his report to the NT Government. The report is expected to be released to the public in the coming weeks.
Tiwi Islands Fishing Access Agreement
The NT Government reports that a 20-year agreement has been made with the Tiwi Land Council concerning recreation and commercial fishing access to Tiwi waters that includes:
$135,000 a year to support the Marine Ranger Program;
A commitment to enhance the powers of Marine Rangers;
A one-off $30 000 payment to build a new recreational fishing camp;
An enhanced Aboriginal coastal licence for community members;
A Code of Conduct to ensure visitors respect the rights of Traditional Owners.
MOU Gas pipeline to connect with East Coast of Australia
The NT Government has signed an MOU with the NSW Government and is calling for expressions of interest to build a pipeline connecting with the east cost gas pipeline network.
Management Plan for Nitmiluk National Park
The Nitmiluk (Katherine Gorge) National Park third Plan of Management has been finalised with Jawoyn Traditional Owners. The park is jointly managed by Traditional Owners and the NT Parks and Wildlife Commission.
Arthur-Pieman tracks to be re-opened
The State Government has announced plans to invest $300,000 to re-open 90 kilometres of off-road vehicles tracks in the Arthur-Pieman Conservation Area (APCA) on Tasmania’s North-West Coast by Christmas. The use of off-road tracks in this sensitive area has been the subject of long running controversy and tension between recreational vehicle users, conservationists and Tasmanian Aboriginal communities. Fifteen of the sixty-five tracks in the APCA were closed in 2012 after extensive public consultation. Re-opening the tracks was an election commitment of the now Liberal government.
The proposal, which covers areas within the National heritage listed Western Tasmania Aboriginal Cultural Landscape, has been condemned by the Tasmanian Aboriginal community.
Widespread interest in tourist developments in national parks
Earlier in 2014, the Tasmanian Government announced that it would be accepting expressions of interest for tourism developments in the state’s National Parks and World Heritage Area. The period for expressions of interest has now closed, with 37 EOIs received ranging from “nature-based experiences through to accommodation and associated tourism-related infrastructure.” The EOIs have not been released.
The proposals will be subject to a high level assessment of appropriateness by an Assessment Panel, with successful proponents then asked to provide more detailed proposals. Proposals assessed as viable will then be assessed under normal statutory approval processes.
Report on Victorian contaminated sites reforms
A new report from the Victorian EPA has highlighted the economic effectiveness of the State’s contaminated sites reforms, with the EPA revealing that the changes are saving industry $3.96 million annually.
According to the report, the savings relate to changes in the way that the obligation to clean up to the extent practicable (CUTEP) is measured, including:
reducing the time taken for a CUTEP decision;
exempting low-risk CUTEP decisions from approval by the EPA, and instead allowing an auditor to decide; and
increasing the proportion of auditors on longer appointment periods
EPA Recommends against Mine on the Mungada Ridge Banded Ironstone Formation
The WA EPA has released a report recommending that the Blue Hills Mungada East Expansion Project should not proceed because it would cause irreversible environmental consequences. The proponent, Sinosteel Midwest Corporation Limited, proposed to develop a new pit on the Mungada Ridge, a banded ironstone formation located about 220 km east-southeast of Geraldton and 320 km north-northeast of Perth.
On 10 November 2014, the WA EPA determined the proposal to be environmentally unacceptable. In its report, the EPA stated that there was sufficient, publicly available information on the significance of the Mungada Ridge landform and the aggregation of values supported by that landform to gain an informed understanding of the significant environmental impacts that would occur if the proposal was implemented. Furthermore, the EPA determined that the proposal could not be managed to meet the EPA’s objective for landforms.
The EPA report described the Mungada Ridge as the last large, substantively intact landform remaining in the Blue Hills area which has been identified as possessing the greatest landscape and biodiversity values in the area and concluded that the proposal would result in serious and irreversible impact to the integrity of Mungada Ridge.
WA to extend life of environmental licences up to 20 years
Under a new guidance statement released in November 2014, the WA Department of Environment Regulation (DER) will be allowed to issue licences with a lifespan of up to 20 years, a significant increase from the previous limit of 5 years.
The decision to extend the lifespan of licences was based on the view that reviewing licences frequently created an unnecessary administrative burden, without leading to better environmental outcomes. Under the new approach, DER staff would have more time to monitor compliance with licence conditions.
Most new licences are expected to now be issued for 20 years, and it is planned that this longer timeframe will be phased into existing licences.
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