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March 2017 Bulletin


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The NELA Bulletin is published on the first Thursday of each month except January.

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This month

NELA news and events
01. NELA (WA) hosts Sundowner at Metro Bar and Bistro
02. Climate Change conference at Murdoch University
03. NELA seeking SA representative 

Law and policy developments
04. In the Legislature
05. Policy developments and other news
06. In the courts
07. Open for comment
08. Other

09. (Melbourne) EPA Victoria Reform Agenda: Priorities for Pollution Prevention and Managing Legacy Risks
10. (Hobart) Coastal frontiers: saltmarsh and mangroves
11. (Perth) Environmental Considerations in Planning and Property Development
12. (Melbourne) Demonstrating compliance and communicating with regulators
13. (National) Developments in international carbon markets and policy – briefings
14. (Montreal) Impact Assessment’s Contribution to the Global Efforts in Addressing Climate Change
15. (Adelaide) What role does the community have in environmental decision making?
16. (Brisbane) CASANZ 2017: The Critical Atmosphere



NELA news and events

NELA (WA) hosts Sundowner at Metro Bar and Bistro

NELA (WA) welcomed new and returning members to 2017 with a Sundowner on 31 January 2017, including a welcome from State President Michelle Brooks and a presentation by Kane Moyle, Manager, Natural Resources at the Chamber of Minerals and Energy of Western Australia.

Kane reflected on key regulatory developments at a State and National level during 2016, and looked forward to what may come in 2017. Key themes of the presentation included State and Federal elections, the Independent Legal and Governance Review into Policies and Guidelines for Environmental Impact Assessments under the Environmental Protection Act 1986 (WA), legislative reforms, and anticipated developments in Federal climate change policy in 2017.


Climate Change conference at Murdoch University

On 17 February 2017, NELA (WA) co-hosted a conference on 'How climate change will shape Environmental Law' with the International Bar Association (IBA), the Perth Convention Bureau, Glen McLeod Legal and Murdoch University School of Law.

Eminent keynote speaker, Hon. Justice Brian Preston SC, Chief Judge of the NSW Land and Environment Court and co-chair of the IBA Working Group on a Model Statute on Climate Change Claims and Remedies, presented an overview of the IBA's exciting work.

Following a discussion of international developments, the focus turned to the application of sustainable development and climate change policy in Western Australia with presentations by Judge David Parry, Glen McLeod and Dr Tom Hatton. Hon Cheryl Edwardes also led discussion of managing corporate risks associated with climate change.

To conclude, Hon Allanah MacTiernan shared her experiences of abolishing the ministerial planning appeals system, followed by a lively panel discussion of what a different environmental appeals system could look like in Western Australia.


NELA seeking SA representative

NELA is currently seeking expressions of interest from any South Australian members keen to join the National Executive. Representatives are important to promote the organisation and member events, and to ensure that the Executive is aware of opportunities to comment on important developments in planning and environmental law within each State and territory.

Interested members can contact NELA for more information.


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Law and policy development

In the Legislature


Proposed updates to native title legislation

On 2 February 2017, the Full Federal Court of Australia in McGlade v Native Title Registrar [2010] FCAFC 10 held that a number of Indigenous Land Use Agreements (ILUAs) forming part of the Western Australia South West Settlement between the State of Western Australia and Noongar people could not be registered under the Native Title Act 1993 (Cth) (NT Act), as they had not been signed by all individual applicants of the relevant registered native title claims. This overturned the earlier decision of QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412, which has been relied on for the registration of a number of ILUAs across Australia where the ILUA has not been signed by all registered claimants.

On 15 February 2017, the Federal Government introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, proposing amendments to the NT Act to overcome the decision.  The Bill seeks to validate ILUAs registered without the signature of all registered native title claimants and allow for the future registration of such agreements.

The Bill is currently before the Senate. For information about the Bill, click here.


Bill to include social considerations in infrastructure planning

The Infrastructure Australia Amendment (Social Sustainability) Bill 2017 seeks to strengthen the social and community benefit considerations that are assessed when Infrastructure Australia looks at the value of infrastructure projects, auditing existing infrastructure, compiling lists of infrastructure priorities and developing infrastructure plans.

The Bill also requires Infrastructure Australia to consult with the community when developing corporate plans and consider the future needs of users when providing advice regarding infrastructure.

For information about the Bill, click here.


Bill to engage recreational and Indigenous fishers in management of Commonwealth fisheries

The Fisheries Legislation Amendment (Representation) Bill 2017 amends the Fisheries Management Act 1991 and the Fisheries Administration Act 1991 to require the Australian Fisheries Management Authority to take the interests of recreational and customary users into account in Commonwealth fisheries management decisions.

For information about the Bill, click here.


Bill to protect polar regions from pollution

The Protection of the Sea (Prevention of Pollution from Ships) Amendment (Polar Code) Bill 2017 will amend the Prevention of Pollution from Ships Act 1983 to introduce strict discharge restrictions for oil, noxious liquid substances, sewage and garbage for certain ships operating in polar waters.

For information about the Bill, click here.



Act to transfer channel irrigation schemes to local management

The Water (Local Management Arrangements) Amendment Act 2017 was passed by the Queensland Parliament on 29 February 2017, following amendments to address bulk water contracts.

The Act amends the Water Act 2000 to restructure and transfer a number of regional channel irrigation schemes, currently managed by government-owned corporation, SunWater, to local management. 

To read the Act, click here.


South Australia

New Native Vegetation Regulations 2017 were introduced in February and will take effect on 1 July 2017.

To read the Regulations, click here.



Early release of logging coupes protected under Tasmanian Forests Agreement

The Tasmanian government has announced its intention to introduce the Forestry (Unlocking Production Forests) Bill 2017. The Bill seeks to make approximately 350,000 ha of forests precluded under the now-defunct Tasmanian Forest Agreement from logging until at least 2020 available for logging from 1 July 2018.  Many of the coupes to be made available were included in the High Conservation Value forest reserves management plan prepared for Forestry Tasmania’s FSC certification bid (see “Open for Comment” below).

The Bill will also allow state-owned Forestry Tasmania to meet its statutory minimum sawlog quantity quota by contracting with the private sector, rather than requiring the quota to be met exclusively from Forestry Tasmania operations.



Climate Change Act passed

The Climate Change Act 2017 received Royal Assent on 28 February 2017. The Act replaces the Climate Change Act 2010 (Vic), enacting the following key features:

  • Part 2 establishes a target to reach net-zero greenhouse gas emissions by 2050. To support this target, the Act requires the Premier and Minister to determine six interim emissions targets.
  • Part 3 establishes a requirement that decision makers who are making decisions under Acts or subordinate instruments identified in the Schedule to the Act must have regard to identified climate change considerations.
  • Part 4 commits the State Government to ‘endeavouring’ to ensure that any Government decision, policy, progress or process will ‘appropriately’ take account of climate change, as relevant, having regard to the policy objectives and guiding principles identified in the Act.
  • Part 5 requires the Minister to prepare a climate change strategy by 31 October 2020 and to prepare new strategies every five years. The Act identifies minimum content for such strategies including adaptation and emissions reduction components.
  • Part 6 requires the Minister to prepare five-yearly reports on the science and data relevant to climate change in Victoria.


Fracking Ban passes

The Resources Legislation Amendment (Fracking Ban) Act 2017 was passed on 7 March 2017.  The Act amends the Mineral Resources (Sustainable Development) Act 1990 and the Petroleum Act 1998 to prevent the exploration and mining of coal seam gas, to ban hydraulic fracturing, and to impose a moratorium on petroleum exploration and production in onshore areas of Victoria until 2020.


Electricity Safety Amendment (Bushfire Mitigation Civil Penalties Scheme) Bill 2017

The Minister for Energy, Environment and Climate Change introduced a Bill to impose additional bushfire mitigation requirements on major electricity companies, and to establish a civil penalty enforcement regime for those requirements. The Act is a response to the Black Saturday bushfires when powerline ignitions caused the loss of 159 lives.

Proposed requirements include:

  • A requirement to cover or place underground all new electric lines that meet prescribed specifications
  • A requirement to install Automatic Circuit Reclosers for ‘SWER’ lines
  • A requirement to provide Energy Safe Victoria with an annual report regarding compliance

The Bill passed the Legislative Assembly on 23 February 2017, and is yet to be debated in the Legislative Council.


Victorian Planning Authority Bill 2016

The Victorian Planning Authority Bill 2016 seeks to abolish the Growth Areas Authority and to establish the Victorian Planning Authority.  The Bill is part of the State government’s plan to address rapid growth and the predicted expansion of the population of Melbourne.

The Bill was passed in the Legislative Assembly on 21 February 2017, and is yet to be debated in the Legislative Council.


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Policy developments and other news


State of the Environment Report 2016

The Federal Minister for Environment and Energy released the State of the Environment Report 2016 on 7 March 2017.

The Report provides a stocktake of various environmental indicators, detailing improvements in air quality, offshore fishing and agricultural practices, and increased pressures associated with coal mining, habitat fragmentation and degradation, urbanisation, biosecurity and marine pollution.  The Report also highlights the compounding effect of climate change on all aspects of the Australian environment.

The full State of the Environment report, summaries and supporting data is available here.  An overview by the lead author is available here.


Senate Inquiry recommends suspension of Perth Freight Link (Roe 8)

The Senate Environment and Communications References Committee conducted an inquiry into the continuation of construction of the Perth Freight Link, following accusations of significant environmental breaches by the WA Government in relation to the removal of wetlands and vegetation.

On 6 March 2017, the ALP - Green dominated Committee released its report, recommending that the Federal Minister suspend construction under s.144(2A) of the EPBC Act,  work with the WA government to support “economically viable infrastructure projects”, and that the Audit Office conduct an audit of the Perth Freight Link to review Commonwealth funding, assessment and compliance.  The report also recommended amendments to the EPBC Act to address restrictions on consideration of impacts on species or communities listed after a referral is made.

To read the report (including the Liberal members’ dissenting report), click here


New South Wales

Energy and Utilities Minister Don Harwin has established a new Energy Security Taskforce, chaired by chief scientist and engineer Mary O'Kane, that will provide a draft report by mid-year.



State Planning Provisions declared

On 22 February 2017, the Minister for Planning and Local Government, Hon Peter Gutwein, released the final State Planning Provisions (SPPs), the first component of the Tasmanian Planning Scheme.  The Minister made a number of modifications from the draft SPPs, adopting some, but not all, of the recommendations of the Tasmanian Planning Commission.

The SPPs formally took effect on 2 March 2017, but in practice will not apply until the next stage of the process, the Local Provision Schedules, have been finalised. Local councils will now be required to prepare their Local Provision Schedules, with drafts expected to be released for public comment within the next 6-9 months.

For details of the Planning Commission’s report, the Minister’s modifications and the final SPPs, click here.


Salmon farming regulation

The Environment Protection Authority (EPA) has released an information sheet outlining proposed legislative changes for the regulation of salmon farming in Tasmania. Draft legislation has not been released, however the information sheet indicates that a Bill is expected to be introduced in May 2017.

The information sheet confirms that salmon farming will now be classified as a Level 2 activity under the Environmental Management and Pollution Control Act 1994, and subject to new environmental licensing requirements regulated by the EPA. Currently, the Marine Farming Branch is formally responsible for assessing and regulating marine farming activities, however some responsibilities for environmental enforcement have been delegated to the Director of the EPA since 1 July 2016.

To read the information sheet, click here.



Yarra River Action Plan

On the 26th February 2017, the Victorian Government released the Yarra River Action Plan.

The purpose of the plan is to protect the Yarra River from an unprecedented rise in Melbourne’s population and the threat of climate change.

The Yarra River Action Plan is guided by five categories that attempt to secure the long term health of the river to ensure that Melbourne remains liveable, sustainable and prosperous. In order to achieve the five main objectives the Victorian government has committed to 30 actions which the government intends to be empowered by a new Yarra Protection Bill through Parliament. The government will establish a new Ministerial Advisory Council and establish Melbourne Water as the lead agency for developing and coordinating the implementation of the strategic plan.


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In the courts


Council awarded $1.3M for asbestos clean up

Kempsey Shire Council has won a court order to be reimbursed for $1.29M spent cleaning up asbestos from a former waste and tyre recycling site.  The EPA has issued a clean-up notice to the responsible company and, when no action was taken, to Council.

Council disposed of approximately 7,000t of asbestos-contaminated soil and incurred additional costs in securing the site, suppressing dust and remediating the soil.  The Land and Environment Court ordered the responsible company, and its directors, to cover the $1,29M in clean-up expenses, along with Council’s legal fees. 

To read Kempsey Shire Council v Slade (No 2) [2017] NSWLEC 10, click here.



Assessment under of Broiler Farms Code queried

The Supreme Court has determined an appeal against an earlier VCAT decision regarding the classification of two Broiler Farms, each with a capacity of 400,000 birds.

The initial merits appeal concerned whether two prefabricated dwellings constructed after the permit application was made and within the ‘separation distance’ of the farms (as defined in the Victorian Code for Broiler Farms 2009 (Code)) changed the classification of the farms from Class B to Special Class farms. This would significantly change the assessment requirements.

VCAT held that the classification was not changed and directed that permits be issued.

On appeal, the Supreme Court considered whether the Tribunal was required to consider the facts as they were at the time of the permit application or at the date of its decision. The Court found that the ‘separation distance’ and the farm classification was to be determined according to the facts at the date of the application. All other factual matters were to be determined according to the facts at the date of its decision.

To read the decision in Forbes v Vukadinovic [2017] VSC 20, click here.


Council responsibility for low-level radiation waste

Iluka Resources Limited applied for approval to dispose of waste by-product from its mining activity. The by-products included naturally occurring radioactive materials such as uranium, thorium and radium with low levels of radioactivity.

Horsham Rural City Council refused to grant a permit on the basis that the EPA, rather than the Council, should be responsible for regulating “something as inherently complex and technical as a waste disposal facility for low level radiation wastes.”

Having regard to the Environment Protection Act 1970 (Vic) and the Radiation Act 2005 (Vic), the Tribunal held that the EPA was only the responsible authority where a radiation source will be polluted or presents an environmental risk.  After hearing expert evidence regarding the volatility of the substances, the Tribunal was satisfied that the by-products did not pose a threat of pollution or create an environmental hazard, and granted a permit for the disposal.

To read the decision in Iluka Resources Limited v Horsham Rural City Council [2017] VCAT 107, click here.


EPA fines Incitec Pivot for fourth time in 12 months

The EPA has fined Incitec Pivot Limited more than $7,500 for exceeding the maximum fluoride emission limits from its Portland plant. This is the fourth time the EPA has fined the company in twelve months, with total fines issued since March 2016 exceeding $30,000.

The EPA has advised that it will conduct additional inspections and future non-compliances may result in heavier penalties.

For more information, click here.


Western Australia

Roe 8 costs orders

In December 2016, the High Court of Australia rejected an application by Save Beeliar Wetlands (Inc) to appeal the decision of the Supreme Court of Western Australia Court of Appeal in Jacobs v Save Beeliar Wetlands (Inc) [2016] WASCA 126, allowing the Roe 8 project to proceed.

In January, the Federal Court also dismissed an application under the EPBC Act for an injunction to prevent construction.  Save Beeliar Wetlands was ordered to pay the Commissioner for Main Roads’ costs.

Work on the project has now commenced, but the results of the WA election are likely to influence ongoing operations.


Subsequent owners not entitled to compensation for reservation of land

The High Court has overturned decisions of the Supreme Court of Western Australia and Court of Appeal regarding the entitlement to compensation under s.177(1) of the Planning and Development Act 2005 (WA) (PD Act) for injurious affection resulting from the reservation of property under a planning scheme. 

Section 177(1) provides a right to claim compensation for injurious affection for reservation of land when the land is “first sold” following the reservation, when an application for development approval is refused, or when development approval is granted on unacceptable conditions. Both South Regal and Leith had purchased their land after the date of the reservation which caused the injurious affection and claimed compensation when subsequent applications to develop the land were refused.

The High Court held that, once the land had been “first sold” following the reservation, the refusal of the development applications made by subsequent owners could not trigger a further compensation claim.  

To read Western Australian Planning Commission v South Regal Pty Ltd & Anor [2017] HCA 7, click here


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Open for comment


National Environmental Biosecurity Response Agreement

Commonwealth, State and Territory governments are undertaking an independent review of the National Environmental Biosecurity Response Agreement, which sets out responsibilities for responding to significant pest and disease incursions. A discussion paper is now available, providing background to the Agreement and its key policies and processes, and highlighting key themes for discussion under the review.

Submissions to the review can be made until 17 March 2017. For more information, click here.


Govt to ratify Minamata Convention

The Department of Environment and Energy has released an exposure draft of a Regulation Impact Statement on ratifying the Minimata Convention on Mercury and options for meeting obligations under the Convention.

Comments on the draft can be made until 17 March 2017. For more information, click here


Small-business exemptions for EPBC referral fees

The Department of Environment and Energy has released a consultation paper regarding the existing EPBC small-business fee exemption, which is available to businesses who claim to have aggregated annual turnover less than $2 million. The paper discusses 19 mining and infrastructure projects that have taken advantage of the exemption since 2014, and proposes options to tighten the application of the exemption.

Comments on the consultation paper can be made until 28 March 2017. For more information, click here.


Nomination of threatened species

The Department of Environment and Energy is inviting nominations for the EPBC threatened species list until 31 March 2017. For more information regarding eligibility and the nomination process, click here.


Rehabilitation of mining and resources projects as it relates to Commonwealth responsibilities

The Senate Environment and Communications Committee is conducting an inquiry into the Commonwealth government’s responsibilities for managing rehabilitation of mining and resources projects. The inquiry will consider the adequacy of rehabilitation bonds, compliance audits and the effectiveness of abandoned mine programmes, among other issues.

Submissions to the inquiry can be made until 10 April 2017. For more information, click here.


Draft Threat Abatement Plan - Marine Plastics

The Department of the Environment and Energy has released a draft Threat abatement plan for the impacts of marine debris on vertebrate marine species outlining a national strategy to manage threats posed by marine debris and guide investment and efforts by governments, research organisations and NGOs. 

Key actions are proposed to encourage a circular economy, reduce single use plastics, ensure planning decisions consider the potential to increase marine debris, improving management of ghost nets and shipping waste, and improving data collection methods.

Comments on the draft plan can be made until 13 April 2017. For more information, click here


Modernising Australia's electricity grid

The Standing Committee on the Environment and Energy is conducting an inquiry into modernising Australia’s electricity grid, and has released a discussion paper on key issues.

The Committee is accepting written submissions, or responses to an online questionnaire, until 28 April 2017. For more information, click here.


Northern Territory

NT Fracking Inquiry

The NT Fracking Inquiry has released a Background Issues Paper.

The Inquiry is conducting community consultations across the Northern Territory from 6 – 29 March 2017. The consultation schedule is available here.

The Inquiry is also seeking written submissions in response to the Issues Paper from community members and experts. Submissions close 30 April 2017.

The Inquiry aims to release a draft report mid-year and will conduct further consultations in July-August 2017 with the aim of releasing a final report by December 2017.



Draft water plan for the Great Artesian Basin

The Qld government is seeking public input on the draft water plan on the Great Artesian Basin and other regional aquifers. The plan aims to ensure a balance between management and access to the resource for existing users and the environment.

Comments on the plan can be made until 17 April 2017. For more information, click here.


South Australia

Northern and Yorke Catchment Action Plans

Submissions are invited on the development of Catchment Action Plans for the Willochra, Broughton, Wakefield and Light Catchments. 

The completed Willochra and Broughton Draft Plans have been released for public comment, while general feedback regarding the yet to be finalised Wakefield and Light Draft Plans can be made via an online survey.

Submissions and survey responses can be made until 30 June 2017. For more information, click here.



Forestry Tasmania - High Conservation Values Assessment and Management Plan

The High Conservation Values Assessment and Management Plan is a key component of Forestry Tasmania’s bid for Forest Stewardship Council certification. Following a decision by FSC auditors that an initial version of the Plan was inadequate, Forestry Tasmania has released a revised Plan, featuring a significant increase in the number of High Conservation Values identified in Tasmania’s forest estate (including in areas designated for conversion to Production Forests under proposed legislation – see “In the Legislature” above).

Comments on the revised Draft High Conservation Values Assessment and Management Plan can be made until 14 March 2017. For more information, click here.



Flora and Fauna Guarantee Act review - extended

DELWP has extended the comment period for its review of the Flora and Fauna Guarantee Act 1988.  The Discussion Paper outlines deficiencies in the current Act and suggested improvements to modernise Victoria’s approach to biodiversity protection..

Comments on the Discussion Paper can now be made until 28 March 2017. For more information, click here.

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Prospectus of investment opportunities for threatened species projects

The Federal Environment and Energy Minister and Threatened Species Commissioner have released a prospectus inviting companies and philanthropists to contribute to a wide range of projects designed to protect threatened species across Australia.

For more information, click here.


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Events offered by NELA’s partners (marked Header) can provide substantial savings for NELA members - so check them out and make the most of your NELA membership!


(Melbourne) EPA Victoria Reform Agenda: Priorities for Pollution Prevention and Managing Legacy Risks(Perth)

Following the recent release of the Andrews Government’s response to the Independent Inquiry into EPA Victoria, extensive reforms are expected in relation to pollution prevention and managing legacy risks. Hear from two leaders of the Government’s reform implementation program, Chris Webb, and Sarah Stephen, at the ALGA event.

When :15 March 2017 5:30pm

Where: King & Wood Mallesons, 600 Bourke Street

For more information, click here .


(Hobart) Coastal frontiers: saltmarsh and mangroves

CSIRO and the University of Tasmania are proud to host the 3rd Australian Mangrove and Saltmarsh Network Conference, bringing together researchers, industry, community and environmental consultants to discuss the latest science and management strategies for saltmarsh and mangrove ecosystems.

When : 21 – 24 March 2017

Where: CSIRO, Hobart.

For more information, click here .


Header (Perth) Environmental Considerations in Planning and Property Development

Legalwise Seminars is running this practical forum examining a range of environmental issues, including the implication of the Banksia Woodland nomination for planning approvals, managing dust and other emissions and bushfire planning.

When :  29 March 2017, 2:00pm

Where : Parmelia Hilton, Perth.

For more details, click here .


(Melbourne) Demonstrating compliance and communicating with regulators 

The Australian Environment Business Network, V&C Environmental Consultants and Guthrie Legal are hosting this workshop, split into two half-day sessions on demonstrating compliance and communicating with regulators.

When:  31 March 2017,
(Demonstrating Compliance: 8:15am – 12:30pm; Communicating with Regulators:  1:00pm – 5:00pm)

Where: Clarion Suites, Lvl 17, 1 William St, Melbourne.


(National) Developments in international carbon markets and policy – briefings

The Carbon Market Institute is hosting a series of briefings, directed at trade-exposed industries, on current international developments and Australia's 2017 climate policy review. Speakers include representatives from DFAT and the Dept of the Environment and Energy.

  • Melbourne – 30 March 2017
  • Perth – 3 April 2017
  • Brisbane – 6 April 2017
  • Sydney – 7 April 2017

For more details, click here.  


(Montreal) Impact Assessment’s Contribution to the Global Efforts in Addressing Climate Change

The International Association for Impact Assessment is hosting a global conference to share information, best practices, success stories, innovations, and lessons learned about the way impact assessment can address climate change issues.

When: 4-7 April 2017
Where: Le Centre Sheraton, Montréal

For more information, click here .


(Adelaide) What role does the community have in environmental decision making?

EDO SA will be launching its recent audit of public participation provisions in South Australian legislation which impact environmental decision making, and recommendations for reform. The event includes speakers discussing mining and planning case-studies and the importance of public participation.

When: 12 April 2017, 9:30am – 12:00pm

Where: Flinders University City Campus, Room 1, Level 1, 182 Victoria Square, Adelaide

For more information, click here.


(Brisbane) CASANZ 2017:  The Critical Atmosphere

This year’s Clean Air Society conference examines the effects of climate change on human health and wellbeing demands that we understand more about the physical and chemical processes underlying air quality, their effects on human health and welfare, and our capacity to effectively control and regulate air pollution.

When: 15 – 18 October 2017

Where: Pullman Hotel, Brisbane

For more information, click here.


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Thanks to the NELA Bulletin team

The NELA Bulletin is researched and written entirely by volunteers. NELA thanks this month’s contributors:

  • Jess Feehely , EDO Tasmania - editor
  • Ebony Holland – contributor, Cth
  • Emily Long – contributor, Victoria
  • Sarah Wilson. Page Seager Lawyers – contributor, Tasmania
  • Claire McGowan – contributor, WA