Policy developments and other news
Senate Committee reports due
The following Senate inquiries are due to report by 18 October 2017:
Deadline approaching to register for December ERF auction
Carbon offset developers seeking bids on projects in the next Emissions Reduction Fund reverse auction must register their project with the Clean Energy Regulator by 25 October 2017. The auction will be held on 6-7 December 2017.
For more information, click here.
Review of operation of FOI Act
The National Audit Office has released its review of the administration of the Freedom of Information Act 1982 (Cth). The report examined the administration of requests made to three agencies and found, amongst other things:
funding uncertainty had constrained the operation of the Information Commissioner
exemptions relied on to refuse access to information increased by 68.4% since 2010, with use of the "certain operations of agency" exemption increasing by more than 300%.
there is very limited quality assurance or verification of the reliability of FOI data
around 50% of FOI decisions reviewed by the Info Commissioner are set aside or varied –
none of the three agencies reviewed met their statutory obligations to publish information
In response, the Office of the Information Commissioner has committed to developing an FOI regulatory action policy outlining the risks and impacts of not complying with FOI requirements.
Huge response to Marine Park management plan proposal
Over 54,000 submissions were made in response to the government’s proposed amendments to five Commonwealth marine park management plans covering 44 of Australia’s 60 marine protected areas. The proposed amendments revise the no-take, habitat protection and multiple-use zones in MPAs in Commonwealth waters off the coast of NSW, Qld, WA, SA and the NT.
Concerns about the proposal have been expressed by the Ocean Science Council of Australia and David Suzuki.
Australian Capital Territory
Draft environment accounts released
The Commissioner for Sustainability and the Environment has released ‘proof of concept’ environmental accounts seeking to integrate environmental data (such as vegetation extent and condition, water flows and waste volumes) and economic data, such as the ACT Government’s budget, financial policies and frameworks.
The accounts were jointly produced by the Commissioner, ANU and the Australian Bureau of Statistics, based on the UN System of Environmental-Economic Accounts.
Details of environmental bonds released
Following a decision by the Northern Territory Civil and Administrative Tribunal that traditional owner, Jack ‘Wongili’ Green was entitled to information regarding the amount of an environmental bond provided by Glencore in respect of its McArthur River operation, the NT government has released details of the bonds provided for the Territory's nine largest mines.
takayna 4WD tracks referral
On 8 September 2017, the Tasmanian government referred its proposal to re-open three four-wheel drive tracks within the Western Tasmania Aboriginal Cultural Landscape national heritage place to the Commonwealth Minister. The Tasmanian Government referral claims that the proposed mitigation works and administration of access permits will not have a significance impact on national heritage or natural values.
The tracks were closed in 2012 in recognition of the unacceptable impact of off-road vehicles on Aboriginal heritage values. Previous efforts by the Tasmanian government to re-open them have been subject to a series of Federal Court proceedings initiated by the Tasmanian Aboriginal Centre.
Unless further information is requested, the Minister will decide whether the proposal is a controlled action (and therefore requires further assessment) by 9 October 2017.
Following the resignations of Minister for the Environment, Parks and Heritage, Energy and State Growth, Matthew Groom, and Attorney-General, Vanessa Goodwin, The Tasmanian Premier announced a further Cabinet reshuffle. Relevant portfolio responsibilities are now:
Justice, Environment & Parks - Elise Archer
Planning & Local Government, State Growth - Peter Gutwein
Energy & Resources - Guy Barnett
Attorney-General, Aboriginal Affairs & Heritage - Will Hodgman
Primary Industries & Water - Jeremy Rockliff
Plastic bag ban
The WA Government has announced that lightweight, single-use plastic shopping bags will be banned in Western Australia from 1 July 2018.
If implemented, Western Australia will join South Australia, Tasmania, the Northern Territory and the Australian Capital Territory in banning plastic bags. Queensland has also committed to implementing a ban from 1 July 2018.
For more information, click here.
The ban complements the proposal for a WA container deposit scheme to reduce plastic waste – see ‘Open for Comment’ below for details of the CDS discussion paper.
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In the courts
New South Wales
Appeal to proceed against Moorebank logistics terminal
The Land and Environment Court has dismissed arguments that a resident group, found a residents group, Residents Against Intermodal Development Moorebank Incorporated, was not entitled to challenge the decision to grant consent for a large freight terminal. The group seeks to challenge the consent on the grounds the terminal would endanger a threatened shrub on the site, previously considered extinct.
The developer, Qube, argued that the group was not entitled to appeal, as objections to the terminal project had been lodged by the group’s unincorporated predecessor, Residents Against Intermodal Development Moorebank, rather than the current entity.
Chief Justice Brian Preston held that the unincorporated group’s right to appeal became the right of the incorporated association, and therefore the appeal could proceed.
To read the decision in Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning  NSWLEC 115, click here
Alphadale financial assurances upheld
In 2016, mining company, Alphadale Pty Ltd, was directed to provide a financial assurance of $4.2M to the Department of Environment and Heritage Protection in respect of its Big Rush mining project. The company’s self-assessment of the appropriate assurance was $175,500.
Alphadale appealed against the direction, however the Land Court held that s.522A of the Environmental Protection Act 1994 meant that the Court had no jurisdiction to hear the challenge until at least 75% of the required assurance had been provided to DEHP.
On appeal, the Land Appeal Court overturned that decision and held that s522A did not apply.
DEHP then appealed to the Supreme Court, which 2:1 upheld the original decision that at least 75% of the financial assurance must be provided before any valid appeal could ensue.
To read the decision in Chief Executive, Department of Environment and Heritage Protection v Alphadale Pty Ltd  QCA 216, click here.
Okehampton shore-facilities hearings
Tassal, Australia’s largest producer of farmed salmon, and Spring Bay Seafoods are proposing the construction of a wharf and associated infrastructure to support marine farming operations at Okehampton Bay. The proposal requires amendments to the Glamorgan Spring Bay Interim Planning Scheme 2015 to create the Spring Bay Industrial Specific Area Plan.
Details of the upcoming Planning Commission hearings can be found here.
CBA shareholder action dropped
In August 2017, two Commonwealth Bank shareholders commenced Federal Court proceedings, claiming the Bank had failed to give due regard to climate change as a major risk to its business, contrary to obligations under the Corporations Act.
Following the release of the Bank’s latest annual report and sustainability report, which acknowledged the significance of climate risk and committed to analysing climate impacts on its business, the case has been discontinued. Each party agreed to bear its own costs.
VCAT dismisses application for details of community group’s litigation finances
Community group, Stop the Tip Inc, has commenced an application for review of a decision to grant works approval for the expansion of the Ravenhall landfill site. The Victorian EPA alleged that the group was being funded by another applicant, supported by a lobbyist, and getting “two bites of the cherry”. The EPA said it was concerned by the potential abuse of process and applied for orders requiring Stop the Tip to produce documents regarding their financial situation.
VCAT Deputy President, Helen Gibson, dismissed the application and held that it was not unlawful for a party to be funded in litigation and the source of funding was not relevant to the substantive issues of the case.
To read the decision in Stop The Tip Inc v Environment Protection Authority  VCAT 1453, click here.
Eclipse loses landfill levy special leave application
In Eclipse Resources Pty Ltd v The State of Western Australia  HCASL 234, the High Court dismissed an application by Eclipse Resources Pty Ltd for special leave to appeal the decision of the WA Court of Appeal in Eclipse Resources Pty Ltd v The Minister for Environment [No 2]  WASCA 90.
The Court of Appeal held that Eclipse, a Perth waste management company, was liable for unpaid landfill levies, and that the landfill levy is not unconstitutional. The High Court decided that there was no realistic prospect of disturbing the conclusion reached by the Court of Appeal.
High Court rules on validity of mining leases
By majority, the High Court has allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia that non-compliance with provisions of the Mining Act 1978 (WA) did not render invalid a mining lease subsequently granted by the Minister.
Applying Project Blue Sky Inc v Australian Broadcasting Authority, the majority held that compliance with s 74(1)(ca)(ii) was a condition precedent to the granting of a valid licence.
To read the decision in Forrest & Forrest v Wilson & Ors  HCA 30, click here.
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Open for comment
Reef Water Quality Improvement Plan 2017-2022
The Queensland and Commonwealth government have released a draft Reef 2050 Water Quality Improvement Plan 2017–2022 to update of the Reef Water Quality Protection Plan 2013 and support delivery of the Reef 2050 Long-Term Sustainability Plan.
Comments on the draft Plan can be made until 10 October 2017. For more information, click here.
Draft report on National Water Reform
The Productivity Commission has released its draft report in its inquiry into National Water Reform. The final report is expected to be delivered to the government by the end of the year.
Comments on the draft report can be made until 19 October 2017. For more information, click here.
Waste and recycling industry in Australia
The Senate Environment Committee is conducting an inquiry into the waste and recycling industry in Australia, including issues related to landfill, markets for recycled waste and the role of the Australian Government in providing a coherent approach to the management of solid waste.
Submissions to the inquiry can be made until 20 October 2017. For more information, click here.
New South Wales
Draft Guide for Economic Assessment of CSG
The Department of Planning and Environment is seeking feedback on the content of the technical notes addressing a range of environmental, heritage, social and transport related issues to be considered when undertaking an integrated social, environmental and economic impacts merit assessment of State significant development mining and coal seam gas proposals.
Comments on the draft technical notes can be made until 23 October 2017. For more information, click here.
Draft waste infrastructure strategy
The NSW Government has released a draft waste and resource recovery infrastructure strategy to respond to the significant shortfall in capacity for treating mixed waste expected by 2021.
Comments on the draft strategy can be made until 20 November 2017. For more information, click here.
Aboriginal cultural heritage laws proposed
The NSW Government has released a discussion paper detailing a proposed new legal framework “to improve the way Aboriginal cultural heritage is protected, managed and celebrated in NSW.”
Comments on the proposal can be made until 18 December 2017. For more information, click here.
Gladstone Port Master Plan
A draft master plan for the Port of Gladstone has been released for comment, the first of a series of master plans being prepared in accordance with the Sustainable Ports Development Act 2015.
Comments on the draft plan can be made until 9 October 2017. For more information, click here.
DEHP seeks feedback on its performance
The Department of Environment and Heritage Protection is conducting a survey inviting public feedback on the Department’s performance, community expectations and environmental priorities. In particular, the survey asks about concerns regarding mining, the Great Barrier Reef, land clearing, climate change and whether pollution incidents are adequately addressed.
Anyone can participate in the online survey until 20 October 2017. To participate, click here.
Trans-shipping in the GBR Marine Park
The draft trans-shipping policy proposes tighter regulation of transfers of bulk cargo between ships under the Environmental Protection Act 1994, including new assessment and authorisation requirements, and restricting transfers within the Great Barrier Reef marine park to declared ports.
Comments on the proposed changes can be made until 20 October 2017. For more information, click here.
Container Deposit Scheme Discussion Paper
The Department of Water and Environmental Regulation has released a discussion paper on the implementation of a Container Deposit Scheme in Western Australia.
Comments on the discussion paper can be made until 23 October 2017. Feedback can also be provided via an anonymous online survey. For more information, click here
Waste levy and waste management discussion paper
The Department of Water and Environmental Regulation has issued a discussion paper proposing legislative reforms to strengthen the regulatory framework for waste management. Proposals include consolidating landfill categories, amending the definition of waste disposal to expand the application of levies, introducing waste avoidance and resources recovery objectives into the Environmental Protection Act, and mandating the use of weighbridges at waste facilities.
Comments on the discussion paper can be made until 16 November 2017. For more information, click here.
Draft Burrup Rock Art Strategy
The WA Government has released a draft strategy to protect Aboriginal rock art on the Burrup Peninsula. The strategy builds on previous studies conducted in response to concerns that industrial emissions may be impacting the rock art. The strategy provides for monitoring to determine whether accelerated change is occurring and outlines other studies required to determine the causes.
Comments on the strategy may be made until 1 December 2017. For more information, click here.
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