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December 2017 Bulletin


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This month

NELA news and events
01. NELA Essay Competition
02. Membership
03. Policy Interest Groups

Law and policy developments

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


09. (National) Swim for the Reef
10. (Hobart) Frontiers of Environmental Law Colloquium
11. (Hobart) Imagining a Different Future: Overcoming Barriers to Climate Justice
12. (Ballarat) Energy From Waste Forum
13. (Perth) DWER Update - Regulatory Reform & Environmental Programs 2018
14. (Brisbane) National Sustainability in Business Conference
15. (Hobart) Coast to Coast: Meeting on the Margins


NELA News & Events

This is the final NELA Bulletin for the year, with the next edition to be published in February 2018.

NELA wishes all our members a very merry Christmas. Thank you for your continuing support for NELA, we look forward to working with you again in 2018!


NELA Essay Competition – closing soon!

The NELA Essay Competition seeks essays from undergraduate and postgraduate students at Australian universities. Essays can address any contemporary issue facing Australian environmental law and must be submitted by 18 December 2017.

For guidelines and submission details, click here.



Have you renewed your NELA membership yet? By renewing your membership for 2017-2018, you can help us to keep delivering great events and publications, having a say on national and international environmental decision-making, and facilitating debate on key environmental law issues.

To join or renew, click here.


Policy Interest Groups

Joining NELA’s policy interest groups is a great way to network with colleagues working in your field across the country, and to contribute your expertise to NELA’s policy work in 2018. You can join interest groups on the Members page of our website.

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Law and policy development


Ross Sea MPA takes effect

On 1 December 2017, the Ross Sea Marine Protected Area, negotiated at the 2016 CCAMLR conference, took effect. The MPA covers more than 1.5 million square kilometres, and prohibits or restricts fishing activities across most of its area. The limited extent to which Japan's whaling program will be restricted by the MPA remains of concern.

For more information about the MPA, click here. To read the text of the MPA decision, click here


South Australia

Waste reform laws commence

The Environment Protection (Waste Reform) Amendment Act 2017 took effect on 28 November 2017, providing new mechanisms for the EPA to regulate material flows through waste facilities and control excessive stockpiling. The amendments also give the EPA expanded powers to investigate and prevent illegal dumping, including seeking a warrant to enter premises and mark waste for tracking if there is a suspicion it will be illegally dumped.

For more information, click here.


Moratorium on genetically-modified crops extended

The Genetically Modified Crops Management Regulations (Postponement of Expiry) Bill 2017 has been passed, extending the existing statewide moratorium on the cultivation of genetically modified crops (which was due to expire in 2019) to 2025.

To read the bill, click here.


Leading Practice in Mining Bill 2017

Following a major review of mining legislation, the first of several expected amendment Bills has been introduced. The Statutes Amendment (Leading Practice in Mining) Bill 2017 proposes increased landowner protections and expands the means available to the Regulator and courts to prevent, investigate, monitor, address and punish industry behaviours that may have a detrimental impact on the environment.’

For more information, click here, or to view the Bill, click here.


Govt introduces controversial plan to allow tech companies to avoid law

The Government recently introduced the Research, Development and Innovation Bill 2017. The Bill, ostensibly designed to attract foreign investment, seeks to allow the Governor to suspend the operation of any State law (other than the Aboriginal Heritage Act 1988) in order to “…facilitate opportunities for research and development”.

The Bill passed the lower house, despite strong opposition from the Law Society of South Australia.  However, prior to debate in the upper house, the Government withdrew the Bill from the debate list.

For more information, click here.


Laws to require State Planning Policy on Biodiversity

The Planning, Development and Infrastructure (State Planning Policy) (Biodiversity) Amendment Bill 2017 has been passed. The Bill requires the Government to prepare a State Planning Policy on Biodiversity, which must be considered when assessing planning, development and rezoning applications.

For more information, click here.



Threatened Species Protection Amendment Bill 2017

On 7 September 2017, in response to the recent shooting of two threatened eagles, the Tasmanian Government announced that it intended to increase penalties for taking threatened species. The Threatened Species Protection Amendment Bill 2017 was introduced to give effect to that commitment, proposing to increase the maximum penalty for ‘taking’ offences to $100 000 and up to 12 months imprisonment.

The Bill passed the House of Assembly on 30 November 2017, but was not debated in the Legislative Council before the end of the parliamentary year. To read the Bill, click here.


Okehampton Bay Finfish Removal Bill 2017

This private member's bill, introduced by Greens MP Rosalie Woodruff, sought to cancel existing finfish authorities in Okehampton Bay and prohibit future finfish farming in the area, The Bill was rejected by the House of Assembly.

To read the Bill, click here.  


New laws for tree disputes

The Neighbourhood Disputes about Plants Act 2017 commenced on 1 December 2017, introducing new processes for the resolution of disputes arising in relation to problem trees, hedges or other vegetation (such as overhanging branches and blocking of sunlight). Where disputes are not resolved by the parties, the new laws provide for orders to be made by the Resource Management and Planning Appeal Tribunal.

The Act was introduced in response to Tasmanian Law Reform Institute recommendations.  For more information, click here.


Amendments to require EPA assessment of waste tyre facilities

On 8 November 2017, amendments to the Environmental Management and Pollution Control Act 1994 took effect, making large ‘Waste Tyre Storage Depots’ a Level 2 activity requiring assessment by the EPA. Eligible depots are those designed or likely to store more than 100 tonnes of waste tyres.

For more information, click here.


New Fish Farming Laws commence

The Finfish Farming Environmental Regulation Act 2017 commenced on 4 December 2017, making changes to the Marine Farming Planning Act 1995, Living Marine Resources Management Act 1995 and the Environmental Management and Pollution Control Act 1994. Key changes include:

  • Formally making the EPA Director responsible for environmental regulation of finfish farms (this responsibility was transferred under delegation in July 2016)
  • Introducing a new Environmental Licence for finfish farming operations, and making such activities "Level 2 activities" to be assessed by the EPA.
  • Introducing marine farm exclusion zones and declaring an initial zone over Mercury Passage (excluding the existing Okehampton Bay lease)

For more information, click here.


New Biosecurity laws deferred 

Primary Industries Minister, Jeremy Rockliff, has announced that the Biosecurity Bill 2017 will not be introduced to parliament this year. 

The draft Bill, seeking to consolidate seven existing pest, weed and feral animal control laws into a more effective, contemporary framework for managing biosecurity risks, was released for comment earlier this year. The Minister indicated that further consultation with industry would occur before a final Bill is introduced.



Water and Catchment Legislation Amendment Bill 2017

This Bill aims to give effect to the state's new Water for Victoria strategic plan, targeting adaptation measures for the water industry and requiring consideration of Aboriginal values and uses of water resources.

To read a copy of the Bill, click here.


Offshore Petroleum and Greenhouse Gas Storage Amendment Bill

The Offshore Petroleum and Greenhouse Gas Storage Amendment Bill proposes protections for the holders of petroleum titles affected by changes to the boundary between the offshore area and the Commonwealth defined offshore area.

To read a copy of the Bill, click here.


Bill to facilitate community infrastructure and affordable housing

The Planning and Environment Amendment (Public Land Contributions) Bill proposes new requirements for developers and subdividers to contribute land for the purpose of infrastructure, and increases the current community infrastructure levy.

To read the proposed amendments click here.


Western Australia  

Fracking moratorium

In September, the WA Government announced a ban on fracking in the Perth Metropolitan, Peel and South-West regions, and a moratorium across the rest of the State while an independent inquiry was conducted.

The administrative ban and moratorium have now been formalised by the gazettal of regulations.  

For more information, click here


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Policy developments and other news


Response to review of the governance of the Great Barrier Reef Marine Park Authority

The Environment and Energy Minister Josh Frydenberg recently released the government’s response to an independent review of governance of the Great Barrier Reef Marine Park Authority, accepting all 24 recommendations.

For more information, click here


Government drops plans to require ENGOs to undertake on-ground work

The Federal Government has abandoned plans to make environmental groups ineligible for tax deductibility status unless they spend at least 50% of funds on on-ground remediation work. The proposal had been supported by the Minerals Council (which sought to extend the restriction to 90%), but opposed by environmental advocates, law associations and, recently, BHP.


Senate Environment Committee reports  

The Senate's Environment and Communications Committee has released its inquiry report, In hot water: the impacts of climate change on marine fisheries and biodiversity.  The report makes a number of recommendations regarding funding for research and monitoring activities, improved coordination of aquaculture and fisheries data, updating offshore constitutional settlements agreements for boundaries between fisheries, reviewing environmental assessment legislation to ensure climate change issues are considered, and examining the introduction of a ‘greenhouse’ trigger’ to the EPBC Act. 

The report of the Senate’s inquiry into Shark Mitigation and Deterrent Measures was released on 12 December 2017. The majority report recommends that eastern states replace lethal drum lines with SMART drum lines, phase out netting, and increase funding for non-lethal mitigation measures.

The Red Tape Committee's report on Environmental Assessments and Approvals, which was due to be released in December 2017, has been deferred and will be published as part of the broader final Red Tape report by December 2018.


New data on access to information laws reveals leaders and laggards

As part of the Australian Government Open Access Plan, Information Access Commissioners and Ombudsmen from around the country have released collective figures on public use of freedom of information laws.

The figures reveal that the Northern Territory, Tasmania and the Commonwealth have among the highest number of refusals and appeals, and applicants experiencing long delays. 

For an analysis of the figures, click here


Australian Capital Territory

ACT Environment Grants

The ACT Environment Grant winners have been announced for 2017-18. These include nine projects to improve ecosystem health and conservation outcomes with a total value of $203,000, including weed and erosion control, care and rehabilitation of native wildlife and support for on-ground citizen science projects.

For more information, click here.


Northern Territory

Draft Fracking Inquiry Report

The draft Final Report of the Independent Scientific Inquiry into Hydraulic Fracturing of Onshore Unconventional Reservoirs in the Northern Territory has been released.  The draft report finds that the risks of fracking can be mitigated or avoided with robust regulation, and makes a series of recommendations to strengthen the regulatory framework.  Recommendations include requiring strategic regional environmental assessments and groundwater baseline studies to be completed before any production activities occur.

Public hearings on the draft Report will be held from 5-12 Feburary 2018.  For more information, click here.



New Ministers

Following the results of the Queensland election, Labor Premier Annastacia Palaszczuk has announced her new cabinet Ministers.  Relevant appointments include:

  • Cameron Dick: Minister for State Development, Infrastructure and Planning Minister and Manufacturing
  • Yvette D’Ath: Attorney-General and Justice Minister
  • Dr Anthony Lynham: Minister for Natural Resources, Mines and Energy
  • Leeanne Enoch: Minister for Environment and the Great Barrier Reef, Science and Arts
  • Mark Furner:  Minister for Agricultural Industry Development and Fisheries


Northern Territory

Expert panel backs renewable energy obligations for major projects

The Northern Territory government has released a report of an independent expert panel established to advise on strategies to ensure 50% of the Territory’s electricity comes from renewable sources by 2030. The changes outlined in the plan would see the Territory move away from its reliance on gas and diesel, which accounts for 96% of its energy generation.

To read the report, click here.


South Australia

Royal Commission announced into Murray Darling Basin water theft

Premier Jay Weatherill has established a Royal Commission to investigate alleged water theft and breach of the Murray Darling Basin Agreement. The announcement followed a damning assessment of compliance, which found poor levels of enforcement and a lack of transparency regarding water management in New South Wales, Queensland and Victoria.

For more information, click here.


Western Australia

State and Local Government Partnership Agreement

In August 2017, representatives of State and Local Government signed a Partnership Agreement to help ensure local communities are heard on key decisions. The agreement provides that the State Government should consult with Local Government when developing, amending or reviewing State legislation and regulations, policies or programs that will significantly impact local government operations or resources, and sets out minimum consultation timeframes.

For more information, click here.


Minister upholds decisions that Blue Hills Mungada East and Helena-Aurora mining projects unacceptable

The WA Environment Minister has dismissed all appeals against the EPA’s assessments that the following projects were environmentally unacceptable:

The Minister concluded in both cases that the EPA’s assessment of environmental impacts was appropriate and supported by the available evidence.

In relation to the Sinosteel proposal, the Minister upheld the EPA’s conclusion that the proposal was likely to result in significant residual impacts to priority species and communities, and the Mungada Ridge is of very high regional value and the proposal would permanently alter the social setting and visual amenity associated with the Ridge.

The Minister was also satisfied that Helena‑Aurora Range was a significant landform, and the Mineral Resources proposal posed a serious and irreversible threat to flora and troglofauna species, and to the visual character of the Range.

The Minister will now consult with other relevant decision-making authorities to determine whether the proposals should progress, and if so, on what conditions.

To read the Minister’s determinations, click on the links above.


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In the courts

Northern Territory

Real estate development company fined for environmental harm

The Darwin Local Court has fined a real estate development company Elias Investments Pty Ltd $71,200, following a guilty plea of causing material environmental harm and for failing to comply with a pollution abatement notice.

For more information, click here



Federal Court to hear challenge to RFA exemption 

Friends of the Leadbeater’s Possum (FLP) have commenced proceedings in the Federal Court against VicForests. Their case argues that past and future logging in the central highlands of Victoria has had, is having, or will have a significant impact on the threatened Leadbeater’s Possum and the Greater Glider, contrary to the Environment Protection and Biodiversity Conservation Act 1999.

FLP argue that, because regular 5 yearly reviews required under the relevant Regional Forest Agreement have not been completed, VicForests' operations are not in accordance with the RFA, and therefore cannot rely on the RFA exemption from the approval requirements under the EPBC Act.  

The Federal Court, with the agreement of the parties, ordered that the question of whether logging was undertaken "in accordance with" the RFA be determined separately, and set that question down for hearing on 14 - 15 December 2017.  VicForests has agreed not to undertake any further logging operations in the relevant coupes until that question is determined. 

The Victorian government and Commonwealth government have applied to join the proceedings. 

For a copy of the court orders, click here.  For analysis of the case, click here and here


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Open for comment


National phase out of PFOS

The Department of the Environment and Energy has released a Regulation Impact Statement (RIS) on options for a national phase out of perfluorooctane sulfonic acid (PFOS) and related chemicals. The consultation seeks additional data and information to refine and improve the assumptions in the RIS regarding ongoing uses of PFOS, stockpiles, destruction, and waste management capacity.

Comments can be made until 26 February 2018. For more information, click here.


New South Wales

Construction Waste Management Reforms

The Environment Protection Authority invites submissions on proposed changes to NSW environment protection legislation concerning construction waste. These changes build on 2014 reforms of the Protection of the Environment Operations (Waste) Regulation, by seeking to drive further resource recovery and address poor waste practices.

Submissions are invited until 12 December 2017. For more information, click here.


Proposed Primary Production and Rural Development State Environmental Planning Policy

The Department of Planning and Environment invites submissions on a package of reforms to update and improve the planning framework for primary production and rural development. These are discussed in the Primary Production and Rural Development - Explanation of Intended Effect.

The comment period has been extended to 15 January 2018. For more information, click here.


Proposed Environment State Environmental Planning Policy (SEPP)

The Department of Planning and Environment NSW invites submissions on a proposed SEPP to simplify the planning rules for a number of water catchments, waterways, urban bushland, and Willandra Lakes World Heritage Property.

The comment period has been extended to 31 January 2018. For more information, click here.


Draft Large-Scale Solar Energy Guideline

The Department of Planning and Environment is inviting submissions on a draft Large-Scale Solar Energy Guideline, providing guidance on the planning framework for the assessment and approval of large-scale solar energy development proposals under the Environmental Planning and Assessment Act 1979. The Guideline outlines the key assessment issues for State significant solar energy projects, and encourages early consultation. 

Feedback on the draft Guideline can be provided until 16 February 2018. For more information, click here


South Australia

Enhancing resource recovery and discussing the place of energy recovery

The EPA is seeking to build on prior broad engagement with members of the waste management and resource recovery industry and other key stakeholders, by obtaining observations and advice on energy from waste policy.

Comment can be made until 12 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 Tasmanian places. To date, 13 dual names have been declared under the Policy (including kunanyi / Mt Wellington and wukalina / Mt William), 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.


Major Projects legislation

Following further consultation, a revised draft Land Use Planning and Approvals (Major Projects) Bill 2017 has been released for further public comment.  Changes from the earlier draft include longer time frames for consultation, and clarification regarding the eligibility for major project status of proposals that are inconsistent with local height restrictions (in response to community opposition to the use of the new process for proposed highrise developments). 

Comments on the revised draft Bill can be made until 29 January 2018. For more information, click here.



Developing the State’s waste-to-energy industry discussion paper

The Victorian Government has released a discussion paper on converting waste to energy to support the development of new technologies, including anaerobic digestion and thermal treatment of waste.

Comments can be made until 28 December 2017. For more information, click here.


Amendment to the Waste Management Policy

The Victorian Government is seeking views on the proposed approach to managing e-waste in Victoria. A package of proposed measures has been developed to reduce e-waste from landfill, increase resource recovery and support jobs and investment in the recycling sector. The proposed measures will be implemented through an amendment to the Waste Management Policy (Siting, Design and Management of Landfills).

Comments on the proposals can be made until 25 January 2018. For more information, click here.


Proposal to Ban Lightweight Plastic Bags

The Victorian Government has released a discussion paper on its proposal to ban single-use lightweight plastic bags.

Comments can be made until 25 January 2018. For more information, click here.


Western Australia

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.


Amendments to landfill and waste levy rules

The Department of Water and Environmental Regulation has released a consultation paper proposing amendments to the Environmental Protection Regulations 1987 in response to the Supreme Court decision in Eclipse Resources Pty Ltd v The State of Western Australia [No.4] (2016) WASC 62. The proposed amendments are intended to ensure that the use of clean fill for development can continue without the requirement for a licence or liability for the waste levy.

Submissions can be made until 2 February 2018. 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 until 1 March 2018. For more information, click here.


Fracking Inquiry Background and Issues Paper

The WA Government has gazetted a ban on fracking in the Perth Metropolitan, Peel and South-West regions, and a moratorium across the rest of the State.

The Independent Scientific Panel Inquiry into Hydraulic Fracture Stimulation in WA has released a Background and Issues Paper. Examining the potential impacts of fracking on the onshore environment in regions currently under moratorium.

In particular, the Panel is seeking information on:

  • the environmental values potentially at risk from unconventional oil and gas developments involving fracking;
  • data or other evidence that might inform a scientific risk analysis of those impacts, with an emphasis on local geographies and geologies, and local evidence from WA; and
  • reflections or experience on what a regulatory framework should ideally look like if the Government lifts the current moratorium.

Submissions can be made until 19 March 2018. For more information, click here.


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EJA seeks litigation lawyer

Environmental Justice Australia is looking for an experienced lawyer to join their team in Melbourne and help to shape their public interest legal strategies and litigation work. The position will ideally commence in March 2018.

Expressions of interest should be forwarded to CEO, Brendan Sydes.  For details, 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!

(National)  Swim for the Reef

Registrations are now open for the annual Swim for the Reef, raising funds for legal work to protect the Great Barrier Reef. Swimmers can participate anywhere in Australia.

When: 20 January 2018

Where:  Any pool, lake, river or ocean!

Register at swimforthereef.org.au


Header (Hobart) Frontiers of Environmental Law Colloquium

The fourth annual Frontiers of Environmental Law colloquium brings together academic teachers and researchers to share ideas, research and teaching practices in the diverse, multi-disciplinary field of environmental law.

When: 6-7 February 2018

Where: UTAS, Hobart

The colloquium is sponsored by NELA, the Law Futures Centre of Griffith University and the University of Tasmania, Faculty of Law. To find out more, click here.


(Hobart) Imagining a Different Future: Overcoming Barriers to Climate Justice

The University of Tasmania is hosting a global, multidisciplinary conference examining the barriers to responding to climate change, implementing climate justice, and proposing ways forward.

When:  8-10 February 2017

Where: University of Tasmania

For more information, click here.


(Ballarat) Energy From Waste Forum

The third annual forum will focus on a building the case for waste to energy strategies and projects.

When: 20-22 February 2018

Where: Mercure Ballarat Hotel and Convention Centre, Ballarat

For more information, click here.


(Perth) DWER Update - Regulatory Reform & Environmental Programs 2018

The Environment Institute of Australia and New Zealand (WA Division) is hosting a presentation by Mr Mike Rowe, Director General of the Department of Water and Environmental Regulation (DWER), on the science programs within DWER that support the policy development and licensing functions, what’s been achieved in 2017 and the plans for DWER in 2018.

When: 21 February 2018

Where: Herbert Smith Freehills, Perth

For more information, click here.


(Brisbane) National Sustainability in Business Conference

The second annual conference will explore sustainability best practice within organisations, creating resilience in business and ways to implement change. The sustainability topics to be covered include integration, politics, technology, automation, future of renewables, procurement, food security, sustainable construction and waste as a resource.

When: 8-9 March 2018

Where: Hotel Grand Chancellor, Brisbane

For more information, click here.


(Hobart) Coast to Coast: Meeting on the Margins

The 14th biennial Coast to Coast conference is an opportunity to take stock in the face of many governments retreating from coastal management, and to rejuvenate discussion and rebuild a national community of coastal practitioners.  The conference will feature presentations from government, research, natural resource management, community organisations and consultants working on coastal issues.

When:  16-20 April 2018

Where:  Hotel Grand Chancellor, Hobart 

Abstracts can be submitted until 15 December 2017.  For information, click here


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The NELA Bulletin is researched and written entirely by volunteers.
This month, we thank the following contributors:

  • Jess Feehely - editor
  • Rosie Phillips – contributor, WA
  • Natasha Hammond – contributor, NSW
  • Sarah Wilson - contributor, Tas
  • Robert Holbrook – contributor, Cth, ACT, NT and SA
  • Mathew Calvert - contributor, NSW and Vic