Swirls in the stream of Australian environmental law: Debate on the EPBC act

Environmental and Planning Law Journal

Volumn 23, Issue 3, 2006, Pages 165-184

  McGrath, Chris ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 59449108335     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (92)

1. See generally the EPBC Act homepage at http://www.deh.gov.au/epbc
2. EPBC Project at http://www.epbc.com.au (viewed 17 March 2006).
3. McGrath C, "Key Concepts of the EPBC Act" (2005) 22 EPLJ 20.
4. ACF and NELA, Out of The Blue: An Act for Australia's Oceans (ACF, Melbourne, March 2006). Available online at http://www.acfonline.org.au/uploads/res_OOTB_sum.pdf(viewed 11 May 2006).
5. Australia's Oceans Policy, which was released in 1998, is based upon a regional planning approach under the Coastal and Marine Planning Program and administered by the National Oceans Office. A significant component of the policy is the development of the National Representative System of Marine Protected Areas and Regional Marine Plans. See http://www.oceans.gov.au/oceans.jsp (viewed 18 March 2006).
6. Wescott G, "The Development and Initial Implementation of Australia's 'Integrated and Comprehensive' Oceans Policy" (2000) 43 (10) Ocean and Coastal Management 853.
7. A draft of which is usefully set out in Ch 7 of the discussion paper.
8. Macintosh A, "Why the Environment Protection and Biodiversity Conservation Act's Referral, Assessment and Approval Process is Failing to Achieve its Environmental Objectives" (2004) 21 EPLJ 288
9. Macintosh A and Wilkinson D, EPBC Act - A Five Year Assessment (The Australia Institute, Canberra, 2005).
10. Macintosh A and Wilkinson D, "EPBC Act - The Case for Reform" (2005) 10 (1) AJNRLP 139. This article was published in March 2006.
11. Macintosh and Wilkinson, n 6, p 167.
12. Macintosh and Wilkinson, n 6, pp 166-167.
13. Macintosh and Wilkinson, n 6, pp 175-176.
14. Crawford J, "The Constitution and the Environment" (1991) 13 Syd LR 11
15. Bates G, Environmental Law in Australia (5th ed, Butterworths, Sydney, 2002), pp 55-73.
16. Branson C, "Some Key Constitutional and Administrative Issues", in White D (ed), A New Green Agenda - The Environment Protection and Biodiversity Conservation Act (Commonwealth) 1999 (EDO Ltd, Sydney, 1999).
17. R v Burgess; Ex parte Henry (1936) 55 CLR 608; Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam Case); Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v Commonwealth (1989) 167 CLR 232 (the Wet Tropics Case); Victoria v Commonwealth (1996) 187 CLR 416 (the Industrial Relations Act Case) at 487-488.
18. Convention on Biological Diversity 1992. Entry in to force generally 29 December 1993. ATS 1993 No 32.
19. Minor exceptions to this general principle possibly include human health and non-indigenous cultural heritage outside Commonwealth land and the Territories. Macintosh and Wilkinson, n 6, p 166.Australian Constitution, s 51(xxxi).See, eg Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1; Commonwealth v Western Australia (1999) 196 CLR 392; Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133; [1999] HCA 62; and Smith v ANL Ltd (2000) 204 CLR 493; [2000] HCA 58.Farmers are well aware of the "regulatory takings"issue... However, to date, nobody has attempted to obtain compensation for a regulatory taking under the EPBC Act.
20. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 519.
21. By Branson J in Booth v Bosworth (2001) 114 FCR 39; 117 LGERA 168.The author was counsel for Dr Booth in this matter and notes that oral argument on this point had concerned s 51(xxix) (External Affairs) rather than s 51(xxxi) (Acquisition of property on just terms). It seems that Kiefel J mistakenly referred to s 51(xxxi) at this point in the course of her ex tempore judgment and meant to refer to s 51(xxix).Bosworth v Booth (unreported, FCAFC No QUD 292/2004) heard by Sackville, Dowsett and Hely JJ on 16 May 2005.Even if there was an acquisition of property by Pt 3 of the EPBC Act, s 519 of the Act provides for compensation on just terms.See also: Commonwealth v Tasmania (1983) 158 CLR 1 at 247-248 and 283; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 at 499-500 and 528; Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 172-173 and 185; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 304; Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 at 530, 573 and 634-635; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 15-18, 30, 35, 38-39 and 50.See also Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 185.This Act was repealed at the commencement of the EPBC Act and replaced by the EPBC Act: see Environmental Reform (Consequential Provisions) Act 1999 (Cth), Sch 6.It is always possible to think of extreme situations where an acquisition of property might occur under the EPBC Act. That is, no doubt, the reason for s 519 of the Act providing for compensation if an acquisition of property occurs, Deane B and Gaudron JJ in Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 189-190,Mason CJ, Deane and Gaudron JJ in Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 306-307.
22. Macintosh and Wilkinson, n 6, p 177.
23. Macintosh and Wilkinson, n 6, p 177.
24. Macintosh, n 5, p 300. See also Macintosh and Wilkinson, n 5.
25. Macintosh and Wilkinson, n 6, p 153.
26. The refusals were: EPBC 2002/571 (a proposal to electrocute approximately 5,000 Spectacled Flying Foxes to protect a lychee crop) on 23 March 2003; EPBC 2002/911 (construction of a residential home on Norfolk Island) on 10 March 2004; EPBC 2004/1631 (a four-lot subdivision on Kangaroo Island involving the clearing of native vegetation) on 31 December 2005; and EPBC 2002/730 (the Bald Hills Wind Farm) on 3 April 2006.Although it is technically limited to: actions taken in a State or Territory for the purposes of interstate or international trade or commerce; actions taken by foreign, trading or financial corporations; and actions subject to Australia's international environmental legal obligations: s 130(1C) of the EPBC Act. Section 130(1E) also provides exceptions from the need for a State or Territory to provide a s 130(1B) notice for nuclear actions, and to actions taken in a Commonwealth marine area, on Commonwealth land or by the Commonwealth. In practice, s 130(1B) casts a very wide net that catches most actions.
27. EPBC Act, s 130(1B)(b).
28. McGrath C, "Applying the EPBC Act: A Case Study of the Naturelink Cableway" (2001/2002) 7 (33) QEPR 123.
29. McGrath C, "The Flying Fox Case" (2001) 18 EPLJ 540.
30. The author was the junior counsel for the Applicant, Dr Carol Booth, in this case.
31. Branson J in a foreword to Booth v Bosworth (2001) 114 FCR 39; 117 LGERA 168; [2001] FCA 1453.
32. EPBC Referral No 2002/571.
33. The ban was announced in the Queensland Parliament by the Minister for the Environment.
34. Queensland Legislative Assembly, Debates (8 August 2001) pp 2331-2333.
35. However, enforcement of this ban is difficult.In light of the decision in Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 1) (1989) 73 LGRA 218; [1989] 2 Qd R 512 (the Mt Etna Bat Caves Case).Nature Conservation Act 1992 (Qld), ss 173A - 173E; and the Marine Parks Act 2004 (Qld), ss 111 - 116 and 140. Such amendments are further examples of the positive effects of the EPBC Act on environmental law in Australia generally.
36. Hall L and Richards G, Flying foxes: Fruit and blossom bats of Australia (UNSW Press, Sydney, 2000).
37. Eby P and Lunney D (eds), Managing the Grey-headed Flying-fox as a Threatened Species in NSW (Royal Zoological Society of New South Wales, Mosman, 2002).
38. Thiriet D, "The Relocation of Flying Fox Colonies in Queensland" (2005) 22 EPLJ 231 at 238-239.
39. Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205; [2003] FCA 64.
40. See Booth v Frippery Pty Ltd [2006] QCA 74.
41. The decision in Oshlack v Richmond River Council (1998) 193 CLR 72 has had little effect in changing the application of the normal costs rule in public interest cases.Minister for the Environment and Heritage v Greentree (No 1) [2003] FCA 857.Minister for the Environment and Heritage v Greentree (No 2) (2004) 138 FCR 198; [2004] FCA 741;Minister for the Environment and Heritage v Greentree (No 3) (2004) 136 LGERA 89; [2004] FCA 1317.Greentree v Minister for the Environment and Heritage (2005) 144 FCR 388; 143 LGERA 1; [2005] FCAFC 128 (per Kiefel, Weinberg and Edmonds JJ).
42. "Casenote: Minister for the Environment & Heritage v Greentree [2003] FCA 857" (2003) 20 EPLJ 476.
43. McGrath C, "Federal Issues: The Greentree Case" (2004) 21 EPLJ 249
44. McGrath C, "Federal Issues: Appeal Lodged from Greentree (No 3)"
45. McGrath C, "Federal Issues: Greentree Appeal Dismissed" (2005) 22 EPLJ 325.
46. Macintosh and Wilkinson, n 5, pp 157-159.
47. Gunningham N and Grabosky P, Smart Regulation: Designing Environmental Policy (Oxford University Press, Oxford, 1998).
48. Gunningham and Grabosky, n 53, pp 391-398.
49. Gunningham and Grabosky, n 53, p 396.
50. Ayres I and Braithwaite J, Responsive Regulation (Oxford University Press, Oxford, 1992).
51. Gunningham and Grabosky, n 53, pp 278-279, note the traditional, political culture and policy of not regulating the environmental impacts of agriculture and not enforcing environmental laws against farmers.
52. Available at http://www.deh.gov.au/about/publications/annual-report (viewed 23 March 2006).
53. A position that he has occupied since the commencement of the EPBC Act and in which he is responsible for approvals under the Act.
54. Early G, "Australia's National Environmental Legislation and Human/Wildlife Interactions" (2006) Journal of International Wildlife Law & Policy (in press).
55. McGrath C, Review of the EPBC Act for the 2006 State of the Environment Report, 8 February 2006
56. Commissioned by the Australian State of the Environment Committee and to be published upon publication of the Australia State of the Environment Report 2006 at the end of 2006.
57. The species had been nominated for listing but was not listed at the time of approving the dam under the EPBC Act. Upon its listing as vulnerable to extinction in 2002 the conditions of approval of the dam were amended to take it into account.
58. Barnes D and Arthington A, "An Early Test of the Water Act 2000 (Qld): Burnett Dam as a Case History" in Water Law & Policy, Conference Proceedings (4th Australasian Natural Resources Law and Policy Conference, 24-25 October 2002, Sydney, New South Wales) pp 68-80.
59. Of course, in approving the dam, the Minister would say that he considered the environmental, social and economic factors and legitimately concluded that the dam should proceed. Having viewed the site and reviewed the evidence concerning the project, the author does not accept that view as the correct one. This case is one deserving a detailed, multi-disciplinary study in the future.
60. ANEDO, Possible New Matters of National Environmental Significance Under the EPBC Act (ANEDO, 2005).
61. McGrath C, "Greenhouse Emissions Case Update" (Spring 2005) National Environmental Law Review 19.
62. Bartlett R, "Evaluating Environmental Policy Success and Failure", Ch 8 in Vig NJ and Kraft ME, Environmental Policy in the 1990s (2nd ed, CQ Press, 1994) p 183.
63. Bartlett, n 66, p 182.
64. ACF and NELA, n 2, Ch 6, pp 84-93.
65. ACF and NELA, n 2, p 93.
66. ACF and NELA's proposed amendment to s 74 of the EPBC Act for the Australian Oceans Office to provide advice to the Minister does not alter this fact.
67. Queensland Conservation Council v Minister for the Environment & Heritage [2003] FCA 1463
68. Minister for the Environment & Heritage v Queensland Conservation Council (2004) 139 FCR 24; 134 LGERA 272; [2004] FCAFC 190.
69. ACF and NELA, n 2, p 92; Macintosh and Wilkinson, n 5, pp 173-174.
70. Macintosh and Wilkinson, n 6, p 173.
71. Available at http://www.courts.qld.gov.au/qjudgment/QPE%202001/pe01-013.pdf (viewed 20 January 2006).
72. The author was the counsel for a community group opposed to the mine in this case.
73. Ward TJ, Reviewer's Report: Review of Environment Assessment: Donnybrook Sand Extraction Operation, Donnybrook, Queensland (EPBC 2001/329) (unpublished report by Greenward Consulting, Perth, 2 November 2004) p 7.
74. Ahern KS, Udy JW and Pointon SM, "Investigating the Potential for Groundwater From Different Vegetation, Soil and Landuses to Stimulate Blooms of the Cyanobacterium, Lyngbya majuscula, in Coastal Waters" (2006) 57 Marine and Freshwater Research 177
75. Ahern KS, O'Neil JM, Udy JW and Albert S, "Effects of Iron Additions on Filament Growth and Productivity of the Cyanobacterium Lyngbya majuscula, in Coastal Waters" (2006) 57 Marine and Freshwater Research 167;
76. Garcia R and Johnstone RW, "Effects of Lyngbya majuscula (Cyanophycea) Blooms on Sediment Nutrients and Meiofaunal Assemblages in Seagrass Beds in Moreton Bay, Australia" (2006) 57 Marine and Freshwater Research 155.
77. Ward, n 75, pp 8-9.
78. Ward, n 75, p 4.
79. For details of the approval see the EPBC Act website at http://www.deh.gov.au and follow links to the Public Notices section, then search for EPBC 2001/239 (viewed 20 March 2006).
80. Australian Government Natural Resource Management website at http://www.nrm.gov.au (viewed 20 March 2006).
81. Macintosh and Wilkinson, n 6, p 142.
82. Wood C, Environmental Impact Assessment: A Comparative Review (Prentice Hall, 1995) Ch 9.
83. Sadler B, Environmental Impact Assessment in a Changing World: Evaluating Practice to Improve Performance: Final Report of the International Study of the Effectiveness of Environmental Assessment (Canadian Environmental Assessment Agency, 1996).
84. Sippe R, "Criteria and Standards for Assessing Significant Impact", Ch 5 in Petts J (ed), Handbook of Environmental Impact Assessment (Blackwell Science, 1999) p 74.
85. See McGrath, n 1, pp 33-35 and 38.
86. Macintosh and Wilkinson, n 6, p 172.
87. ACF and NELA, n 2, Ch 4.
88. In the sense used here, "politics" and "political" mean "relating to or affecting interests of status or authority in an organisation rather than matters of principle (a political decision)".
89. The Australian Oxford Dictionary (Oxford University Press, 1999), p 1046.
90. In particular, "political" refers to anything done to obtain or hold power in government.
91. Mossop D, Commonwealth Environmental Law (LBC Information Services, 2000).
92. Of course, the Environment Minister made the final decision for legislation administered by her or himsuch as the World Heritage Properties Conservation Act 1983 (Cth). In such a case they would be the "action Minister".A recent example of a decision by the Minister under the EPBC Act that appears to have been based on political considerations rather than legitimate environmental concerns was the refusal of the Bald Hills Wind Farm (EPBC 2002/730) on 3 April 2006. The stated reason for the refusal was the danger the wind turbines posed for the endangered Orange-bellied Parrot (Neophema chrysogaster) but the farm was not within the normal range of the species and the danger appeared minute. The decision was coloured by the fact that the wind farm was locally unpopular and an election promise was made to stop it in the last federal election.For example, the listing of Grey-headed Flying-foxes (Pteropus poliocephalus) and Spectacled Flying-foxes (Pteropus conspicillatus) as vulnerable to extinction in 2001 and 2002 was politically controversial as these species damage commercial fruit crops. The listing in 2001 of Brigalow (Acacia harpophylla dominant and co-dominant) and Bluegrass (Dichanthium spp) dominant grasslands of the Brigalow Belt Bioregions (North and South) as endangered ecological communities was politically controversial because these listings affected farming of land on which these ecological communities occurred.