Department of Sustainability, Environment, Water, Population and Communities Annual Report 2011–12

2.3 Compliance and enforcement

The EPBC Act provides a range of approaches for compliance issues, including prevention, remediation, civil penalties and criminal prosecutions for more serious breaches, and reporting on compliance and enforcement issues. The department makes full use of all available remedies, with a particular emphasis on education and selecting remedies that achieve good environmental outcomes.

EPBC Act compliance and enforcement activity is consistent with the department’s overarching Compliance and Enforcement Policy, which was updated in December 2009 following approval by the Attorney General’s Department and adoption by the minister. This policy provides regulated entities, stakeholders and the wider community with clear advice on how the department exercises its compliance and enforcement responsibilities across the entire range of legislation administered by the department. The policy is available on the department’s website at .

The department adopted the new EPBC Act Compliance and Enforcement Policy on 21February 2012. The new policy sits underneath the overarching Compliance and Enforcement Policy and is specific to the EPBC Act. The policy describes the department’s approach to, and the principles that guide, compliance and enforcement activities under the EPBC Act, promotes a consistent, transparent and fair approach to EPBC Act compliance and enforcement activities, and provides guidance for stakeholders and the wider community about how the department addresses potential contraventions of the EPBC Act.

Information on EPBC Act compliance and enforcement activities in terrestrial reserves is in the annual report of the Director of National Parks.

Working with others

The department shares information and undertakes a variety of joint enforcement operations with other state and territory environmental regulators through the Australasian Environmental Law Enforcement and Regulators Network (AELERT).

AELERT is a network of local, state, territory and Australian Government and New Zealand agencies that share information and develop cohesive regulatory practices. Joint compliance and enforcement operations are undertaken by AELERT members in priority operational areas.

The department continues to work closely with the Interpol Environment Crime Program. Numerous briefings on issues relating to the suspected illegal international movement of wildlife and products were provided in 2011–12 for intelligence and investigation purposes.

Operation CETUS, a national operation by Australian Government and state conservation and environment agencies under the AELERT banner was undertaken between May and November 2011. Operation CETUS aimed to protect migrating whales from undue disturbance and enforce whale approach limits, particularly at whale-watching hotspots. As well as compliance and enforcement activities, Operation CETUS promoted responsible whale-watching practice and raised awareness about the Australian national guidelines for whale and dolphin watching 2005. Forty-five incidents were detected, the majority involving a breach of minimum approach distances. The operation highlighted that the level of awareness of whale-watching regulations is low among recreational boaters.

The department has established relationships with other Australian Government and state agencies for the provision of EPBC Act regulatory services such as the Australian Customs and Border Protection Service, the Australian Fisheries Management Authority and the Australian Quarantine Inspection Service. Cooperative arrangements are in place with several state agencies to provide compliance and enforcement services in state waters adjoining Commonwealth marine reserves. In November 2011 the department entered into a memorandum of understanding with the Queensland Department of Environment and Heritage Protection to ensure the timely exchange of information relevant to coal seam gas projects in that state.

The department launched an awareness program designed to provide information about the recent listing of the koala under the EPBC Act. As part of this program, the department is staging a series of presentations to New South Wales and Queensland councils, relevant state government departments and non-government organisations. The presentations will include details of the listing rationale, significance and interim referral guidelines, the assessment and approval process, and the compliance and enforcement provisions of the EPBC Act which relate to the koala.

Compliance audit plan

In 2011–12 the department audited, or commenced auditing, six projects under the random compliance audit program. These projects were selected from approvals made since the inception of the EPBC Act and included a residential development in Western Australia, two coalmines in Queensland, a surface-water management scheme in Victoria, a dam upgrade in Queensland and the relocation of a Victorian wholesale market.

The strategic risk-based audit program focuses on specific areas such as industry sectors, geographical areas and protected matters. During 2011–12 the program focused on 13 projects, including seven in the mining and exploration industries, a residential development, an industrial development and a review of four approvals that included conditions requiring the establishment and management of habitat reserves and offsets. Overall, the audits identified a substantial level of compliance with conditions. Instances of non-compliance were addressed in accordance with the department’s Compliance and Enforcement Policy.

The audit programs have also increased cooperation with state and local government co-regulators, enabling joint audits to be carried out and improving information sharing. A summary of the findings of each completed audit is published on the department’s website .

The department has a program of actively monitoring projects after approval to ensure adherence to conditions attached to approvals and fulfilment of requirements attached to particular manner decisions. Variations of conditions attached to 16 approvals were processed in 2011–12. One project had its approval revoked in August 2011 following three suspensions over three years. As at 30 June 2012, 900 projects were being monitored by the department.

Breaches and investigations

Incident reports are carefully examined to determine whether or not the EPBC Act applies. The person or organisation making the initial incident report is advised of the outcome of the completed matter. The most frequently reported matters relate to impacts on the southern cassowary (Casuarius casuarius johnsonii) in Queensland, Natural Temperate Grasslands of the Victorian Volcanic Plain in Victoria, and Carnaby’s black cockatoos (Calyptorhynchus latirostris), Baudin’s black cockatoos (Calyptorhynchus baudinii) and forest red-tailed black cockatoos (Calyptorhynchus banksii naso) in Western Australia. Many reports involve actions that have not yet commenced. In these cases the department investigates them to see if the activity should be regulated. During 2011–12, 32 referrals were received as a result of departmental intervention. Of these, one has been determined clearly unacceptable under Section 74B, 13 were determined to be controlled actions and four were determined to be not controlled actions provided the actions were undertaken in a particular manner. Seven were determined to be not controlled actions. As of 30 June 2012, the remaining seven are yet to be determined.

The department began 15 new cases of alleged breaches of the EPBC Act. Of these there were:

• 
  two relating to Part 13A of the EPBC Act (illegal international movement of wildlife specimens)
  
• 
  five relating to Part 3 of the EPBC Act (significant impact on matters of national environmental significance)
  
• 
  eight relating to EPBC Act marine issues (marine reserve offences and marine species protection).
  

Enforcement outcomes included 14 successful criminal prosecutions, six infringement notices, one enforceable undertaking and one conservation agreement as follows:

• 
  July 2011: A Bathurst resident received a conviction and a $2,500 fine after pleading guilty in the Downing Centre Local Court, Sydney, to three charges of possessing illegally imported wildlife under the EPBC Act. The conviction follows a successful joint operation by federal and state environment authorities and the NSW Police during July 2010. The Court found that the person was in possession of a number of illegal wildlife specimens, including two leopard geckos, a veiled chameleon and a boa constrictor.
  
• 
  July 2011: Quanstruct Pty Ltd was issued one infringement notice of $6,600 for contravening a condition attached to their approval to construct a dog training facility at Bulla, Victoria, and consequently impacted upon a nationally threatened ecological community.
  
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  August 2011: Two persons entered guilty pleas to offences under the Historic Shipwrecks Act 1976 and the Historic Shipwrecks Regulations 1978 for illegally diving on a historic shipwreck, the Florence D, and removing relics from the wreck. The court ordered that each person be placed on a 12-month good behaviour bond with a $500 surety. No convictions were recorded.
  
• 
  August 2011: Two persons entered guilty pleas to offences under the Historic Shipwrecks Act 1976. The court imposed fines totalling $1,750 after the pair undertook an illegal dive inside the wreck of the SS Yongala in the Great Barrier Reef marine park.
  
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  August 2011: Departmental officers involved in Operation BONAPARTE seized a vast collection of allegedly illegal wildlife products. This was one of the largest wildlife seizures in Australia and followed detailed monitoring and investigative work by departmental officers. The matter is currently under review for criminal prosecution.
  
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  October 2011: Centennial Coal, in mitigating damage caused by its mining operations on a nationally threatened ecological community on Newnes Plateau, NSW, entered into an enforceable undertaking with the minister in which it committed to pay $1.45 million towards a four-year research program. The program is being administered by the Fenner School of Environment and Society at the Australian National University.
  
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  January 2012: Cairns Regional Council was issued one infringement notice valued at $6,600 for contravening a condition attached to its approval to upgrade the Cooper Creek Crossing in far north Queensland.
  
• 
  February 2012: Santos was issued with three infringement notices valued at $6,600 each for contravening conditions attached to their approval. Santos received fines totalling $19,800.
  
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  March 2012: Two persons entered guilty pleas to offences related to the possession of illegally imported wildlife specimens, including exotic fish, toads and turtles. One person was given a good behaviour bond of $5,000 and the other was given a good behaviour bond of $1,000.
  
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  April 2012: A conservation agreement was entered into with a Bingle Bay banana farmer to restore corridors used by the endangered southern cassowary as a response to unauthorised clearing.
  
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  April 2012: Seven individuals appeared in the Port Lincoln Magistrates Court where they received a total of $22,000 in fines for killing listed migratory species and other (fisheries-related) offences. This was the result of a joint investigation by the department and Australian Fisheries Management Authority.
  
• 
  April 2012: The Gladstone Ports Corporation Ltd was issued with an infringement notice of $6,600 when a load of dredge spoil was dumped outside the approved disposal area, contravening a condition attached to their approval.
  

Legal actions

The following legal actions occurred in 2011–12.

Tasmanian Conservation Trust Inc v The Minister for Sustainability, Environment, Water, Population and Communities (Federal Court Proceeding ACD 24/2011)

On 6 June 2011 the Tasmanian Conservation Trust Inc. challenged the minister’s various decisions of 10 March 2011 to vary certain conditions attached to the approval for the Gunns’ Bell Bay Pulp Mill and to approve modules under the conditions of that approval. The Federal Court made consent orders on 19 September 2011 that the proceedings be discontinued.

The Western Australian Land Authority (Landcorp) v The Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226

The Western Australian Land Authority (Landcorp) made an application in the Federal Court for a review of the controlled action decision made by a delegate of the minister in respect of the Mandurah Junction Landcorp Development.

On 15 March 2012 Justice Gilmour found in the department’s favour that it had: not taken an irrelevant consideration into account; taken into account all relevant considerations; not made a decision so unreasonable that no reasonable person could have made the decision.

Justice Gilmour found that the department had breached the rules of procedural fairness by not: providing the applicant with relevant sections of the 2009 and 2012 Draft Guidelines; clearly informing the applicant that the cumulative impact of a number of approvals for developments in the area was a consideration which the decision maker was taking into account; providing the applicant with an opportunity to respond to the cumulative impact consideration; assuming that the expert report had not considered the cumulative impact of the development without asking the applicant if this was the case.

Justice Gimour made orders quashing the decision and referring the matter to the respondent for reconsideration according to law.

The Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population & Communities (WAD250/2011)

The Western Australian Land Authority (Landcorp) made an application to review the minister’s approval decision. However, this matter was held in abeyance pending the outcome of [2012] FCA 226. Now that [2012] FCA 226 has been decided, the parties will need to resolve how this application will be finalised.

Pacific Reef Fisheries (Bowen) Pty Ltd v Minister for Environment Protection, Heritage and the Arts (‘Guthalungra’)(QUD 180/2010)

On 26 May 2010 Pacific Reef Fisheries lodged a challenge in the Federal Court to the minister’s approval decision concerning the construction and operation of a black tiger prawn aquaculture facility and associated treatment ponds near Bowen, Queensland. The Federal Court made consent orders on 15 November 2011 dismissing the proceedings.

Glenn Parker & Others v Minister for Sustainability, Environment, Water, Population and Communities (VID869/2009 & VID1428/2011)

Glenn Parker & Others challenged the minister’s decision to amend the List of Specimens Suitable for Live Import into Australia to exclude the savannah cat. Justice Bromberg handed down his judgment on 18 November 2011 dismissing the application. Glenn Parker & Others appealed to the Full Federal Court and the three Full Federal Court judges handed down a unanimous judgment on 29 June 2012 that dismissed the appeal.

Buzzacott v Minister for Sustainability, Environment, Water, Population & Communities (No 2). [2012] FCA 403

Mr Buzzacott filed an application for judicial review of the minister’s decision to approve the expansion of the Olympic Dam processing plant, subject to conditions. On 20 April 2012 Justice Besanko dismissed the application. Mr Buzzacott appealed the decision.

The appeal was heard by the Full Federal Court on 21 June 2012 in Adelaide. No decision has been handed down.

Secretary to the Department Of Sustainability And Environment (Vic) v Minister For Sustainability, Environment, Water, Population and Communities (Cth) (VID180/2012)

The Secretary to the Department of Sustainability and Environment (DSE), Victoria, made an application to the Federal Court of Australia to review a decision of the minister that the DSE proposed action, to conduct a research trial involving cattle grazing within the Alpine National Park, will have clearly unacceptable impacts on a matter protected by Part 3 of the EPBC Act. This matter was heard on 3 August 2012.

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