Policy developments and other news
No agreement reached on East Antarctica marine sanctuary
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), comprising representatives of 24 nations and the EU, met in Hobart in late October and discussed (among many other things) plans for a marine protected area in East Antarctica.
Despite general support, the parties did not reach agreement on the proposal and deferred further discussion to the 2018 meeting. For an analysis of the negotiations, click here.
Review of GBRMPA governance arrangements
Dr Wendy Craik has released her independent review of the governance arrangements of the Great Barrier Reef Marine Park Authority, making a number of recommendations to improve independence and representation.
DoEE guide to regulation role
The Department of the Environment and Energy has released a “Regulatory Framework” outlining the way in which the Department develops and administers environmental and energy regulation.
Prime Minister Rejects Uluru Statement
The Prime Minister has announced that the Government will not accept recommendations made by the Referendum Council to implement the Uluru Statement. The recommendations included:
A referendum to amend the Australian Constitution to provide for a representative Aboriginal and Torres Strait Islander body to be a "Voice to the Commonwealth Parliament"
A non-Constitutional Declaration of Recognition to be reflected in legislation passed by all Australian parliaments
Cabinet voted that the recommendations were not "desirable or capable of winning acceptance", but stated that the Government "remains committed to finding effective ways to develop stronger local voices and empowerment of local people."
Many members of the Referendum Council and the broader Aboriginal community have expressed anger and disappointment at the announcement.
Senate report calls for overhaul of EPBC Act to reduce development restrictions
The Senate Red Tape Committee has released its interim report on environmental assessments and approvals. Interim recommendations include reinstating the One Stop Shop policy, removing the "water trigger", repealing the standing provisions that allow ENGOs to challenge government decisions, and expediting the review of the EPBC Act with a view to "reducing the burden" it imposes on development.
The Senate Committee will deliver its final report in December 2017.
IPA report calls for overhaul of threatened species laws
The Senate Red Tape report coincided with the release of the Institute for Public Affairs' report, Decentralising the Protection of Australian Threatened Species. The report criticises what it describes as "regulatory overlap and uncertainty" in Australia's threatened species protection regime and calls for responsibility for management to be left to States and Territories. It also calls for amendments to restrict third party appeals.
Human Rights record of resource companies under spotlight
The Australasian Centre for Corporate Responsibility has released its report on Human Rights and Australian Listed Companies, examining the human rights performance and risk disclosure of ASX listed companies. The report rates BHP highly, but raises concerns about the performance of some other companies, including Graincorp.
Audit of Climate Policy shows good progress
The ACT Commissioner for Sustainability and the Environment, Professor Kate Auly has completed her audit of the implementation of the ACT Government’s climate change policy and commended the ACT Government’s leadership. The audit recognised achievements in relation to large-scale renewable electricity contracts, the Renewable Energy Innovation Fund, the Next Gen Battery Storage program and the Energy Efficiency Improvement Scheme, and the ongoing challenge of reducing transport emissions.
The audit report makes a number of recommendations, to which the ACT Government will respond within six months.
New South Wales
Site Audit Guidelines amended
On 20 October 2017, a new version of the Contaminated Land Management – Guidelines for the NSW Site Auditor Scheme was gazetted, giving effect to a range of changes in audit procedure.
To read the new Guidelines, click here. For a summary of the changes, click here.
Carbon planning tool
The Environment Minister has released a guide to carbon planting, providing advice to those interested in land-based carbon offset projects to understand risks, assess carbon sequestration potential, and identify opportunities across the state.
takayna 4WD tracks to require Federal approval
The Federal Minister (by delegate) has determined that proposed works to re-open off-road vehicle tracks in the Western Tasmania Aboriginal Cultural Landscape is a controlled action and will require assessment and approval under the EPBC Act before the project can proceed. In long-running Federal court proceedings, the Tasmanian Aboriginal Centre argued that the project was a controlled action, while the State government contended that the works were not likely to have a significant impact on national heritage.
The project will be assessed by way of Public Environment Report. No guidelines for the PER have been declared to date.
Pulp Mill Permit surrendered
During debate on the Greens' Pulp Mill Assessment Repeal Bill 2017, the Treasurer revealed that Gunns’ liquidator, KordaMentha, has formally surrendered the licence to operate the pulp mill, effectively relinquishing any authority to proceed with the project.
The deadline for the company to “substantially commence” the project expired in August 2017. However, it had not previously been clear that KordaMentha would not seek to rely on work done prior to that date to demonstrate substantial commencement.
Auditor General Report on the Management of Pastoral Lands
The WA Auditor General has released his report on the management of pastoral lands in WA. The audit concluded that the ecological sustainability of pastoral lands is not adequately protected by the State’s current system of land monitoring and administration.
The audit found, among other things, that the State does not have good knowledge of land condition, with annual lease monitoring declining from 15% of all leases in 2009 to less than 3%. The audit also found that policies and agency programs offer little land management support to lessees and do not create support for a sustainable pastoral industry.
Recommendations in the report include improving lease monitoring and compliance, making better use of satellite imagery to monitor land condition, and exploring opportunities to provide more guidance to lessees.
To read the report, click here.
In response to the report, the WA Government has announced that Minister for Regional Development; Agriculture and Food, Alannah MacTiernan, will work to progress pastoral lands reform to increase diversification, streamline the approvals process and increase security of tenure.
Old-growth jarrah in Barrabup forest
An assessment of a harvest coupe within Barrabup forest carried out by the Department of Biodiversity, Conservation and Attractions identified 43 hectares of jarrah old-growth forest within an area set to be logged, and 1.2 hectares of old-growth forest that had already been impacted by roadworks. The assessment followed concerns raised by the public that old-growth forest had not been detected in the initial assessment authorising the work.
The WA Government has indicated that the Forest Products Commission will rehabilitate the affected parts of old-growth forest areas, and improve procedures to minimise the risk of old-grow forest not being identified in future assessments.
For more information, click here.
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In the courts
New South Wales
Leave to appeal land clearing decision refused
On 8 November 2017, the High Court dismissed an application by Grant Turnbull for special leave to appeal against orders made by the Land and Environment Court in 2016 requiring him to remediate areas of his Croppa Creek property, following unauthorised clearing of approximatley 500ha of vegetation.
For more information, click here.
Contamination clean-up order overturned
The Planning and Environment Court has held that a contamination clean-up order issued by the Department of Environment and Heritage Protection (DEHP) in response to acid soil run-off from a Gold Coast golf course was invalid. While both parties agreed that the golf course run-off contributed to contamination of canal waters, the owners successfully argued that the contamination occurred prior to their purchase of the golf course and was not “caused” by them.
DEHP argued that the current owner had control over land and drains contributing to the contamination, knew of the problem, but had failed to undertake work to address the problem.
The Court was satisfied that there were a number of factors contributing to the contamination, including historic government encouragement of development in the area, and there was no evidence that the works required in the DEHP notice would effectively address the harm.
To read the decision in Hungtat Worldwide Pty Ltd v Chief Executive of the Department of Environment and Heritage Protection  QPEC 62, click here.
High Court rules on anti-protest laws
On 18 October 2017, the High Court handed down its decision in the challenge to Tasmania's Workplace (Protection from Protesters) Act 2014. Former Senator Bob Brown had brought the action following his arrest under the Act while protesting against logging in the north of Tasmania.
In a majority decision, the High Court held that the law imposed a significant and unwarranted burden on the implied Constitutional freedom of political communication. The court found that, while the aim of protecting workplaces was legitimate, the restrictions in the Act were disproportionate and unnecessary to achieve that aim. The judgment described the legislation as confusing, vague and poorly drafted.
To read the judgement, click here. For a good analysis of its implications, click here.
Record fine for marine pollution
Fishing company Australian Longline has been fined $40,000 for releasing 400 litres of diesel fuel from its boat, Janas, while docked at Macquarie Wharf in 2015. The spill resulted in an oil slick in habitat for the endangered spotted handfish and Derwent sea star.
Magistrate Simon Cooper noted that, while no evidence of actual environmental harm was presented, there was a clear risk of harm. He was satisfied that the crew had failed to take precautions to avoid the spill, and the consequences of that failure could have been very significant. The ship's captain was also fined $5,000.
While the fine is significantly higher than previous fines for environmental harm in Tasmania, it remains much lower than the maximum available penalty for such offences (currently $395,000).
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Open for comment
Non-road spark emission standards
The Product Emissions Standards Act 2017 commenced on 15 September 2017. The Minister has released draft standards rules for the first round of emissions-controlled products, being non-road spark ignition engines and equipment.
Comments on the draft rules can be made until 27 November 2017. For more information, click here.
Feedback sought on environmental investments under Water Act 2007
The Commonwealth Environmental Water Holder has released a Discussion Paper – Development of a Framework for Investing in Environmental Activities. Under s 106 of the Water Act 2007, the Water Holder can sell water and invest in environmental activities that will improve environmental outcomes in the Murray-Darling Basin.
Comments on the discussion paper can be made until 30 November 2017. For more information, click here.
Offshore Exploration Policy Reforms
The Commonwealth Government is considering how it will attract offshore oil and gas exploration investment in the future, including whether to maintain its current annual acreage release program or introduce a more streamlined system.
A discussion paper outlining potential reforms is available for public comment until 8 December 2017. For more information, click here
PFOS phase-out options considered
A regulatory impact statement has been released on options for a national phase out of perfluorooctane sulfonic acid (PFOS) and related chemicals, ranging from a national legislative approach to no regulation. The government is seeking feedback on the additional data and information needed to identify the best options.
Comments can be made until 18 December 2017. For more information, click here.
New South Wales
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.
Review of the Environmental Planning and Assessment Regulation 2000
The Department of Planning and Environment is undertaking a review of the Environmental Planning and Assessment Regulation 2000 seeking to “remove any unnecessary complexities or outdated rules which make the system hard to use.”
Comments on the review can be made until 24 November 2017. For more information, click here.
Draft marine estate management strategy
The NSW government has released a draft marine estate management strategy. The Strategy identifies priority management issues and sets out a 10-year plan to address major threats to coastal wetlands, estuaries, lakes and waters.
Comments on the draft Strategy can be made until 8 December 2017. For more information, click here.
Draft construction waste regulation
The Environment Protection Authority has released draft Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2017 and draft minimum standards proposing a range of changes to ensure appropriate management, production and use of materials recovered from construction waste. Changes include deductions for transported waste and operational purposes, a ban on landfill mining, improved monitoring and increased enforcement options.
Comments on the draft regulations and standards can be made until 12 December 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.”
The consultation period has been extended until 2 March 2018. For more information, click here.
Consolidated environment policy
The Department of Planning and Environment has released a draft State Environmental Planning Policy to replace existing SEPPs on Sydney's drinking water catchment, the Sydney Harbour Catchment, canal estate development, bushland in urban areas, the Georges River, the Hawkesbury-Nepean, and the Willandra Lakes heritage property.
Comments on the consolidated SEPP can be made until 15 January 2018. For more information, click here.
Aboriginal and Dual Naming Policy Review
The Tasmanian Government’s Aboriginal and Dual Naming Policy has been in place since 2013 and provides a framework for the use of Aboriginal names for naming Tasmanian places. To date, 13 dual names have been declared under the Policy, with a further 11 under consideration.
The Government has released an Issues Paper seeking feedback on the Policy, including the nomination and consultation process.
Comments can be made until 22 December 2017. For more information, click here.
Victoria Planning Provisions
The Victorian Planning Provisions guiding land use planning decisions are under review. The Reforming the Victoria Planning Provisions discussion paper outlines a number of proposals to improve the efficiency and responsiveness of the planning system.
Comments on the discussion paper can be made until 24 November 2017. For more information, click here.
Waste to Energy paper
The Department of Environment, Land, Water and Planning has released a discussion paper, Turning Waste into Energy, for public comment. Feedback on the paper will assist in the development of a waste to energy strategy in 2018.
Comments on the discussion paper can be made until 24 December 2017. For more information, click here.
Plastic bag ban
The Victorian Government has released a discussion paper outlining plans to ban lightweight plastic shopping bags in 2018, and options for future management approaches for plastic pollution.
Comments on the proposals can be made until 25 January 2018. 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.
Draft Planned or Managed Retreat Guidelines
The Department of Planning, Lands and Heritage has released the Draft Planned or Managed Retreat Guidelines, designed to support the State Coastal Planning Policy and assist decision-makers to implement strategies in response to coastal hazards.
Submissions can be made until 15 December 2017. For more information, click here.
Waste Strategy review
The Waste Authority is reviewing WA’s Waste Avoidance and Resource Recovery Strategy and has prepared a consultation paper which sets out proposed amendments to the strategy.
The proposals include the introduction of three new objectives: to minimise the environmental impact of waste, to reduce the generation of waste, and to increase the recovery of resources from waste. The consultation paper sets out actions that should be taken to achieve those objectives and identifies waste generation and resource recovery targets. The proposed targets would bring WA's waste generation in line with the national average, and aim to recycle or recover 75% of all waste by 2030.
Comments on the proposed amendments can be made 1 March 2018. For more information, click here.
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