Department of Sustainability, Environment, Water, Population and Communities

2.3 Compliance and enforcement

The department considers all allegations of non-compliance under Part 3 of the EPBC Act. The 364 incidents examined by the department in 2012–13 appear to represent a decline from the 448 incidents examined in 2011–12 and 466 incidents examined in 2010–11. However, this can be attributed to a change in the way the department records and assesses allegations of non-compliance following the introduction of a departmental compliance and enforcement management database in early 2012. A further 195 matters reported to the department in 2012–13 were found not to represent potential breaches of the EPBC Act and were immediately resolved and recorded as enquiries rather than allegations of non-compliance.

EPBC Act compliance and enforcement activity is consistent with the department’s overarching Compliance and Enforcement Policy, which was updated in September 2010 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: www.environment.gov.au/epbc/publications/epbc-compliance-enforcement-policy.html.

The EPBC Act Compliance and Enforcement Policy sits beneath the overarching Compliance and Enforcement Policy and is specific to the EPBC Act. The policy is intended to describe the department’s approach to, and the principles that guide, compliance and enforcement activities under the EPBC Act; promote a consistent, transparent and fair approach to EPBC Act compliance and enforcement activities; and provide guidance for stakeholders and the wider community about how the department addresses potential contraventions of the EPBC Act.

Further information on EPBC Act compliance and enforcement activities is in the cross-cutting activities section Regulatory compliance and enforcement in the Corporate Outcome chapter and also in the annual report of the Director of National Parks.

Working with others in compliance and enforcement

The department has an active EPBC Act compliance and enforcement program and 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 on a number of operational and strategic matters. The department is the liaison portal between Commonwealth and state agencies and overseas law enforcement counterparts.

The department has established relationships with other Australian Government and state agencies for the provision of EPBC Act regulatory services, the Australian Customs and Border Protection Service, Australian Fisheries Management Authority and the Australian Quarantine Inspection Service. Cooperative arrangements are in place with a number of state agencies to provide compliance and enforcement services in state waters adjoining Commonwealth marine reserves.

To further encourage compliance, the department engages in cooperative partnerships to build public awareness of the EPBC Act. Training on awareness and use of EPBC Act compliance and enforcement powers was provided internally and to a number of co-regulator and partner agencies.

The department also provides information to the general public to raise understanding of the EPBC Act and its operations, and policies and guidelines to provide guidance for stakeholders in determining whether a proposed action is likely to have a significant impact on a species or ecological community listed under the EPBC Act. Departmental publications produced in 2012–13 are listed in Appendix C of this report.

Compliance audit plan

The department’s compliance audit plan comprises a random audit program and a strategic risk-based audit program to verify compliance with EPBC Act conditions of approval and particular manner requirements and permits granted under the Environment Protection (Sea Dumping) Act 1981. The compliance audit plan also evaluates the effectiveness of the conditions and requirements for protecting matters of national environmental significance. The total number of audits conducted in 2012–13 across both audit programs was 15.

In 2012–13 the department audited, or commenced auditing, four projects under the random compliance audit program. These projects were selected from decisions made since the inception of the EPBC Act and included two road upgrade projects in Victoria, a gas and condensate field in the North West Shelf and a port facility in Western Australia.

The strategic risk-based audit program focuses on specific areas such as industry sectors, geographical areas and protected matters. During 2012–13 the program focused on 11 projects, including an artificial reef located offshore from Sydney and the related sea dumping permit, a road upgrade in South Australia, a water pipeline in South-east Queensland, a mine in Western Australia, a port facility in Western Australia and the related sea dumping permit, 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 by facilitating information sharing. A summary of the findings of each completed audit is published on the department’s website at: www.environment.gov.au.

The department has a program of actively monitoring projects post approval to ensure adherence to conditions attached to approvals and fulfilment of requirements attached to particular manner decisions. At 21 June 2013, 1137 projects were being monitored by the Compliance and Enforcement Branch. Variations of conditions attached to 81 approvals were processed in 2012–13. There were 33 site visits undertaken.

Breaches and investigations

The department examined 364 new incidents or activities representing potential breaches of Part 3 of the EPBC Act in 2012–13 and dealt with 195 additional enquiries. This is fewer than the 448 incidents examined in 2011–12 and 466 incidents examined in 2010–11. Twenty-eight site inspections were undertaken to obtain information to assess whether alleged non-compliance actions had occurred. 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 koalas in Queensland and New South Wales, 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 2012–13, 32 referrals were received as a result of departmental intervention. Of these, 11 were determined to be controlled actions and three were determined to be not controlled actions provided the actions were undertaken in a particular manner. Eleven were determined to be not controlled actions. The remaining six are yet to be determined as at 30 June 2013.

In 2012–13 the department began 18 new formal investigations of alleged breaches of the EPBC Act. Of these:

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  five relate to offences under EPBC Act Part 3 (matters of national environmental significance)
  
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  two relate to offences under EPBC Act Part 7 (matters of national environmental significance—approvals for action)
  
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  eight relate to offences under EPBC Act Part 13 (wildlife related matters)
  
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  two relate to offences under EPBC Act Part 15 (marine protected areas related matters).
  
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  one relates to an offence under the Water Efficiency Labelling and Standards Act 2005.
  

In 2012–13 the department executed six monitoring warrants under the EPBC Act and one search warrant under the Water Efficiency Labelling and Standards Act 2005. Thirty-five notices to produce books and records under section 486F of the EPBC Act were also served.

In 2012–13 enforcement outcomes included four successful criminal prosecutions, three infringement notices, six enforceable undertakings and one remediation determination as follows:

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  August 2012—a Tasmanian resident and company were fined for commercial lobster fishing within the Tasman Fracture Commonwealth Marine Reserve (section 354(1)(f) of the EPBC Act). The resident received a penalty of $13 000 and was ordered to pay costs of $17 000. Venture Fishing received a penalty of $65 000 and was ordered to pay costs of $28 000: Minister for Sustainability, Environment, Water, Population and Communities v Woodley [2012] FCA 957.
  
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  August 2012—an enforceable undertaking for $305 000 was accepted from Hancock Victorian Plantations Pty Ltd for clearing of 0.7 hectares of critically endangered ecological community Natural Temperate Grasslands of the Victorian Volcanic Plain.
  
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  August 2012—an enforceable undertaking for $80 400 was accepted from Coppercats Pty Ltd and Gallivantour Super Pty Ltd for clearing 6.7 hectares of habitat for the vulnerable western ringtail possum (Pseudocheirus occidentalis) and endangered Carnaby’s black-cockatoo (Calyptorhynchus latirostris) at Picton East in Western Australia. The funds will be used to purchase habitat for conservation.
  
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  October 2012—a Darwin resident appeared at the Darwin Magistrates Court and entered a plea of guilty to two matters under the Historic Shipwrecks Regulations. He was fined a total of $500.
  
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  October 2012—an enforceable undertaking for $184 000 was accepted from Marloelle Pty Ltd for clearing 4 hectares of the critically endangered ecological community White Box–Yellow Box–Blakely’s Red Gum and Derived Native Grassland at Windmill Hill Estate, Tamworth, and New South Wales. The funds will be used for research and to manage the community elsewhere on the site.
  
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  October 2012—an enforceable undertaking for $200 000 was accepted from Goodman Property Services Pty Ltd for clearing 3.4 hectares of the critically endangered ecological community Cumberland Plain Shale Woodlands and Shale–Gravel Transition Forest at Bungarribee Industrial Estate in Eastern Creek, New South Wales. The funds will contribute to research on specific threats affecting the ecological community, of which less than 10 per cent of good quality remains.
  
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  November 2012—a remediation determination was issued to two residents of Victoria, requiring an offset valued at approximately $2 000 000 for damaging up to 6.8 hectares of the critically endangered ecological community Natural Temperate Grasslands of the Victorian Volcanic Plain. An environmental consultant must also be employed to prepare and oversee a management plan to retain and enhance the remnants of the community remaining onsite.
  
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  November 2012—the department negotiated three new conditions of approval with Koolan Iron Ore, including a payment of $415 000 to better protect island populations of the northern quoll (Dasyurus hallucatus) in Western Australia. A departmental investigation alleges that Koolan Iron Ore failed to meet its quarantine obligations for a period of time and placed the quolls at risk.
  
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  April 2013—an enforceable undertaking was accepted from Murrindindi Shire Council to pay $85 000 following road maintenance works which resulted in the disturbance and destruction of endangered spotted tree frog (Litoria spenceri) habitat. The funds will be directed towards various measures that will improve council management practices and provide direct benefits to the frog in this region.
  
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  May 2013—two people entered pleas of guilty to charges of exporting a regulated native species without a permit at the Downing Centre Local Court in Sydney on Thursday, 2 May 2013. They were placed on a 12-month good behaviour bond.
  
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  June 2013—an enforceable undertaking for $100 000 was accepted from the Oakford Land Company Pty Ltd in response to the clearing of 8.2 hectares of habitat for the endangered Carnaby’s black-cockatoo (Calyptorhynchus latirostris) at Nowergup, Western Australia. The money will be used to purchase habitat for conservation or for revegetation and rehabilitation projects which will benefit black cockatoos in south-west Western Australia.
  
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  June 2013—a Sydney fisherman pleaded guilty to violating section 10A of the Environment Protection (Sea Dumping) Act 1981, which prohibits the dumping of waste from any vessel into Australian waters. The fisherman was convicted of the offence and received a fine of $2000.
  
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  28 June 2013—a Sydney resident appeared at the Downing Centre Magistrates Court in relation to 24 charges under section 303GN of the EPBC Act. The matter has been adjourned until the 27 September 2013 for sentencing.
  

Legal actions

The following legal actions occurred in 2012–13:

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

The Western Australian Land Authority (Landcorp) made an application to review the minister’s approval decision in relation to the Mandurah Junction Landcorp Development. The matter was held in abeyance pending the outcome of an earlier challenge of the delegate’s controlled action decision in which Justice Gilmour quashed the delegate’s decision and referred the matter to the department for reconsideration according to law (The Western Australian Land Authority (Landcorp) v The Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226). On 19 December 2012, by consent, the Federal Court quashed the minister’s approval decision.

Buzzacott v Minister for Sustainability, Environment, Water, Population and 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 and mine, 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) [2013] FCA 1

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 would have clearly unacceptable impacts on a matter protected by Part 3 of the EPBC Act. On 3 August 2012 Justice Kenny dismissed DSE’s application on all four grounds of review.

Minister for Sustainability, Environment, Water, Population and Communities v Bill Bourchier Pty Ltd (VID1125/2012)

On 21 December 2012 the department filed civil penalty proceedings in the Federal Court proceedings against Bill Bourchier Pty Ltd and William Henry Bourchier (as executive officer of Bill Bourchier Pty Ltd). The department alleged that the removal of 343 buloke trees (Allocasuarina luehmannii) and 106 grey box trees (Eucalyptus microcarpa) between 2007 and 2010 has, will or is likely to have a significant impact on the endangered south-eastern red-tailed black-cockatoo (Calyptorhynchus banksii graptogyne). The department alleged that Bill Bourchier Pty Ltd contravened sections 18(3)(b), 20(1)(b), 484 and 494 of the EPBC Act.

The department is in the process of settling the matter with Mr Bourchier following the court-ordered mediation on 9 April 2013.

Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (QUD52/2013)

On 4 February 2013 Seafish Tasmania Pelagic Pty Ltd filed an application for judicial review in the Federal Court challenging the decisions of the minister made under sections 390SD and 390SF of the EPBC Act to prohibit a ‘declared commercial fishing activity’ due to the uncertainty about the environmental impacts of the commercial fishing activity until an adequate scientific assessment can be undertaken.

The matter was heard for three days commencing 25 June 2013. No decision has been handed down.

Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities and Shree Minerals Limited (TAD8/2013)

On 2 April 2013 the Tarkine National Coalition Incorporated applied to the Federal Court for judicial review of the minister’s decision to approve an action (developing and operating a magnetite and hematite mine in Tasmania). On 17 July 2013 the Federal Court upheld the challenge by the applicant to the decision of the minister to approve the development and operation of the proposed mine. The challenge was upheld on the grounds that the minister failed to have regard to a mandatory consideration in section 139(2) of the EPBC Act, namely a previously approved conservation advice for Sarcophilus harrisii (Tasmanian Devil), as the approved conservation advice was not contained in the proposed decision brief provided to the minister in November 2012, or in the final decision brief provided to the minister in December 2012.

Zoubi and Minister for Sustainability, Environment, Water, Population and Communities (2013/1448)

On 11 April 2013 the department received notice that Mr Zoubi had lodged an application with the Administrative Appeals Tribunal for review of a decision to refuse an application for the export of two glossy black cockatoos (Calyptorhynchus lathami) and two gang gang cockatoos (Callocephalon fimbriatum) from Australia. Trade in these animals is regulated, as they are listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) to which Australia is a party. At the directions hearing held on 31 May 2013, the tribunal ordered the department to provide a list of additional questions for Mr Zoubi and that Mr Zoubi provide information on whether Israeli authorities might provide a conditional import permit. The matter was ongoing as at 30 June 2013.

Esposito & Ors v The Commonwealth & Ors (Heritage Estates) (NSD924/2013)

On 24 May 2013 an application was made in the Federal Court by a number of landowners in the Heritage Estates area in Shoalhaven City Council in New South Wales seeking a declaration that the Commonwealth has acquired or affected the acquisition of their property. At the interlocutory hearing on 31 May 2013 the applicants’ primary submission was that the Environment Minister’s refusal decision (refusal of proposed rezoning and public infrastructure works by Shoalhaven City Council) dated 13 March 2009 under section 130 of the EPBC Act amounted to compulsory acquisition of the applicants’ land given that the minister’s decision rendered the land empty of value and gave rise to a just terms claim under section 51(xxxi) of the Constitution and a claim for compensation under section 519 of the EPBC Act. The applicants were unsuccessful in obtaining the interlocutory relief sought and the matter was ongoing as at 30 June 2013.

Other litigation actions

Lee and Anor v Commonwealth of Australia and Anor [HC No. 5 of 2012]

The Commonwealth of Australia and the Murray–Darling Basin Authority have been named as respondents in proceedings originally commenced in the High Court but since transferred to the Federal Court [No. VID 1129 or 2012].

The applicants have challenged the constitutional validity of the Water Act 2007 (Cth).

The parties are in the course of seeking orders resolving interlocutory issues.