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Australia's National EnvironmentalLegislation and Human/WildlifeInteractionsGerard Early aa Australian Government, Department of the Environment, Water,Heritage and the Arts , GPO Box 787, Canberra ACT 2601, AustraliaPhone: +61 2 6274 1500 Fax: +61 2 6274 1500Published online: 16 Dec 2008.

To cite this article: Gerard Early (2008) Australia's National Environmental Legislation andHuman/Wildlife Interactions, Journal of International Wildlife Law & Policy, 11:2-3, 101-155, DOI:10.1080/13880290802470141

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Journal of International Wildlife Law & Policy, 11:101–155, 2008Copyright C© Taylor & Francis Group, LLCISSN: 1388-0292 print / 1548-1476 onlineDOI: 10.1080/13880290802470141

Australia’s National EnvironmentalLegislation and Human/WildlifeInteractions

GERARD EARLY1

1. INTRODUCTION

1.1 Objective

The interaction between humans and wildlife is a particularly important issuefor Australia, one of the most ecologically diverse countries on the planet.Australia is home to more than one million species of plants and animals,many of which are found nowhere else in the world. About 85 percent ofAustralia’s flowering plants, 84 percent of its mammals, 89 percent of itsreptiles, 93 percent of its frogs, 45 percent of its birds, and 85 percent ofinshore, freshwater fish are unique to Australia.2

Australia’s environment has a number of other unusual features. It isthe driest inhabited continent with fewer sizeable rivers and less run-off thanany other. It has some of the oldest land surface on earth with soils that areamong the most nutrient-poor and unproductive in the world. It is a land ofnatural hazards with highly variable climate. Drought, flood, fire and cycloneare regular occurrences. Not surprisingly, therefore, humans, particularly overthe last 200 years or so, have tried to modify the Australian environment tosuit their needs. The use and destruction of wildlife has been a fundamentalaspect of that modification.

In more recent times, however, there has been a growing awareness thatchanges to the landscape and native habitat as a result of human activity haveput much of Australia’s unique wildlife at risk. The community has generally

1 Deputy Secretary, Australian Government Department of the Environment, Water, Heritage and theArts, GPO Box 787, Canberra ACT 2601, Australia, Telephone: +61 2 6274 1500, Fax: +61 2 62741552, E-mail: gerard.early@environment.gov.au. The article represents the views of the author anddoes not necessarily represent the views or policies of the Department of the Environment, Water,Heritage and the Arts or the Australian Government.

2 STATE OF THE ENVIRONMENT ADVISORY COUNCIL, AUSTRALIA, STATE OF THE ENVIRONMENT 1996 (1996) at4–4.

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come to accept both the importance of wildlife conservation in Australia andthe need to ensure that any use of Australian wildlife is sustainable.

The objective of this article is to explain how key provisions ofAustralia’s relatively new national environmental legislation seek to dealwith this commitment to sustainability and how those provisions have beeninterpreted and implemented. The article seeks to do this by, firstly, describingthe context in which the reform of national environmental legislation wasinitiated; secondly, by providing a general overview of the most significantprovisions of the legislation as they relate to wildlife; thirdly, by setting outsome important statutory interpretation provided by the Australian courts;and, finally, by providing details of a number of case studies which show howthe Act is being implemented to deal with human/wildlife interactions andsustainability issues.

The article also aims to demonstrate some innovative aspects ofAustralia’s legislation which may be of interest for other jurisdictions. Theseinclude the incorporation of a wide range of environmental issues within onesingle piece of framework legislation,3 the elucidation of the environmentalroles and responsibilities of different governments in a federation, mechanismsfor consultation and cooperation between governments within a federation,the deliberative decision-making role of the central Environment Minister anddepartment for the environment, environmental assessment of the ecologicalsustainability of Australian fisheries, the use of conservation agreements fora variety of purposes including condition setting and compliance, and theidentification and treatment of threatened ecological communities.

1.2. Background

1.2.1 The Australian Environmental Law Context

Australia is a constitutional democracy based on a federal division ofpowers.4 Thefederation was created in 1901 from six self-governing Britishcolonies which became the states in the new country of Australia. Thosestates are New South Wales, Victoria, Queensland, Western Australia, SouthAustralia, and Tasmania. There are two self-governing territories (the NorthernTerritory and the Australian Capital Territory) with powers almost matching

3 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) incorporated and replacedthe following statutes: the Environment Protection (Impact of Proposals) Act 1974 (Cth); the AustralianHeritage Commission Act 1975 (Cth), the National Parks and Wildlife Conservation Act 1975 (Cth);the Whale Protection Act 1980 (Cth); the Wildlife Protection (Regulation of Exports and Imports) Act1982 (Cth); the World Heritage Properties Conservation Act 1983 (Cth); and the Endangered SpeciesProtection Act 1992 (Cth). It is anticipated that other Australian legislation dealing with issues such assea dumping and sea installations will also be incorporated into the framework legislation in the future.

4 For a more detailed analysis of the Australian environmental law context, see DOUGLAS E. FISHER,AUSTRALIAN ENVIRONMENTAL LAW, Lawbook Company, Sydney (2003) or GERRY BATES, ENVIRONMENTAL

LAW IN AUSTRALIA, Lexis Nexis, Sydney (2002).

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those of the states. There are also more than 650 local government councilsacross Australia although local government has a limited constitutionalposition, being organised under state or territory legislation.

Under the Australian Constitution, powers are divided between thecentral government and the individual states. The Constitution establishes thecentral government, defines its structure, powers and procedures, and definesthe rights and obligations of the states in relation to the central government.The central Australian government is variously known as the AustralianGovernment, the Commonwealth Government or the Federal Government.

The Constitution sets out the powers of the Australian Government inspecific terms with the six states retaining the power to make their own lawsover matters not controlled by the Australian Government. State governmentsalso have their own constitutions.

Territories are areas within Australia’s borders that are not claimedby one of the six states. Territories can be administered by the AustralianGovernment, or they can be granted a right of self-government themselves asis the case with the Northern Territory and the Australian Capital Territory.There is also a range of non-self-governing external territories although oneexternal territory, Norfolk Island, has a degree of self-government, albeitconsiderably less than the two principal mainland territories.

There are substantial mechanisms within the Australian federal systemfor coordination and consultation between the different levels of government,including a wide range of ministerial councils dealing with all sectors ofgovernment activity. Foremost among these mechanisms is the Council ofAustralian Governments which is composed of the Australian Prime Minister,the Premiers and Chief Ministers of each of the Australian states and self-governing territories, and the President of the Australian Local GovernmentAssociation. The role of the Council is to initiate, develop and monitor theimplementation of policy reforms that are of national significance and whichrequire cooperative action by Australian governments.

Environmental matters are not specifically mentioned in the AustralianConstitution and are not the sole responsibility of any particular level ofgovernment. For around the first seventy years of the federation, however,conventional wisdom was that the environment was pretty much the soleprerogative of state governments and that the Australian Government’s rolewas confined to the environmental consequences of its own actions. This viewwas based primarily on the assumption that the non-inclusion of ‘the environ-ment’ as one of the matters specifically delineated in the Constitution for theAustralian Parliament meant the power resided exclusively with the states. Itwas not until 1971 that there was an Australian Government Minister for theEnvironment or an Australian Government department for the environment.

By contrast, the states had been active in the environmental area formany years even if their interests were not specifically identified as protecting

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the environment per se. Nevertheless, early state legislation went to matterssuch as soil conservation, land use, rivers, fishing, sewerage, water supply,mining, forestry and beach protection.

When the Australian Government first ventured into its own environmen-tal legislation in the 1970s, it did so in a cautious manner. The first significantAustralian Government environment laws applying across the nation (theEnvironment Protection (Impact of Proposals) Act 1974 (the EPIP Act) andthe Australian Heritage Commission Act 1975 (the AHC Act)) were based onthe Australian Government’s power to regulate its own activities and reliedon the existence of other legislation requiring approval as the trigger forenvironmental obligations to arise.5

Typically, the two Acts would come into play only when an AustralianGovernment Minister or authority was considering an approval or permit(for example, in relation to foreign investment or export control) and therewere environmental issues with the particular proposal being considered. Insuch a case, the minister or authority would be able to impose environmentalconditions on the approval or permit, based on advice or recommendationsflowing from an environmental impact assessment under the EPIP Act orconsideration under the AHC Act. In almost all cases the minister whoimposed conditions was not the Environment Minister but the so-called “actionMinister” with direct responsibility for issuing the approval or permit. Usuallythe action minister was the Treasurer, the Industry Minister, the PrimaryIndustries Minister, or the Transport Minister.

As awareness of the importance of the environment increased duringthe 1970s and 1980s, the Australian community increasingly came to seea national leadership role for the Australian Government in environmentalissues. A broader view of the Australian Constitution also suggested that,notwithstanding no reference to “the environment” as such, the heads of powerestablished for the Australian Parliament in section 51 of the Constitutionprovided numerous opportunities for the Australian Government to regulateenvironmental concerns.

As noted by Fisher,6 apart from a specific power with respect to fisheries,Australian Government legislation has relied for the most part upon four headsof power in section 51 for its involvement in managing the environment—thetrade and commerce power, and powers related to external affairs, tradingcorporations, and people of any race. Other powers may also be relevantfrom time to time, such as defence and quarantine. In practice, AustralianGovernment environmental legislation is often expressed to rely on as wide

5 Other significant Australian Government environmental legislation of the time—the National Parksand Wildlife Conservation Act 1975 and the Great Barrier Reef Marine Park Act 1975—regulated theAustralian Government’s own actions or areas under its control.

6 FISHER, supra note 4, at 89–90.

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a range of section 51 powers as possible, so that if one particular power failsto attract validity, another might.7 In addition, section 96 of the Constitutionprovides for loans and specific purpose grants to be made to the states, enablingthe Australian Government’s considerable financial capability to be used toinfluence the environmental behaviour of the states.

As the Australian Government began to flex its newly discoveredenvironmental muscle, inevitable conflict with the states resulted. There was aseries of high profile unsuccessful Court challenges to Australian Governmentactions related to the environment. These actions included stopping sandmining on Fraser Island in Queensland (by refusing export approval),8

prohibiting the construction of a state authorised dam in Tasmania9 andstopping rainforest logging in the wet tropics of Queensland (by nominatingthe area for World Heritage listing as a precursor to prohibiting logging asincompatible with the World Heritage values of the area).10

The irony, as noted by Bates,11 is that the legal challenges against theseand other Australian Government actions to protect the environment onlyserved to enable the courts to redefine the extent of Australian Governmentenvironmental powers in an expansive manner. The states themselves werethereby unwitting participants in upsetting the long held notion that legislativecapacity in respect of environmental affairs rested primarily with the statesand not with the Australian Government.

1.2.2 The Need for Reform

In the late 1980s the reality of these Australian Government powersin the environmental field became generally accepted. There was also arecognition that the combative nature of environmental relations betweenthe Australian Government and the states and territories was unproductive.Further, the conflict between Australian governments on environmental issueshad meant that Australia’s environmental law regime had developed withinits federal system in a somewhat piecemeal and uncoordinated fashionwith no clear distinctions between the roles and responsibilities of theAustralian government and the state and territory governments. The nationalgovernment’s environmental law regime did not adequately recognize stateand territory law nor did state and territory law acknowledge national laws.The lack of a national legislative framework was hindering seamless andproductive environmental protection and creating a confusing and uncertainclimate for industry in meeting its environmental obligations.

7 BATES, supra note 4, at 57.8 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1.9 Commonwealth v Tasmania (1983) 46 ALR 625.

10 Queensland v Commonwealth (1988) 77 ALR 291.11 BATES, supra note 4, at 57.

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In addition, the Australian Government’s national environmental lawhad itself developed in a largely makeshift fashion. A range of laws dealt withissues such as environmental impact assessment, national parks and protectedareas, wildlife conservation and trade, world heritage, national heritage andspecies protection. Desirable links between these laws did not necessarilyexist. Nor did they reflect an appropriate role for the Australian Government,generally being limited to a narrow view of its national responsibilities.

1.2.3 The Process of Reform

Work commenced in 199012 towards a more cooperative approachto national environmental issues and, in 1992, the Inter-GovernmentalAgreement on the Environment was signed. Under the Agreement allAustralian governments agreed to integrate environmental considerations intotheir decision-making and pursue the principles of ecologically sustainabledevelopment.13 In the same year, Australia agreed a National Strategy forEcologically Sustainable Development,14 setting out a broad strategic directionand framework for sustainability for all governments within the federation.

These initiatives were essentially aspirational in nature. Neitherdocument constituted a legally binding commitment. In the public mindsustainability was a central theme in Australian political debate, but it wasnot a key feature of Australian national environmental legislation. Nationalenvironmental laws effectively still failed to recognise the newer concepts ofecological sustainability, the precautionary principle and so on.

In recognition of the need to act substantively on the aspirations ofthe Inter-Governmental Agreement on the Environment and the NationalStrategy for Ecologically Sustainable Development, in 1996 the Council ofAustralian Governments initiated a major review of the environmental rolesand responsibilities of the various governments within the federation. Theoutcome of the review was formally approved by the Prime Minister and thePremiers and Chief Ministers in late 1997 in the Heads of Agreement onCommonwealth/State Roles and Responsibilities for the Environment.15 Thisthen fed into a review of Australian Government environmental legislation.

The review involved examining advances in environmental legislationand approaches in a wide range of countries that had either federal stylesystems of government or were dealing with similar environmental issues tothose being faced by Australia. Countries whose legislation and approaches

12 On 31 October 1990 at a Special Premiers’ Conference in Brisbane, the Prime Minister, the Premiers andChief Ministers, and representatives of local government meeting agreed to work towards a cooperativenational approach to the environment.

13 COMMONWEALTH OF AUSTRALIA, INTER-GOVERNMENTAL AGREEMENT ON THE ENVIRONMENT (1992).14 COMMONWEALTH OF AUSTRALIA, NATIONAL STRATEGY FOR ECOLOGICALLY SUSTAINABLE DEVELOPMENT (1992).15 COUNCIL OF AUSTRALIAN GOVERNMENTS, MEETING COMMUNIQUE, CANBERRA, 7 NOVEMBER 1997 (1997).

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were considered included Canada, New Zealand, the United States, Germany,the United Kingdom, The Netherlands, Norway, Sweden, and Costa Rica.

Key aspects of the review were to promote the concept of ecologicallysustainable development within new legislation and focus the nationalAustralian Government’s role on matters of truly national environmentalsignificance, and to take advantage of the increasing understanding of impactson the environment, and also the rapid evolution of international environmentallaw in such fields as biodiversity conservation, wildlife protection and heritagemanagement.16

Following completion of the review, the Environment Protection andBiodiversity Conservation Bill 1998 was introduced into the Senate of theAustralian Parliament in July 1998. The bill was the subject of considerabledebate both in the parliament and in the general community. Its passagethrough the parliament was lengthy and controversial and a story worththe telling in its own right. This paper attempts to provide a mere glimpse ofthe nature of the debate.

When the bill was introduced into the parliamentand for the period untilits final passage, the Government coalition parties (the Liberal Party and theNational Party) maintained an absolute majority of members in the House ofRepresentatives but required the support of some non-government Senatorsto pass legislation through the Senate. While Government Senators werethe largest bloc in the Senate, the majority of the Senate was composed ofmembers of the formal opposition (the Australian Labor Party), minor parties(the Australian Democrats and the Greens), as well as independents.

Against this background, major Australian non–government conserva-tion organisations lobbied senators for changes to the bill, arguing that itdid not go far enough in giving environmental responsibility and powers tothe Australian Government.17 The bill was referred to a Senate committeefor inquiry and report back to the Senate.18 This further heightened generalpublic awareness of the issues being addressed. Over 600 submissions werereceived by the inquiry and public hearings were held in all eight Australiancapital cities. Many amendments were proposed and the inquiry produced26 recommendations from the main body of the committee plus threeseparate minority reports—one each from the Australian Labor Party Senators,the Australian Democrats, and the Greens. The Australian Labor PartySenators’ findings included 15 recommendations. The Australian DemocratsSenators produced 20 recommendations. The Greens concluded that the

16 COMMONWEALTH OF AUSTRALIA, REFORM OF COMMONWEALTH ENVIRONMENT LEGISLATION CONSULTATION

PAPER (1998).17 Murray Hogarth, Greens see Red on Environment Bill, THE SYDNEY MORNING HERALD, 3 July 1998, at 1.18 AUSTRALIAN PARLIAMENT. SENATE ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS

COMMITTEE, ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION BILL 1998 & ENVIRONMENTAL REFORM

(CONSEQUENTIAL PROVISIONS) BILL 1998: REPORT, April 1999.

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bill should be withdrawn and replacement legislation developed based on16 recommendations reflecting their view of best practice environmentallegislation.

By the time the inquiry report was tabled in the Senate, consideration ofthe Bill then coincided with consideration of major taxation reform legislationbeing proposed by the government for passage by the end of June 1999. In theevent, the Australian Democrats supported both suites of legislation. Usingtheir support for the taxation reform as leverage with the government, theDemocrats worked with some of the conservation groups to achieve substantialchanges to the environment bill,19 many of which had been raised during theSenate inquiry. Eventually, after some 500 amendments were accepted, the billpassed through the national parliament to become the Environment Protectionand Biodiversity Conservation Act 1999 (the EPBC Act).

The new Act polarised the Australian non-government conservationmovement. Groups such as the Humane Society International, the WorldWide Fund for Nature Australia, the Tasmanian Conservation Trust, and theQueensland Conservation Council had worked with the Australian Democratsin negotiating amendments to the bill and supported the Act as passed by theparliament for its significant improvements in environmental protection.20

Others, such as Greenpeace, the Australian Conservation Foundation, andthe Wilderness Society, opposed the Act outright because they claimedit did not go far enough.21 These latter groups were supported by theAustralian Labor Party and the Greens who had opposed the legislation in theSenate.

There were also differing views among Australian industry and thestates and territories. Some saw merit in the rationalisation of governmentenvironmental responsibilities and the more transparent process with specificstatutory time frames and upfront certainty. Others considered the AustralianGovernment’s taking broader national responsibility for issues such asthreatened species to be an unwarranted shift of power from the states andterritories. The national business newspaper, The Australian Financial Review,canvassed a number of issues from a business perspective but, noting the“existing system had become unworkable,” editorialised that “overall, thepackage represents a considerable step forward.”22

Notwithstanding the controversy surrounding the introduction of theEPBC Act, actual experience of its implementation over time has seen ageneral community acceptance of its importance. This is not to say the Act

19 MICHAEL KENNEDY ET AL., Development and Implementation of Conservation Law in Australia, REVIEW

OF EUROPEAN COMMUNITY AND INTERNATIONAL ENVIRONMENTAL LAW 10 (3), 300, 301 (2001).20 ID AT 301.21 GREENPEACE, 82 Reasons why the New Environment Legislation is Bad for the Environment, JOINT MEDIA

RELEASE WITH THE AUSTRALIAN CONSERVATION FOUNDATION AND THE WILDERNESS SOCIETY, 20 JUNE 1999.22 AUSTRALIAN FINANCIAL REVIEW. Editorial, Grey Areas in Green Package, 38 (25 June 1999).

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is without its critics23 or that improvements could not be made. Indeed, asuite of amendments was passed by the Australian Parliament in December2006.24 The amendments were aimed at streamlining the administration of theAct, making it more strategic and flexible, and strengthening compliance andenforcement.25

2. THE FRAMEWORK OF THE EPBC ACT

As finally passed by the Australian Parliament, the EPBC Act set out anew conceptual framework for Australian environmental impact assessmentand a range of other environmental activities with clear and distinct rolesfor the different levels of government. Essentially the national governmentdeals with nationally important matters (the so-called “matters of nationalenvironmental significance”) and the states and territories deal with mattersof state, regional or local significance. Obviously, on occasion, the matterscoincide, in which case agreements and procedures exist to ensure a singlecoordinated assessment process. Consultation on approval conditions occurswhere approval decisions are required of different jurisdictions.

In addition, a key objective of the new regime is to promote ecologicallysustainable development through the conservation and ecologically sustain-able use of wildlife. The principles of ecologically sustainable developmentare set out formally26 in the legislation:

1. decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitableconsiderations;

2. if there are threats of serious or irreversible environmental damage,lack of full scientific certainty should not be used as a reason forpostponing measures to prevent environmental degradation;

3. the principle of inter-generational equity—that the present generationshould ensure that the health, diversity and productivity of theenvironment is maintained or enhanced for the benefit of futuregenerations;

4. the conservation of biological diversity and ecological integrityshould be a fundamental consideration in decision-making; and,

23 Section 3 of this article refers.24 This article was written and accepted for publication prior to the EPBC Act amendments coming into

force. Revisions have been made to the paper to incorporate relevant amendments; however, readerswishing to understand the full extent of the amendments should consult Amendments to the EPBC Actand the EPBC Act Annual Report 2006–07 at http://www.environment.gov.au/epbc/index.html.

25 Australian Government, Minister for the Environment and Heritage, Media Release, Government toStrengthen Australia’s Environment Law, C255/06, 12 October 2006.

26 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s3A.

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5. improved valuation, pricing, and incentive mechanisms should bepromoted.

The legislation also requires27 the Minister for the Environment to takeaccount of the precautionary principle in making a large number of decisionsunder the Act. The precautionary principle is defined in the Act28 as being that“lack of full scientific certainty should not be used as a reason for postponinga measure to prevent degradation of the environment where there are threatsof serious or irreversible environmental damage.”

The new legislation has replaced or consolidated seven previous statutes,and deals with environmental issues and sustainability in a more coherent andcomprehensive way than ever before. The EPBC Act is now the AustralianGovernment’s premier piece of environmental legislation. It took effect inJuly 2000, after being hailed by the World Wide Fund for Nature Australia as“the biggest win for the environment in twenty five years.”29

As a piece of framework legislation, the EPBC Act provides a nationallyconsistent approach to a wide range of environmental protection andbiodiversity conservation matters. The Act is broken into a number of chapters,the first of which, as noted, puts ecologically sustainable development at thecornerstone of the Act. For the purposes of the interactions between humansand wildlife, the principal objects of the Act30 are:

1. to provide for the protection of the environment, especially thoseaspects of the environment that are matters of national environmentalsignificance;

2. to promote ecologically sustainable development through the conser-vation and ecologically sustainable use of natural resources; and,

3. to promote the conservation of biodiversity.

Other objects of the Act go to the protection and conservation of heritage,promotion of cooperative approaches to environmental protection and therecognition of the role and knowledge of indigenous people in the conservationand sustainable use of Australia’s biodiversity.31

The broad approach to sustainability is encouraged by a broad definitionof ‘the environment’ provided in the Act,32 which includes:

27 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s391.28 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s391(2).29 Advertisement, Another Environmental Solution from WWF, THE WEEKEND AUSTRALIAN, 14(3–4 July

1999).30 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss3(1)(a) to (c).31 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss3(1)(d) to (g).32 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s528.

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1. ecosystems and their constituent parts, including people and commu-nities;

2. natural and physical resources;

3. the qualities and characteristics of locations, places and areas;

4. heritage values of places; and,

5. the social, economic and cultural aspects of ecosystems, resources,locations, places, areas, and the heritage values of places.

Chapters 2 to 4 of the Act (the “environment protection” part) set outthe national environmental assessment and approval regime. Chapter 5 (the“biodiversity conservation” part) sets out the provisions related to biodiversityand heritage, including issues for species and ecological communities,the international movement of wildlife, protected area management, and thenational heritage regime. Chapters 6 deals with the administration of the Act,including enforcement provisions.

2.1 Environmental Assessment and Approval

The environmental assessment and approval regime established by the EPBCAct centres around certain actions—so called “controlled actions”—and thematters of national environmental significance.

2.1.1 Matters of National Environmental Significance

The matters of national environmental significance are set out in theEPBC Act.33 Following the review of national environmental law in thelate 1990s, all governments within Australia agreed that the AustralianGovernment’s involvement in environmental matters should focus on thesematters of national environmental significance:

1. world heritage properties;

2. national heritage places;

3. wetlands of international importance (that is, wetlands declared underthe Ramsar Convention);34

4. nationally listed threatened species and ecological communities;

5. listed migratory species;

33 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 1.34 Convention on Wetlands of International Importance especially as Waterfowl Habitat (February 2,

1971), 996 U.N.T.S. 245; T.I.A.S. 11084; 11 I.L.M. 963 (1972), amended by the Protocol of 3.12.1982and amendments of 28.5.1987.

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6. Australian Government marine areas; and,

7. nuclear actions (including uranium mining).

The act provides a process of consultation with the states and territoriesfor the identification of new matters of national environmental significance.35

There must also be a review of the Act every ten years.36

2.1.2 Controlled Actions

The essence of the EPBC Act framework is that a person must nottake a controlled action except in accordance with an approval from theAustralian Government Environment Minister.37 Controlled actions includeactions likely to have a significant impact on a matter of national environmentalsignificance.38

Controlled actions also include any action on, or affecting, AustralianGovernment land that has, will have, or is likely to have, a significant impacton the environment; and any action by the Australian Government itself(including an Australian Government agency or corporation) likely to have asignificant impact on the environment.39

2.1.3 Determination of Controlled Actions—the Process of Referraland Assessment

Any person proposing to take an action which he or she thinks may re-quire approval under the EPBC Act must refer the proposed action to the Aus-tralian Government environment minister.40 The Minister must then make abinding decision within 20 business days on whether the Act is triggered—thatis, whether or not the proposed action is a controlled action under the Act.If the environment minister determines a proposed action to be a controlledaction, then it must be formally assessed under the Act and cannot proceedunless approved under the act. The minister also has the capacity, within theinitial 20 business days, to determine an action is clearly unacceptable,41 inwhich case the person proposing to take the action has certain rights of review.

If the environment minister decides a proposed action is not a controlledaction, a person may proceed with the action without further involvementof the Australian Government—provided the action is taken in accordance

35 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s2536 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s522A37 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s67.38 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 1, Subdivisions

A to F.39 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 2, Subdivisions

A to B.40 The assessment and approval provisions of the Environment Protection and Biodiversity Conservation

Act 1999 (Cth), including obligations to refer actions, are set out in Chapter 4 of the Act.41 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s74B.

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with the information referred to, and taken into account by, the environmentminister.

Another important feature of the Act is the capacity of the ministerto decide an action does not require approval because it will be undertakenin a “particular manner” that will ensure no adverse impact on matters tobe protected.42 This is a mechanism to encourage proponents to design theiractivities in an environmentally sustainable manner and provides a powerfulway to reward project proponents who commit to effective environmentalmanagement measures before they make a referral. The intended effect of thisprovision is to encourage better project and land use planning and to avoid,rather than mitigate through direct regulation, impacts on matters of nationalenvironmental significance. Once a particular manner has been specified, itbecomes a legally enforceable part of the proposal.

These provisions illustrate the key decision-making role of the AustralianGovernment Environment Minister under the EPBC Act. This is in starkcontra-distinction from the previous regime where the Environment Ministerwas invariably confined to a recommendatory role. This new responsibilityhas ensured the environment minister an ongoing senior position within theAustralian Government Cabinet and the environment minister’s department(as the minister’s key adviser and delegate) a central role in the AustralianGovernment bureaucracy.

2.1.4 What Is an Action?

An action is defined in the Act as including a project, development,undertaking, activity, or a series of activities. However, a decision by agovernment body to grant an authorisation is not an action. Nor is providinggovernment funding.43

The focus of the new regime therefore tends to be on project-type activityof a nature to cause, or lead to, real physical impact and this has been thesource of some criticism. It has been argued,44 for example, that the greatestthreats to Australia’s biodiversity arise from the cumulative impacts of manyactivities and that the process of considering single actions under the EPBCAct is ill-suited to dealing with those cumulative impacts. There is validity inthis argument; however, it is also true that environmental impact assessment ingeneral does not deal well with cumulative impacts and that other policies andprograms or other approaches such as strategic assessment are often neededto deal with them effectively. It was partly in realisation of this truth that

42 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s77A.43 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss523, 524, and 524A.44 Andrew Macintosh, Why the Environment Protection and Biodiversity Conservation Act’s Referral,

Assessment and Approval Process is Failing to Achieve Its Environmental Objectives, 21 E.P.L.J. 305(2004).

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the strategic assessment and related provisions of the Act were substantiallystrengthened through the 2006 amendments.45

Notwithstanding this situation, there is capability even within theproject-specific type nature of the EPBC Act to take a broader approach.Indirect or consequential impacts must be taken into account, for example,in deciding whether or not an action requires approval under the Actand in the assessment and approval processes.46 The environment ministermust also consider the context of the action which may include thegeographic location, other existing developments and demands in the area,and potential or proposed developments.47 While this does not amount tocomprehensive cumulative effects assessment at the initial decision-makingstage, consideration of the context of a proposed action provides some capacityfor cumulative impacts to be considered at that time. If approval is required,then cumulative impacts will be considered during the assessment phase.

Additionally, there are provisions within the EPBC Act to discourageproponents from taking too narrow a view. The definition of an action underthe Act seeks to preclude projects being broken into components to avoid theneed for approval48 and the minister has the capacity to refuse to accept areferral if satisfied the action being referred is in fact only a component of alarger action the person proposes to take.49

The Act also provides for strategic assessment of policies, plans andprograms,50 conservation agreements51 and bioregional planning,52 all of whichprovide a mechanism to deal with broader cumulative issues and all of whichwere strengthened through the 2006 amendments to the act. The amendmentsarose in part from a realisation that a more strategic approach was neededto deal with the cumulative impacts problem and in part from the lessonsfrom a number of pilot regional risk assessments initiated by the AustralianGovernment environment department. These are discussed in the next section.

2.1.5 Strategic Assessment

There are two types of strategic assessment under the EPBC Act—onethat is essentially mandatory and the other discretionary. In the first category,

45 Section 2.1.5 of this paper refers.46 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s527E. See also the Nathan

Dam case—Minister for the Environment and Heritage v. Queensland Conservation Council Inc.[2004] F.C.A.F.C. 190. Section 4.2 of this article refers.

47 See the Nathan Dam case—Minister for the Environment and Heritage v. Queensland ConservationCouncil Inc. [2004] F.C.A.F.C. 190. Section 4.2 of this article refers.

48 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s523 defines “action” asincluding “a series of activities.”

49 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s74A.50 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 1051 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 1452 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 12, Division 2.

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strategic assessments must be carried out for all fisheries managed by theAustralian Government. A strategic environmental assessment assesses therelevant impacts of actions taken under a management plan for all suchfisheries. The outcomes of the assessment must then be included in themanagement plan or arrangements for each fishery.

An independent assessment must also be conducted of all Australianfisheries, including those managed by states and territories, that have anexport component and therefore require Australian Government approval toexport product.53 These assessments are designed to ensure that, over time, allAustralian fisheries are managed in an ecologically sustainable way.

Of a more discretionary nature, the Australian Government environmentminister may agree to conduct a strategic assessment of actions carried outunder a proposed policy, program or plan. This provides a basis for the earlyassessment of the cumulative impacts of relevant actions under that policy,program or plan, and a strategic means of dealing with them.

Originally, under the pre-amended EPBC Act, the outcomes of thistype of strategic assessment could effectively only be taken into account indeciding the appropriate assessment approach for a particular action. Forexample, if the relevant environmental impacts had been assessed during astrategic assessment, the minister could decide on a lower level of assessmentfor an individual action taken in accordance with an endorsed policy, programor plan. Only if a legally enforceable management plan implemented thestrategic assessment outcome sufficiently to address matters protected underthe Act, could the minister enter into an agreement for the implementation ofthat management plan so that actions taken in accordance with it did not needapproval under the Act.

This provided a very limited outcome from strategic assessments.Proponents were reluctant to go through two assessment processes (a strategicassessment followed by a project-specific one), particularly given the statutoryrequirements for public consultation and so on.

As a result, a new strategic approach was initiated by the AustralianGovernment environment department during 2005, involving more informalregional risk assessments.54 These were aimed at supporting and assistingdecision-making under the EPBC Act in regions where the level of referraland compliance activity indicated particular pressures on the environment.The assessments were conducted in association with state and local planningauthorities and local communities with the aim of identifying the key mattersof national environmental significance in the region and dealing with themin a pro-active way. This could range from encouraging the consideration

53 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s303FN(10A))54 Department of the Environment and Water Resources, Legislation Annual Reports 2006–07 23–25,

(2007).

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of the key matters of national environmental significance in state and localgovernment planning regimes and decision-making through to simply makinginformation available so that development interests could engage with theEPBC Act early in their processes, facilitating design of projects to minimiseimpacts on matters of national environmental significance.

The 2006 amendments to the EPBC Act built on the new strategic riskapproach, providing the ability for the minister to approve actions, either withor without conditions, undertaken in accordance with a strategic assessment,instead of undertaking a further separate project-specific assessment. Thisis expected to make strategic assessments more attractive to proponents aswell as state and territory governments and therefore increase their numberand importance. A similar provision was inserted into the Act in relation tobioregional planning and conservation agreements.

2.1.6 Time Frames

A key feature of the EPBC Act is the introduction of streamlinedassessment and approval processes, setting clear timeframes for decision-making. Statutory timeframes are included in relation to a range of decisionsunder the Act. They include:

1. the decision on whether a referral triggers the Act and, if so, the typeof assessment approach to be adopted—20 business days;

2. providing reasons for decision—28 days;

3. the decision as to whether or not to approve the action and, if so, underwhat conditions—40 business days from receiving the proponent’sfinalised assessment documentation.

2.1.7 Public Consultation and Involvement

One of the key features of the EPBC Act is to provide for both a highlevel of public involvement in decision-making and an open and ‘transparent’system that allows public scrutiny of decisions made. All assessments carriedout under the Act involve opportunities for public comment. Virtually alldecisions made under the Act and most documentation related to thosedecisions are publicly available through the EPBC Act website maintainedby the Australian Government environment department.55 This aspect of theAct’s operation has drawn considerable praise, being noted by Chapple as“a great advance . . . [which] has dramatically improved transparency for allstakeholders.”56

All proposals referred for consideration under the Act are made availablefor public comment before a decision is made whether approval is required

55 www.environment.gov.au/epbc/index.html.56 Sophie Chapple, THE EPBC ACT: ONE YEAR LATER 3 (2001).

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under the Act.57 If the minister receives a request for reconsideration ofthat decision, a process is set out in the Act requiring the Minister toinform interested persons and invite comments.58 The Minister must givenotice of the outcome of the reconsideration and must also provide astatement of reasons to any interested person who asks for one within 28days. Draft assessment documentation is released for public comment andproponents must summarise that public comment and respond to it in theirfinal documentation which, itself is required to be published.59

Natural justice requirements are specified in relation to the approvalstage.60 The minister must invite the proponent to make comments prior tofinalising the approval decision.61 If the minister is inclined to approve theproposal, the proponent is provided with a copy of the proposed decisionincluding any conditions and given 10 business days to comment. If theminister is inclined to reject the proposal, the proponent is also given 10business days to comment but additionally provided with a copy of all theinformation upon which the minister is relying.

The minister may also invite public comments before making a finalapproval decision, notwithstanding public consultation will have occurredduring the assessment stage of the process.62

All decisions made under the EPBC Act are subject to judicial reviewin Australia’s Federal Court.63 Many decisions taken by officials as delegatesof the minister are also subject to administrative review in the AdministrativeAppeals Tribunal although decisions made personally by the minister are not.64

As noted in section 2.3.1 of this article, there is wide standing for judicial andadministrative review.

2.1.8 Cooperation Between Governments

One of the prime motivations for developing the EPBC Act wasto facilitate cooperative approaches between Australian governments for anationally consistent approach to environmental matters. A key mechanismto achieve this, and an integral feature of the EPBC Act, is the bilateralagreement between the Australian Government and a state or self-governingterritory government.65

The most common form of bilateral agreement exists to reduceduplication in environmental impact assessment by enabling the Australian

57 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s74.58 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s74D.59 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s104.60 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s131AA.61 id.62 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s131A.63 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss487–488.64 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s303GJ.65 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Chapter 13.

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Government to rely on state or territory assessment processes and, in limitedcircumstances, state or territory approvals. However, bilateral agreements mayalso be made between the Australian Government and a state or territory for thepurpose of protecting the environment generally or promoting conservationand ecologically sustainable use of natural resources. Bilateral agreementsmust be consistent with the objectives of the EPBC Act and the processesthey accredit must meet certain standards. For example, a bilateral agreementin relation to environmental impact assessment must ensure adequate publicconsultation during the various stages of the assessment process.

There are also other mechanisms within the EPBC Act to promote apartnership approach between Australian governments in achieving environ-mental protection and biodiversity conservation. These include consultationon possible new matters of national environmental significance66 as wellas possible designations of new World Heritage67 and Ramsar68 sites. TheAustralian Government Minister for the Environment must invite commenton referrals from appropriate state or territory ministers69 and must reconsiderany referral decision if requested to do so by a state or territory minister.70

Before making an approval decision, the Australian Government Minister mayseek more information from a state or territory about that state or territory’sown assessment71 or, indeed, about any aspect of the proposal.72 In attachingconditions to an approval, the Australian Government Minister must alsoconsider any relevant conditions that have been imposed under state or territorylaw.73 There is a range of other provisions within the EPBC Act providingobligations or opportunities for cooperation and consultation between thevarious governments in Australia.

2.2 Conservation of Biodiversity

The second part of the EPBC Act sets out an integrated framework topromote the conservation of Australia’s biodiversity and heritage. Thisframework sets out measures in addition to those related to matters ofnational environmental significance, including the management of nationalheritage places. Other measures more directly relevant to wildlife issuesinclude the listing and planning regime for species, the requirement toestablish the ecological sustainability of export industries utilising Australian

66 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s25(3).67 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s314.68 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s326.69 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s74(2).70 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s79.71 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s132A.72 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s132.73 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s134(4).

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native plants and animals, additional protection to species and communitiesin Australian Government areas, additional protection to internationallyendangered species, and the establishment of management principles to applyto Australian Government reserves and other protected areas.

The Act contains an extensive regime for the conservation of biodiversity,a number of provisions of which are particularly relevant to interactionsbetween humans and wildlife.

2.2.1. Listing of Nationally Threatened Speciesand Ecological Communities

The EPBC Act provides a regime for the identification and listing ofthreatened species and threatened ecological communities that is vital tomanaging the interactions between humans and wildlife.74 Once threatenedspecies and ecological communities are listed, the Act then provides for thedevelopment of recovery plans, the recognition of key threatening processesand, where appropriate, measures to reduce such processes through threatabatement plans. A permit regime applies to listed species and communitiesin Australian Government areas. In addition, of course, listing of threatenedspecies and threatened ecological communities identifies them as mattersof national environmental significance which attract the full protectionof national environmental assessment and approval measures under the‘environmental protection’ part of the EPBC Act.

A key mechanism within the EPBC Act in the listing process isthe independent Threatened Species Scientific Committee, the pre-eminentadviser to the environment minister on matters related to threatened speciesand ecological communities. The committee advises the minister, among otherthings, on the amendment and updating of the lists of threatened species,threatened ecological communities and key threatening processes as well asthe making or adoption of recovery plans and threat abatement plans. Theminister must consider the committee’s advice before making a decisionon any of these matters. In considering species and ecological communitiesfor possible listing as threatened, both the committee and the minister mustconsider only matters related to their survival.

2.2.2 Key Threatening Processes and Threat Abatement Plans

A process is defined as a threatening process under the EPBC Act if itthreatens or may threaten the survival, abundance or evolutionary developmentof any native Australian species or ecological community. There are additional

74 Part 13 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) sets out theprovisions related to the listing and conservation of protected species and ecological communities,including permits and plans.

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requirements to be met for a threatening process to be eligible to be treated asa key threatening process under the Act.

For a process to be listed as a key threatening process, it must meet one ofthe following criteria: it could cause a native species or ecological communityto become threatened; or it could cause an already listed threatened speciesor threatened ecological community to become more endangered; or it couldadversely affect two or more listed threatened species or threatened ecologicalcommunities.75

The assessment of a threatening process as a key threatening process isthe first step to addressing the impact of that particular threat under the EPBCAct. Once a key threatening process is listed under the EPBC Act a threatabatement plan can be put into place if it is proven to be ‘a feasible, effectiveand efficient way’ to abate the threatening process. Threat abatement plansprovide for the research, management, and any other actions necessary toreduce the impact of a listed key threatening process on a threatened speciesor ecological community. Implemention of the plan is designed to assist longterm survival in the wild.

2.2.3 National Recovery, Conservation Advice, and Other Wildlife Plans

Recovery plans set out the research and management actions necessaryto stop the decline of, and support the recovery of, listed threatened species orthreatened ecological communities. The aim of a recovery plan is to maximisethe long term survival in the wild of a threatened species or ecologicalcommunity. In essence, recovery plans state what must be done to protect andrestore important populations of threatened species and habitat, as well as howto manage and reduce threatening processes. Recovery plans aim to achievethis by providing a planned and logical framework for key interest groupsand responsible government agencies to coordinate their work to improve theplight of threatened species and ecological communities.

Conservation advice is a statutory but less formal means of providinginformation on the key threats to listed species and communities and actionthat needs to be taken to protect them. In most cases conservation advice willbe provided by the Threatened Species Scientific Committee.

The minister may also make wildlife conservation plans in relation tomigratory or marine species.

2.2.4 Other Species Listings

The EPBC Act also provides for the listing of migratory and marinespecies, the former of which is also a matter of national environmentalsignificance.

75 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s188(4).

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2.2.5 Register of Critical Habitat

Under the EPBC Act the environment minister may identify and listhabitat critical to the survival of a listed threatened species or ecologicalcommunity in a Register of Critical Habitat.76 A description of habitat listed inthe Register must include enough information to identify the habitat, includingits location and extent, and the reasons the habitat was identified as critical.

2.2.6 Bioregional Planning

The EPBC Act provides for the environment minister to preparebioregional plans within Australian Government areas or to cooperate withother jurisdictions in preparing bioregional plans encompassing state orterritory areas. The minister may also declare that certain actions taken inaccordance with an approved bioregional plan do not require approval underthe EPBC Act.

Australia’s program of regional marine planning was brought directlyunder this provision in October 2005 to provide a clearer focus on conservationand sustainable management of the marine environment and offer greatercertainty for industry.77

The initiative will see regional marine plans, including a systemof marine protected areas, established over Australia’s 14 million squarekilometre ocean jurisdiction, with the plans established under the EPBC Actacting as a key document to guide the Minister, sectoral managers and industryabout the key conservation issues and priorities in each marine region.

The regional approach has also been used extensively in natural resourcemanagement in Australia although not formally under the EPBC Act.78

2.2.7 Conservation Agreements

A conservation agreement79 is a voluntary agreement under the EPBCAct between the Australian Environment Minister and another person for theprotection and conservation of biodiversity in a particular area. Conservationagreements provide for certain activities that promote the protection andconservation of biodiversity. They may provide for financial, technical or

76 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s207A.77 Australian Government, Minister for the Environment and Heritage, Media Release, New Focus for

Australia’s Marine Planning Programme, C294/05, 13 October 2005.78 While not statutorily recognised under the EPBC Act, 54 regional plans have been developed and

accredited as the basis for natural resource management funding from the Australian Government andstate and territory governments under the Natural Heritage Trust of Australia Act 1997 (Cth) and underthe National Action Plan for Salinity and Water Quality. The regional plans cover all environmental,social and economic impacts of natural resource decisions on a regional basis. They have been developedby local communities, based on catchments or bioregions, covering all of Australia.

79 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 14.

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other assistance from the Australian Government. A conservation agreementmay also declare certain actions do not require approval under the EPBC Act.

Conservation agreements are legally binding on the Australian Govern-ment, all other parties to the agreement; and any parties that gain an interestin any part of the area after the agreement is entered into.

The majority of conservation agreements under the EPBC Act havebeen used to facilitate voluntary efforts by landholders to protect threatenedspecies or to achieve conservation goals within a broad land managementcontext. However, the Australian Government has recently explored theinnovative use of conservation agreements as a means of providing greatercertainty for environmental outcomes including broad ranging conditions fordevelopment proposals and remediation of environmental damage caused bypossible breaches of the legislation. In July 2007, for example, in associationwith the national heritage listing of the Dampier Archipelago, conservationagreements were entered into with two major Australian companies to protectand conserve the national heritage values in, or adjacent to, their industrialoperations in the archipelago.80 Examples of the use of other conservationagreements for approvals conditioning and remediation are detailed in section4.9 of this article.

2.2.8 Access to Biological Resources

Regulations under the EPBC Act establish a legal framework for controlof access to biological resources in Australian Government areas.81

Under the regulations, a party seeking access to biological resources inAustralian Government areas must apply for an access permit to be issuedby the environment minister who must be satisfied on a range of matters.These include establishing that the proposed access would be ecologicallysustainable and consistent with the conservation of Australia’s biodiversityand that, where applicable, prior informed consent of any indigenous ownersof biological resources has been obtained.

2.2.9 Knowledge and Role of Indigenous People

Among its objectives, the EPBC Act aims to promote a cooperativeapproach with indigenous people to the protection and management of theenvironment. The Act specifically recognises the role of indigenous people inthe conservation and ecologically sustainable use of Australia’s biodiversityand promotes the use of indigenous peoples’ knowledge of biodiversity inmeeting the objectives of the Act. An independent Indigenous Advisory

80 Australian Government, Department of the Environment and Water Resources Annual Report 2006–0710 (2007).

81 Australian Government Department of the Environment and Heritage, Genetic Resources Managementin Commonwealth Areas (2006).

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Committee, appointed under the EPBC Act, advises the minister on theoperation of the Act, taking into account the significance of indigenouspeoples’ knowledge of the management of land and the conservation andsustainable use of biodiversity.

2.2.10 Permits for Australian Government Areas

Activities in an Australian Government area that may affect a menber ofa listed threatened species or an ecological community, a member of a listedmigratory species, or a member of a listed marine species are regulated underthe EPBC Act. It is an offence to kill, injure, take, trade, keep, or move suchspecies without a permit. Special provisions relate to the protection of allcetaceans in Australian waters—identified in the EPBC Act as the “AustralianWhale Sanctuary.”

2.2.11 Protected Area Management

The EPBC Act establishes strict rules about the management ofAustralia’s protected areas.82 Management principles are defined for alltypes of protected areas—world heritage properties, national heritage places,heritage places owned by the Australian Government, Ramsar sites, biospherereserves, and national parks and other reserves.

2.2.12 International Trade in Wildlife

The EPBC Act also controls the international movement of wildlife,wildlife specimens, and products made or derived from wildlife.83 Controlsapply to all transactions undertaken by commercial and non-commercial or-ganisations and individuals. In addition, controls under Australia’s QuarantineAct 1908 may also apply.

The objectives of this part of the Act include ensuring that Australiacomplies with its international obligations under CITES84 and the BiodiversityConvention,85 protecting wildlife that may be adversely affected by trade,and ensuring that any commercial utilisation of Australian native wildlifefor export is managed in an ecologically sustainable way. Other objectivesinclude promoting the humane treatment of wildlife, ensuring ethical conductduring any research associated with the utilisation of wildlife, and taking theprecautionary principle into account in decision-making about use of wildlife.

The wildlife trade provisions require permits for the export ofAustralian native wildlife, the import of exotic species, and the movement of

82 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 15.83 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 13A.84 The Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3,1973,

993 U.N.T.S. 243, 27 U.S.T. 1087, T.I.AS. 8249.85 The Convention on Biological Diversity done at Rio de Janeiro, Brazil, June 5, 1992, U.N. Doc.

ST/DPI/1307, 31 I.L.M. 818 (1992).

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internationally endangered species listed under CITES. Wildlife trademanagement plans and wildlife trade operations govern the sustainable wildharvest of wildlife and the humane treatment of animals.

2.3 Monitoring, Compliance, and Enforcement

The EPBC Act contains a strong regulatory regime with respect to monitoring,compliance and enforcement, including the following provisions:

1. a ministerial power to “call in” a referral of a proposed action if it isconsidered that it may require approval under the Act86;

2. a ministerial power to “deem” a referral to have been made (and tomake a decision as to whether or not it needs approval) in cases wherea person fails to refer an action after the minister has called in theaction under the Act87;

3. evidentiary certificates that are prima facie evidence in civilproceedings88;

4. general provisions containing search and seizure powers, appoint-ment of wardens, rangers and inspectors, arrest and related matters,warrants, and so on89;

5. directed environmental audits90; and,

6. conservation orders.91

The compliance regime of the EPBC Act was significantly strengthenedin the 2006 amendments to the Act.92 The amendments included theintroduction of strict liability to elements of a number of offences and newpenalty provisions as well as providing a broader range of enforcement optionsincluding financial undertakings and remediation action and strengtheningand rationalising investigation and enforcement procedures, including powersunder warrants and powers of seizure.

2.3.1 Standing for Judicial Review

The EPBC Act has wide standing for injunctions and judicial review. Inaddition to normal standing for persons with a direct interest in a particulardecision, the EPBC Act extends standing to any Australian citizen or resident

86 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s70(1).87 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s70(3).88 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Subdivision I.89 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 17.90 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Division 12.91 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Division 13.92 Australian Government, supra note 25. See also note 24.

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or any environmental organisation that has engaged in environmental activitiesduring the two years immediately preceding the decision.

2.3.2 Penalties

Penalties under the Act can be severe. For a matter of nationalenvironmental significance, a civil penalty of up to AUD 5.5 million anda criminal penalty of up to seven years imprisonment apply. For a breachinvolving an Australian Government action or Australian Government land,the civil penalty can be up to AUD 1.1 million with a criminal penalty of up totwo years imprisonment. Penalties apply to the provision of false or misleadinginformation and liability extends to executive officers of corporations. Theminister has the power to publicise contraventions of the Act. A proponentin breach of the Act may also incur liability for damage arising fromcontravention of the Act.

2.4 Advisory Committees

The EPBC Act establishes three advisory committees–the Threatened SpeciesScientific Committee, the Biological Diversity Advisory Committee, and theIndigenous Advisory Committee—to advise the minister on matters regardingimplementation of the Act.

2.4.1 Threatened Species Scientific Committee

The Threatened Species Scientific Committee advises the minister on theamendment and updating of national lists for threatened species, threatenedecological communities, and key threatening processes, and on the making oradoption of recovery plans and threat abatement plans.

2.4.2 Biological Diversity Advisory Committee

The Biological Diversity Advisory Committee advises the ministeron matters relating to the conservation and ecologically sustainable use ofAustralia’s biodiversity. The committee advises the minister on objectivesand targets for biodiversity conservation, particularly as these can be appliedto Australian Government program activities related to biodiversity.

2.4.3 Indigenous Advisory Committee

The Indigenous Advisory Committee advises the minister on theoperation of the Act, taking into account the significance of indigenouspeoples’ knowledge of the management of land and the conservation andsustainable use of biodiversity.

2.5 Reporting

The EPBC Act requires that a comprehensive report of activities under theAct and how the objectives of the Act are being met is provided each year

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to the Australian Parliament. In addition, the Act requires that a report onAustralia’s environment be prepared every five years. The first AustralianState of the Environment report was published in 1996, the second in 2002,and the third in 2006.

The Act also requires Australian Government organisations to include intheir annual reports a section detailing the environmental performance of theorganisation and the organisation’s contribution to ecologically sustainabledevelopment.

3. OVERALL EXPERIENCE TO DATE

In its first seven and one half years of operation (that is, from the commence-ment of the EPBC Act on 16 July 2000 to the end of 2007), more than2,500 referrals have been received, at a rate of about 28 per month.93 Of those,approximately 25 percent were determined to require assessment and approvalunder the Act. About another 15 percent were determined not to be controlledactions only because they were to be carried out in a legally enforceable partic-ular manner to ensure no adverse impact on matters protected. In other words,at least 40 percent of proposed actions referred under the EPBC Act have beensubject to some modification to ensure good environmental outcomes.

Particularly relevant to wildlife issues is that the most often triggeredmatters of national environmental significance relate to species. Nationallylisted threatened species and ecological communities, and listed migratoryspecies are by far the most triggered matters of national environmentalsignificance. The former has been a controlling provision in about 83 percentof controlled actions and the latter about 52 percent. Often particular projectsare triggered for both matters of national environmental significance.

Referrals have been received across all Australian states and territories aswell as most of Australia’s external territories. They have included all sectorsof the economy and have related to all of the matters of national environmentalsignificance.

Almost all proposals that have been through the assessment and approvalprocess have been approved with more than 90 percent subject to conditions.Four proposals have been rejected outright with another two proposals havingan option rejected, in one case the proponent’s preferred option. A numberof proposals have also been abandoned by proponents or not progressed oncethey have triggered the assessment and approval provisions of the EPBC Act.

93 These statistics about the operation of the EPBC Act and other statistics, information and case studiesquoted in this article are provided from the records of the Australian Government Department of theEnvironment, Water, Heritage and the Arts. Most of the information, together with other informationon the EPBC Act and its implementation, is available on the website: http://www.environment.gov.au/epbc/index.html.

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Similarly, some proposals have been rejected by the states and proponentshave then not bothered to complete the documentation needed for the approvalstage under the EPBC Act. The Gold Coast Environment Council, for example,has noted the Act played a part in the Queensland Government refusal of acableway proposal to traverse World Heritage listed rainforest reserves, whichultimately led to the EPBC Act referral being withdrawn.94

There have also been 23 strategic assessments of commercial fisheriesmanaged by the Australian Government plus over one hundred assessmentsof the ecologically sustainability of state and territory fisheries for the purposeof granting export approvals.

There were two other strategic assessments—of offshore oil and gasexploration and the conduct of major military training exercises—commencedunder the pre-amended EPBC Act but neither concluded, primarily because ofthe limited outcomes identified in section 2.1.5. More successful regional riskassessments were carried out in relation to the Southern Swan Coastal Plainin Western Australia, and the Cardwell and Johnstone Shires and MagneticIsland in North Queensland. In early 2008, the Australian and WesternAustralian Governments agreed to undertake a strategic assessment underthe amended EPBC Act of the Kimberley region of Western Australia, an areaof outstanding landscapes, coastline, wildlife, and Indigenous and historicheritage as well as reserves of oil and liquefied natural gas of huge economicvalue.95

The independent Australian National Audit Office conducted a perfor-mance audit of referral, assessment and approval processes under the EPBCAct in 2003 and concluded that they “are generally thorough and well docu-mented.” The Office concluded that the Australian Government environmentdepartment had “established and implemented rigorous processes that providean assurance that the matters required to be considered under the Act are takeninto account in a comprehensive manner.”96

This is not to say the EPBC Act is without its critics. Conservationistssuch as Macintosh and Wilkinson97 have criticised the administration of theAct and the government’s enforcement of it.More significantly they haveargued that the regime has failed to produce any noticeable improvement in

94 Chris McGrath 2006, Review of the EPBC Act, Paper prepared for the 2006 Australian State ofthe Environment Committee, Department of the Environment and Heritage, Canberra, at websitehttp://www.environment.gov.au/soe/2006/publications/emerging/epbc-act/index.html at 8.

95 Peter Garrett and John Kobelke, Big Picture Study of Australia’s Kimberley, Joint Media Releaseby the Australian Government Minister for the Environment, Heritage and the Arts and the WesternAustralian Acting Minister for State Development, PG/16, Commonwealth of Australia, Canberra(5 February 2008).

96 Australian National Audit Office, Performance Audit: Referrals, Assessments and Approvals under theEnvironment Protection and Biodiversity Conservation Act 1999, AUDIT REPORT NO. 38 (2003).

97 Andrew Macintosh and Debra Wilkinson, Environment Protection and Biodiversity ConservationAct—A Five Year Assessment (2005).

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environmental outcomes. They base this judgement primarily on the low levelof rejection of proposals and their view that conditions imposed on otherprojects are inadequate.

While a number of the criticisms of Macintosh and Wilkinson are notwithout merit, their central premise (that you should judge the success of anenvironmental assessment regime solely on how many proposals are stopped)demonstrates a basic misunderstanding of the nature of environmentalassessment and an out-of-date paradigm that sees conflict as the only meansof achieving environmental outcomes. It is clear from the case studies citedin section 3 of this article and from the detailed approvals available on theEPBC Act website that conditions attached to approvals under the EPBCAct are substantial and do contribute to ecological sustainability. The factthat they do so largely with some measure of cooperation with proponentsis an added benefit, not something to be denigrated. As to the nature ofenvironmental impact assessment itself, as noted by authorities such as Petts,98

decision-making involves trade-offs, decisions rarely being a simple yes or no.In relation to listings, more than 250 changes have been made to species

listings since the commencement of the EPBC Act, bringing to about 1,600the number of threatened species under the EPBC Act.99 There are 38 listedthreatened ecological communities, 17 key threatening processes, 10 threatabatement plans, and five areas on the Register of Critical Habitat. More than820 of the listed threatened species and communities have either recoveryplans approved or in preparation. Conservation advice covers around 115 listedspecies and communities. Thousands of permits have been issued regardingwildlife as well as numerous approvals for wildlife conservation programs,trade operations, captive breeding, programs and the like.

Like the environmental assessment processes of the EPBC Act, theadministration of the biodiversity conservation provisions of the EPBC Acthas been the subject of some criticism. The Australian National Audit Officereleased a second performance audit related to the EPBC Act in 2007,100

this time regarding its effectiveness in protecting and conserving threatenedspecies and ecological communities in Australia. The office identified anumber of shortcomings in the administration of the Act, primarily aroundslow progress in finalising listings, providing comprehensive data on speciesand communities, and making recovery plans but also in relation to insufficientmonitoring and enforcement of EPBC Act conditions. In making this criticism,the office acknowledged the scale of the tasks, the technical requirements

98 Judith Petts, Environmental Impact Assessment—Overview of Purpose and Process, in HANDBOOK OF

ENVIRONMENTAL IMPACT ASSESSMENT 1, 7 (Judith Petts ed.), (1999).99 The lists established under the repealed Endangered Species Protection Act 1992 were transferred to

the EPBC Act on its commencement.100 Australian National Audit Office, Performance Audit: The Conservation and Protection of National

Threatened Species and Ecological Communities, AUDIT REPORT NO. 31 (2007).

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involved and the limited resources allocated to those tasks. Following therelease of the audit, the Australian Government allocated additional funding ofAUD 70.6 million over four years to administration of the EPBC Act to assistin the better protection of threatened species and ecological communities.101

Conservationists have been even more critical of the Act, arguingthat Australian Government initiatives through the biodiversity conservationprovisions of the Act have been vastly inadequate.102 They claim that, inthe face of a national biodiversity crisis, there has been a serious failure toimplement critical provisions of the Act. They accuse the environment ministerof being too timid and too slow in listing threatened species and ecologicalcommunities and critical habitat and in developing threat abatement plans forkey threatening processes.

Some conservationists are particularly offended by the provision in theEPBC Act that allows the minister discretion to determine a threat abatementplan is not required because it is not considered a feasible, effective andefficient way to abate the threatening process; the minister has used thisdiscretion in determining that no threat abatement plans are needed for landclearance and loss of climatic habitat caused by anthropogenic emissions ofgreenhouse gases, both of which have been listed as key threatening processesunder the EPBC Act. Conservationists see these decisions together with thefact that neither of the key threatening processes is a matter of nationalenvironmental significance under the Act as the EPBC Act failing to deal withtwo of the most important environmental issues facing Australia.

On the other hand, development interests have criticised the Act and itsadministration for almost entirely opposite reasons—that the listing processesare too intrusive and institute environmental requirements that threatenlivelihoods.103 Even Australia’s Deputy Prime Minister of the time, the thenleader of the National Party representing rural and regional interests, wasreported in 2004 to believe the EPBC Act should be wound back.104

Some developers also continue to see the EPBC Act as an unwarrantedintrusion on the part of the Australian Government into their affairs,believing state and territory regulation is sufficient to achieve environmentalsustainability.

The reality, as is often the case where there are widely differingview-points, is somewhere in the middle. It is true, as pointed out by theAustralian National Audit Office, that progress in meeting all the statutory

101 Australian Government, Protecting Australia’s Future, Environment Budget Overview 2007–08, 18.102 Nicola Beynon, Michael Kennedy and Alistair Graham, Grumpy Old Greenies—Lament Waiting Lists,

Wasted Opportunities and Wayward Pork Barrelling in Australia’s Biodiversity Programs, HumaneSociety International, Sydney (2005).

103 National Farmers’ Federation, Press Release, Coalition Commits to Fix Flawed EPBC Act, NR142/2001,National Farmers’ Federation, Canberra (31 October 2001).

104 Lenore Taylor, Nats deem Environment Act Intrusive, The Australian Financial Review, 13 November2004, 4 (2004).

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requirements of the EPBC Act with respect to threatened species andecological communities has been slower than ideal. Nevertheless, as alsonoted by the office, any slowness is primarily the result of the magnitudeof the tasks. They require scientific rigour as well as consultation withthe community and recognised experts, often itself a time consuming task.Moreover, as exemplified in section 4.10.1, a number of initiatives have beentaken to progress difficult environmental and legal matters to maximise theeffectiveness and timeliness of the act.

Criticism that the EPBC Act fails to deal adequately with all Australia’senvironmental problems is also unwarranted. As noted in section 2.1.1, thedetermination of the matters of national environmental significance to bedealt with by the assessment and approval provisions of the EPBC Actfollowed comprehensive review and agreement by Australia’s Council ofAustralian Governments. This recognised that some environmental issueswould more appropriately be dealt with through other mechanisms such asnational strategies and cooperative programs—in fact, the council specificallyidentified both reducing emissions of greenhouse gases and conservation ofnative vegetation as falling within that category.

While it is true that the EPBC Act is the Australian Government’spremier piece of legislation, it is neither its only piece of legislation norits only policy response to environmental issues. Further, it operates, asenvisaged by the Council of Australian Governments, in tandem with theenvironmental regimes of the Australian states and territories. The EPBC Actis not intended, nor ever was it, to work in isolation to solve all Australia’senvironmental problems. Its remit is nevertheless very broad—to deal withmatters identified within the Act as of national environmental significance orclearly within the realm of the Australian Government’s own activities andresponsibilities.

In relation to criticism from industry that environmental regulationshould be left to the states, this essentially defies the political reality ofthe Australian federation. Not only does the Australian community expectthe Australian Government to have a substantive role in the environmentalissues encompassed by the EPBC Act, the Australian courts have confirmedAustralian Government powers as an established matter of constitutionallaw. Further, the cooperative arrangements put in place between Australiangovernments, including bilateral agreements and accreditations, minimise thepossibility of duplication between the various jurisdictions and increase thecertainty for industry far beyond the previous regime.

One area of the EPBC Act that has been widely supported is the broadpublic engagement and transparency of the act. Through these provisions thecommunity has been actively engaged with the EPBC Act. Comments duringthe public consultation parts of the assessment processes are considerableand growing, as are concerns and issues raised with the compliance area of

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the Australian Government environment department. A number of successfulprosecutions have been made as a result.

In the first seven and a half years of the EPBC Act, there have beennineteen actions in the Federal Court of Australia and twelve challenges inthe Administrative Appeals Tribunal seeking to review EPBC Act decision-making. In addition, there have been a number of other cases involving thirdparties, including seven applications for injunctions. This trend towards legalaction under the Act is growing, a factor that encourages the appropriateattention to continue to be paid to the legal requirements of the act. From anenforcement point of view, there have been 70 criminal prosecutions, elevencivil prosecutions and three prosecution alternatives.

The extended standing provisions of the EPBC Act are occasionallyqueried by industry fearful of their being used by vested interests attemptingto halt projects. By and large, this has not proven to be the case although somechallenges have sometimes appeared to have an ideological edge to them.105

4. THE IMPACTS ON HUMAN/WILDLIFE INTERACTIONS

Because of the long time frames associated with processes and instrumentsto protect and conserve wildlife, it is difficult to measure the success ofa single piece of legislation, particularly one like the EPBC Act that hasbeen operational for little over seven years, in managing human/wildlifeinteractions. While statistics can tell part of the story through numbers ofreferrals made, numbers of permits issued and so on, it is more difficultto gauge how effective the Act has been in changing attitudes and raisingstandards. One way of obtaining an overall picture of how the EPBC Act hasbeen operating is through a series of case studies illustrating different aspectsof the Act’s implementation.

4.1 The Flying-fox Cases

The so-called Flying-fox case106 was one of the earliest illustrations of thepower of the EPBC Act in modifying human/wildlife interactions in Australia.The case involved a lychee farmer in North Queensland who had establishedan electric grid to protect his lychee orchard from the Pteropus conspicillatusor Spectacled Flying-fox. The farmer had constructed a series of fourteenaerial electric fences erected in a grid fashion with the total length of theelectric grids being more than six kilometres. The farmer was electrocutingthousands of Flying-foxes in this way. A conservationist applied to the Federal

105 One appellant continues to challenge all decisions under the EPBC Act related to management plansfor kangaroos and wallabies despite all such appeals having so far being unsuccessful.

106 Booth v. Bosworth [2001] 114 FCR 39.

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Court of Australia for an injunction under the EPBC Act to restrain the farmerfrom operating his electric grid to kill Spectacled Flying-foxes. At the time theSpectacled Flying-fox was not listed as threatened under the EPBC Act butthe lychee orchard was in close proximity to the Wet Tropics World HeritageArea.

The court was satisfied that the Spectacled Flying-fox contributes to theheritage values of the Wet Tropics World Heritage Area and concluded that theprobable impact of the operation of the farmer’s grid, if allowed to continueon an annual basis during future lychee seasons, would be to so diminish theAustralian population of Spectacled Flying-foxes that there would likely be asignificant impact on the world heritage values of the Wet Tropics. The courtconcluded that an injunction restraining the operation of the grid should beissued.

Following the case, the Queensland Government then outlawed the useof electric grids. Subsequently, the farmer sought approval under the EPBCAct to operate his grid but approval was rejected by the Australian GovernmentEnvironment Minister.107

This case has been hailed by McGrath108 as “an example illustrating thatthe existence of the EPBC Act has made a major contribution to protectinga threatened species and the world heritage values of the Wet Tropics WorldHeritage Area to which the species contributes.” Further, McGrath has alsonoted that the EPBC Act was the only mechanism capable at the time ofproviding such a result. Although the conservationist who brought the casehad a passionate interest in Flying-foxes, she had no property interest in themand probably no standing under any other law to seek an injunction to restrainthe farmer. The wide standing provisions of the EPBC Act were the catalystfor the action to be taken.

The story does not end there. After the case, both the Spectacled Flying-fox and the Grey-headed Flying-fox, Pteropus poliocephalus, were listed asthreatened species under the EPBC Act. While the farmer’s electric grid mayhave been an extreme example of a human/wildlife interaction to deal with aperceived wildlife threat to his livelihood, Flying-foxes do present a challengeto fruit farmers all down the east coast of Australia.

As a result, the Australian Government worked with three stategovernments—Queensland, New South Wales, and Victoria—to coordinatea national approach to the management of the species. After consultingstakeholders and taking expert advice, including population modelling, the

107 Details of the referral, assessment and rejection for this action can be found under ReferenceNumber 2002/571 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

108 Chris McGrath, Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999(Cth), 22 E.P.L.J. 20, 38 (2005).

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governments concluded that farmers could be allowed to kill some Spectacledand Grey-headed Flying-foxes to protect their farms provided that an agreedlimit on total numbers would be enforced under state permits. The AustralianGovernment Environment Minister issued guidelines reflecting the Minister’sview that a relatively small number could be killed without having a significantimpact on the species. At the same time, the Australian Government investedheavily in non-lethal methods for farmers to protect their crops such asretractable netting.

In the event, the Minister’s issuing of the guidelines was challenged in theFederal Court.109 A conservation organisation argued that the decision to enterinto agreements with the states and the minister’s conduct in entering into theagreement were invalid. An order was sought directing the minister to exercisehis statutory powers under the Act without reference to the agreements andthe statements made in the Guidelines.

The court decided that the formulation of a policy about the numbersthat can safely be culled and the cooperative agreement with the states werewithin the objects of the Act. The minister can form an opinion about actionsthat will or will not have a significant impact, and communicate that opinionin guidelines.

However, the Court considered that a statement in the guidelines, that noreferral under the EPBC Act would be needed if a person killed Flying-foxes inaccordance with a state permit, went further than providing advice. The courtheld that this statement amounted to a purported exemption from a person’sobligation under the EPBC Act to consider the effects of his or her actionsand, if necessary, to refer them to the minister. The court made a declarationthat this statement was not authorised by law, but vacated it after amendmentof the guidelines by the Minister.

While not as momentous as the first, the second Flying-fox case wasnevertheless significant in two regards. First, it clarified that stakeholdersmust make their individual decisions about whether or not to refer theiractions under the Act and that the Minister cannot purport, through guidelinesor any other means, to exempt them from that statutory obligation. Secondly,however, the court affirmed the right of the minister to issues guidelines toassist stakeholders in meeting their obligations under the EPBC Act.

4.2 The Nathan Dam Case

In the Nathan Dam case110 two conservation groups sought review of a decisionby the Australian Government Environment Minister regarding a proposalto construct and operate a dam in central Queensland. Although the damwas specifically designed to supply water for irrigation of farmland within

109 Humane Society International Inc. v. Minister for the Environment & Heritage [2003] F.C.A. 64.110 Queensland Conservation Council Inc. v. Minister for the Environment and Heritage [2003] F.C.A.1463.

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a catchment for the Great Barrier Reef World Heritage Area, the Ministerconsidered the impacts of such irrigation, including the use of agriculturalchemicals, to be an indirect consequence of the dam and, therefore, not relevantto his decision as to whether or not the dam required approval under the EPBCAct. Although the Minister decided the proposed dam required his approval,he identified only listed threatened species and ecological communities ascontrolling provisions.111 The conservation organisations considered worldheritage and listed migratory species should also have been controllingprovisions, given the possible downstream effects in the Great BarrierReef.

The court held against the minister, an opinion confirmed on appealby the full bench of the Federal Court.112 The court held that the Ministerhad erred in adopting an interpretation of ‘all adverse impacts’ that excludedfrom consideration the potential downstream impacts of irrigation by personsusing water from the dam, if those impacts were a likely consequence of theconstruction and operation of the dam.

The court has thus taken the view that the notion of ‘all adverse impacts’under the EPBC Act should be given a broad and expansive meaning. Inparticular, the Court held that the term “impact” encompasses direct andindirect consequences, including the results of acts done by third parties.Indirect consequences include those impacts that are “sufficiently close” tothe action to allow it to be said that they are consequences of the action,and include those impacts that can “reasonably be imputed as within thecontemplation of the proponent.”

The court also made it clear that the context for a proposed action isimportant in deciding whether or not the proposed action requires approvalunder the act. The context may include the nature and location of the areasubject to the proposed action, existing demands and capacities of the area,and potential and proposed developments.

Following the court interpretation, the environment minister reconsid-ered his decision and decided that the proposed Nathan Dam was indeed acontrolled action with threatened species and ecological communities, worldheritage, and listed migratory species as controlling provisions. Subsequentdecision-making under the Act has taken all adverse impacts into account,including indirect and flow-on effects. This has substantially broadened thescope of considerations previously applied by the minister and department

111 Details of this decision and subsequent decisions after the Court cases can be found underReference Number 2002/770 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

112 Minister for the Environment and Heritage v. Queensland Conservation Council Inc. [2004] F.C.A.F.C.190.

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in the administration of the act. The 2006 amendments to the EPBC Actspecifically clarified the Nathan Dam decision by defining the meaning ofimpact113 to include both direct and indirect consequences.

4.3 The Gwydir Wetlands Case

The Gwydir Wetlands, in New South Wales, are recognised for their largebreeding and feeding grounds for colonies of nesting water birds and a numberof listed threatened species that visit the wetlands during large flood events.Parts of the Gwydir Wetlands were listed under the Ramsar Convention inJune 1999, and are protected as a matter of national environmental significanceunder the EPBC Act.

In late 2003, the Australian Government Environment Minister com-menced legal proceedings114 in the Federal Court against a farm operator forland clearing and cropping activities undertaken in 2002 and early 2003, inand around part of the Gwydir Wetlands Ramsar site. The proceedings werethe first civil action initiated by the government in relation to the matters ofnational environmental significance. Further application was made to the courtfor a prohibitory injunction and additional remediation orders for the purposesof restoring the wetland. Prior to this application, an interim injunction,limiting all farming activities in and near the wetland, had been sought andgranted to prevent imminent further damage to the wetland.

In June 2004, the Federal Court of Australia found that the activitiesundertaken had significantly impacted on the ecological values of the Ramsarsite without the approval required under the EPBC Act and that, as such, thefarm operator and his company had breached the Act. The case was adjourned,awaiting submissions on pecuniary penalty and rehabilitation orders.

In October 2004 the Court handed down a record penalty of AUD450,000—AUD 150,000 for the landholder personally and AUD 350,000for his company. The court also issued an injunction preventing furtheragricultural activity on the land in question, including the running of livestockon the site until at least 2007, and ordered rehabilitation of the site. The fullbench of the Federal Court dismissed the landholder’s appeal in July 2005.

In editorial commentary in Australia’s Environmental and Planning LawJournal at the time,115 McGrath argued the case is particularly important ontwo fronts. Firstly, it was important as the first fully contested case run bythe Australian Government Environment Minister under the EPBC Act—andagainst a prominent wheat grower in New South Wales, despite political risks.

113 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s527E.114 Minister for the Environment and Heritage v. Greentree (No. 3) [2004] F.C.A. 1317 with appeal decision

to the full bench at Greentree v. Minister for the Environment and Heritage [2005] F.C.A.F.C. 128.115 Editorial commentary 22 E.P.L.J. (2005) at 1.

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Second, the appellate decision cemented in place the principles by whichfuture courts will determine the level of pecuniary penalty to be imposed forbreaches of the EPBC Act, noting that high levels of penalty are appropriatefor serious breaches for commercial gain.

4.4 Meander Dam

The Meander Dam project involves the construction of a dam in Tasmania’scentral north. In February 2002 the minister decided the proposal was acontrolled action due to the likely significant impacts on Commonwealth-listed threatened species (an endangered plant—Epacris exserta—and avulnerable animal—the Spotted-tail Quoll, Dasyurus maculatus maculatus(Tasmanian population).116

The proposed action was approved by the Tasmanian Government whichsubmitted its assessment report on the action to the Australian Governmenton the basis that its benefits would outweigh any expected environmentaldamage to listed threatened species. A Tasmanian conservation organisationthen challenged the Tasmanian approval decision in the Tasmanian ResourceManagement and Planning Appeal Tribunal under Tasmanian legislation. Thetribunal set aside the approval, replacing it with a refusal. However, theTasmanian Government passed enabling legislation overturning the tribunal’sdecision.

In the meantime, the Australian Government had “stopped the clock”on its assessment process and sought further information from the TasmanianRivers and Water Supply Commission in relation to a number of matters relatedto the ecological sustainability of the proposal. This additional material wasreleased for a two week public review period.

The proposed Meander Dam was subsequently approved by theAustralian Government Environment Minister but subject to much morestringent conditions than had been applied by Tasmania. Over 600 hectares, 50percent more land than originally proposed, is now required to be managed forthe protection and conservation of the Spotted-tail Quoll. The most importantareas of state forest land in the vicinity of the proposed dam cannot be loggedfor at least five years and only then if there is sufficient compensatory habitatavailable to allow logging to proceed.

New scientific evidence also demonstrated that there would be no impacton the threatened Epacris exserta from the proposed dam as the heath plantimpacted by the dam had been incorrectly identified. It was, in fact, Epacrisfranklinii, a more abundant species not eligible for listing as threatened.

116 Details of the referral, assessment and approval decision for this action can be found under ReferenceNumber 2002/565 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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The Meander Dam case demonstrates another feature of the EPBC Actidentified by McGrath,117 namely its influence in raising the standards of otherAustralian environmental assessment regimes. As noted by McGrath, “federalsupervision of large development projects . . . creates what might be calleda “healthy federal tension” for environmental decision-making in Australia.”The rigour and transparency of the EPBC Act has served to dramaticallyimprove public access to information about proposed projects and has ensuredjudicial review is available for decisions about those projects. Environmentalstandards across Australia have been enhanced as a result.

4.5 Particular Manner Decisions

The capacity of the minister to decide an action does not require approvalbecause it will be undertaken in a “particular manner” that will ensure noadverse impact on matters to be protected is a powerful provision of the EPBCAct. It provides substantial incentive for proponents to design their activities inan environmentally sustainable manner at the outset when different options areusually more readily and inexpensively available. The aim is to avoid, ratherthan mitigate, impacts on matters of national environmental significance.

4.5.1 Rehabilitation of Hexham Swamp, New South Wales

In October 2003 the Hunter Catchment Management Trust decided itwished to rehabilitate Hexham Swamp,118 a 2,000 hectare wetland in the Hunterregion of New South Wales directly linked to the Hunter Estuary Ramsarwetland. The Trust proposed to reinstate the natural freshwater/saltwaterinterface to the wetland. The previous estuarine values of the wetland andvalues for migratory birds had been lost through the operation of tidal gatesthat prevented the inflow of sea water. The original hydrology was to bereinstated by opening the tidal gates, thus allowing the natural tidal flows.

The key issue was that, under the then current regime, HexhamSwamp had become potential habitat for the Green and Golden Bell Frog,Litoria aurea, listed as vulnerable under the EPBC Act. There was concernthat inundation by saline tidal waters into the freshwater wetlands mightinadvertently result in the loss of suitable breeding habitat for the Bell Frogand that retention of some suitable habitat might be required.

The size of the Bell Frog population was unknown and the extent ofpotential impacts unclear so the Trust undertook to take specific measuresas part of the action to protect the habitat. These included monitoring theeffect of inundation on salinity within the swamp; installing flood gates toprevent intrusion of saline water during king or other extreme tides that would

117 McGrath, supra note 108, at 20–22.118 Details of the referral decision for this action can be found under Reference Number 2003/1244 at the

Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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adversely effect potential key habitat (including breeding habitat) of the BellFrog; and monitoring of frog populations during the three-year inundationproject to maximise the prospect of Bell Frog populations being maintained.The proposal was determined not to be a controlled action provided it wastaken in the particular manner specified by the Trust.

The Hexham Swamp rehabilitation project provides a good example ofa particular manner decision that has been very satisfactorily designed andimplemented. It also demonstrates that even projects aimed at enhancing theenvironmental values of an area may nevertheless still require some adjustmentto avoid potential inadvertent adverse impacts.

4.5.2 Mineral Sands Mining, Western Australia

This project involved the construction and operation of a mineralsands mine in the Cataby region of Western Australia.119 The main concernwas the potential loss of known habitat for the Carnaby’s Black-Cockatoo,Calyptorhynchus latirostris, a listed endangered species under the EPBC Act.As part of its referral documentation the company provided a report on thecockatoo usage of the area, including the area’s likely significance for breedingand feeding and the potential for increased habitat fragmentation as a resultof the company’s proposal.

On the basis of this report, and through extensive consultation withrelevant stakeholders (including the Carnaby’s Black-Cockatoo RecoveryTeam, Birds Australia, the local shire council, and state agencies such asthe Western Australian Department of Conservation and Land Managementand the Western Australian Department of Environment), the company thendeveloped a detailed management plan that identified the likely impacts of itsactivity on the listed species, and outlined a range of avoidance, mitigation,and management measures to minimise possible impacts.

These measures included using buffer zones; suspending miningadjacent to nest areas during the breeding season; relocating two knownnest trees; salvaging suitable natural hollows and providing artificial hollows;controlling competitors (honey bees, galahs, corellas, and wood ducks);developing a detailed revegetation plan coupled with a conservation covenanton restored and rehabilitated areas post-mining; and continuing consultationwith key stakeholders to ensure the success of the measures adopted.

It was determined that the proposal was not a controlled action providedit was taken in the particular manner specified by the company. The companywelcomed the decision as recognition of the substantial work undertaken toidentify and adequately manage the potential for impacts on the Carnaby’s

119 Details of the referral decision for this action can be found under Reference Number 2005/2001 at thePublic Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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Black-Cockatoo. The preliminary work undertaken by the company alsogreatly improved understanding of the listed species’ distribution in thearea. Continuing work will enable an analysis over time of the mitigationmeasures’ effectiveness, with possible flow-on benefits for other areas inWestern Australia.

4.6 Approval Decisions

While specified manner decisions can often achieve excellent outcomes interms of wildlife protection and conservation, on other occasions the issuesare much more problematic and can be satisfactorily resolved only through arigorous and transparent assessment and approval process.

4.6.1 Iron Ore Expansion, Western Australia

This project120 involved a proposed expansion of iron ore operationswith development of up to nine new small-scale open cut operations and theconstruction of associated waste dumps and infrastructure in the goldfieldsarea of Western Australia. The main concern was that the discrete ore bodiesproposed for development occurred at different locations within the elevatedranges in the area which were also home to the endangered plant Tetrathecapaynterae.

The original proposal would have impacted about 90 percent of theendangered Tetratheca paynterae population. The project was assessed underthe EPBC Act through an accredited Western Australian assessment processafter which the Western Australian Minister allowed the proponent to remove30 percent of the tetratheca population, with a possibility of a further20 percent if mining operations did not impact adversely on the population ofthe plant.

While the EPBC Act approval conditions were similar to the WesternAustralian approval, they were significantly more stringent. EPBC Actapproval conditions included a requirement, before removal of any of thetetratheca population, for the proponent to develop plans to manage theimpacts of mining on the endangered plants (through controlling dust, access,and weeds, and managing ground and surface water). The proponent was alsorequired to develop a recovery plan and a research and management plan forthe species and lodge a bank guarantee for AUD 900,000 to ensure that theplans were carried out. After mining began, the proponent was required tocommission an independent audit and provide an annual certificate statingcompliance with the approval conditions.

120 Details of the referral, assessment and approval decision for this action can be found under ReferenceNumber 2001/174 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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The EPBC conditions also stipulated that before the proponent couldaccess the second tranche of 20 percent of the area, he was required todemonstrate in an independent report that adequate recovery measures hadbeen introduced and that the first phase of mining had had no significant impacton the remaining plant population. Areas of adjacent land were also to bepermanently protected to provide continuity with the surrounding environmentand to further safeguard the remaining tetratheca population.

This is another example of an EPBC Act approval applying stricterconditions than might otherwise have been the case. It is also a situation wherehuman/wildlife interactions were accepted on the basis of environmental,economic, and social considerations. While the proposed development clearlywould impact in some way on an endangered species, the economic andsocial benefits of such a development in a remote region of Australia wereconsidered to outweigh the environmental effects, particularly given themitigation required through the EPBC Act approval.

4.6.2 Aquaculture Development, Queensland

This project involved the development and operation of a pearloyster facility at four sites in the Great Sandy Strait off the coast ofQueensland.121 The facility would be developed in three stages and coverapproximately 200 hectares when fully developed. The key issues related topotential impacts on a range of listed migratory species—humpback whales(Megaptera novaeangliae), green turtles (Chelonia mydas), loggerheadturtles (Caretta caretta), flatback turtles (Natator depressus), leatherbackturtles (Dermochelys coriacea), dugong (Dugong dugon), Indo-Pacifichumpback dolphins (Sousa chinensis), and a Ramsar wetland of internationalimportance—the Great Sandy Strait Ramsar site.

Prior to formally submitting preliminary information about the proposedaction, the proponent sought extensive advice from the Australian Governmentenvironment department on the range of potential impacts that the departmentmight need to consider during assessment under the EPBC Act. As a resultof these discussions, the proponent addressed all the key issues of concernwhich enabled the proposal to be assessed on preliminary documentation.

While the key issues of concern were largely addressed, there was stillsome uncertainty about the potential for adverse impacts on humpback whalesfrom the proposed action. It was determined that, in order to ensure that theproposal was not likely to have an unacceptable impact on matters of nationalenvironmental significance, the proponent would need to satisfy a range ofconditions.

121 Details of the referral, assessment and approval decision for this action can be found under ReferenceNumber 2003/1106 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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The approval included conditions to minimise any possible impacts ofthe development on marine species, as well as a requirement to prepare andimplement entanglement protocols to aid the safe release of animals in theevent of entrapment or entanglement. The conditions also required submissionof satisfactory compliance reports regarding the first stage of the developmentprior to proceeding to further stages.

The project is a good illustration that, even when proponents are diligentin seeking to address all the possible adverse impacts of human/wildlifeinteractions, conditions may still be appropriate to ensure the rigour andcommunity transparency of the environmental impact assessment system.

4.7 Offsets

Sometimes there are simply no mechanisms available to avoid impacts ofdevelopments on habitat which, although not of critical importance, maynevertheless have value for wildlife either now or in the future. The value ofsuch habitat may not be sufficient to deny approval to the development. Onsuch occasions, the use of offsets may be appropriate. In such cases, offsetsare not sought simply on a one-for-one basis; the aim is to secure a positiveenvironmental outcome.

4.7.1 Hunter Valley Coal Mine, New South Wales

This project involved the expansion of a coal mine in the Hunter Valley,including the removal of approximately 258 hectares of foraging habitat forthe endangered Regent Honeyeater, Xanthomyza phrygia, and the endangeredSwift Parrot, Lathamus discolor.122

The project was assessed under the EPBC Act through an accreditedNew South Wales assessment process.

Following assessment, the project was approved, but with conditions.As part of these conditions the company was required to offset the loss ofhabitat through the retention of 1,092 hectares of similar habitat in adjacentsites.

This project demonstrates how an offset can contribute positively whenhuman/wildlife interactions inevitably lead to some destruction of wildlife.Not only will a substantially larger area be reserved than destroyed but thereserved area will play a strategic role in the Hunter Valley region by creatingan important stepping stone in the vegetation corridor between the WorldHeritage listed Wollemi National Park and the Barrington Tops.

122 Details of the referral, assessment and approval decision for this action can be found under ReferenceNumber 2002/629 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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4.8 Compliance and Education Activities

More than 10 percent of all projects referred by proponents under theEPBC Act result directly from intervention by the Australian Governmentenvironment department following reports of suspected non-compliance withthe Act. The department’s first response, particularly where the activityconcerned is widespread, is to undertake a targeted education campaign tomake sure people are aware of their obligations and the options open to themto comply with the Act. When the activity is project specific, the departmentcontacts the project proponent to discuss options for compliance.

4.8.1 Clearing of Buloke Trees in the West Wimmera Region, Victoria

Following reports of a number of clearing activities affecting Buloketrees, Allocasuarina luehmannii, in the West Wimmera region of Victoria,the department undertook a series of coordinated compliance and educationalactivities designed to improve local knowledge of, and compliance with,the Act. Buloke trees are an important food source for the endangeredand migratory Red-tailed Black-Cockatoo (south-eastern), Calyptorhynchusbanksii graptogyne, and were being cleared for agricultural purposes,including irrigation systems.

Constructive engagement with local landholders, as well as therelevant local and state government regulators, meant that the fundamentalenvironmental issue of protecting the cockatoos’ food source was bestaddressed by investigating the various options available to farmers to avoid,minimise or mitigate the impact of clearing. This work helped farmers designtheir proposed activities in a way that does not result in significant impacts oneither the Buloke communities or the Red-tailed Black-Cockatoo, while stillbeing able to carry out their agricultural business. Some irrigation proposalswere modified, important remnant stands of Buloke were protected and givena better chance to flower and provide food for cockatoos, and Buloke seedlingswere re-established in areas not required for irrigation.

There is now a heightened awareness of the issue in the region and anumber of referrals for these activities have been received. The process hasresulted in improved longer-term protection for Buloke trees in the region,with important long-lasting benefit to the Red-tailed Black-Cockatoo.

4.8.2 Protection of Brigalow near Rolleston, Queensland

The Brigalow ecological community, Acacia harpophylla dominant andco-dominant, has undergone a severe decline in extent following its clearancein both Queensland and New South Wales for agricultural use and is protectedunder the EPBC Act as an endangered ecological community. Not all Brigalowcountry is included in the listed community, however, as the listed community

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must retain the species composition and structural elements only found inundisturbed areas.

The Australian Government environment department worked with theNational Farmers’ Federation to assist a farmer who wished to develop hisproperty containing large areas of Brigalow, although not necessarily all thelisted community. A departmental officer visited the property with an expertconsultant to identify the listed community and assist the farmer with hisproposal. An EPBC referral123 was developed to clear 2,300 hectares of generalBrigalow country but to protect an important 1,100 hectares of the listedcommunity. The proposal was constructed such that areas of remnant Brigalowmapped by the Queensland Herbarium were retained and protected underQueensland Government legislation. The proponent also developed a propertyvegetation management plan (as required under state legislation) to protectremaining remnant stands of Brigalow and to maintain suitable buffer areasadjacent to the remnant stand. As a result of this work, when the proposal wasreferred under the provisions of the EPBC Act, the decision was made that itwas not a controlled action if it were undertaken in the manner specified, thatis, in accordance with the property vegetation management plan and protectingthe most important areas of the listed community. The Australian Governmentis also funding surveys and assisting the farmer with the development of theplan.

4.8.3 Arthur River Road Upgrade, Tasmania

This project involved a proposal by a local council to upgrade and sealthe existing Arthur River road,124 an important tourist road running through theArthur-Pieman Conservation Area in Tasmania’s far northwest. Initially thecouncil did not consider that the matter warranted EPBC Act considerationbut a state conservation organisation was concerned about possible impactsthat the resulting increase in speed and volume of traffic would have onthe listed vulnerable Spotted-tail Quoll, Dasyurus maculatus maculatus(Tasmanian population). The conservation organisation raised its concernswith the Australian Government environment department as a complianceissue. As a result of discussions between the department’s compliance areaand the council, the proposal was then referred for consideration under theAct. Based on the information available at the time of referral, the Ministerfor the Environment determined that approval was required for the project andpreliminary road widening work was halted.

123 Details of the referral for this action can be found under Reference Number 2003/962 at the PublicNotifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

124 Details of the referral decision for this action can be found under Reference Number 2003/930 at thePublic Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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A consultative process was then undertaken with the department, thestate department of the environment, the council, and the conservationorganisation that had first drawn attention to the matter. As a result, a rangeof mitigation measures were developed, including speed limiting measures,physical slow points, and wildlife underpasses. All parties agreed that, ifthe road widening project proceeded together with these measures, adverseimpacts on the quoll should be avoided.

The council was keen to proceed with the action as soon as possible,given safety concerns with the existing narrow road and its importance as akey tourist road for the region, and sought reconsideration of the minister’sdecision that the action would need full assessment and approval under the Act.Under the reconsideration process, the minister revoked his original decisionand substituted a new decision that the action did not require approval providedit was undertaken in the agreed manner.

This project is an excellent example both of the flexibility of the EPBCAct and the good outcomes that can occur as a result of a cooperativecompliance regime. The key involvement of a conservation organisationalso highlights the transparency of the legislation and the opportunities forconstructive community engagement.

4.9 Use of Conservation Agreements for Approval Settingand Compliance

4.9.1 Industrial Sub-Division in Outer Melbourne

This project involved the sub-division of a site on the fringe of anindustrial area of outer western Melbourne, the capital city of Victoria.125 Theproponent proposed to clear all vegetation from a forty-two hectare parcelof land to be sub-divided into nineteen lots, each of about two hectares, forvarious light industrial uses.

The primary concern was the possible impact of the development onlisted threatened species, in particular the critically endangered Spiny or PlainsRice Flower, Pimelea spinescens var. spinescens. This concern was heightenedwhen, as part of a targeted survey of the site, the proponent found about twohundred individuals of the Pimelea estimated to represent between 1.2 percentand 10 percent of the known population of the species in the wild.

The situation was exacerbated by the fact that the Victorian Governmenthad no role in the development, having approved the proposal (for aprevious owner) some eight years previously. As part of that approval, theVictorian Government had negotiated arrangements for the protection of a

125 Details of the referral, assessment and the approval decision for this action can be found under ReferenceNumber 2004/1820 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.

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representative sample of grassland, in return for which there would be nofurther environmental requirements under Victorian planning arrangements.

The proponent recognised its responsibility for protecting the criticallyendangered plant but there were difficulties in resolving how best to do so. Inparticular, it was unclear how an approval under the EPBC Act would be ableto guarantee the long-term protection of the Pimelea after the developmenthad been completed and sold to new owners.

In the end, the Australian Government Environment Minister enteredinto a conservation agreement under the EPBC Act with the developer whichformed the basis of the subsequent approval decision. The conservationagreement also provided the basis for a formal agreement between theAustralian Government, the developer, the Victorian Government, the localgovernment authority and a non-government trust with a charter to manageland for conservation purposes. The formal agreement between all theseparties guaranteed the long-term arrangements to protect the Pimelea.

The arrangements resulted in a range of measures including increasedfunding for the management of a Victorian Government conservation reserve,and the translocation of a small number of Pimelea plants to that site; fundingfor the creation of a new Pimelea conservation reserve controlled by localgovernment which already had some four hundred Pimelea plants containedwithin it; and the establishment of a trust fund to provide ongoing moneytowards surveys, research, and conservation of the species, as well as themanagement of the two reserves. The overall package was worth a little lessthan AUD 1 Million.

This project is a good example of how an innovative approach tothe provisions of the EPBC Act (in this case, in relation to conservationagreements) can result in significant environmental advances while providingindustry with appropriate opportunities for sustainable development.

4.9.2 Habitat Remediation, Mount Buller, Victoria

Mount Buller in Victoria is home to a small but important populationof the endangered Mountain Pygmy Possum (Burramys parvus). The PygmyPossum has very specific habitat requirements and has become increasinglyrare at Mount Buller in recent years. In 2003, the company operating the skifields at Mount Buller undertook slope grooming and expansion activitieswithout approval in an area of Pygmy Possum habitat.

The Australian Government environment department investigated thematter and concluded that the damage to the Pygmy Possum habitat inthe fragile alpine environment was significant and the company may havebreached the EPBC Act.

As an alternative to taking legal action, the department negotiated aconservation agreement between the Australian Government EnvironmentMinister and the ski lift company to remediate the habitat damage. The

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conservation agreement provides a legally binding framework for a plan ofaction that requires the company to spend more than AUD 350,000 on arange of projects to rehabilitate habitat, undertake research and contributeto the recovery plan for the Pygmy Possum. The agreement also sets outenvironmental management requirements for the company’s future operations.

Whilst this approach will not be appropriate for all compliancematters, in certain circumstances conservation agreements can provide aninnovative mechanism for resolving legislative breaches in a way that deliverstangible on-ground environmental benefits, as well as achieving longer-termbehavioural change.

4.10 Listings

It is difficult to demonstrate the success of the EPBC Act in relation to listingsthrough the provision of a case study. While listing provides the protectionafforded under the Act to matters of national environmental significance,many listings do not directly result in specific assessment and approvalprocesses. They do, however, highlight general ecological importance andthe desirability of other protection being offered through other AustralianGovernment policies and programs.

4.10.1 Improvements in the Listing of Ecological Communities

Defining and identifying an ecological community126 for listing under theEPBC Act is usually a complex task. On occasions it may be straightforward,for example, when the community can be readily identified in a discrete areaaccording to an accurate map. More often in Australia, however, ecologicalcommunities such as grasslands and woodlands occur over large areas,including all types of land tenure and often in a range of conditions makingthem difficult to identify.

This diversity within ecological communities is compounded by the ageof the Australian landscape and the variability of its soils which frequentlyleads to spatial change in the environment that can be more gradual, subtleand complex than is the case in most other continents. The result is that thelandscape often undergoes a transition from one state to another with no cleardemarcation between, with a single ecological community occurring over alarge area in various states or expressions from the pristine to the locallyextinct.

This can be a problem for the administration of the EPBC Act given thelegal effect and consequences for landholders (by way of offence provisions)that flow from listings under the Act. It is a problem also for other Australian

126 “Ecological community” is defined in the Environment Protection and Biodiversity Conservation Act1999 (Cth) as “the extent in nature in the Australian jurisdiction of an assemblage of native species thatinhabits a particular area in nature” (S528).

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jurisdictions that provide for listing of threatened ecological communities.The New South Wales Land and Environment Court, for example, has drawnattention to the legal problems caused for ordinary citizens in knowing whetheror not listed ecological communities exist on their properties and the problemsthat uncertainty poses for the administration of New South Wales legislation.127

Ordinary citizens, particularly in Australia’s rural and regional areas,increasingly have been recognising these concerns. As noted by Prestonand Adam,128 while threatened species have been part of public policydebates in Australia for a long time, the concept of threatened ecologicalcommunities is more recent. Despite little empirical evidence,129 many ruraland regional landholders are suspicious of the concept, fearing listings willunnecessarily restrict their capacity to manage their land. In fact, the existenceof a threatened species or ecological community is generally a testament tothe landholder’s ongoing management, and listing will have no impact onlandholders continuing to use their land in that same manner. In such cases,EPBC Act referral is only required when a substantial change or intensificationof land use is contemplated likely to have a significant impact on the listedspecies or ecological community.

These difficulties were recognised by the Threatened Species ScientificCommittee during 2003 as the committee was struggling with the effectiveimplementation of the threatened ecological community provisions of theEPBC Act. The committee, which had used expert workshops in the past toresolve difficult issues, convened a workshop of national experts in June 2004,using a particularly complex ecological community, Yellow Box-Red GumGrassy Woodland, as a case study to focus discussion. The workshop was heldin Orange, New South Wales, where field trips to examples of the ecologicalcommunity were held as part of the workshop.

The principal objective of the Threatened Species Scientific Committeewas to devise an approach to define and list threatened ecological communitiesat their national extent which would be scientifically credible, objective,repeatable, practical, easily understood by the general community, andap-plicable within Australia’s natural resource management framework.

127 Hornsby Shire Council v. Vitone Developments Pty Limited [2003], NSWLEC 272 at 37. See also BrianJ. Preston SC and Paul Adam, Describing and Listing Threatened Ecological Communities under theThreatened Species Conservation Act (NSW), 21 E.P.L.J. 250 and 372, Lawbook Company, Sydney(2004).

128 Brian J. Preston SC and Paul Adam, Describing and Listing Threatened Ecological Communities underthe Threatened Species Conservation Act (NSW), 21 E.P.L.J. 372, 389, Lawbook Company, Sydney(2004).

129 Australia’s Productivity Commission examined this issue during an inquiry in 2004 and found the“actual and perceived impacts of the EPBC Act on landholders appear to differ markedly. In termsof preventing activities, or of requiring activities to undergo the assessment and approval process, theEPBC Act to date has had little direct impact on the agricultural sector. However, uncertainty aboutits potential future impacts has been a concern for some landholders.” See Productivity Commission,

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Following the expert workshop the committee recommended a newapproach130 to the Australian Government Environment Minister to take intoaccount the impact of degradation and regional variation in widespread ecolog-ical communities. The minister accepted the committee’s recommendation andendorsed the new approach to listing of threatened ecological communities.

The new approach involves a tighter definition of ecological communi-ties through the use of condition classes. A condition class describes areas ofan ecological community that have a similar conservation value. Conditioncan be determined by factors such as numbers and types of native plantsand animals present; the level of weed invasion; the size of the area; anddistance to the next area of native vegetation. The tighter approach ensuresthat only the better condition classes are included in the definition of thelisted ecological community and are therefore subject to the assessment andapproval processes under the EPBC Act. Other lower quality, degraded areasstill qualify for potential recovery actions through established natural resourcemanagement programs and recovery planning processes.

For the more problematic communities, the Threatened Species Sci-entific Committee continues to use specific expert workshops as well ascommunity based workshops to assist with its work. Community based work-shops have been introduced recently to ensure local knowledge contributesboth to the “groundtruthing” of the data and the articulation of a definitionstraightforward enough for the general community to use. These workshopsare in addition to the normal scientific methods the committee uses in makingits recommendations to the minister.

4.10.2 Listing of the Swamps of the Fleurieu Peninsula

The Swamps of the Fleurieu Peninsula, south of Adelaide, South Aus-tralia, are localised wetlands occurring in high rainfall areas. They are denselyvegetated and adjacent to waterlogged soils around low-lying creeks and flats.

The swamps are typified by their reedy or heathy vegetation growingon peat, silt, peat silt, or black clay soil and are home to a number of plantsand animals that are listed as endangered under the Act, and that are foundnowhere else in Australia. Foremost amongst these is the Mount Lofty Rangessouthern emu-wren, Stipiturus malachurus intermedius. Without protectingthe swamps, these endangered plants and animals will also become extinct inthe wild.

The AustralianGovernment assisted in purchasing the largest remainingintact swamp of the Fleurieu Peninsula, Glenshera Swamp, for inclusion in the

Impacts of Native Vegetation and Biodiversity Regulations L1, Commonwealth of Australia, Sydney(2004).

130 Threatened Species Scientific Committee, Ecological Communities: The Way Forward, Advice to theMinister for the Environment and Heritage, Department of the Environment, Water, Heritage and theArts, Canberra (2004).

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National Reserve System. However, the government recognised it is importantto also conserve as many of the remaining smaller swamps as possible. Manyof these swamps occur on private freehold land and so the attitudes andactivities of individual landholders are crucial to their survival.

The Mount Lofty Southern Emu-wren Recovery Program, supportedby the Australian Government, has been working extensively with suchlandholders to highlight the importance of the swamps for conservingbiodiversity on the Fleurieu Peninsula. To assist landholders wanting toactively conserve swamps on their land, the program has developed guidelinesfor different management practices currently used by landholders.

The Swamps of the Fleurieu Peninsula were listed as a criticallyendangered ecological community due to the small patch sizes of remainingswamps and their vulnerability to ongoing threats. The most obvious outcomeof the listing is to provide the swamps with the statutory protection of theEPBC Act. However, the purpose of listing the Swamps of the FleurieuPeninsula under the Act is also to publicly recognise that the long-term survivalof this ecological community is under threat, prevent its further decline, andassist community efforts toward its recovery.

4.11 Ecologically Sustainable Management of Australia’s Fisheries

The depletion of fish stocks and the ecological sustainability of global fisheriesare issues of international concern. While the status of Australia fish stocksis generally better than elsewhere in the world, there is still evidence ofoverfishing and a high level of uncertainty.

Assessments under the EPBC Act by the Australian Governmentenvironment department seek to ensure that, over time, all Australian fisheriesare ecologically sustainable. The assessment process incorporates a flow ofcommunication between fishery managers and the department in order tofacilitate the best outcome for the fishery. The assessments are conductedagainst guidelines131 which outline specific principles and objectives designedto ensure a strategic and transparent way of evaluating the ecologicalsustainability of fishery management arrangements. Each fishery is unique,and assessment is based on the merits of the combination of managementmeasures in place and fishery specific issues.

These assessments involve a broad range of recommendations thatrequire Australian Government and state and territory fishery managementagencies to demonstrate improved environmental performance, and activelyenhance the ecologically sustainable management of fisheries in the short tomedium term.

The assessment process is catalysing a change in management practicesacross Australia’s commercial fisheries. As a result, fisheries management

131 Commonwealth of Australia, Guidelines for the Ecologically Sustainable Management of Fisheries(2001).

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agencies are demonstrating an increased commitment to ecologicallysustainable fisheries management practices, such as spatial management,enhanced research and data collection processes, cross-jurisdictional man-agement approaches, harvest strategies for target and by-product species,mitigation and monitoring of protected species interactions, the developmentof enhanced reference points and performance measures for both targetand non-target species, and enhancements to compliance systems andmeasures to better enforce management arrangements and address illegalharvesting.

4.11.1 The Southern and Eastern Scalefish and Shark Fishery

The first strategic assessment under the EPBC Act for the Southernand Eastern Scalefish and Shark Fishery was completed in December 2003.132

The fishery is a multi sector and multi gear fishery and one of Australia’smajor fisheries both in terms of volume and value of landed catch. It isa recent amalgamation of previously separate trawl, shark gillnet, and linefisheries covering south eastern Australian waters. At the time of the strategicassessment it had significant problems in terms of its sustainability andecological impacts including several overfished species, uncertainty with thestock status of most harvested species, increasing effort levels, excess bycatchand continuing interactions with protected species. The strategic assessmentoutcomes included a wide range of recommendations to address these threatsto the fishery and the surrounding marine ecosystem.

One of the key recommendations was to introduce robust harveststrategies for quota species and high risk non-quota species to ensure a moreecologically sustainable basis for harvesting the primary commercial speciesin the fishery. The Australian Fisheries Management Authority commencedimplementing these harvest strategies in 2005 by introducing more precaution-ary benchmarks of recommended biological catches as the basis of determin-ing catch quotas for most targeted species. In conjunction with other measuresannounced in November 2005 by the Australian Government as part of theAUD 220 million Securing our Fishing Future structural adjustmentpackage,133 these harvest strategies have been the catalyst for securingsubstantial reductions in future catch limits for several key commercial speciesto promote the recovery of overfished stocks and enhance the longer termsustainability of fish stocks across the fishery.

132 Details of the strategic assessment for this fishery can be found under at the Strategic AssessmentNotices page of the EPBC Act website http://www.environment.gov.au/epbc/notices/strategic.html.

133 Australian Government, Minister for the Environment and Heritage Minister for Fisheries, Forestry andConservation, Joint Media Release, Government Acts for a Sustainable Future (23 November 2005).

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4.11.2 The South Australian Pilchard Fishery

Positive changes to fisheries management have also achieved significantbenefits for protected species through the fisheries assessment process underthe EPBC Act. The South Australian Pilchard Fishery was assessed under theAct in 2004134 and declared exempt from the export provisions of the EPBC Actfor a period of five years. While the fishery was considered to be well managed,a series of recommendations were made for the fishery to further improvethe management arrangements, including providing a mechanism to allowfishers to record interactions with protected/listed species and responding toany significant protected species interactions within twelve months. While thefishery had been declared exempt, the fishery management agency understoodthat continuous improvement is required in the fishery over the period of thedeclaration.

Consequently, when the South Australian department responsible forfisheries management was made aware that a number of fatal interactions withdolphins had occurred in the pilchard fishery, prompt action to address thisthreat was taken. Mindful of the EPBC Act, the South Australian departmentclosed the fishery immediately and organised a summit involving the SouthAustralian Fisheries Minister, industry, and the Australian Governmentenvironment department to discuss mitigation measures.

The South Australian Government committed to keeping the fisheryclosed until a Code of Conduct that contained mitigation measures to avoidfurther interactions was developed and implemented. A further conditionplaced on the fishery was that a full independent observer program wouldneed to be implemented in the fishery. All operators in the pilchard fisheryhave now committed to the Code of Practice, and it is likely that the newmeasures will minimise interactions with protected species in the future.

4.12 Other Sustainable Wildlife Industries

Wildlife trade management plans and wildlife trade operations, approvedunder the EPBC Act, govern the sustainable and humane wild harvest ofwildlife. These plans enable the Australian Government to ensure that, ifwildlife is used for commercial purposes, this occurs only in a humane wayand as a natural renewable resource.

4.12.1 Kangaroo Management

Australia has about 50 species of kangaroos and wallabies, many ofwhich have declined during the years since European settlement. Somespecies, however, have thrived to such an extent they are now among the

134 Details of the strategic assessment for this fishery can be found under at the Strategic AssessmentNotices page of the EPBC Act website http://www.environment.gov.au/epbc/notices/strategic.html.

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most abundant large mammals anywhere in the world. The more abundantspecies are so numerous in Australia’s arid grazing rangelands they areregarded by many landholders as pests, in competition with sheep and cattle forpasture.

Over recent years these abundant species have also come to be regardedas a resource, with the development of an Australian kangaroo industry whichprovides meat and skins, including for export. The industry is currentlybased on six of the most common species—the Red kangaroo (Macropusrufus), the Eastern grey kangaroo (Macropus giganteus), the Western greykangaroo (Macropus fuliginosus), the common wallaroo or euro (Macropusrobustus), the Bennetts wallaby (Macropus rufogriseus), and the Rufouswallaby (Thylogale billardierii). The Australian populations of these sixspecies were estimated at more than 25 million in 2005, an estimate basedonly on surveys of areas within Australia where the species are harvested andtherefore an under-estimate of the entire Australian populations.

Kangaroo harvesting is a controversial issue in Australia for some animalwelfare and conservation groups and for many members of the community.As a result, the industry is one of the most highly regulated sustainable useindustries in the world. This regulation is carried out under the EPBC Act.

Under the EPBC Act, the annual harvests of kangaroos and wallabies arelimited by quota and conducted under management plans based on extensivescientific research and monitoring. All management plans are designedto ensure continuation of self-perpetuating populations of all species andare approved by the Australian Government Minister for the Environmenton a five-yearly cycle. The plans incorporate ecologically sustainable useprinciples and include measures for mitigation and monitoring and ongoingscientific research into kangaroo behaviour and ecology.

In addition to the management plans, the Minister must also approveannual quotas of numbers of kangaroos able to be harvested. The setting ofeach state quota for each species takes account of factors such as populationnumbers, trends in harvest levels and seasonal conditions. Each quota is basedon a sustainable proportion of population size. Annual aerial and groundsurveys are undertaken which, together with harvest returns from industry,provide for regular monitoring of populations. The harvest returns typicallyshow a level of take under 60 percent of the approved quota. While quotas arescientifically based, the actual harvest is market driven.

Management plans also have strict animal welfare provisions includingrequirements for licensing of shooters and their adherence to the nationalCode of Practice for the Humane Shooting of Kangaroos.135 The code sets aminimum achievable standard of humane conduct.

135 Council of Nature Conservation Ministers, Code of Practice for the Humane Shooting of Kangaroos(2nd Ed. 1990).

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Through the EPBC Act and its predecessor legislation, the kangarooindustry has been managed over more than twenty years without adverse im-pacts on the Australian kangaroo population. Even during and after periods ofsevere drought, kangaroo populations have recovered quickly, demonstratingtheir remarkable ability to thrive in Australia’s harsh environment.

4.12.2 Crocodile Management, Northern Territory

Saltwater crocodiles, Crocodylus porosus, were commercially huntedin the Northern Territory between 1945 until 1971 when the species wasprotected because of a marked decline in its population. Following protection,the species recovered dramatically when an export oriented industry was re-established in 1980. Strict management ever since has ensured an ecologicallysustainable industry. The major activity is the wild harvest of eggs.

In 2005 when the Northern Territory Government submitted its draftcrocodile management plan for Australian Government approval under theEPBC Act, an important aspect of the proposed new plan was to allow forcrocodiles to be taken by commercial trophy hunters, who would then be ableto export crocodile parts such as heads and skins as trophies.

In deciding whether to approve the crocodile management plan, theAustralian Government Environment Minister was required to consider arange of issues including possible impacts on ecosystems and habitats,conservation of the species, effectiveness of management arrangements, andthe humane treatment of wildlife.

Taking into account the views of the public and a range of experts,the Minister decided136 to approve the overall management plan—without thesafari hunting aspect. The minister determined that safari hunting of crocodileswould not be consistent with a modern day approach to animal welfare andresponsible management.

5. CONCLUSION

Since the EPBC Act commenced on 16 July 2000, most of its provisions havebeen implemented efficiently and effectively, delivering important benefitsfor the Australian community. Many of these benefits involve better andmore sustainable management of human/wildlife interactions. Nevertheless,the EPBC Act is an extraordinarily comprehensive piece of environmentallegislation and, not surprisingly, its administration in its initial few years hashad some uneven elements.

Some of the provisions of the Act such as bioregional planning havebeen largely ignored until very recently. Others such as some of the listing

136 Australian Government, Minister for the Environment and Heritage, Media Release, Crocodile SafariHunting Proposal Rejected—Crocodile Culls to Continue, C285/05 (6 October 2005).

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arrangements and access to biological resources have been slower to realisethan originally envisaged or generally thought desirable. Yet other provisionssuch as the treatment of secondary or indirect impacts were initially interpretedin an unduly cautious manner, a situation that has since been rectified byjudgments in the courts and subsequent amendment of the Act. Exceptfor fisheries, strategic assessments have not realised good returns althoughthe major strategic assessment of the Kimberley, announced after the 2006amendments,137 suggests this is likely to change.

While all these matters have led to some criticism of the EPBC Act,particularly from conservationists, they reflect, as much as anything, thedifficulties inherent in making vast changes to systems of law. The EPBC Actbrought with it a hugely expanded reach of issues to be addressed as well asentirely new functions for the national environment minister and environmentdepartment to deal with. Although additional resources were found fromwithin the department’s operating budget, the department struggled inadministering the Act to find both sufficient financial resources and the rangeof new skills and experience required within its staff. In such circumstances, itis understandable that prime focus was given to implementing the mandatory“front end” of the Act (dealing with the assessment and approval of projects)with less attention being paid to some of the more discretionary elements. Thissituation is being addressed as the administration of the EPBC Act maturesand more resources are being brought to the task.138

From an institutional point of view, the EPBC Act provides a much moreeffective national framework for environmental protection and conservationof biodiversity than the previous regime which was triggered in an ad hocfashion by factors not necessarily directly related to the environment orwildlife concerns. The new regime places the national environment ministerat the centre of national decision-making. And, within that decision-making,the principles of ecologically sustainable development and the precautionaryprinciple take pride of place.

The Act also provides an overarching national framework for environ-mental protection not limited, as previously, by a unduly narrow view ofthe Australian Government’s responsibilities. Decision-making is requiredat a broad national level in relation to matters of national environmentalsignificance wherever they occur. The previous regime did not deal with allthese matters of national environmental significance and, even when it did,regulation was usually confined to Australian Government areas.

Other benefits of the EPBC Act have been demonstrated in a variety ofways. The Act provides greater certainty in relation to Australian Governmentinvolvement in environmental matters, an enhanced capacity for cooperation

137 Garrett and Kobelke, supra, note 95.138 Australian Government, supra note 101.

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with the states and territories through accredited processes and the introductionof strict timeframes within which government decisions must be made. TheEPBC Act provides far more protection than previously for Australia’s richand unique wildlife.

As noted by Petts,139 the impact of environmental impact assessment is“influenced by the nature of the decision-making environment within whichthe process operates” and is “affected by the quality of the [assessment]report . . . as well as by the formal consultation upon, and discussion of,the assessment.” Regardless of criticism in relation to some aspects of theAct’s administration, overall the EPBC Act clearly demonstrates best practicein environmental assessment in terms of the rigour of its processes, thetransparency of those processes to members of the community, the qualityof environmental outcomes, and the opportunities for the community toparticipate fully, including challenging final decisions through judicial oradministrative review.

The impact of the EPBC Act goes far beyond its processes andcommunity participative elements. By placing a clear marker that ensuresthe Australian Government a role in the consideration of all projects withsignificant impacts on matters of national environmental significance, the Actis changing attitudes and raising standards. More and more, proponents areaware that their proposals will not proceed without adequate considerationof ecological sustainability and they are increasingly designing their projectsand consulting government and the community accordingly.

I leave the last word to Chris McGrath, an Australian barrister who haswritten extensively on the EPBC Act and who has also been actively involvedin much of the litigation arising out of its implementation. As part of a reviewof the EPBC Act for Australia’s 2006 State of the Environment process,he concluded that “the EPBC Act has made an important contribution toenvironmental protection and sustainable development in Australia during itsfirst five years of operation” and that “greatly improved public accountabilityand access to information about proposed development are major, practicalbenefits that have undoubtedly been achieved.”140

139 Petts, supra note 98, at 7.140 McGrath supra note 94 at 17.

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