Bills Digest No. 32, 2013–14              21 January 2014

Environment Legislation Amendment Bill 2013

Juli Tomaras, Law and Bills Digest Section

Bill McCormick, Science, Technology, Environment and Resources Section

Date introduced: 14 November 2013

House:  House of Representatives

Portfolio: Environment

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Environment Legislation Amendment Bill 2013 (the Bill) is to:

·    clarify that a failure by the Minister to have regard to any relevant approved conservation advice when making decisions under the EPBC Act will not render such decisions, taken prior to the commencement of the Bill, invalid and

·    amend the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act)[1] and the Great Barrier Reef Marine Park Act 1975 (the GBRMP Act)[2] to increase the financial penalties for the aggravated offence of killing, injuring, taking or trading of marine turtles and dugong in the EPBC Act and taking or injuring turtles and dugong under the GBRMP Act.

Background

The EPBC Act is the Commonwealth’s primary legal tool to protect the environment and conserve biodiversity across Australia and it provides important mechanisms for achieving these goals.[3]

The EPBC Act protects biodiversity in several ways including:

·    requiring environmental impact assessment of developments which have a significant effect on a ‘matter of national environmental significance’[4]

·    requiring environmental impact assessment of developments which have a significant effect on the environment in Commonwealth land or waters

·    listing threatened species and ecological communities, identifying their critical habitat, and making recovery plans for them

·    listing migratory and marine species

·    regulating trade in wildlife

·    listing key threatening processes and making threat abatement plans for them

·    providing for the making of conservation orders

·    providing for the making of wildlife conservation plans and

·    providing for the declaration of conservation or biodiversity reserves which are managed for biodiversity and other purposes.

When a native species or ecological community is listed as threatened under the EPBC Act, conservation advice is developed to assist its recovery.[5] An ‘approved conservation advice’ is an official statement developed at the time of listing a threatened species or ecological community.[6] Developed by the Threatened Species Scientific Committee, the independent scientific advisory body appointed under the Act to advise on - amongst other things - listing decisions, the approved conservation advice contains information about the reasons why a threatened species has been listed and other important information like guidance on what can be done to facilitate immediate recovery and threat abatement activities that can be undertaken to ensure the conservation of a newly listed species or ecological community.[7]

The conservation advice is not an alternative to a more detailed recovery plan for a threatened species or community. However, recovery plans can take years to develop. Thus, in practice, the conservation advice may often serve as the official statement of scientific information under the legislation on a threatened species or community.

The 2007 amendments to the EPBC Act included new procedures that related to the listing and recovery of threatened species and ecological communities.[8] The amendments were designed to provide greater flexibility in responding to changing conservation needs for nationally listed threatened species and ecological communities. Among other things, the amendments shifted the focus from recovery plans to recovery action, primarily through ensuring that there is approved conservation advice at all times for each listed threatened species and ecological community.

Decisions under the EPBC Act which require consideration of approved conservation advice include:

·    a declaration by the Minister, under subsection 33(1) of the EPBC Act, that specified actions do not need approval under Part 9 of the EPBC Act, if the actions have been taken in accordance with a management arrangement or authorisation process that has been accredited by the Commonwealth. In deciding whether to make such a declaration that relates to a listed threatened species or listed threatened ecological community , the Minister must (among other requirements) have regard to relevant approved conservation advice for the particular species or community[9]

·    accreditation by the Minister of a management arrangement or authorisation process under section 33 for the purposes of a declaration relating to a listed threatened species or a listed threatened ecological community. The Minister may only make the accreditation if he or she is satisfied of certain factors and has regard to any approved conservation advice for the species or community[10]

·    a declaration by the Minister, under 37A of the EPBC Act, that specified actions do not need approval under Part 9 of the EPBC Act, if the actions have been taken in accordance with a particular bioregional plan. In deciding whether to make such a declaration that relates to a listed threatened species or listed threatened ecological community , the Minister must (among other requirements) have regard to relevant approved conservation advice for the particular species or community[11]

·    a decision by the Minister to enter into a bilateral agreement[12] containing a provision relating to a listed threatened species or a listed threatened ecological community. The Minister may only enter into such an agreement if (among other requirements) he or she has considered any approved conservation advice in relation to that species or ecological community[13]

·    a decision by the Minister to approve or refuse to approve (for the purposes of section 18 or section 18A) the taking of an action that will, or is likely to, have a significant impact on a listed threatened species or a listed threatened ecological community, and what conditions to attach to any approval. Before making a decision, the Minister must (among other requirements) have regard to any approved conservation advice for the species or community[14]

·    a decision by the Minister as to whether to approve the taking of action under an endorsed policy plan or program, where that action relates to a listed threatened species or listed threatened ecological community. Before making a decision, the Minister must (among other requirements) have regard to any approved conservation advice for the species or community [15]

·    a decision by the Minister as to whether to grant a permit for taking or damaging, in a Commonwealth area:

-  listed threatened species and communities[16] or

-  whales and other cetaceans[17]

·    decisions by the Minister in relation to the import and export of wildlife specimens, including the issuing of permits[18] and

·    a decision by the Minister as to whether to enter into a conservation agreement that may impact on a listed threatened species or listed threatened ecological community.[19]

Approval of Mine in the Tarkine

On 18 December 2012, then Minister for Sustainability, Environment, Water, Population and Communities (SEWPaC), Tony Burke, granted approval under the EPBC Act to the Shree Minerals Nelson River Bay magnetite mine (the mine) in the Tarkine area of Tasmania with 29 conditions.[20] The Tarkine National Coalition (TNC) applied to the Federal Court in April 2013 to seek a judicial review of this approval.[21] On 17 July 2013, the Federal Court overturned the approval:

Judge Shane Marshall found approval for the mine, near Nelson Bay River, was invalid because Mr Burke failed to give "genuine consideration" to conservation advice on the endangered Tasmanian devil.

"The act requires the minister to have regard to the conservation advice ... The minister's failure to have regard to the document for the purpose of making his decision is fatal to its validity," he said.[22]

Justice Marshall listed the critical issues for determination as being:

Whether, in deciding to approve the taking of the action, the Minister had regard to a document called “Approved Conservation Advice for Sarcophilus harrisii (Tasmanian Devil)” and in the event of failure to do so, the consequences of such failure;

Whether, in approving the taking of the action, the Minister was entitled to attach conditions which require Shree to donate money to a program known as the Save the Tasmanian Devil Program Appeal (“the program”).[23]

Justice Marshall accepted the TNC submission that there was a failure to have regard to a mandatory consideration in section 139(2) of the EPBC Act which requires the Minister to have regard to any approved conservation advice for a listed threatened species or a listed threatened ecological community when considering whether to approve a proposal that will have or is likely to have a significant impact on these species or communities.

After the court’s decision, then Minister for SEWPaC, Mark Butler, said that he would have to consider all information anew regarding the mine in deciding whether to approve the mine and that he would make this decision within ten days.[24]

Minister Butler granted approval to the mine on 29 July 2013 with 30 conditions attached to the approval.[25] The additional condition was the requirement that staff, contractors and visitors must travel to and from the mine in a bus except where specific written approval for an exception is granted in advance by the Department of the Environment.[26] There were also new requirements that the mine closure plan and the decommissioning and rehabilitation plan had to be provided to the Minister for the Environment within one week and six months, respectively, of approval by the relevant state government authority. The proponent is now required to notify the Department of the Environment of any non-compliance with the conditions, along with any proposed remediation response, within two days of the non-compliance (the original approval required notification within 14 days). A timeframe of 14 days is now imposed on the mine operators to respond to any request for raw data on Tasmanian devils by the Commonwealth or Tasmanian governments or the Save the Tasmanian Devil Program.

The statement of reasons for this decision was released on 27 August 2013.[27] The Minister made his decision to approve the mine after considering the final approval decision brief provided by the Department and which included approved conservation advice for the Tasmanian devil, Tasmanian masked owl, Tasmanian azure kingfisher, windswept spider orchid and grassland greenhood as well as unapproved conservation advice for the orange-bellied parrot.[28] This brief also included, among other documents, the initial recommendation report, a supplementary recommendation report, the final environmental impact statement for the Nelson Bay River magnetite mine, and the assessment report of the Tasmanian Environment Protection Authority.

Before the 2013 Federal election there was no mention by the Coalition of the need to amend the EPBC Act to prevent conservation groups from challenging approval decisions on the basis that the Minister had not considered specific conservation advice relating to threatened species or ecological communities.

The proposed amendments in Schedule 1 of the Bill are explicitly designed to deal with:

… the Federal Court’s decision in the Tarkine case. In that decision the Federal Court (Marshall J) declared invalid the approval given to Shree Minerals Limited under Part 9 of the EPBC Act due to a failure to “have regard to” a relevant approved conservation advice, as required under section 139(2).[29]

Marine turtles

There are six species of marine turtle in Australia that are listed as threatened under the EPBC Act:[30] Flatback Turtle, Natator depressus, (vunerable); Green Turtle, Chelonia mydas, (vulnerable); Hawksbill Turtle, Eretmochelys imbricate, (vulnerable); Loggerhead Turtle, Caretta caretta, (endangered); Olive Ridley Turtle, Lepidochelys olivacea, (endangered) and Leatherback Turtle, Dermochelys coriacea, (endangered). They are also listed as migratory species[31] and marine species[32] under the EPBC Act and are protected species under the GBRMP Act.[33]

Indigenous peoples with a recognised Native Title right can legitimately hunt marine turtles in Australia for communal, non-commercial purposes.[34] The green turtle is the principal species harvested by the Indigenous hunt.

It has been estimated that between 500 and 1,000 green turtles are harvested annually on the Queensland east coast south of 14 degrees south latitude while the harvest in the Torres Strait is about 4,000 per annum. The harvest in the Western Cape York and Gulf of Carpentaria is likely to be in the low tens of turtles annually. While there are few data on the harvest in Western Australia and the Northern Territory it is probably of the order of several thousand annually. This hunt represents the greatest source of anthropogenic loss to the green turtle population.[35] Other anthropogenic sources of turtle mortality include: boat strikes, entanglement in fishing gear, ghost net entanglement and marine debris ingestion. Note there were 55-69 green turtle deaths reported annually in Queensland due to boat strike in the years 1999–2002.[36] The green turtle mortality due to ghost net entanglement in the Gulf of Carpentaria and Arnhem Land has not been quantified but appears to be many hundreds of turtles annually.[37]

Dugongs

The Dugong, Dugong dugon, is listed as a migratory species and a marine species under the EPBC Act[38] and is a protected species under the GBRMP Act.[39] A significant portion of the world’s dugong population is found in Australia from Shark Bay in the west across the top end to Moreton Bay in the east, with the largest population in the Torres Strait. It has been estimated the dugong population in Australia is more than 70,000.[40] The area of extent of occurrence for the dugong in Australia has been estimated at approximately 500,000 km2.[41]

Aerial surveys in 2007 estimated the dugong population in Shark Bay to be about 9,000 and that in the Gulf of Carpentaria to be about 12,500.[42] Surveys in 2006 estimated the dugong population in the Torres Strait to be about 14,800 and that in the northern Great Barrier Reef to be about 8,800.[43] A 2005 survey of dugongs from Cooktown south to the Queensland border (urban Queensland coast) gave a population estimate of about 5,500.[44] There have been no comparable surveys of dugong populations in the areas of Western Australia and the Northern Territory between Shark Bay and the Gulf of Carpentaria.

Dugongs, marine mammals which can grow to three metres in length and weigh up to 400 kilograms, feed mainly on sea grasses that grow in sheltered coastal waters. They play an important ecological role in coastal marine ecosystems, and significant dugong populations in an area can be an indicator of general ecosystem health.[45]

In Australia, the Dugong has a significant cultural and dietary role for many Indigenous Australian peoples and Dugongs are hunted for meat, jewellery and tusks.[46]

As with marine turtles, dugongs can be legally hunted by Aboriginal and Torres Strait Islander people under the Native Title Act 1993, which:

… operates to protect the rights of Indigenous peoples with a native title right to hunt, gather, collect and fish or conduct a cultural or spiritual activity. The traditional or subsistence hunting of dugongs and turtles plays an important social and cultural role for coastal aborigines in many parts of northern Australia and the meat provides a source of protein for these communities.[47]

Dugongs have been harvested in the Torres Strait for at least four thousand years. The remains of 10,000 to 11,000 dugongs hunted between 1600 and 1900 AD were excavated from a ritual dugong mound on Mabuiag Island. This would indicate a local harvest of dugongs of up to 100 per year for the past 300 years.[48] In 1998 and 1999, the landed catch on the island in an eight month period was reported as 145 and 170 dugongs.[49] However reliable estimates for the current Indigenous harvest of dugongs across Australia are not available.[50]

Two of the major threats to dugongs in the Northern Great Barrier Reef and Torres Strait are the unknown levels of harvest by Indigenous Australians and the illegal poaching by Australians and foreign fishers, especially in the Torres Strait.[51] In a recent article, dugong expert, Helene Marsh, said the most serious human impacts on dugongs along the urban Queensland coast are habitat loss, gill netting, and vessel-strikes, rather than hunting.[52] She noted that the 2011 cyclones and floods have reduced the dugong population of the urban Queensland coast to the lowest levels since surveys began and no dugong calves were sighted in 2011 because of shortage of food due to the impacts on seagrass beds.[53]

Illegal hunt and trade

As noted by the Queensland Department of Environment and Heritage Protection:

Dugong and turtle populations are at risk from increased poaching activities. Some of these activities are believed to be associated with inhumane slaughtering for commercial trade in meat products.

Illegal hunting may be a significant threat to the recovery of dugong populations that are already under pressure from habitat loss and incidental kills. Whilst traditional owners are entitled to hunt dugong and turtles for non-commercial use under custom and tradition, commercial trade of the meat is illegal.[54]

Illegal hunting and trade of turtles and dugongs has been raised as an issue but there is little literature that gives an estimate of the extent of the problem or its impact on the populations of these animals. Poaching or illegal hunting in Queensland is only reported when discovered by state government or GBRMP staff.[55] In 2011 there was a suspected illegal killing of 23 dugongs in the Starke River region of Queensland that was investigated but it remains unsolved:[56]

… with the exception of records provided by indigenous rangers such as in Mapoon, it can be difficult to determine whether a hunting incident is legal or illegal. Indigenous hunting therefore remains the largest source of uncertainty in estimating levels of anthropogenic mortalities to dugongs in Queensland.[57]

In February 2012, the Commonwealth and Queensland governments announced a $5 million program to fund a new Indigenous community partnership to ensure the long-term sustainability of dugongs and sea turtles with funds provided by the Commonwealth and managed by the Queensland Government. As Minister Burke noted, a number of Indigenous communities had already taken the lead on sustainable hunting practices and there was a need to work together to also stamp out poaching of dugongs and turtles:[58]

"Unfortunately we often hear of illegal hunting, but there is insufficient information to progress legal action.

"Compliance training will be a key part of the program so communities and traditional owners are aware of how to gather key evidence that can lead to prosecution of illegal poachers.

"They will be better equipped to be our eyes and ears.

The funding has been provided by the Commonwealth and will be managed by the Queensland Government…..

Approximately $2.5 million will be used to implement the Cape York Sea Country strategy to develop community-based management plans and legal frameworks and to develop the capacity of Cape York traditional owners to manage sea country effectively.

An investment of $700,000 will go to compliance training and data collection and monitoring.

A $300,000 Sea Country Network will be set up so traditional community leaders have a forum to share experiences in managing dugong populations and discuss ways to work together to stop illegal poaching and $1 million will fund the six Indigenous ranger positions.

There will also be grants for traditional owners to undertake sea country activities that are local priorities.[59]

A media report about cruel slaughter of turtles and dugongs in the Torres Strait and the Great Barrier Reef, to supply the illegal meat trade, was broadcast in March 2012. The program made numerous allegations including that some of the illegal hunters were indigenous sea rangers, employed to protect the turtles and dugong, some were non-indigenous hunters and that some of the turtle meat was traded into Sydney and Melbourne.[60] The Queensland Environment Minister, Vicki Darling, asked her Department to investigate these claims:

‘I was disturbed when I saw the footage, as I expect were many other viewers,’ Ms Darling said.

‘We don't know if this was traditional hunting by people with native hunting rights - that's why we need to investigate…..

She was disappointed that neither the ABC nor interviewees had provided details to authorities to investigate.

‘Allegations of illegal trade have been made previously - in most instances without any real evidence to substantiate them,’ Ms Darling said.

‘Dugong or turtle meat can be lawfully moved between places in certain circumstances - for example the parties may be operating under a native title right and are able to share hunts with others.’[61]

The Turtle and Dugong Protection Plan committed the Coalition to provide an additional $5 million for turtle and dugong protection that includes:

·    $2 million for Indigenous Ranger Programs along the Far North Queensland Coast and for additional officers to strengthen enforcement and compliance relating to the illegal hunt and trade in turtles and dugongs and

·    $2 million for an Australian Crime Commission investigation into the practice of illegal killing, poaching and transportation of turtle and dugong meat.[62]

The plan commits the incoming Coalition Government, within six months of the election, to:

·    introduce Federal legislation tripling the penalties for poaching and illegal transportation of turtle and dugong meat

·    establish a National Dugong and Turtle Protection Plan through the threatened species process and

·    work with Indigenous leaders towards an initial two-year moratorium on the taking of dugongs.[63]

The Labor candidate for Leichhardt criticised the Dugong and Turtle Protection Plan which he said ignored many years of work of the traditional owner groups in North Queensland. The Federal Government had provided funding for a new Indigenous Community Partnership for the same measures announced by the Coalition.[64]

“Federal funding has been used to employ Indigenous rangers and implement the Cape York Sea Country strategy to support sustainable harvesting regimes and develop community compliance and enforcement mechanisms to stamp out illegal poaching.”

The Federal Labor Government is already investing $6.95 million in Indigenous self-management because this is the best way to ensure the sustainable and appropriate management of dugongs and turtles. This includes leadership and advice on the take of marine turtle and dugong, developing community based sea country management plans and supporting involvement by the traditional owners in the sustainable use of marine resources and compliance training.

"A number of communities have already taken the lead on sustainable hunting practices and have developed Community Management Plans. They see protection of dugong as a priority and are actively engaged in policing their own communities”.[65]

Committee consideration

Scrutiny of Bills Committee

The Scrutiny of Bills Committee has raised concerns about the amendments made by item 2 of Schedule 1 of the Bill, which provides that:

[…] failure to have regard to approved conservation advice does not render a decision invalid (even though the Minister has a statutory obligation to consider the matter).
…

Although the High Court has accepted that in at least some circumstances Parliament can specify the remedial consequences of breach of a statutory provision, the committee has raised concerns about this being done with retrospective effect. The retrospective validation of administrative decisions may have a detrimental effect on a person’s rights or liberties. In this case, the detrimental effect may be on the right of an ‘aggrieved person’ to bring proceedings under the [Administrative Decisions (Judicial Review) Act 1977] ADJR Act to enforce the requirements of the EPBC Act.

The practical effect of item 2 of Schedule 1 is that a decision which was invalid when made cannot be challenged by such an aggrieved person under the ADJR Act.[66]

Senate Selection of Bills Committee

On 4 December 2013, the Senate Standing Committee for the Selection of Bills determined that it would defer consideration of this Bill until its next meeting.[67]

Policy position of non-government parties/independents

Australian Greens

The Greens criticised the amendment which, in its original form,[68] would have allowed EPBC Act decisions to stand where the Minister failed to consider any relevant approved conservation advice concerning listed threatened species or ecological communities:

“With this damaging amendment, the Environment Minister could tick off on major developments without considering expert advice on threatened species impacts and the community would have no power to hold the government to account in court,” Senator Larissa Waters, Australian Greens environment spokesperson, said.

The Abbott Government is putting in place the legal framework to silence community opposition to its agenda of coal and gas at all costs…

On one hand the Abbott Government is increasing protection for turtles and dugongs but on the other it’s gutting protection for every nationally threatened species.

While this protection for dugongs and turtles from poaching is welcome, it would be severely undermined by the rash of Great Barrier Reef coal port proposals that the Abbott Government looks set to tick off on.

These mega coal ports would see millions of cubic metres of dredge spoil dumped in the Reef’s waters, where it can smother seagrass beds – important feeding grounds for dugongs and turtles.[69]

The Greens have proposed amendments to this Bill, including the removal of Schedule 1. The Greens have also proposed that a Schedule 3 be added to the Bill. That Schedule contains amendments which effectively constrain the Minister’s powers in respect of creating approval bilateral agreements with the states and territories.[70]

ALP

When the Bill was introduced, the ALP advised that it would support the Schedule 2 amendments but not those in Schedule 1.[71] However, after the Government amendments to Schedule 1 of the Bill introduced in the House of Representatives, which mean that decisions and actions taken after the commencement of the Bill will not be validated if the decision maker has failed to consider relevant approved conservation advice, the ALP supported Schedule 1.[72]

Position of major interest groups

University of Queensland lecturer, Dr Chris McGrath, said the amendment originally proposed in Schedule 1 in response to the Federal Court's decision on the Nelson Bay River mine approval was like ‘using a sledgehammer to crack a walnut’ because the requirement for the Minister to consider conservation advice was ‘very weak under the Act anyway’.[73] The Minister would be expected to consider the expert conservation advice from the Threatened Species Committee:

The Bill would further reduce the already limited grounds for judicial review of federal approval decisions, McGrath said. Making the change retrospective was "stupid … and another over the top aspect of the Bill", he said. The Act already gave the minister powers to make a fresh decision where there'd been a "material error".[74]

The Victorian Environmental Defender's Office said the original version of the Bill was ‘a heavy-handed approach’ that reduces opportunities for public scrutiny:[75]

The more obvious and principled response would be for the department to smarten up its game and make sure the minister is briefed with and has regard to any relevant approved conservation advice.[76]

Jess Adams of the Australian Conservation Foundation criticised the original version of the Bill for removing the ability of people to challenge Ministerial decisions in the Federal Court:

The challenge for the new government is to create an economy that strengthens our life support systems, not one that pollutes and destroys them.

Removing a layer of ministerial accountability and environmental protection is not a step in the right direction.[77]

Financial implications

According to the Explanatory Memorandum, the proposed amendments will have no financial impact.[78]

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Government considers that the Bill is compatible with human rights because:

… it does not detrimentally impact the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.[79]

The Parliamentary Joint Committee on Human Rights considers that the Bill engages fair trial and fair hearing rights, and has written to the Minister seeking further information on these issues.[80]

Key issues and provisions

Schedule 1: Amendments relating to approved conservation advice

The changes proposed in Schedule 1 of this Bill will not be inserted into the EPBC Act, even though they will have substantive effect on decisions made and actions taken under that Act, if passed.[81] Rather, these changes will be contained in the Environment Legislation Amendment Act 2014, if the Bill is enacted. This approach might be expected to make it more difficult for interested parties to find and confidently appreciate the practical operation of approved conservation advice, than if the new provisions were inserted into the EPBC Act.

Item 1 provides that where the EPBC Act requires a Minister (or his or her delegate) to have regard to any relevant approved conservation advice when making decisions and instruments under the EPBC Act, then the failure to have regard to that approved conservation advice does not render any decision or instrument taken or made before 31 December 2013 invalid. As already mentioned, this amendment is a response to the Federal Court decision in the Tarkine case. The provision does not apply to decisions made on or after 31 December 2013.

Item 2 operates with retrospective effect so as to validate all decisions and instruments taken or made before Schedule 1 of the Bill commences, where approved conservation advice was required to be, but was not, taken into consideration. This will therefore provide those who may enjoy an advantage from such decisions with certainty that those decisions will not be challenged.[82] The necessity of making the operation of this amendment apply to past decisions which have failed to take into account approved conservation advice raises the issue of how common this omission is thought to have been in decision-making involving the requirement to have regard to relevant approved conservation advice.

Examples of recent high profile decisions which, if the Bill is passed, will not be able to be challenged on the basis of a failure by the Minister to consider approved conservation advice include the approval of: the dredging and offshore disposal (within the Great Barrier Reef Marine Park) of up to three million cubic metres of dredge spoil, to facilitate construction of three new terminals at Abbot Point in Queensland;[83] the construction of a Liquid Natural Gas facility on, and pipeline to, Curtis Island;[84] and a coal mining operation in the Galilee Basin in Queensland.[85]

Schedule 2: Amendments relating to Turtles and Dugongs

According to the Explanatory Memorandum, the amendments under this Schedule basically increase the financial penalties for various offences and civil penalty provisions under both the EPBC Act and the GBRMP Act so as to improve the protection for listed dugong and turtle populations from threats of poaching, illegal trade and illegal transportation.[86] It is expected that the financial penalties will outweigh the potential gains from such activities.[87] Some examples of the increases in penalties are provided below. The Shadow Minister for the Environment, Mark Butler raised the issue that he is not aware that the current offences have been used and if this is the case, then the lack of deterrent value of the current penalties may be due to the failure to apply them.[88]

According to the Explanatory Memorandum, the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011 edition) was considered in drafting the penalty provisions and in determining the appropriate penalty for each provision.[89] The imprisonment terms have been left unchanged as they are thought to be appropriate for the offences.[90]

Environment Protection and Biodiversity Conservation Act 1999

Offences for killing or injuring a member of listed threatened species or community, listed migratory species or listed marine species

Section 196 of the EPBC Act creates the offence of killing or injuring a member of a listed threatened species or community and provides for penalties.

Items 1, 15 and 29 increase the maximum penalty from a fine of 1,000 penalty units (currently equivalent to $170,000)[91] to 3,000 penalty units ($510,000) for a contravention of the aggravated offence (in addition to the possibility of two years imprisonment) of killing or injuring a member of a listed threatened species or community (section 196), a listed migratory species (section 211) or a listed marine species (section 254). In any other case, the penalty for this offence is maintained at imprisonment for two years or a fine not exceeding 1,000 penalty units ($170,000) or both.

Items 13, 27 and 41 insert proposed sections 196F, 211F and 254F, respectively. These new sections set out the circumstances in which an offence against certain provisions (including those in sections 196, 211 and 254) is an aggravated offence, and therefore subject to the higher penalty. The circumstances are that the offence relates to a member of a species mentioned in paragraph 248(2)(f), (g) or (h) of the EPBC Act—that is, that the offence relates to a dugong, marine turtle or leatherback turtle.

Consistent with the use of strict liability in other offence provisions in Part 3 of the EPBC Act,[92] proposed sections 196F(3), 211F(3) and 254F(3) provide for strict liability to apply in relation to the circumstance that the relevant member is a listed turtle or dugong. Thus, the prosecution does not need to show a person knew or was reckless as to the fact that the relevant member was a listed turtle or dugong.

Strict liability offences for killing or injuring a member of listed threatened species or community, listed migratory species or listed marine species

Items 3, 17 and 31 increase the maximum penalty from 500 penalty units (currently equivalent to $85,000) to 1,500 penalty units ($255,000) for a contravention of the strict liability aggravated offence provision of killing or injuring a member of a listed threatened species or community (section 196A), a listed migratory species (section 211A) or a listed marine species (section 254A). As explained above, the aggravated offence applies where the offence involves a turtle or dugong (proposed sections 196F, 211F and 254F).[93]

Offences for taking et cetera a member of listed threatened species or community, listed migratory species or listed marine species

Items 5, 19 and 33 increase the maximum penalty from a fine of 1,000 penalty units ($170,000) to 3,000 penalty units ($510,000) for a contravention of the aggravated offence of taking, trading, keeping or moving a member of a listed threatened species or community (section 196B), a listed migratory species (section 211B) or a listed marine species (section 254B).[94] As explained above, the aggravated offence applies where the offence involves a turtle or dugong (proposed sections 196F, 211F and 254F).

Offences for trading et cetera member of listed threatened species or community, listed migratory species or listed marine species in Commonwealth area

Items 9, 23 and 37 increase the maximum penalty from 1,000 penalty units ($170,000) to 3,000 penalty units ($510,000) for a contravention of the aggravated offence of trading, keeping or moving a member of a listed threatened species or community (section 196D), a listed migratory species (section 211D) or a listed marine species (section 254D) in a Commonwealth area. As explained above, the aggravated offence applies where the offence involves a turtle or dugong (proposed sections 196F, 211F and 254F).[95]

Strict liability offences for trading et cetera member of listed threatened species or community, listed migratory species or listed marine species in Commonwealth area

Items 11, 25 and 39 increase the maximum penalty from 500 penalty units (485,000) to 1,500 penalty units ($255,000) for a contravention of the strict liability aggravated offence provision of trading, keeping or moving a member of a listed threatened species or community (section 196E), a listed migratory species (section 211E) or a listed marine species (section 254E) in a Commonwealth area. As explained above, the aggravated offence applies where the offence involves a turtle or dugong (proposed sections 196F, 211F and 254F).[96]

Great Barrier Reef Marine Park Act 1975

Section 2A(1) of the GBRMP Act states ‘[t]he main objective of this Act is to provide for the long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region’.

Section 38BA(3) of the GBRMP Act prohibits the carrying out of an activity in a zone without permission. Item 45: proposed subsection 38BA(3A) increases the maximum penalty for conduct under section 38BA that involves taking or injuring a dugong, marine turtle or leatherback turtle from 60 penalty units ($10,200) to 180 penalty units ($30,600).

Aggravated offence provision

Item 51 increases the maximum penalty for an aggravated offence under section 38GA from 2,000 penalty units ($340,000) to 6,000 penalty units ($1,020,000), where the conduct involves the taking or injuring of a dugong, marine turtle or leatherback turtles that are listed marine species under the EPBC Act.[97]

Civil penalty provision

Item 53 increases the maximum penalty for an aggravated contravention against section 38BB from 5,000 penalty units ($850,000) to 15,000 penalty units ($2,550,000) for an individual and from 50,000 penalty units ($8,500,000) to 150,000 penalty units ($25, 500,000) for a body corporate, where that conduct involves the taking of, or injury to, dugong, marine turtles or leatherback turtles that are also protected species under the GBRMP Act.

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[1].              Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), accessed 10 December 2013.

[2].              Great Barrier Reef Marine Park Act 1975, accessed 10 December 2013.

[3].              Australia’s biodiversity is important both globally and nationally. It is estimated that between seven and ten per cent of all species on earth occur in Australia: W Steffen et al, Australia’s biodiversity and climate change, report prepared for the Australian Government Department of Climate Change, Canberra, 2009, p. 7, accessed 10 December 2013.

[4].              The nine matters of national environmental significance protected under the EPBC Act are:

· world heritage properties

· national heritage places

· wetlands of international importance (listed under the Ramsar Convention)

· listed threatened species and ecological communities

· migratory species protected under international agreements

· Commonwealth marine areas

· the Great Barrier Reef Marine Park

· nuclear actions (including uranium mines) and

· a water resource, in relation to coal seam gas development and large coal mining development.

[5].              Department of the Environment, ‘Conservation advices’, Department of the Environment website, accessed 9 December 2013.

[6].              Subsection 266B(2) of the EPBC Act.

[7].              Department of the Environment, ‘Conservation advices’, Department of the Environment website, accessed 9 December 2013.

[8].              Environment and Heritage Legislation Amendment Act (No. 1) 2006, accessed 10 December 2013. See also, A Martyn, Environment and Heritage Legislation Amendment Bill (No. 1) 2006, Bills Digest, 53, 2006–07, Parliamentary Library, Canberra, 2006, accessed 11 December 2013.

[9].              EPBC Act, paragraph 34D(1)(ca).

[10].              EPBC Act, paragraph 34D(2)(d).

[11].              EPBC Act, section 37G.

[12].              See footnote 67 for information on bilateral agreements.

[13].              EPBC Act, section 53.

[14].              EPBC Act, section 139.

[15].              EPBC Act, section 146K.

[16].              EPBC Act, section 201(3A).

[17].              EPBC Act, section 238(3AA).

[18].              EPBC Act, sections 303DB, 303DG.

[19].              EPBC Act, section 305,

[20].              T Burke (Minister for Sustainability, Environment, Water, Population and Communities), Environment Minister approves Shree Minerals Nelson Bay River mine, media release, 18 December 2012, accessed 9 December 2013.

[21].              H Kempton, ‘New mine’s legal block’, The Hobart Mercury, 4 April 2013, p. 5, accessed 9 December 2013.

[22].              M Denholm, ‘Pressure on Butler on mine approval’, The Australian, 18 July 2013, p. 6, accessed 9 December 2013.

[23].              Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694. The judgment can be viewed at: http://www.austlii.edu.au/au/cases/cth/federal_ct/2013/694.html

[24].              The Australian, ‘Mine decision “within ten days”’, The Australian, 19 July 2013, p. 2, accessed 10 December 2013.

[25].              M Butler, (Minster for Sustainability, Environment, Water, Population and Communities), Decision under section 130 and section 131 of Environment Protection and Biodiversity Conservation Act 1999: approval with conditions of Nelson Bay River magnetite and hematite mine, Department of the Environment website, 29 July 2013, accessed 10 December 2013.

[26].              M Butler, Approval Nelson Bay River magnetite and hematite mine, near Nelson River Bay, north-west Tasmania (EPBC 2011/5846), Department of the Environment website, 29 July 2013, accessed 10 December 2013.

[27].              M Butler, Statement of reasons: decision under section 103 and section131 of Environment Protection and Biodiversity Conservation Act 1999 relating to develop and operate a magnetite and hematite mine near Nelson Bay River, Department of the Environment website, 27 August 2013, accessed 10 December 2013.

[28].              Ibid.

[29].              Revised Explanatory Memorandum, Environment Legislation Amendment Bill 2013, p. 6, accessed 10 December 2013.

[30].              Department of the Environment, ‘EPBC Act list of threatened fauna’, Department of the Environment, accessed 10 December 2013.

[31].              Department of the Environment, ‘Listed migratory species’, Department of the Environment, accessed 10 December 2013.

[32].              Department of the Environment, ‘List of marine species’, Department of the Environment, accessed 10 December 2013.

[33].              Regulation 29 of the Great Barrier Reef Marine Park Regulations 1983, accessed 10 December 2013.

[34].              See section 8 of the EPBC Act and section 211 of the Native Title Act 1993, accessed 10 December 2013. See also C Limpus, A biological review of Australian marine turtles: Green turtle Chelonia mydas (Linnaeus), Queensland Environmental Protection Agency, September 2008, accessed 22 November 2013.

[35].              Ibid., p. 77.

[36].              Ibid., p. 68.

[37].              Ibid., p. 69.

[38].              Department of the Environment, ‘List of marine species’, Department of the Environment, accessed 10 December 2013.

[39].              Regulation 29 of the Great Barrier Reef Marine Park Regulations 1983, accessed 10 December 2013.

[40].              H Marsh, ‘Does indigenous hunting of dugongs matter?’, National Environmental Research Program – Tropical Ecosystem Hub, 16 August 2013, accessed 26 November 2013.

[41].              Department of the Environment, ‘Dugong dugon – Dugong’, Department of the Environment website, accessed 26 November 2013.

[42].              A Hodgson et al, Dugong population trends across two decades in Shark Bay, Ningaloo Reef and Exmouth Gulf, Western Australian Department of Environment and Conservation, 2008, accessed 25 November 2013; H Marsh, Distribution and abundance of the dugong in Gulf of Carpentaria waters: a basis for cross-jurisdictional conservation planning and management, Final report, Australian Centre for Applied Marine Mammal Science, 4 April 2008, accessed 25 November 2013.

[43].              H Marsh et al, ‘Condition, status and trends and projected futures of the dugong in the Northern Great Barrier Reef and Torres Strait; including identification and evaluation of the key threats and evaluation of available management options to improve its status’, Marine and Tropical Sciences Research Facility Report Series, Reef and Rainforest Research Centre Limited, 2007, Cairns, p. 77, accessed 25 November 2013.

[44].              H Marsh et al, Is dugong management in the coastal waters of urban Queensland effective species conservation?, Final report, 2006, accessed 25 November 2013.

[45].              Great Barrier Reef Marine Park Authority (GBRMPA), ‘Dugong’, GBRMPA website, accessed 26 November 2013.

[46].               Department of the Environment, ‘Dugong dugon – Dugong’, op. cit.

[47].              RSPCA, ‘Is it legal to hunt protected species such as marine turtles and dugongs?’, RSPCA website, accessed 28 November 2013. See section 8 of the EPBC Act and section 211 of the Native Title Act 1993, accessed 10 December 2013.

[48].               H Marsh et al, op. cit., p. 12.

[49].              Ibid.

[50].              Ibid., Parks and Wildlife Service, Management program for the dugong (Dugong dugon) in the Northern Territory of Australia 2003—2008, Parks and Wildlife Service, accessed 26 November 2013; Department of Environment and Conservation, Protecting the Kimberley: a synthesis of scientific knowledge to support conservation management in the Kimberley region of Western Australia, Department of Environment and Conservation, Western Australia, May 2009, accessed 26 November 2013.

[51].              H Marsh et al, op. cit.

[52].              H Marsh, ‘Does indigenous hunting of dugong matter?’, National Environmental Research Program – Tropical Ecosystem Hub, 16 August 2013, accessed 26 November 2013.

[53].              Ibid.

[54].              Queensland Department of Environment and Heritage Protection, Annual compliance plan 2013–14, July 2013, p. 21, accessed 28 November 2013.

[55].              Queensland Department of Environment and Heritage Protection, Marine wildlife stranding and mortality database annual reports 2011, 2012, accessed 28 November 2013.

[56].              Ibid., p. 13.

[57].              Ibid.

[58].              T Burke, Turtles and dugongs protected with new indigenous partnership, media release, 9 February 2012, accessed 9 December 2013.

[59].              Ibid.

[60].              S Dingle and L Robinson, ‘There's tension in far north Queensland between traditional hunting rights and the protection of turtles and dugongs, and it is resulting in some horrific treatment of native animals’, The 7.30 Report, transcript, Australian Broadcasting Corporation (ABC), 8 March 2012, accessed 28 November 2013.

[61].              Brisbane Times, ‘Dugong, turtle poaching claims to be probed’, Brisbane Times, 9 March 2012, accessed 28 November 2013.

[62].              G Hunt (Shadow Minister for Climate Action, Environment and Heritage), Coalition announces dugong and turtle protection plan, media release, 15 August 2013, accessed 9 December 2013.

[63].              Ibid.

[64].              B Gordon, Turtles and dugongs protection underway with Indigenous partnership, media release, 23 August 2013, accessed 9 December 2013.

[65].              Ibid.

[66].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2013, 4 December 2013, pp. 14-15, accessed 11 December 2013.

[67].              Standing Committee for the Selection of Bills, Report No. 10 of 2013, Senate, Canberra, 4 December 2013, accessed 9 December 2013.

[68].              In the version of the Bill as introduced, item 1 of Schedule 1 inserted a new section 517B into the EPBC Act, which would have validated future decisions and actions. However, Government amendments to the Bill passed in the House of Representatives mean that Schedule 1 of the Bill will not apply to decisions and actions taken after the commencement of the Bill – see the third reading version of the Bill.

[69].              L Waters (Australian Greens environment spokesperson), Abbott Government eroding threatened species protection, media release, 14 November 2013, accessed 9 December 2013.

[70].              One of the assessment options available to the Minister under section 87 of the EPBC Act is a bilateral agreement entered into with a state or territory. There are two types of bilateral agreements:

·   assessment bilateral agreements provide for the accreditation of a state or territory process to assess the environmental impacts of a proposed action. However, after assessment at the state level, the approval decision is still made by the Commonwealth Minister under the Act and

· approval bilateral agreements go further by providing for the accreditation of a state or territory assessment and approval process in accordance with an agreed management plan or authorisation process under a state or territory law. Thus, a proposed action that is covered by an approval bilateral agreement does not require any further approval by the Commonwealth Minister under the Act.

              See J Tomaras, ‘The Commonwealth’s role in protecting the environment—cutting green tape?’, Parliamentary Library Briefing Book – 44th Parliament, Parliamentary Library, Canberra, 2013, accessed 9 December 2013.

[71].              M Butler, ‘Second reading speech: Environment Legislation Amendment Bill 2013’, House of Representatives, Debates, 5 December 2013, p. 72, accessed 10 December 2013.

[72].              M Butler, ‘Environment Legislation Amendment Bill 2013: Consideration in detail’, House of Representatives, Debates, 9 December 2013, p. 2013, accessed 10 January 2014.

[73].              ‘Hunt EPBC bill “over the top”’, Environmental manager, no. 933, 19 November 2013.

[74].              Ibid.

[75].              Ibid.

[76].              Ibid.

[77].              Australian Conservation Foundation, No time to remove environmental accountability, media release, 14 November 2013, accessed 9 December 2013.

[78].              Explanatory Memorandum, Environment Legislation Amendment Bill 2013, op. cit., p. 2.

[79].              Ibid., p. 4.

[80].              Parliamentary Joint Committee on Human Rights, First report of 44th Parliament, 10 December 2013, pp. 17–20, accessed 13 January 2014.

[81].              In the version of the Bill as introduced, item 1 of Schedule 1 inserted a new section 517B into the EPBC Act. However, Government amendments to the Bill passed in the House of Representatives mean that Schedule 1 of the Bill will not amend the EPBC Act – see the third reading version of the Bill.

[82].              Explanatory Memorandum, Environment Legislation Amendment Bill 2013, op. cit., p. 7.

[83].              G Hunt, Abbot Point and Curtis Island projects approved. New safeguards to protect the long-term future of the Great Barrier Reef, media release, 10 December 2013, accessed 13 January 2014.

[84].              Ibid.

[85].              G Hunt, Statement of reasons for approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), Department of the Environment, 19 December 2013, accessed 13 January 2014.

[86].              Explanatory Memorandum, Environment Legislation Amendment Bill 2013, op. cit., p. 8.

[87].              Ibid., p. 9.

[88].              M Butler, ‘Second reading speech: Environment Legislation Amendment Bill 2013’, House of Representatives, Debates, 5 December 2013, pp. 44, accessed 9 December 2013.

[89].              Explanatory Memorandum, Environment Legislation Amendment Bill 2013, op. cit., pp. 9 and 10.

[90].              Ibid.

[91].              The Crimes Act 1914 provides, under section 4AA, that one penalty unit is currently equal to $170.

[92].              Explanatory Memorandum, Environment Legislation Amendment Bill 2013, op. cit., p. 9.

[93].              Ibid., p. 10.

[94].              Ibid.

[95].              Ibid., p. 11.

[96].              Ibid.

[97].              Ibid., p. 13.