Key concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental and Planning Law Journal

Volumn 22, Issue 1, 2005, Pages 20-39

  McGrath, Chris ^a  

^a NONE

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EID: 84871566754     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (93)

1. Scanlon J and Dyson M, "Will practice hinder principle? - Implementing the EPBC Act" (2001) 18 EPLJ 14.
2. See also Kennedy M, Beynon N, Graham A and Pittock J, "Development and Implementation of Conservation Law in Australia" (2001) 10(3) RECIEL 296
3. Australian National Audit Office, Referrals, Assessments and Approvals under the Environment Protection and Biodiversity Conservation Act 1999 - Audit Report No 38 2002-2003 (ANAO, Canberra, 2003)
4. Productivity Commission, Impacts of Native Vegetation and Biodiversity Regulations - Inquiry Report No 29 (Productivity Commission, Melbourne, 2004), pp 77-96
5. 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.
6. Under s 51(xxix) of the Constitution, the Commonwealth Parliament may make laws that are reasonably capable of being considered appropriate and adapted to implementing Australia's international legal obligations: Victoria v Commonwealth (1996) 187 CLR 416 (the Industrial Relations Act Case) at 487. Applying this test to the obligations under the Biodiversity Convention, for example, the Commonwealth holds virtually a plenary power to make laws to conserve biodiversity.
7. See generally Raff M, "Ten Principles of Quality in Environmental Impact Assessment" (1997) 14 EPLJ 207
8. Raff M, "Environmental impact assessment and transitional provisions of the EPBC" (2001) 18 EPLJ 5
9. McGrath C, "Applying the Environment Protection and Biodiversity Conservation Act 1999 (Cth): A case study of the Naturelink Cableway" (2001/2002) 7 (33) QEPR 123.
10. Noting the criticisms of Brown AL and Nitz T, "Where have all the EIAs gone?" (2000) 17 EPLJ 89, the recently signed Queensland Assessment Bilateral has directly led to new statutory EIA processes in the Integrated Planning Act 1997 (Qld) and the Environmental Protection Act 1994 (Qld). New standing rules for public interest litigation were also introduced into the Nature Conservation Act 1992 (Qld) in 2003 modelled on ss 475 and 487 of the EPBC Act.
11. See EPBC Act "Public Notice" website at http://www.deh.gov.au/epbc/publicnotices/index.html (viewed 1 January 2005).
12. See McGrath C, "The Flying Fox Case" (2001) 18 EPLJ 540.
13. See the notice of the decision at the EPBC Act Public Notice website, n 5, for EPBC Referral No 2002/571.
14. This decision is currently subject to an appeal.
15. A final decision had not been made at the time of writing. For further information about this case, including affidavits and maps, see the Humane Society International website http://www.hsi.org.au (viewed 1 January 2005).
16. Section 515A of the EPBC Act requires publication of notices on the internet. This is provided at http://www.deh.gov.au/epbc/publicnotices/index.html (viewed 1 January 2005).
17. See ss 475 and 487 of the EPBC Act.
18. Citing Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494+515+528+537.
19. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355+384
20. ASIC v DB Management Pty Ltd (1999) 199 CLR 321+338.
21. There are currently assessment bilaterals in force for Tasmania, Western Australia, the Northern Territory and Queensland. See http://www.deh.gov.au/epbc/publicnotices/bilateral/index.html#signed (viewed 1 September 2004).
22. See ss 136-140A of the EPBC Act. The precautionary principle, stated in s391 of the EPBC Act, is also a relevant consideration for the decision.
23. Note that s 528 of the EPBC Act states that "action has the meaning given by Subdivision A of Division 1 of Pt 23", which refers to ss 523-524A.
24. Treat with caution the decisions of Wilcox and Moore JJ in Save the Ridge v National Capital Authority [2004] FCAFC 209, that it is at least arguable that submissions of amendments to a plan by a government authority to a Minister are not exempt as actions under s 524(2).
25. Brisbane CC v Cunningham (2001) 115 LGERA 326
26. Stubberfield v Redland SC [1995] 1 Qd R 332+336
27. (1993) 81 LGERA 13.
28. Note that ss 43A and 43B replaced the earlier ss 522B and 523(2).
29. See Newcastle CC v Royal Newcastle Hospital (1956) 96 CLR 493
30. (1959) 100 CLR 1
31. Parramatta CC v Brickworks Ltd (1972) 128 CLR 1
32. Eaton & Sons Pty Ltd v Warringah SC (1972) 129 CLR 270.
33. Parramatta CC v Brickworks Ltd (1972) 128 CLR 1
34. Woollahra MC v Banool Developments Pty Ltd (1973) 129 CLR 138
35. Norman v Gosford SC (1974) 132 CLR 83.
36. See also King v Lewis (1995) 88 LGERA 183
37. North Sydney MC v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50.
38. Parramatta CC v Brickworks Ltd (1972) 128 CLR 1.
39. For analysis of subsequent case law on this point, see McGrath, n 6, pp 546-548.
40. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 391(2), defines the precautionary principle, as "lack of scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage."
41. Booth v Bosworth (2001) 114 FCR 39 at 64.
42. Section 140 Evidence Act 1995 (Cth). See the discussion on this point in Booth v Bosworth (2001) 114 FCR 39 at 56-58.
43. Whitney v Inland Revenue Commissioners [1926] AC 37 at 42 per Lord Dunedin.
44. Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J.
45. See generally March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
46. Royall v R (1991) 172 CLR 378
47. Environment Agency v Empress Car Co (Arbertillery) Ltd [1999] 2 AC 22
48. Henville v Walker (2001) 206 CLR 459.
49. Damages for negligence are limited to harm that is reasonably foreseeable, in the sense that a reasonable person would have foreseen the kind or type of harm as not far-fetched or fanciful and therefore a real risk, even if it is extremely unlikely to occur and even if the extent of the injury is greater than expected: Wyong Shire Council v Shirt (1980) 146 CLR 40+47.
50. Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 at [53] and [57].
51. See generally, Wood C, Environmental Impact Assessment: A Comparative Review (Prentice Hall, London, 1995), Ch 9.
52. 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, Ottawa, 1996).
53. Sippe R, "Criteria and standards for assessing significant impact", Ch 5 in Petts J (ed), Handbook of Environmental Impact Assessment (Blackwell Science, London, 1999), p 74.
54. Booth v Bosworth (2001) 114 FCR 39 at 64.
55. For details of the associated case law on this issue see McGrath, n 6, pp 548-554.
56. Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 (Black CJ, Ryan and Finn JJ) at [53].
57. Booth v Bosworth (2001) 114 FCR 39 at 59-60.
58. Booth v Bosworth (2001) 114 FCR 39 at 61.
59. Booth v Bosworth (2001) 114 FCR 39 at 63.
60. Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 at [59].
61. Environment Australia, Administrative guidelines for determining whether an action has, will have, or is likely to have a significant impact on a matter of national environmental significance under the Environmental Protection and Biodiversity Conservation Act 1999 (Environment Australia, Canberra, July 2000) and supplementary guidelines on particular topics. Available at http://www.deh.gov.au, follow links DEH Home EPBC, viewed 1 January 2005.
62. Green v Daniels (1977) 13 ALR 1 at 9
63. Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641
64. Humane Society International v Minister for Environment and Heritage (2003) 126 FCR 205 at [51].
65. Neither Branson J in the Flying Fox Case nor Sackville J in Greentree referred to the Administrative Guidelines in interpreting the legal meaning of significant impact.
66. Green v Daniels (1977) 13 ALR 1 at 9.
67. Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419-421
68. (1979) 2 ALD 634 at 643.
69. See also the discussion in Fisher DE, "The meaning of impacts - The Nathan Dam Case on Appeal" (2004) 21 EPLJ 325
70. McGrath C, "Federal environmental laws consider direct and indirect impacts of an action" (2005) 79 ALJ (in press).
71. [2003] FCA 1463 at [38] and [39].
72. [2004] FCAFC 190 at [53].
73. [2004] FCAFC 190 at [53].
74. [2004] FCAFC 190 at [53]. This is akin to a "commonsense" test of causation.
75. [2004] FCAFC 190 at [55].
76. [2004] FCAFC 190 at [57].
77. [2004] FCAFC 190 at [61].
78. [2004] FCAFC 190 at [62].
79. "Cumulative" means increasing or growing by accumulation or successive additions; formed by or resulting from accumulation or the addition of successive parts or elements: Macquarie Dictionary (3rd ed, 1997), p 530. "Cumulative impacts" may arise either from persistent additions from one process or development or compounding effects involving two or more processes or developments.
80. See generally Canter L, "Cumulative Effects Assessment", Ch 18 in Petts J (ed), Handbook of Environmental Impact Assessment (Blackwell Science, London, 1999).
81. See the discussion of the meaning of "significant impact" earlier in this article.
82. See the oft-quoted judgment of Cripps J in Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 at 417.
83. Considering Australian Heritage Commission v Mount Isa Mines (1997) 187 CLR 297 at 306.
84. The author framed these questions and only the third and fourth questions were at issue in the Nathan Dam Case. Some questions obviously overlap. For an excellent discussion of causation in the context of pollution to the environment caused by third party and natural events, see the speech of Lord Hoffmann in Environment Agency v Empress Car Co (Arbertillery) Ltd [1999] 2 AC 22 at 30-36.
85. Macintosh, n 1, p 300.
86. In light of the decision in Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (No 1) [1989] 2 Qd R 512 (the Mt Etna Bat Caves Case).
87. See Nature Conservation Act 1992 (Qld), ss 173A-173E and 173O. Such amendments are further examples of the positive effects of the EPBC Act on environmental law in Australia generally.
88. Wells D, Queensland Parliamentary Hansard, 8 August 2001, pp 2331-2333. However, enforcement of this ban is difficult.
89. See Prime Minister of Australia website http://www.pm.gov.au, then follow links to Media Release No 1084, "$36 million to maintain Australia's biodiversity hotspots" (viewed 1 January 2005).
90. See: Australian Government Natural Resource Management website http://www.nrm.gov.au, then follow links to index (viewed 1 January 2005).
91. See McGrath C, "Queensland's new vegetation management regime" (2004/2005) 10 (46) QEPR 26.
92. Bartlett RV, "Evaluating Environmental Policy Success and Failure", Ch 8 in Vig NJ and Kraft ME, Environmental Policy in the 1990s (2nd ed, CQ Press, Washington, 1994), p 183.
93. Bartlett, n 68, p 182.