Australia's national environmental legislation and human/wildlife interactions

Journal of International Wildlife Law and Policy

Volumn 11, Issue 2-3, 2008, Pages 101-155

  Early, Gerard ^a  

^a NATIONAL HEALTH AND MEDICAL RESEARCH COUNCIL   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; LEGISLATIVE IMPLEMENTATION; NATIONAL PLANNING; NATURE-SOCIETY RELATIONS; WILDLIFE MANAGEMENT;

AUSTRALASIA; AUSTRALIA;

EID: 58049107391     PISSN: 13880292     EISSN: 15481476     Source Type: Journal    
DOI: 10.1080/13880290802470141     Document Type: Article

References (144)

1. Deputy Secretary, Australian Government Department of the Environment, Water, Heritage and the Arts, GPO Box 787, Canberra ACT 2601, Australia, Telephone: +61 2 6274 1500, Fax: +61 2 6274 1552, E-mail: gerard.earlyεnvironment.gov.au. The article represents the views of the author and does not necessarily represent the views or policies of the Department of the Environment, Water, Heritage and the Arts or the Australian Government.
2. STATE OF THE ENVIRONMENT ADVISORY COUNCIL, AUSTRALIA, STATE OF THE ENVIRONMENT 1996 (1996) at 4-4.
3. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) incorporated and replaced the following statutes: The Environment Protection (Impact of Proposals) Act 1974 (Cth); the Australian Heritage Commission Act 1975 (Cth), the National Parks and Wildlife Conservation Act 1975 (Cth); the Whale Protection Act 1980 (Cth); the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth); the World Heritage Properties Conservation Act 1983 (Cth); and the Endangered Species Protection Act 1992 (Cth). It is anticipated that other Australian legislation dealing with issues such as sea dumping and sea installations will also be incorporated into the framework legislation in the future.
4. For a more detailed analysis of the Australian environmental law context, see DOUGLAS E. FISHER, AUSTRALIAN ENVIRONMENTAL LAW, Lawbook Company, Sydney (2003) or GERRY BATES, ENVIRONMENTAL LAW IN AUSTRALIA, Lexis Nexis, Sydney (2002).
5. Other significant Australian Government environmental legislation of the time - the National Parks and Wildlife Conservation Act 1975 and the Great Barrier Reef Marine Park Act 1975 - regulated the Australian Government's own actions or areas under its control.
6. FISHER, supra note 4, at 89-90.
7. BATES, supra note 4, at 57.
8. Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1.
9. Commonwealth v Tasmania (1983) 46 ALR 625.
10. Queensland v Commonwealth (1988) 77 ALR 291.
11. BATES, supra note 4, at 57.
12. On 31 October 1990 at a Special Premiers' Conference in Brisbane, the PrimeMinister, the Premiers and Chief Ministers, and representatives of local government meeting agreed to work towards a cooperative national approach to the environment.
13. COMMONWEALTH OF AUSTRALIA, INTER-GOVERNMENTAL AGREEMENT ON THE ENVIRONMENT (1992).
14. COMMONWEALTH OF AUSTRALIA, NATIONAL STRATEGY FOR ECOLOGICALLY SUSTAINABLE DEVELOPMENT (1992).
15. COUNCIL OF AUSTRALIAN GOVERNMENTS, MEETING COMMUNIQUE, CANBERRA, 7 NOVEMBER 1997 (1997).
16. COMMONWEALTH OF AUSTRALIA, REFORM OF COMMONWEALTH ENVIRONMENT LEGISLATION CONSULTATION PAPER (1998).
17. Murray Hogarth, Greens see Red on Environment Bill, THE SYDNEYMORNING HERALD, 3 July 1998, at 1.
18. AUSTRALIAN PARLIAMENT. SENATE ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THEARTS COMMITTEE, ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION BILL 1998 & ENVIRONMENTAL REFORM (CONSEQUENTIAL PROVISIONS) BILL 1998: REPORT, April 1999.
19. MICHAEL KENNEDY ET AL., Development and Implementation of Conservation Law in Australia, REVIEW OF EUROPEAN COMMUNITY AND INTERNATIONAL ENVIRONMENTAL LAW 10 (3), 300, 301 (2001).
20. ID AT 301.
21. GREENPEACE, 82 Reasons why the New Environment Legislation is Bad for the Environment, JOINT MEDIA RELEASE WITH THE AUSTRALIAN CONSERVATION FOUNDATION AND THE WILDERNESS SOCIETY, 20 JUNE 1999.
22. AUSTRALIAN FINANCIAL REVIEW. Editorial, Grey Areas in Green Package, 38 (25 June 1999).
23. Section 3 of this article refers.
24. This article was written and accepted for publication prior to the EPBC Act amendments coming into force. Revisions have been made to the paper to incorporate relevant amendments; however, readers wishing to understand the full extent of the amendments should consult Amendments to the EPBC Act and the EPBC Act Annual Report 2006-07 at http://www.environment.gov.au/epbc/index.html.
25. Australian Government, Minister for the Environment and Heritage, Media Release, Government to Strengthen Australia's Environment Law, C255/06, 12 October 2006.
26. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s3A.
27. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s391.
28. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s391(2).
29. Advertisement, Another Environmental Solution from WWF, THE WEEKEND AUSTRALIAN, 14(3-4 July 1999).
30. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss3(1)(a) to (c).
31. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss3(1)(d) to (g).
32. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s528.
33. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 3, Division 1.
34. Convention on Wetlands of International Importance especially as Waterfowl Habitat (February 2, 1971), 996 U.N.T.S. 245; T.I.A.S. 11084; 11 I.L.M. 963 (1972), amended by the Protocol of 3.12.1982 and amendments of 28.5.1987.
35. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s25
36. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s522A
37. Environment Protection and Biodiversity Conservation Act 1999 (Cth s67.
38. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 3, Division 1, Subdivisions A to F.
39. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 3, Division 2, Subdivisions A to B.
40. The assessment and approval provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), including obligations to refer actions, are set out in Chapter 4 of the Act.
41. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s74B.
42. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s77A.
43. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss523, 524, and 524A.
44. Andrew Macintosh, Why the Environment Protection and Biodiversity Conservation Act's Referral, Assessment and Approval Process is Failing to Achieve Its Environmental Objectives, 21 E.P.L.J. 305 (2004).
45. Section 2.1.5 of this paper refers.
46. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s527E.
47. See also the Nathan Dam case - Minister for the Environment and Heritage v. Queensland Conservation Council Inc. [2004] F.C.A.F.C. 190. Section 4.2 of this article refers.
48. See the Nathan Dam case - Minister for the Environment and Heritage v. Queensland Conservation Council Inc. [2004] F.C.A.F.C. 190. Section 4.2 of this article refers.
49. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s523 defines "action" as including "a series of activities."
50. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s74A.
51. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 10
52. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 14
53. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 12, Division 2.
54. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s303FN(10A))
55. Department of the Environment and Water Resources, Legislation Annual Reports 2006-07 23-25, (2007).
56. www.environment.gov.au/epbc/index.html.
57. Sophie Chapple, THE EPBC ACT: ONE YEAR LATER 3 (2001).
58. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s74.
59. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s74D.
60. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s104.
61. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s131AA.
62. id.
63. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s131A.
64. Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss487-488.
65. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s303GJ.
66. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Chapter 13.
67. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s25(3).
68. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s314.
69. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s326.
70. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s74(2).
71. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s79.
72. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s132A.
73. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s132.
74. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s134(4).
75. Part 13 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) sets out the provisions related to the listing and conservation of protected species and ecological communities, including permits and plans.
76. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s188(4).
77. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s207A.
78. Australian Government, Minister for the Environment and Heritage, Media Release, New Focus for Australia's Marine Planning Programme, C294/05 13 October 2005.
79. While not statutorily recognised under the EPBC Act, 54 regional plans have been developed and accredited as the basis for natural resource management funding from the Australian Government and state and territory governments under the Natural Heritage Trust of Australia Act 1997 (Cth) and under the National Action Plan for Salinity and Water Quality. The regional plans cover all environmental, social and economic impacts of natural resource decisions on a regional basis. They have been developed by local communities, based on catchments or bioregions, covering all of Australia.
80. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 14.
81. Australian Government, Department of the Environment and Water Resources Annual Report 2006-07 10 (2007).
82. Australian Government Department of the Environment and Heritage, Genetic Resources Management in Commonwealth Areas (2006).
83. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 15.
84. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 13A.
85. The Convention on International Trade in Endangered Species ofWild Fauna and Flora,March 3,1973, 993 U.N.T.S. 243, 27 U.S.T. 1087, T.I.AS. 8249.
86. The Convention on Biological Diversity done at Rio de Janeiro, Brazil, June 5, 1992, U.N. Doc. ST/DPI/1307, 31 I.L.M. 818 (1992).
87. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s70(1).
88. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s70(3).
89. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 3, Subdivision I.
90. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Part 17.
91. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Division 12.
92. Environment Protection and Biodiversity Conservation Act 1999 (Cth) Division 13.
93. Australian Government, supra note 25.
94. See also note 24.
95. These statistics about the operation of the EPBC Act and other statistics, information and case studies quoted in this article are provided from the records of the Australian Government Department of the Environment, Water, Heritage and the Arts. Most of the information, together with other information on the EPBC Act and its implementation, is available on the website: http://www.environment.gov.au/epbc/ index.html.
96. Chris McGrath 2006, Review of the EPBC Act, Paper prepared for the 2006 Australian State of the Environment Committee, Department of the Environment and Heritage, Canberra, at website http://www.environment.gov.au/soe/2006/publications/emerging/epbc-act/ index.html at 8.
97. Peter Garrett and John Kobelke, Big Picture Study of Australia's Kimberley, Joint Media Release by the Australian Government Minister for the Environment, Heritage and the Arts and the Western Australian Acting Minister for State Development, PG/16, Commonwealth of Australia, Canberra (5 February 2008).
98. Australian National Audit Office, Performance Audit: Referrals, Assessments and Approvals under the Environment Protection and Biodiversity Conservation Act 1999, AUDIT REPORT NO. 38 (2003).
99. Andrew Macintosh and Debra Wilkinson, Environment Protection and Biodiversity Conservation Act - A Five Year Assessment (2005).
100. Judith Petts, Environmental Impact Assessment - Overview of Purpose and Process, in HANDBOOK OF ENVIRONMENTAL IMPACT ASSESSMENT 1, 7 (Judith Petts ed.), (1999).
101. The lists established under the repealed Endangered Species Protection Act 1992 were transferred to the EPBC Act on its commencement.
102. Australian National Audit Office, Performance Audit: The Conservation and Protection of National Threatened Species and Ecological Communities AUDIT REPORT NO. 31 (2007).
103. Australian Government, Protecting Australia's Future, Environment Budget Overview 2007-08, 18.
104. Nicola Beynon, Michael Kennedy and Alistair Graham, Grumpy Old Greenies - Lament Waiting Lists, Wasted Opportunities and Wayward Pork Barrelling in Australia's Biodiversity Programs, Humane Society International, Sydney (2005).
105. National Farmers' Federation, PressRelease, CoalitionCommits to Fix Flawed EPBC Act, NR142/2001, National Farmers' Federation, Canberra (31 October 2001).
106. Lenore Taylor, Nats deem Environment Act Intrusive, The Australian Financial Review, 13 November 2004, 4 (2004).
107. One appellant continues to challenge all decisions under the EPBC Act related to management plans for kangaroos and wallabies despite all such appeals having so far being unsuccessful.
108. Booth v. Bosworth [2001] 114 FCR 39.
109. Details of the referral, assessment and rejection for this action can be found under Reference Number 2002/571 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
110. Chris McGrath, Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), 22 E.P.L.J. 20, 38 (2005).
111. Humane Society International Inc. v. Minister for the Environment & Heritage [2003] F.C.A. 64.
112. Queensland ConservationCouncil Inc. v. Minister for the Environment and Heritage [2003] F.C.A.1463.
113. Details of this decision and subsequent decisions after the Court cases can be found under Reference Number 2002/770 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/ index.html.
114. Minister for the Environment and Heritage v. Queensland Conservation Council Inc. [2004] F.C.A.F.C. 190.
115. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s527E.
116. Minister for the Environment and Heritage v. Greentree (No. 3) [2004] F.C.A. 1317 with appeal decision to the full bench at Greentree v. Minister for the Environment and Heritage [2005] F.C.A.F.C. 128.
117. Editorial commentary 22 E.P.L.J. (2005) at 1.
118. Details of the referral, assessment and approval decision for this action can be found under Reference Number 2002/565 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
119. McGrath, supra note 108, at 20-22.
120. Details of the referral decision for this action can be found under Reference Number 2003/1244 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
121. Details of the referral decision for this action can be found under Reference Number 2005/2001 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
122. Details of the referral, assessment and approval decision for this action can be found under Reference Number 2001/174 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
123. Details of the referral, assessment and approval decision for this action can be found under Reference Number 2003/1106 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
124. Details of the referral, assessment and approval decision for this action can be found under Reference Number 2002/629 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
125. Details of the referral for this action can be found under Reference Number 2003/962 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
126. Details of the referral decision for this action can be found under Reference Number 2003/930 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
127. Details of the referral, assessment and the approval decision for this action can be found under Reference Number 2004/1820 at the Public Notifications page of the EPBC Act website http://www.environment.gov.au/epbc/index.html.
128. "Ecological community" is defined in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) as "the extent in nature in the Australian jurisdiction of an assemblage of native species that inhabits a particular area in nature" (S528).
129. Hornsby Shire Council v. Vitone Developments Pty Limited [2003], NSWLEC 272 at 37.
130. See also Brian J. Preston SC and Paul Adam, Describing and Listing Threatened Ecological Communities under the Threatened Species Conservation Act (NSW), 21 E.P.L.J. 250 and 372, Lawbook Company, Sydney (2004).
131. Brian J. Preston SC and Paul Adam, Describing and Listing Threatened Ecological Communities under the Threatened Species Conservation Act (NSW), 21 E.P.L.J. 372, 389, Lawbook Company, Sydney (2004).
132. Australia's Productivity Commission examined this issue during an inquiry in 2004 and found the "actual and perceived impacts of the EPBC Act on landholders appear to differ markedly. In terms of preventing activities, or of requiring activities to undergo the assessment and approval process, the EPBC Act to date has had little direct impact on the agricultural sector. However, uncertainty about its potential future impacts has been a concern for some landholders."
133. See Productivity Commission, Impacts of Native Vegetation and Biodiversity Regulations L1, Commonwealth of Australia, Sydney (2004).
134. Threatened Species Scientific Committee, Ecological Communities: The Way Forward, Advice to the Minister for the Environment and Heritage, Department of the Environment, Water, Heritage and the Arts, Canberra (2004).
135. Commonwealth of Australia, Guidelines for the Ecologically Sustainable Management of Fisheries (2001).
136. Details of the strategic assessment for this fishery can be found under at the Strategic Assessment Notices page of the EPBC Act website http://www.environment.gov.au/epbc/notices/strategic.html.
137. Australian Government,Minister for the Environment and HeritageMinister for Fisheries, Forestry and Conservation, Joint Media Release, Government Acts for a Sustainable Future (23 November 2005).
138. Details of the strategic assessment for this fishery can be found under at the Strategic Assessment Notices page of the EPBC Act website http://www.environment.gov.au/epbc/notices/strategic.html.
139. Council of Nature Conservation Ministers, Code of Practice for the Humane Shooting of Kangaroos (2nd Ed. 1990).
140. Australian Government, Minister for the Environment and Heritage, Media Release, Crocodile Safari Hunting Proposal Rejected - Crocodile Culls to Continue, C285/05 (6 October 2005).
141. Garrett and Kobelke, supra, note 95.
142. Australian Government, supra note 101.
143. Petts, supra note 98, at 7.
144. McGrath supra note 94 at 17.