Chapter 6Commonwealth responsibility
Overview
6.1The Australian Alps region extends across three state and territory jurisdictions: New South Wales (NSW), Victoria and the Australian Capital Territory (ACT). Each of these state and territory governments are the relevant land managers within their jurisdictions, and have developed different laws, policies and management plans to manage feral horses. The Australian Government has powers and responsibilities to protect matters of national environmental significance (MNES), such as national heritage places and threatened species and ecological communities.
6.2The individual parks and reserves which make up the Australian Alps National Parks and Reserves are gazetted under state and territory legislation. The Australian Alps National Parks and Reserves are state land and are managed through a Memorandum of Understanding in relation to the Co-operative Management of the Australian Alps national parks. This MOU has been in place between the Commonwealth, NSW, ACT and Victorian governments since June 1986 (1986 MOU). The 1986 MOU, which does not give rise to legal obligations, confirms that the relevant states and territory have primary responsibility for the management of the parks which make up the nationally-listed Australian Alps National Parks and Reserves National Heritage place.
6.3The ACT Government has a strong view that feral horses should not be retained in national parks. It stated that there is a need for coordination and harmonisation across the jurisdictions to manage feral horses, noting that ‘the overall success of feral horse management and control is only as successful as the weakest link’.
6.4Cooperation between the jurisdictions was strongly recommended by many inquiry participants, in order to address the impacts of feral horses on the Alps, which covers a wide geographic area and extends across two states and one territory.
6.5The Fenner School of Environment and Society submitted that the Commonwealth Government has ‘both the power and the responsibility to intervene to address the threat of feral horses’, but that ‘cooperative federalism means that these landscapes are not being managed holistically’. The Fenner School suggested a ‘whole of landscape’ approach was needed, which could cross jurisdictional boundaries in order to meet the obligation to protect matters of national environmental significance (MNES).
6.6South Endeavour Trust was clear in its assessment of the existing legislation, and stated that ‘the Senate would not be holding this inquiry if existing laws, policies and programs were adequate’.
6.7The Samuel Review of the EPBC Act observed that the operation of the EPBC Act with regard to state and territory land management lacks integration:
The lack of integration between jurisdictions is exacerbated by the construction of the EPBC Act and the way the Commonwealth implements it. Significant efforts are made to assess and list threatened species. However, once listed, not enough is done to deliver improved outcomes for them.
6.8Department of Climate Change, Energy, the Environment and Water (DCCEEW) representatives submitted that the Commonwealth is ‘using the levers at its disposal’ on this matter, including using it’s ‘convening power’ to reinstate the Alps Ministerial Council. The work of this council is discussed below.
Matters of national environmental significance
6.9The Australian Government’s primary environmental legislation is the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which sets out the legal framework for environmental protection at the Commonwealth level. The Commonwealth Environment Minister has authority over matters of national environmental significance (MNES). In the Australian Alps, this includes a National Heritage listed place, wetlands of international importance, migratory species and threatened species and threatened ecological communities (discussed later in this chapter). Australia’s responsibilities under international agreements, which to varying degrees are reflected in the EPBC Act, also rest with the Australian Government.
6.10Matters of national environmental significance are ‘protected matters’ and, in relation to the Australian Alps, include:
the Australian Alps National Parks and Reserves National Heritage place;
two wetlands of international importance (Ramsar sites) which are both located within the National Heritage place;
threatened ecological communities listed under the EPBC Act;
multiple listed threatened species; and
a migratory species.
6.11Actions which may have a ‘significant impact’ on any of the protected matters must be referred to the Commonwealth Environment Minister for consideration and approval. This self-referral mechanism is the main one used for potential consideration under the EPBC Act.
6.12Under the EPBC Act, the Commonwealth Environment Minister may also request that a person (or state), planning to undertake a proposed action, refer it for assessment and approval (a call in power).
6.13Once an action has been referred and determined to be a ‘controlled action’, the minister then follows the assessment and approval pathways in the EPBC Act, including the requirement to act consistently with:
recovery plans for threatened species and ecological communities;
threat abatement plans for key threatening processes; and
management principles for National Heritage listed places.
6.14The Minister must also consider conservation advice for threatened species and ecological communities.
6.15The term 'action' has a defined meaning under the EPBC Act. This has implications for the types of activities that are not required to be referred to the Environment Minister, which is discussed below.
National Heritage listed places
6.16National Heritage listed places are protected under the EPBC Act, which requires ministerial approval for actions that could have a significant impact on the National Heritage values of a National Heritage place. Special agreements with state and territory governments, First Nations peoples and private owners can also be established to protect National Heritage listed places.
6.17The Australian Alps National Parks and Reserves National Heritage place (Australian Alps National Heritage place) was listed in 2008. There are 11national parks and nature reserves within the Australian Alps National Heritage place, extending over three jurisdictions.
6.18The listing documentation for the Australian Alps National Heritage place describes the place’s heritage values, including glacial and periglacial features; fossils; a collection of karst features; biological heritage; moth feasting; transhumant grazing including huts, the former grazing landscapes, stock yards and stock routes; scientific research; water harvesting; and recreation.
6.19The management principles for National Heritage places provide a framework for managing heritage properties, and are intended to be used in the preparation and implementation of management plans and programs. The principles set out the objectives of identifying, protecting, conserving, presenting and transmitting to all generations, the National Heritage values of the place.
6.20Under the EPBC Act, the regulations governing National Heritage management principles may prescribe obligations to implement or give effect to these principles. This includes regulations relating to the values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
6.21Where a National Heritage place is in a state or territory (that is, not in a Commonwealth area), the Australian Government ‘must endeavour to ensure that a management plan is prepared and implemented in cooperation with the relevant state or territory government’.
6.22In relation to the Australian Alps National Heritage place, DCCEEW submitted that ‘[w]hile there is no single management plan covering the National Heritage place, there are management plans for various components of the place’.
6.23The states and territory that share the Australian Alps National Heritage place have management plans for all parks and reserves within the Australian Alps listed place. Additionally, as detailed in Chapter 5, each jurisdiction has a management plan specific to the control of feral horses. DCCEEW officials explained that:
For state agencies…there is an obligation for the Commonwealth to use its best endeavours to ensure that plans are not inconsistent with National Heritage management principles. Those are the principles around which we hope to, and do, cooperate with the states to ensure that they're consistent.
6.24DCCEEW officials further set out Commonwealth concerns regarding the level of implementation of the NSW Kosciuszko Management Plan, and noted the role of the Ministerial Council as a forum for the Commonwealth Environment Minister to raise these concerns.
6.25Several inquiry participants called for management principles to prescribe the removal of feral horses from the National Heritage listed place. DCCEEW explained that the Commonwealth Environment Minister may prescribe further regulations under the management principles for the development of management plans, but acknowledged that the Commonwealth’s powers to directly regulate activity in the National Heritage listed place is constrained.
6.26The 2020 Samuel Review of the EPBC Act highlighted that National Heritage listings lack practical application and appear more focussed on the listing stage than the ongoing conservation of identified heritage values: ‘Despite considerable attention at nomination and listing, the ongoing expectations and obligations of property owners and site managers are often unclear and ill‑defined’.
Actions impacting a National Heritage listed place
6.27This section explains the implications for actions which may have a significant impact on the National Heritage values of a National Heritage listed place. It also covers Australia’s obligations under the Convention on Biological Diversity (CBD).
6.28Governmental authorisations by a state or territory, or their agencies, are not considered ‘actions’ under the EPBC Act. Governmental authorisations can include approvals for work granted by a government body, the issuing of permits and the granting of licences.Actions taken subsequently however may not be exempt.
6.29An academic paper on the scope of Commonwealth environmental decision making explains that, although the governmental authorisations provisions would exclude NSW ministerial approvals in relation to feral horses in KNP, it is possible that activities carried out under the Kosciuszko Management Plan could fall within the meaning of ‘actions’ under the EPBC Act.
6.30On this question, the Australian Conservation Foundation (ACF), while acknowledging the powers under the EPBC Act to intervene, noted the Commonwealth’s reluctance to become involved when state cooperation fails:
…there is a [Commonwealth] reticence to apply the Act to state government programs and activities and a reluctance to construe a course of management as an action for the purposes of the Act. This seems an overly narrow interpretation of the provisions of the EPBC Act, the adoption of which undermines the intent of the Act to protect matters of national environmental significance.
6.31The ACT Government was supportive of the Australian Government reviewing its options under the EPBC Act to protect the region from the impacts of feral horses.
Threatened ecological communities, threatened species and migratory species
6.32A range of threatened ecological communities, threatened species and migratory species living in the Australian Alps are listed under the EPBC Act. These species are protected as matters of national environmental significance (MNES), with management and recovery promoted through conservation advice, recovery plans and other documents. The assessment and approval provisions of the EPBC Act apply, as outlined above.
6.33At least 16 EPBC-listed threatened species are directly impacted by feral horses in the Australian Alps. The National Heritage listing also recognises species ‘intrinsic to the National Heritage values of the place’, including the critically endangered Corroboree and Baw Baw frogs, and endangered skinks, among others. The Australian Alpine Sphagnum Bogs and Associated Fens is a nationally threatened ecological community, and was listed in 2009. This ecological community was discussed in Chapter 3.
6.34There are civil penalty and strict liability provisions relating to the taking of an action which has, will have, or is likely to have a significant impact on a critically endangered, endangered or vulnerable threatened species or ecological community, and similarly for migratory species.
Recovery plan
6.35The Commonwealth Environment Minister may decide to have a recovery plan for one or more listed species or ecological community. The Minister has an initial obligation to consider making this decision but can also make this decision at any time.
6.36If the Minister decides not to have a recovery plan, the Minister must ensure that there is approved conservation advice for each species and ecological community listed as threatened.
6.37For the EPBC-listed species directly impacted by feral horses, recovery plans are in place for:
Alpine Sphagnum Bogs and Associated Fens ecological community (2015);
Northern and Southern Corroboree Frogs (2012); and
Swamp Everlasting (2011).
6.38The recovery plan for sphagnum bogs and fens specifically lists feral horses as the largest animals to impact on the ecological community, and recognises that feral horses ‘represent a threat that requires complex management strategies’. It highlights that the populations of feral horses in NSW and Victoria had grown at a rate that outpaced active management, and noted the increase of around 20per cent annually. The recovery plan cited research that:
…observed the direct impacts of a ‘very large number of horses’ and considered the damage to be comparable to the worst historic domestic grazing pressures that triggered the removal of stock from Kosciuszko National Park in the 1940s.
6.39In 2015 when the recovery plan was issued, feral horse numbers in KNP were around 6,000. By 2022 their estimated numbers had more than tripled to around 19,000. Within the Manage Invasive Species action item, the recovery plan listed as its highest priority rating to: ‘Prevent establishment of new populations of hoofed animals, particularly feral horses, feral pigs and deer’, followed by ‘Manage, contain or control existing populations of feral horses, feral pigs, deer, rabbits and hares’.
6.40Dr Jennie Whinam set out that the alpine sphagnum peatlands have been under significant pressure:
Since the National Recovery Plan was published in 2015, significant areas of Sphagnum peatlands have been burnt (some for a second time) and the numbers of feral horses have increased and expanded. This cumulative damage to the ecosystem in turn makes it more vulnerable to other threats such as use of water resources, weeds and disease and future fires.
6.41The Monaro Acclimatisation Society (MAS) asserted that despite the listing and recovery plan, ‘it is hard to see action on the ground’, and that the only work being undertaken relates to the culling program for pigs and deer. The MAS noted that ‘[t]here are some weed programs underway, but these activities are in themselves insufficient’.
6.42The recovery plan for Northern and Southern Corroboree Frogs notes that feral horses are a threat, and that there ‘is an immediate need for increased feral animal control in Northern Kosciuszko National Park where horses are causing substantial environmental damage’ to breeding habitat.
6.43Feral horses are noted as a threat from grazing to the Swamp Everlasting, a yellow-flowering native daisy found in KNP.
Wetlands of international importance (Ramsar sites)
6.44The Convention on Wetlands of International Importance (known as the Ramsar Convention) aims to halt the loss of wetlands worldwide, and conserve those that remain. Wetlands include a range of habitat types, such as swamps, marshes, and billabongs. There are 66Ramsar-listed wetlands in Australia.
6.45Listed Ramsar sites in the Australian Alps include the Ginini Flats Subalpine Bog Complex Ramsar Site, which sits within Namadgi National Park in the ACT, and the Blue Lake Ramsar site in NSW.
6.46Under the Ramsar Convention, Australia is obliged to maintain the ecological character of the listed sites as they are representative, rare or unique, and important for conserving biological diversity.
6.47Management plans for Ginini Flats are in place. Ginini Flats is the largest intact sphagnum bog and fen community in the Australian Alps. It provides habitat for the critically endangered Northern Corroboree Frog and supports the Alpine Water Skink, Mountain Swamp Skink and Latham’s Snipe. Namadgi National Park is the main water supply catchment for the ACT. The ACT Government has stated that a key risk to the wetland is impacts from feral animals and weeds entering the area.
6.48The ACT Government stated that the highest concentration of feral horses in KNP is immediately to the west of the wetland, which means that feral horses are a ‘significant and increasing threat’ to the area.
6.49The Blue Lake site in the KNP high country is recognised within the 2006 Kosciuszko National Park Plan of Management and related management plans for invasive species, recovery plans and conservation advice for threatened species and ecological communities. Blue Lake is a ‘rare example of near-natural alpine wetlands and supports nationally threatened species such as the mountain pygmy-possum, the alpine tree frog and the anemone buttercup’.
6.50The Blue Lake site is within the current horse prevention area, as defined by the KNP management plan, and feral horses found in the prevention area will be removed to keep the population at zero.
Key Threatening Processes
6.51Under the EPBC Act, processes which threaten or may threaten the survival, abundance or evolutionary development of a native species or ecological community are ‘threatening processes’. Key threatening processes include:
a process in which a native species or ecological community may be caused to become eligible for inclusion in a threatened list (other than the conservation dependent category); or
a process which causes an already-listed threatened species or threatened ecological community to become more endangered; or
a process which could adversely affect two or more listed threatened species or threatened ecological communities.
6.52In 2013, the impacts of feral horses have been recognised in the Commonwealth’s Key Threatening Process of novel biota and their impact on biodiversity (Novel biota key threatening process). DCCEEW set out that feral horses can impact an environment in multiple ways, including through competition, herbivory and habitat degradation, and noted that there are ‘at least seven other stand-alone’ Key Threatening Processes in the Australian Alps.
6.53The impacts of feral horses are not currently identified as a separate key threatening process under the EPBC Act. This is in contrast with the NSW Government, which listed habitat degradation and loss by feral horses as a key threatening process under its biodiversity conservation legislation in 2018.
6.54The Australian Conservation Foundation (ACF) highlighted the general listing of novel biota rather than a specific listing for feral horses as an issue:
The way that that's being managed at the moment has proven unsatisfactory in the sense that a generic category of novel biota and the threats posed by them have been listed under the EPBC Act as a key threatening process for some time, but a decision has been made not to have a threat abatement plan and to take a softer approach around the development of guidelines.
Threat Abatement Plan
6.55Under the EPBC Act, a threat abatement plan can be introduced for a key threatening process, which provides for the:
…research, management and other actions necessary to reduce the key threatening process concerned to an acceptable level in order to maximise the chances of the long-term survival in nature of native species and ecological communities affected by the process.
6.56The threat abatement plan must have regard to:
the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities;
minimising any significant social and economic impacts consistently with the principles of ecologically sustainable development;
meeting Australia’s international obligations; and
the role and interests of Indigenous people.
6.57DCCEEW advised that the then-Environment Minister decided in 2013 not to have a threat abatement plan for the novel biota key threatening process as:
Following independent advice and public consultation, it is considered that a threat abatement plan would not be the most feasible, effective or efficient mechanism to manage such a broad threatening process. In addition to existing management measures that are in place at a national scale, state and territory governments have management measures in place for plant and animal weeds and pests that contribute to the management of threats arising from novel biota.
6.58Overarching threat abatement guidelines were developed in 2013 to accompany the listing and interact with existing management measures.
6.59The Threatened Species Scientific Committee set out, in the guidelines, that there were threat abatement actions which could be undertaken nationally in order to reduce threats from the novel biota included within that key threatening process listing.
6.60The Threatened Species Commissioner, Dr Fiona Fraser, told the committee that the novel biota key threatening process is a catch-all listing, and that legal advice had been received by DCCEEW that there cannot be more than one threat abatement plan under a key threatening process. Dr Fraser noted that there are limitations to the Commonwealth’s ability to undertake work in relation to the novel biota key threatening process, and that the EPBC Act reforms currently under way would attempt to address this and provide clearer and more effective options for threat abatement plans at the Commonwealth level. Committee comment and recommendations relating to this matter are made in Chapter 7.
6.61Dr Fraser highlighted a national action plan for feral deer, which can fulfill a threat abatement plan’s functions.
Threatened Species Action Plan
6.62The recent Threatened Species Action Plan 2022‒2032 (TSAP) sets out the Australian Government’s plan for threatened species conservation and recovery over the next decade. It prioritises 110 species and 20 places for conservation, which were identified by independent scientists.
6.63The Australian Alps were identified as one of the twenty priority places due to the high number of threatened species and ecological communities in the area. The identification of priority places is intended to ‘provide a place-based focus for research, support and recovery action for threatened species and threatened ecological communities that are present’. One of TSAP’s four objectives is: ‘the condition is improved for all priority places.’
6.64Priority species which are found within the Australian Alps priority place include the Southern Corroboree Frog, Mountain Pygmy-possum and Stocky Galaxias. One of TSAP’s objectives is specific to priority species: ‘the risk of extinction is reduced for all priority species', while another states that ‘new extinctions of plants and animals are prevented’.
6.65Over the next five years, the Australian Government will partner with land managers to address threats and improve the place and species. Actions that could be taken to improve the condition of the area could include the elimination of invasive pests or improvements to habitat quality.
6.66The Threatened Species Commissioner explained that identification as a priority place would enable measures to be taken at the Commonwealth level:
…there are integrated recovery actions for those assets, such as the threatened ecological community of the alpine sphagnum bogs and fens and the multitude of threatened species... There will be a focus on funding through the Natural Heritage Trust but also through the government's new Saving Native Species Program, both for species-specific actions and for place-based actions that might look at addressing threats at the landscape scale.
Provisions in the Water Act 2007
6.67Professor Don White, Board Member of the Nature Conservation Council NSW, suggested that the Water Act 2007 may provide the Australian Government with powers to ensure that feral horses are not causing damage and pollution to the catchments of the Murray and Murrumbidgee Rivers.
6.68The Water Act provides for Commonwealth regulation of certain aspects of water management, including the establishment of the Murray-Darling Basin Authority (MDBA), sustainable diversion limits, and a Basin Plan, among other matters. The Murray-Darling Basin Agreement is contained within a schedule of the Water Act, which confers on the MDBA the power to co-ordinate, carry out or cause to be carried out investigations and studies regarding measures for ‘the protection and improvement of the quality of river water’ and ‘the conservation, protection and management of aquatic and riverine environments’, with the consent of the relevant state.
6.69The Murray-Darling Basin Agreement provides for the protection of the catchment of Hume Reservoir, and requires the NSW and Victorian governments to ‘take effective measures to protect the portions of the catchment of the Hume Reservoir within their respective States from erosion’. Further, the following provisions apply:
If at any time the Authority considers that there is need for special action to protect the catchment of the Hume Reservoir from erosion…the Authority may, in consultation with the Committee, require the Contracting Government, in whose territory the special action is to be carried out, to investigate the position and to take such special action as may be required by the Authority.
6.70The Hume Reservoir is within the definition of the upper River Murray storages, and upper River Murray, for which the consent of the relevant state is not required. The catchment ‘encompasses a considerable portion of the Australian Alps’.
6.71Water quality monitoring of the River Murray is undertaken by the MDBA, including measuring for turbidity (caused by erosion).
Commonwealth funding for feral horse management
6.72DCCEEW submitted that Australian Government funding is available to assist with the conservation of threatened species and ecological communities, which become ‘key targets for Australian Government funding programs for research, management and recovery activities’.
6.73DCCEEW explained that Commonwealth funding specifically for the lethal control of feral horses had amounted to $1.73 million in the last two years, across Victoria and New South Wales. NSW Government officials stated that Commonwealth funding in the post-bushfire period had made ‘a big difference’.
The need for greater cross-border cooperation
6.74There is a long history of cross-jurisdictional cooperation to protect the alps. In 1986, the Australian Alps National Parks Co-operative Management Program was formed by the Commonwealth, NSW, Victorian and ACT governments to ‘promote cooperative conservation management and sustainable use’ of the national parks and reserves which make up the Australian Alps.
6.75The 1986 MOU was signed by the national park authorities to provide the framework for the cooperation, but with no legal obligation placed on the partners. This agreement sets out that the Australian Alps national parks should be managed cooperatively to protect the special character of the area.
6.76The Fenner School noted the ‘long-standing efforts’ of a cross-jurisdictional committee for landscape-wide management, but stated that the Commonwealth is still not leveraging its powers to effectively protect biodiversity in the high country.
6.77Since the May 2022 federal election there has been an increase in cooperation between governments, which has built momentum towards effective feral horse management in the Australian Alps.
6.78In July 2022, the Australian Alps National Parks Cooperative Management Program Strategic Plan 2023‒26 was released, which sets a collaborative framework for the next three years. The Strategic Plan has the theme ‘People Working Together’ and sets four key core values areas, including: environment; cultural heritage; connecting people; and, program management. Under the key core theme ‘environment’, reducing the impact of invasive species on natural systems, flora and fauna is a priority. The actions to achieve this outcome are listed as:
Promote a shared approach to invasive species management;
Facilitate the cooperation of partner agency efforts on emerging and known invasive species threats in particular ungulates [which include feral horses]...; and
Promote and share knowledge and assist agencies in building capacity regarding new and emerging technologies in the control of invasive species.
6.79Another key development has been the re-establishment of the Alps Ministerial Council, which last met in 2010. The Victorian National Parks Association (VNPA) the Nature Conservation Council, and other inquiry participants called for the Australian Alps Ministerial Council to be reinvigorated.
6.80On 9 June 2023, the Commonwealth, NSW, Victorian and ACT ministers for the environment agreed to reform the Alps Ministerial Council. The Alps Ministerial Council ‘will allow four jurisdictions to come together to manage one of Australia’s unique areas of biodiversity and heritage values’. Ministers will use the forum to discuss shared challenges and opportunities, allowing stronger coordination of action.
International obligations and treaties
6.81Australia is a signatory to a range of multilateral environmental agreements and is required to meet various obligations under them. In the context of the Australian Alps, the two key agreements are the Convention on Biological Diversity (CBD) and treaties on a migratory bird species.
Obligations under the Convention on Biological Diversity
6.82Australia has been a Party to the CBD since 1993. DCCEEW submitted that the CBD obliges Australia to establish ‘systems of protected areas where special measures need to be taken to conserve biological diversity, and to the control or eradication of alien species that threaten ecosystems, habitats or species.’
6.83The Department of Agriculture, Fisheries and Forestry (DAFF) set out that, along with DCCEEW, they have portfolio responsibility for the implementation of policies and programs relating to the CBD:
As a signatory to the CBD, Australia has committed to ‘preventing the introduction of, controlling or eradicating those alien species which threaten ecosystems, habitats or species’ and ‘promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings’.
6.84In late 2022 Australia adopted the Kunming-Montreal Global Biodiversity Framework (GBF) (the CBD strategic plan for the period 2022 to 2030). Target 6 of the GBF relates to the impacts of invasive alien species such as feral horses in the Australian Alps, under which Australia is obliged to:
Eliminate, minimize, reduce and or mitigate the impacts of invasive alien species on biodiversity and ecosystem services by identifying and managing pathways of the introduction of alien species, preventing the introduction and establishment of priority invasive alien species, reducing the rates of introduction and establishment of other known or potential invasive alien species by at least 50 per cent by 2030, and eradicating or controlling invasive alien species, especially in priority sites, such as islands.
6.85DCCEEW submitted that Australia is required to align the Strategy for Nature 2019-2030 with the GBF by the middle of 2024. This will include ‘setting national targets that outline Australia’s planned contributions to the achievement of each of the global goals and targets in the GBF’. The process will be done in collaboration with states and territories ‘taking into consideration respective powers and responsibilities’.
6.86As a party to the CBD, Australia is obliged to manage feral animals in protected areas and protect threatened species and ecological communities from their impacts. A state or territory would need to comply with obligations imposed through regulations made under the EPBC Act.
6.87In 2021, former Environment Minister the Hon Sussan Ley MP wrote to the former NSW Minister for Energy and Environment, the Hon Matt Kean MP, to notify of the Commonwealth’s intention to enact regulations to address the damage caused by feral horses in the Australian Alps National Parks and Reserves National Heritage listed place:
I consider the NSW Government is currently failing in its obligations to protect the National Heritage values of the Australian Alps National Parks and Reserves National Heritage Place from feral horse damage. For this reason the Australian Government is considering the development of regulations under the Act that oblige protected area managers to take specific action on feral horses, including the responsible, evidence-based, and humane reduction and management of populations, to safeguard the unique biodiversity and heritage values of this nationally significant place.
6.88At the same time the Commonwealth offered funding support for feral horse control activities.
6.89DCCEEW officials acknowledged that legal advice on the Commonwealth’s regulation-making powers and related constitutional matters under the EPBC Act had been sought and obtained by the department prior to Minister Ley writing to Minister Kean. DCCEEW declined to provide this advice to the committee on request, and set out that it is their long-standing practice not to provide the Commonwealth’s legal advice. DCCEEW advised that the current Environment Minister’s office had been informed about the advice.
6.90The committee wrote to DCCEEW and the Hon Tanya Plibersek MP, Minister for the Environment and Water, to clarify that the Senate has resolved that legal professional privilege is not an acceptable ground for the refusal of information in a parliamentary forum. As set out in Odgers’ Australian Senate Practice, the Senate has rejected government claims that there is a long-standing practice of not disclosing privileged legal advice to conserve the Commonwealth’s legal and constitutional interest.
6.91Minister Plibersek responded stating she is ‘not personally opposed to providing the requested information’ to the committee. She concluded, however, that ‘to do so would be against the public interest and breach established convention…not to disclose legal advice...’.
6.92On this basis, the committee would have rejected a claim of public interest immunity in accordance with the Senate’s previous rejection of this ground to refuse to provide information.
6.93The committee subsequently wrote to the Minister to reiterate that the Senate has resolved that legal professional privilege, and advice to government, are not acceptable grounds for claiming public interest immunity. The committee extended its inquiry in order to allow time for the Minister to reconsider her response and to provide the committee with more information on the questions originally posed during the committee’s public hearing.
6.94The Minister’s subsequent response acknowledged that feral horses damage the fragile alpine and sub-alpine ecosystems and emphasised her hope to have feral horses removed from the Australian Alps. It also noted the actions of the current Australian Government to protect the Australian Alps. These actions include funding for feral horse control to the states and territory, the identification of the Alps as a priority place under the Threatened Species Action Plan, and scientific work to improve the Alps. The committee thanks the Minister for her constructive response.
6.95The Minister’s correspondence also indicates that ‘the Commonwealth is restricted from imposing obligations on states without their consent.’
6.96The Minister’s response sets out that the harm which could be caused by the release of the legal advice to the committee, even confidentially, would be to ‘the administration of justice’, as it ‘could prejudice the Commonwealth’s position in the event of future legal proceedings’.
6.97Odgers’ sets out that prejudice to legal proceedings is a potentially acceptable ground on which to claim public interest immunity, but the legal proceedings must be ‘in the offing’, that is, pending.
6.98The committee considered the Minister’s public interest immunity claim and concluded that the statement does not sufficiently justify the withholding of the information, as it relies on a ground previously rejected by the Senate and there are no ongoing or pending legal proceedings that the committee is aware of. In accordance with the Senate’s Procedural Orders, the committee reports this matter to the Senate.
6.99The substance of this is issue is discussed below in relation to inconsistency between jurisdictions’ legislative frameworks.
Obligations towards migratory birds
6.100Three bilateral treaties concern the Latham’s Snipe (also known as the Japanese Snipe, Gallinago hardwickii). The Latham’s Snipe is a medium-sized, long-billed migratory snipe from northern Japan. The entire population migrates to eastern Australia for the non-breeding season, including within the KNP horse retention area.
6.101The Latham’s Snipe is listed under three separate bilateral agreements with Japan, China and Republic of Korea, and is a migratory species under the EPBC Act.
6.102The agreements with Japan, China and Korea set out that Australia is obliged to take measures to protect the Latham’s Snipe, including preventing damage to the birds and their environment. The agreement with Korea specifically refers to an obligation to protect the Latham’s Snipe from the threat of invasive animals.
6.103The threat of invasive animals on migratory species such as the Latham’s Snipe is noted in the Australian Government’s Wildlife Conservation Plan for Migratory Shorebirds.
6.104A threatened listing assessment for the Latham’s Snipe under the EPBC Act is expected in October 2023.
Withdrawal of UNESCO Biosphere Reserve status for Kosciuszko National Park
6.105Australia has been a participant in the United Nations Educational, Scientific and Cultural Organization (UNESCO) Man and the Biosphere (MAB) Programme since the 1970s.
6.106KNP was designated as a UNESCO Biosphere Reserve in 1977, contributing to the objectives of the Convention on Biological Diversity (CBD). In 2020, at the request of the Biosphere Reserve manager—the NSW Government, the Australian Government withdrew KNP’s designation due to its inability to comply with the necessary criteria to function effectively as a Biosphere Reserve.
6.107Deakin University queried whether the withdrawal was due partially to inaction on the matter of feral horses: ‘[KNP] as a former internationally renowned biosphere reserve, threats including feral horses were required to be actively managed and reduced.’
6.108Deakin University went on to argue that a KNP Biosphere Reserve re‑designation was possible with renewed efforts to manage feral horse populations:
Effective feral horse control, coupled with realignment with the 2020 listing requirements, would enable Kosciuszko to be relisted as a biosphere reserve, with beneficial ecological and economic outcomes.
6.109When asked about the requirement for a management plan for the Kosciuszko Biosphere Reserve to be consistent with the management principles in the EPBC Act, DCCEEW responded that the management plan for the Biosphere Reserve was the responsibility of the NSW Government. DCCEEW further stated that it was the responsibility of the NSW Government to announce the withdrawal of the listing and also to determine whether to apply for re-listing.
Inconsistency between jurisdictional legislative frameworks
6.110Concerns over legislative inconsistencies between the Commonwealth and NSW were identified during the inquiry as a significant complicating factor for the overall effective management of feral horses in the Australian Alps National Heritage place.
6.111In the Australian Constitution, the Commonwealth’s power to legislate on environmental matters comes from a range of heads of power—of relevance to this matter are the: external affairs power; the quarantine power; the power to enact laws on matters referred by one or more States; and the territories’ power.
6.112DCCEEW representatives explained that the Commonwealth is limited in its ability to intervene on the impacts of feral horses in a National Heritage listed place:
In the case of state legislation and matters of the state creation of regulation, there are constitutional limitations around what the Commonwealth is able to regulate in that space…in relation to the national heritage layer of protection, the scope of the Commonwealth's responsibility is set out in the [EPBC] Act according to the constitutional heads of power, so there are more limitations around that than there might be for some other matters of national environmental significance.
6.113As set out above, there are several matters of national environmental significance in the Australian Alps, under the EPBC Act. These include:
the Australian Alps National Parks and Reserves National Heritage place;
two Ramsar sites which are both located within the National Heritage place;
threatened ecological communities listed under the EPBC Act;
multiple listed threatened species and a migratory species.
6.114One of the stated objects of the EPBC Act is ‘to assist in the co-operative implementation of Australia’s international environmental responsibilities’, such as the CBD. The EPBC Act clarifies, however, that:
This Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears.
6.115Section 109 of the Australian Constitution provides that:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency, be invalid.
6.116Under the management principles for National Heritage places, ‘[t]he objective in managing National Heritage places is to identify, protect, conserve, present and transmit, to all generations, their National Heritage values’. Further, ‘[t]he management of National Heritage places should ensure that their use and presentation is consistent with the conservation of their National Heritage values’.
6.117At the Commonwealth level, there is a recognition that feral horses are a threat to the Australian Alpine region, and feral horses are not considered to be part of the heritage values recognised in the National Heritage listing.
6.118In 2020, the Federal Court also found that feral horses are not recognised in the National Heritage values of the Australian Alps.
External affairs
6.119As set out above, Australia’s international obligations rest with the Commonwealth. Regarding the Australian Alps these relate to:
Article 8 of the CBD, which relates to establishment of protected areas and the control or eradication of alien species which threaten ecosystems, habitats and species;
three bilateral treaties relating to the Latham’s Snipe migratory species; and
the management of Ramsar listed wetlands through the Australian Ramsar Management Principles.
6.120While there is no direct power for the Commonwealth to legislate on environmental affairs, a range of Constitutional heads of power do allow the Commonwealth some scope to legislate on environmental matters. Dr Sangeetha Pillai and Prof George Williams set out that the external affairs power in relation to treaties has value in allowing the Commonwealth to legislate:
…the capacity to implement treaties in reliance on the external affairs power considerably expands the scope of federal power over environmental regulation, allowing the Commonwealth to legislate on matters that otherwise would be outside its competence.
6.121According to DCCEEW representatives, the Australian Government has a ‘very active engagement in the regulation of those matters [MNESs] that are going to have a significant impact’:
Australia has obligations under conventions such as the biodiversity convention and the Ramsar convention, and that's the primary basis for the Commonwealth regulating in those spaces. I can say, generally, that is a significant basis for the operation of the EPBC Act. There are more difficult questions, however…about the extent to which the Commonwealth can constrain the legislative power of the states, but certainly we have a very active engagement in the regulation of those matters that are going to have a significant impact in the ordinary way that they're characterised under the act.
6.122A treaty must also have obligations that are capable of implementation, and cannot be ‘purely aspirational in nature’. Article 8 of the CBD obliges Australia to control or eradicate alien species which threaten ecosystems, habitats or species. This obligation is recognised in the EPBC Act, within the National Heritage management principles.
6.123The EPBC Act requires the Environment Minister to ‘not act inconsistently’ with three bilateral treaties relating to the Latham’s Snipe migratory species when approving actions, and to not act inconsistently with Ramsar site management principles.
6.124Committee comment and recommendations are made in Chapter 7.