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March 2018 Bulletin

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This Month


01. Current Issues in Environmental Law – NELA WA seminar

Law & Policy Developments 

02. In the Legislature
03. Other News
04. In The Courts
05. Open For Comment  
06. Opportunities


07. (Perth) Current Issues in Environmental Law Seminar
08. (Perth) Environmental Law Workshop  
09. (Adelaide) Smart water summit
10. (Sydney) Environment and Planning intensive
11. (Canberra) Better Laws for a Better Planet
12. (Melbourne) Shareholder activism in Australia - investor and company perspectives
13. (Hobart) Coast to Coast: Meeting on the Margins
14. (Sydney) Future of Environmental Laws Symposium
15. (Sydney) Mahla Pearlman Oration: Hon Robert French AC
16. (Brisbane) Debate for Environmental Justice
17. (Melbourne) Climate Adaptation 2018

NELA News & Events

Current Issues in Environmental Law – NELA WA seminar

In partnership with the Law Society of WA, NELA WA is hosting this great CPD seminar in Perth on 20 March 2018. The event will explore whether a specialist environmental court or list within the SAT would improve the environmental appeal system in WA, the impact of the Assessment Bilateral Agreement and the status of negotiations for an Approval Bilateral Agreement under the EPBC Act.

NELA members are entitled to special rates for the event, so don’t miss out!  See Events below, or click here for more information.

For another great event, don’t miss the Law Council’s Future of Environmental Law Symposium on 19 April 2018 in Sydney!

Law & Policy Developments


UN Human Rights and Environment Framework

The UN Special Rapporteur on Human Rights and the Environment, John Knox, presented his report on framework principles for human rights on the environment to the Human Rights Council.

To watch a video of the presentation and the dialogue with the Council members, click here.


ASIC and ASX urged to improve climate-risk disclosure guidance

In its response to the Senate Committee Inquiry on carbon risk disclosure, the Federal government expresses in-principle agreement with the Committee’s recommendations that  ASIC and the ASX provide clear guidance to directors on when and how to disclose carbon risk, but does not support making disclosure mandatory.

The Government confirmed the view that nothing in the Corporations Act prevented companies from adopting the recommendations of Task Force on Climate-related Financial Disclosures.


New South Wales

Land Clearing Code re-introduced

Following a decision by the Land and Environment Court on 9 March 2018 that the Land Management (Native Vegetation) Code was invalid (see “In the Courts” below), the NSW Government re-introduced the Code on 10 March 2018 without amendment.

For more information, click here


Amendments to the EPA Act take effect

The first suite of changes brought about by the Environmental Planning and Assessment Amendment Act 2017 commenced on 1 March 2018, including the re-enactment and expansion of local planning panels.  The changes will also result in re-numbering o many provisions.

Other changes, such as changes to statement of reasons obligations, enforceable undertakings and community participation panels, will commence in stages until mid-2020.

To read the consolidated Act, click here.  For a full schedule of commencement stages, click here.


Northern Territory

NT container deposit rules amended to incorporate new States

On 2 March 2018, the Territory government gazetted the Environment Protection (Beverage Containers and Plastic Bags) Amendment Regulations 2018.

The amendments allow for a 10c deposit return at any collection point in any participating states, expanding the scope of the scheme beyond South Australia and NT to include new schemes in other States.



Changes to land clearing laws proposed

The Queensland government has introduced the new Vegetation Management and Other Legislation Amendment Bill, following rejection of previous amendments.  The Bill seeks to amend the definition of high-value regrowth (vegetation not cleared for 15 years), extending the reach of the laws to an additional 850,000ha. One of the most controversial aspects of the previous attempt to strengthen clearing laws, a proposed reversal of the onus of proof in relation to unlawful clearing, has been abandoned. 

The Bill has been referred to the State Development, Natural Resources and Agricultural Industry Development Committee for review.  For details on how to comment on the Bill, see “Open for Comment” below or click here.



Government commits to re-introduce anti-protest laws

In the lead up to the recent State election, the Tasmanian Liberals pledged to re-introduce controversial ‘anti-protest’ laws to replace those struck down by the High Court last October. The Workplaces (Protection from Protestors) Act 2014 was ruled unconstitutional after a challenge by former Australian Greens leader, Dr Bob Brown, who had been arrested during a logging protest in Tasmania’s north-west.

The Liberal government was returned to power at the 3 March election, and is expected to introduce the revised legislation in the second half of 2018.

Other News


Nominations Open for matters of National Environmental Significance

Nominations are also invited for species, ecological communities or key threatening processes to be considered for listing under the EPBC Act.  Accepted nominations will progress to assessment by the Scientific Committee later in 2018. Nominations can be made until 30 March 2018. For a nomination kit, click here.


ANAO review of National Water Infrastructure Development Fund

The Australian National Audit Office has released a performance audit report on the design and governance of the National Water Infrastructure Development Fund. The Fund was established to facilitate planning and construction for water infrastructure as part of the Norther Australia Development strategy.

The audit found that the design of the Fund was effective, but governance arrangements need to be strengthened to ensure transparent decisions and monitoring of funded projects.


NGER data released

The Clean Energy Regulator has released NGER emissions data for 2016-2017, showing an increase of 1.8 million tonnes of Scope 1 emissions since the previous report.  The report attributes the increase principally to increases in LNG and oil and gas production.


New report on Australia’s Extinction Crisis

In March 2018, the Australian Conservation Foundation released a detailed report, “Australia’s Extinction Crisis”, outlining the inadequacy of critical habitat protections under national laws.

The report, and the issues it raises, will be discussed as part of the Better Laws for a Better Planet conference in Canberra on 27 March 2018.  For details, see “Events” below.


New Report on Marine Biodiversity

The ACIUCN has published a new report, Marine Biodiversity Beyond National Jurisdiction: Australia’s Continuing Role.  The report is the output of an earlier forum on managing biodiversity in the high seas, and includes a series of recommendations to the Australian Government.

To request a hard copy of the report, email admin@hsi.org.au.


New South Wales

New policies re compliance, private conservation and complaints

The Office of Environment and Heritage has released a number of policy documents to guide its work, including:



Audit report recommends changes to air quality management

On 8 March 2018, the Auditor-General’s Office released its audit report, Improving Victoria’s Air Quality.  The report examined whether the State’s air quality meets national standards, the role of the EPA and other agencies, monitoring programs and management of point and diffuse source discharges.  Significantly, the Auditor-General concluded that exceedances of particulate thresholds were regularly under-reported.

The report recommends that the EPA expand its monitoring network, quality-assure monitoring data and improve accessibility of annual reports, develop a comprehensive emissions inventory, prepare an action plan and work with councils to address air quality at the Brooklyn Industrial Precinct.  The EPA has accepted all recommendations.

The report also recommends that the EPA and DELWP develop protocols clearing outlining their roles and responsibilities in relation to air quality management to improve implementation.


Environmental Assessment Council to report on marine environment

Minister for Energy, Environment and Climate Change, Lily D'Ambrosio, has directed the Environmental Assessment Council to undertake a review of the State’s marine environment, including uses of State waters, environmental, economic, social and cultural values, and current and future threats.

The Council’s findings are intended to assist the Government to develop a marine and coastal management strategy.


Western Australia

Future planning for Mandogalup area

The WA Government has considered advice provided by the Environmental Protection Authority under section 16(e) of the Environmental Protection Act 1986 (WA) titled "Consideration of potential health and amenity impacts of dust in determining the size of a buffer for urban development in the Mandogalup area". In response, the Government has requested that the Western Australian Planning Commission consider preparing an improvement plan and scheme for part of the Mandogalup area.

For more information, click here.


Inquiry into Wheatstone Development greenhouse gas emission condition

At the request of the WA Minister for Environment, the EPA is investigating the adequacy of an implementation condition relating to greenhouse gas emissions from Chevron’s Wheatstone Development under section 46 of the Environmental Protection Act 1986 (WA).

For more information, click here

In The Courts


Our Children’s Trust climate litigation proceeds

On 7 March 2018, the Ninth Circuit Court of Appeals rejected the American government’s petition for writ of mandamus to halt the youth led constitutional climate lawsuit, Juliana v. U.S.

The case, led by Our Children’s Trust, asserts that the U.S. Government, through its actions contributing to climate change, has violated young people’s constitutional rights to life, liberty and property. For more information on the ruling, click here.



ACCC accuses Woolworths of misleading environmental claims

The ACCC has commenced Federal Court proceedings against Woolworths, alleging the company made misleading and unsubstantiated environmental claims in marketing its ‘eco range’ of picnic-ware as "biodegradable and compostable".

For more information about the proceeding, click here.


New South Wales

Land-clearing Code declared invalid

On 9 March 2018, the NSW Land and Environment Court declared that the Land Management (Native Vegetation) Code was invalid as it was made by the Primary Industries Minister without the concurrence of the Environment Minister.

The Nature Conservation Council had challenged the validity of the Code on the basis of the failure to obtain concurrence, and the failure to take account of the principles of ecologically sustainable development.  When the government conceded the concurrence ground, the Court held that it was not necessary to consider the ESD ground.

On 10 March 2018, the Minister for Primary Industries re-made the Code without amendment.


Court requires additional protection for critically endangered plant

The Land and Environment Court has upheld a challenge to the Planning Assessment Commission’s approval of the Moorebank Intermodal Development facility.  The approval was challenged on grounds relating to the impact of the facility on the critically endangered Hibbertia fumana, previously thought to be extinct, and noise issues.

The Court held that additional protection measures were required to address impacts on the species, including a species survey plan and potential remediation of land and translocation of plants.  Additional measures were also proposed to protect local residents from excessive noise.


Landholders to be prosecuted for water breaches

WaterNSW has commenced prosecutions against several landholders in the Murray-Darling and Barwon-Darling catchments in relation to breaches of their water licence conditions.

The prosecutions follow strong criticism of WaterNSW from the NSW Ombudsman over information that significantly overstated the level of enforcement action being taken by the agency.


Boral gives enforceable undertaking over clearing

Following an investigation into allegations of unlawful clearing on the access to Boral’s Loch Catherine Colliery, the company has given an enforceable undertaking to engage an independent auditor to review compliance with mining authorisations, to provide $50,000 to Greening Australia's 'Wall 2 Wollondilly' environmental rehabilitation project, and to provide training and improved induction materials to key staff.

To read the NSW Regulator’s reasons for the decision to accept the undertaking rather than prosecute the company, click here.


Northern Territory

Climate impacts of land-clearing challenged

The Environment Centre NT has commenced a legal challenge to the NT government’s approval to clear over 20,000ha of native vegetation at Maryfield Station.  ECNT argues that the decision failed to have regard to the contribution of the clearing to the Territory’s greenhouse gas emissions, (estimated at greater than 15% of annual emissions).

For more information on the case, click here.    



Regional Forests Agreement challenge

The Federal Court has handed down its preliminary decision in Friends of Leadbeater’s Possum’s challenge to logging in the Central Highlands. 

FLP argued that forestry operations were not “undertaken in accordance with an RFA” (because 5 yearly reporting requirements had not been complied with), therefore VicForests could not rely on the exemption from the threatened species provisions of the EPBC Act.

In Friends of Leadbeater’s Possum Inc v VicForests (2018) FCA 178, Justice Mortimer held that the EPBC Act exemption was not absolute and could be relied upon only where forestry operations complied with the terms of the RFA.  However, her Honour held that the reporting requirements were administrative requirements and did not relate to “forestry operations”.  Therefore, VicForests’ failure to undertake 5 yearly reviews did not remove the exemption.

Her Honour did not consider whether other provisions of the RFA had been complied with to the extent necessary to preserve the exemption, and has invited submissions from the parties about next steps in the proceeding.  For more information, click here and here.


VicForests charged over East Gippsland clearing

The Department of Environment, Land, Water and Planning has charged VicForests under the Sustainable Forests Act over allegedly illegal logging of rainforest near Cann River, East Gippsland. If found guilty, VicForests could receive a fine of up to $38,000.

VicForests intend to dispute the charge.  A directions hearing will be held in the Orbost Magistrates Court on 19 April 2018. For more information, click here.   


Western Australia

Yeelirrie uranium mine appeal fails

In Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34, the Supreme Court of WA dismissed a challenge to the validity of a Ministerial Statement allowing Cameco Australia Pty Ltd’s Yeelirrie uranium mine.

The applicants challenged the approval on two grounds: that the Statement was not “in accordance with” an earlier decision dismissing an appeal from a report by the Environmental Protection Authority, and the proposed conditions of the approval were uncertain.

The Court found that the Minister’s previous decision was not that the proposal should not be implemented, as the Minister could not lawfully make such a decision. Therefore, the Statement was not inconsistent with the earlier decision.  The Court was also satisfied that all proposed conditions were valid.


Mangles Bay Marina at Point Peron will not proceed

The Western Australian Planning Commission has resolved that a proposed amendment to the  Metropolitan Region Scheme to enable a marina and related tourism and commercial development to be built at Point Peron not proceed.  The Minister for Planning has agreed with the resolution and withdrawn the proposed amendment.

For more information, click here and here.

Open For Comment


Draft Revision of Australia's Biodiversity Conservation Strategy

Following a review of Australia’s Biodiversity Conservation Strategy: 2010 – 2030 in 2017, a working group of local, State and Federal government officials prepared a revised Strategy to “improve its ability to drive change in biodiversity management priorities, and its alignment with Australia's international biodiversity commitments.” However, green groups have criticised the revised Strategy, describing it as wholly inadequate to address biodiversity decline.

The revised strategy, Australia’s Strategy for Nature 2018-2030: Australia’s biodiversity conservation strategy and action inventory, is available for public comment until 16 March 2018. For more information, click here.


New Guidelines for large CSG and coal mining assessments

The Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development has released updated Information Guidelines and a new Explanatory Note on Uncertainty Analysis in Groundwater Modelling. The documents outline the information proponents are encouraged to provide to enable the Committee to advise government regulators on potential water-related impacts of CSG and mining proposals.

Comments on the guidelines and explanatory notes can be made until 16 March 2018. For more information, click here.


Independent review of the Greenhouse and Energy Minimum Standards Act 2012

The Australian Government has released a Discussion Paper as part of the independent review of the Greenhouse and Energy Minimum Standards Act 2012.  Comments on the Discussion Paper will inform the development of a draft report discussing whether the Act is appropriate and effective in reducing Australia’s energy consumption and greenhouse gas emissions.

Comments on the Discussion Paper can be made until 28 March 2018.  For more information, click here.


Changes to safeguard mechanism

The Commonwealth Government has released a consultation paper outlining proposed changes to the Emission Reduction fund Safeguard Mechanism. Changes would require all regulated facilities to update data provided to the Clean Energy Regulator to enable more accurate emissions baselines to be applied, but provide more flexibility for annual adjustments. The proposed changes do not propose additional mechanisms to reduce emissions, and defer reconsideration of reduction targets until the 2020 review.

To read an overview of the proposed changes by Norton Rose Fulbright, click here. The proposed changes are expected to take effect from 1 July 2018.

Comments on the consultation paper can be made until 30 March 2018. For more information, click here.


Review of Managed Regrowth ERF Methodology

The Emissions Reduction Assurance Committee has commenced reviews of the Native Forest from Managed Regrowth method and the Human-Induced Regeneration method under the Emissions Reduction Fund.

Comments on the Discussion Papers supporting the review can be made until 13 April 2018.  For more information, click here.


Amendments to NICNAS

The Commonwealth Government has released a series of draft rules and guidelines to support amendments to the National Industrial Chemicals Notification and Assessment Scheme (NICNAS):

The Government also announced it would defer commencement of the amended NICNAS (to be called Australian Industrial Chemicals Introduction Scheme) until 1 July 2019.

Comments on the draft rules and guidelines can be made until 4 May 2018. For more information, click here.



Net zero emissions strategy

The ACT Government’s discussion paper on actions to include in a strategy to achieve the target of net zero emissions by 2050 (including interim targets) has been released.

Comments on the paper can be made until 9 April 2018. For more information, click here.


New South Wales

Remediation of Land SEPP

A new draft Remediation of Land State Environment Planning Policy has been released for comment. The draft SEPP seeks to provide for better management of contaminated land by making remediation requirements permissible regardless of any contrary provisions in environmental management documents.

Comments can be made until 31 March 2018. For more information, click here.


Water Reform Action Plan

The NSW Government has released a series of consultation papers to support the Water Reform Action Plan

Draft Exposure Bill and fact sheet has also been released for comment.

Comments on the consultation papers and proposed Bill can be made until 15 April 2018. For more information, click here.


Aboriginal Heritage legislation

The NSW Government has released a draft Aboriginal Cultural Heritage Bill and related documents. The Bill proposes a new Aboriginal Cultural Heritage Authority with powers to make regulations, policies and guidelines for management and protection of cultural heritage across NSW.

Comments on the draft Bill can be made until 20 April 2018. For more information, click here.

For dates and locations of public information sessions being held around the State, click here.



Amendments to land clearing laws

The Queensland government has introduced a revised Vegetation Management and Other Legislation Amendment Bill, amending the definition of high-value regrowth to significantly extend the reach of the laws.

Comments on the Bill can be made until 22 March 2018. The State Development, Natural Resources and Agricultural Industry Development Committee will report on the Bill by 23 April 2018.

For more information, click here.


South Australia

Adelaide International Bird Sanctuary management plan

A draft management plan for the Adelaide International Bird Sanctuary National Park is available for public comment. The draft plan outlines proposed park boundaries and identifies management strategies to achieve the park’s conservation objectives.

Comments can be made until 16 April 2018. For more information, click here.



Draft Water Protection Policy

DELWP has released a draft State Environment Protection Policy (Waters) consolidating and updating existing policies on water and groundwater. The draft Policy proposes a new process for setting water quality targets, clarifies the EPA’s conditioning powers and outlines a range of

beneficial use categories.

Comments on the draft Policy can be made until 19 June 2018. For more information, click here. Technical papers supporting the draft policy are available here


Western Australia

Fracking Inquiry Background and Issues Paper

The Independent Scientific Panel Inquiry into Hydraulic Fracture Stimulation in WA has released a Background and Issues Paper. In September, the WA Government banned fracking in the Perth Metropolitan, Peel and South-West regions, and put in place a moratorium for the rest of the State. The Panel is inquiring into 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.


Draft Odour Guidelines for Prescribed Premises

The Department of Water and Environmental Regulation has published a draft Odour guideline for prescribed premises, which is designed to guide applicants, licensees, consultants, members of the public and Department staff on the requirements for odour impact analysis. The guidelines set out the Department’s information requirements for the analysis of odour impact for prescribed premises.

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


Review of Aboriginal Heritage laws

The WA government has announced a staged review of the Aboriginal Heritage Act 1972. An initial Consultation Paper seeking feedback on the effectiveness (or otherwise) of the current Act and any gaps has been released, and will be supported by My Heritage, My Voice workshops across the State.

Comments on the Consultation Paper can be made until 1 June 2018. For more information, click here.


DoEE Graduate Intake

Applications for 2019 graduate positions within the Commonwealth Department of Environment and Energy close on 26 March 2018.

For more information, click here.


Header (Perth) Current Issues in Environmental Law Seminar

This seminar, jointly hosted by NELA WA and the Law Society of WA, will address current issues in environmental law, including the advantages and disadvantages of the current environmental appeal system in WA, and whether an environmental jurisdiction in the SAT or specialist court is a viable possibility in the WA context. It will also consider the impact of the Assessment Bilateral Agreement on environmental approval processes over the last two years and provide an update on the status of the Approval Bilateral Agreement.

When: 20 March 2018, 9:00 am – 12:30 pm 

Where: The Law Society Western Australia - Level 5, 160 St Georges Terrace

3 CPD points are available and NELA Members may attend the seminar at Law Society Member pricing.

For more information, click here.

(Perth) Environmental Law Workshop

The WA Division of EIANZ is hosting an Environmental Law Workshop, featuring Declan Doherty of EDOWA, examining the practical application of environmental laws in WA across different industries.

When: 21 March 2018, 5:45pm - 7:30pm

Where: University of Western Australia

For more information, click here.

(Adelaide) Smart water summit

The Water Industry Alliance and ICE WaRM are co-hosting a conference promoting discussion and innovative solutions to address Australia’s water challenges.

When: 22-23 March 2018

Where:  Adelaide Convention Centre, North Terrace

For more information, click here

(Sydney) Environment and Planning intensive

The Law Society of NSW is hosting a one-day workshop including a keynote presentation from Honourable Justice Nicola Pain, and overviews from a range of experts on reforms in land acquisition, EPA regulations, new biodiversity laws and recent NSW environment and planning cases.

When:  24 March 2018

Where: Law Society of NSW

For more information, click here.

Header (Canberra) Better Laws for a Better Planet

Almost 20 years since the EPBC Act commenced, the condition of Australia’s natural and cultural environment continues to decline across most indicators. Join Places You Love, the Australian Panel of Experts on Environmental Law, ACIUCN and NELA for a symposium bringing together experts from across disciplines and sectors to discuss the key challenges, opportunities and directions for the next generation of environment laws.

When:  27 March 2018

Where:  University House, ANU

For more information, click here.

(Melbourne) Shareholder activism in Australia - investor and company perspectives

Join Macquarie Applied Finance Centre for a free seminar featuring Alison George (Head of Policy, Regnan) and Michael Chandler (Director for Corporate Governance, Morrow Sodali) discussing the rise of shareholder activism and what it means for investors.

When: 9 April 2018, 12:30 – 1:30pm

Where: Macquarie Applied Finance Centre, Level 8, 500 Collins Street

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

For full program details and registration information, click here

(Sydney)  Future of Environmental Laws Symposium 

The Law Council's Australian Environment and Planning Law Group will be hosting the 2018 Environmental Law Symposium, featuring talks from Justice Brian Preston SC, Greg McIntyre SC, Kevin Smith and Dr Rebecca Nelson, and a special presentation to honour Hon Justice Murray Wilcox AO QC’s contribution to environmental law.

The Symposium will be followed by the Mahla Pearlman Oration and awarding of the Young Environmental Lawyer of the Year, and a Symposium dinner.

When:  19 April 2018, 11:00am – 4:00pm

Where: New South Wales Law Society 

For more information, click here.  Half day registrations are now available.

(Sydney)  Mahla Pearlman Oration:  Hon Robert French AC

The Law Council and the Environment and Planning Law Association of NSW will host the annual Mahla Pearlman Oration, this year delivered by the former Chief Justice of the High Court, Hon Robert French AC on the topic “Advocacy Lawyering:  Client responsibility and change agendas.”

The Oration will be followed by the awarding of the Mahla Pearlman Young Environmental Lawyer of the Year.

When:  19 April 2018, 5:00pm

Where: Federal Court of NSW

For more information, click here.

(Brisbane) Debate for Environmental Justice

Join EDO Qld for an entertaining debate on the topic “Things are hotting up”, featuring retired Supreme Court Judge Alan Wilson QC, former President of the Queensland Court of Appeal Margaret McMurdo AC and Judge of the District Court of Queensland Sandy Horneman-Wren SC and others.

When: 19 April 2018, 5:30pm – 9:00pm

Where: Ian Hanger Recital Hall, Queensland Conservatorium,

For more information, click here.

(Melbourne) Climate Adaptation 2018

The National Climate Change Adaptation Research Facility (NCCARF) and Engineers Australia (EA) are co-hosting the sixth national Climate Adaptation Conference, the major national forum on climate impacts and adaptation.  This year’s conference incorporates the EA meeting on "Practical responses to climate change."

When:  8-10 May 2018

Where:  Crown Conference Centre

For more information, click here.


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

  • Jess Feehely - editor
  • Rosie Phillips – contributor, WA
  • Tyler Keenan – contributor, Cth, NT and SA
  • Emille Boulot - contributor, Tas, NSW and Vic