Access to an international compensation fund for oil tanker spills: Protection of the Sea Legislation Amendment Bill 2008
The Protection of the Sea Legislation Amendment Bill 2008 (POTSLA Bill) proposes to increase the maximum compensation available for spills from oil tankers from about $350 million to about $1.3 billion. It would enable access to an international compensation fund for oil tanker spills established through the International Oil Pollution Compensation Fund (IOPC) Supplementary Fund Protocol.
The POTSLA Bill has been passed in the House of Representatives and received a second reading in the Senate on 26 June 2008, and complements the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Bill 2007 which passed the House of Representatives in May 2008 and is currently before the Senate.
Application for security for costs against public interest litigator refused: Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588
An application for security for costs against public interest group Lawyers for Forest Inc (LFF) was refused by Justice Marshall in the Federal Court.
LFF is an association whose purposes include promotion of the conservation of native forests and encouraging public interest in the importance of protecting native forests and other environmental issues.
Justice Marshall concluded that although the court’s discretion to make an order for security of costs should be exercised judiciously, LFF’s impecuniosity was not of itself enough to establish the exercise of that discretion.
He also suggested that courts should be cautious about making an order for security for costs in circumstances where the respondent whose decision is under challenge (the relevant minister in this case) hasn’t sought such an order.
McArthur river mine redevelopment decision correct even with breach of EPBC Act by the minister: Lansen v Minister for Environment and Heritage [2008] FCA 903
An action for administrative review was brought by seven native title claim groups with claims under the Native Title Act 1993 (Cth) over land in the vicinity of the McArthur River Mine near Borroloola in the Gulf Region of the Northern Territory. The operator of the mine, McArthur River Mines (MRM), an Xstrata subsidiary, sought approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to convert the underground zinc mine into an open cut operation, requiring a diversion of the McArthur River.
The assessment process was undertaken pursuant to the Environmental Assessment Act (NT), which is an accredited assessment process under a Bilateral Agreement between the Commonwealth and the Northern Territory in force under the EPBC Act, and involved an environmental impact statement, public exposure and MRM response. An Assessment Report was forwarded to the Commonwealth Minister for the Environment and Heritage who, after seeking further information from MRM concerning potential impacts on fauna, granted approval subject to conditions.
The applicants sought to challenge the validity of the decision to grant approval on four grounds:
- the assessment of the environmental impacts should have been made under Part 8 of the EPBC Act and not the Bilateral Agreement
- the Assessment Report was not a valid assessment report to empower the minister to make an informed decision, as it did not contain sufficient information
- the minister was required to, but did not, take into account the development conditions imposed by the Northern Territory on the proposal, and
- the minister did not give adequate consideration to the principles of ecologically sustainable development, including the precautionary principle (found within section 3A(b) of the EPBC Act which states ‘if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’), as was required under the EPBC Act in making his decision.
The court, in rejecting the application found:
- the process undertaken under the Bilateral Agreement was acceptable as it was an assessment process under Part 8 of the EPBC Act
- the Assessment Report was a valid assessment report as it contained an adequate description of the relevant material even though the Assessment Report itself said that its contents were not themselves sufficient to decide that the environmental impacts of the proposal on fauna would not be, or only marginally be, affected
- the minister had not taken into account the conditions imposed by the Northern Territory Government upon the development, but in the circumstances the failure did not make the minister’s decision invalid because consideration of the conditions could not have made a material difference to the minister’s decision, nor the conditions imposed, and
- the minister had not failed to take into account the precautionary principle.
Wonthaggi desalination plant – Federal Court rejects EPBC Act challenge to ‘preliminary works’ – Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670 (16 May 2008)
Your Water Your Say, a community based action group opposing the construction of a desalination plant near Wonthaggi in the Gippsland region of Victoria, was unsuccessful in an action to stop preliminary works at the site. The preliminary works included testing and early stage works to inform project design, location and environmental assessment (preliminary works).
On 31 December 2007 the Victorian Department of Sustainability and Environment referred the desalination plant to the Federal Minister for the Environment, Heritage and the Arts under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) for consideration and approval. The referral of the project was made with the express exclusion of the preliminary works, in relation to which the referral noted that, as these works will not cause significant environmental effects on matters of national environmental significance, approval was not required.
The federal minister’s delegate, in carrying out the minister’s responsibilities under the EPBC Act, noted that preliminary works ‘are excluded from the scope of this referral and do not require approval under the EPBC Act’.
The applicant, Your Water Your Say Inc, argued that:
- the statement made by the delegate evidenced a decision being made with regard to the preliminary works which amounted to ‘de-facto development consent’
- the preliminary works would have a significant impact on matters of national environmental significance and as such they must be restrained from occurring until consideration and approval is granted under the EPBC Act, and
- the delegate had failed to take into account the impact of the additional greenhouse gas emissions flowing from the desalination plant, which was suggested to be a relevant consideration in the making of a decision by the minister under the EPBC Act.
In finding for the respondent, each of these arguments was rejected. The court found that:
- pursuant to section 75(1) the minister is to make a decision whether the action, which is the subject of a referral, is a controlled action. Since the preliminary works were not part of the referral a decision could not be made by the delegate, thus no decision was made. The statement made by the delegate was simply a statement of fact
- no injunction could be granted to restrain the preliminary works as the applicant failed to produce any admissible evidence to support its assertion that the preliminary works would cause environmental damage, and
- relevant considerations for a decision maker only include those the decision maker is bound to consider by law. The impact of additional greenhouse gases was not a consideration the decision maker was bound to consider, and as such was not a relevant consideration. Even so, the decision maker did have regard to the impact of the additional greenhouse gases produced by the plant in making the decision.
Costs orders against unsuccessful objectors in environmental litigation
‘Public interest’ environmental litigation has been a hot topic in the Federal Court this year, with a number of decisions made in respect of applications for judicial review of decisions of the Commonwealth Minister for the Environment, Heritage and the Arts under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). In particular, the court has made a number of judgments on the fraught question of costs orders against unsuccessful public interest parties in environmental litigation.
The basic principle of paying the costs of litigation is that the unsuccessful party should pay the other party’s costs because it has caused the successful party to incur costs in contesting or defending the legal challenge. However, the High Court has held that this rule may be displaced in a public interest environmental case in some circumstances, such as on a matter of genuine public interest and where the case raises a novel question of general importance or as to the proper construction or application of legislation (Oshlack v Richmond River Council (1998) 193 CLR 72).
The first Blue Wedges case underlined that a genuine question as to the proper construction of the EPBC Act can justify a decision not to award costs against an unsuccessful litigant (Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (No 1) (2008) 165 FCR 211). Similarly, in the Wilderness Society appeal (concerning Gunns’ pulp mill proposal) it was held that there was a serious legal question in dispute. However, a costs order was made against the applicants for 70 per cent of the minister’s costs and 40 per cent of Gunns Limited’s costs, as the case was not at first instance and there was not as great a disparity in legal representation (Wilderness Society v Turnbull (2008) FCAFC 19).
In contrast, the Your Water Your Say case was found to have ‘no arguable merit’. In this case, the applicant (in broad terms) alleged that the preliminary environmental and cultural heritage investigations being carried out for the proposed Wonthaggi desalination plant were in breach of the EPBC Act because they were within the ambit of the referral of that project, and therefore could not be carried out until the project had been assessed and approved by the Commonwealth Minister. This was an ‘ambitious’ and unsuccessful argument, and a full costs order was made against the applicants in favour of both the Commonwealth Minister and the State of Victoria (Your Water Your Say Inc v Minister for the Environment, Heritage, Water and the Arts and the State of Victoria (No 2) [2008] FCA 900). Justice Heerey clarified in that case that the fact that the applicants qualified for the special standing provision in sections 487 and 488 of the EPBC Act did not carry any particular significance on the issue of costs, as the general rule on costs necessarily assumes that the parties had standing.
The second Blue Wedges case clarified that even if the case raises a novel question of construction of the EPBC Act, the question must be difficult or complex to justify departure from the ordinary rule on costs. Blue Wedges failed because the questions was resolved by a simple reading of the Minister’s decision against the words of the EPBC Act.
Importantly for proponents of projects which are the subject of judicial review applications, Justice North also rejected the Blue Wedges claim that it should be excused from a costs order because it had withdrawn a number of untenable causes of action which had facilitated the progress of the litigation. Justice North was unimpressed by this line of argument, given that it was Blue Wedges’ fault that the causes of action were argued in the first place. A full costs order was made against Blue Wedges in favour of the Commonwealth Minister.
It is unclear at this stage whether the Commonwealth will seek to enforce the costs order. The judgment noted that Blue Wedges Inc had assets of only $2,700 and that an offer to settle on costs of $1,500 had been rejected by the Commonwealth. Justice North noted in his judgment that ‘there is some curiosity about the strenuous persistence with which the orders continued to be sought’. The Commonwealth’s next steps will be closely observed.
This series of cases gives comfort to environmental public interest groups that the spectre of costs orders should not preclude their bringing an application in the special circumstances envisaged by the High Court in Oshlack. However, the cases also give comfort to proponents and governments that a costs order against applicants in unfounded or pedestrian environmental public interest cases remains a realistic probability. The judgments deliver a strong reminder that the court is not an appropriate forum to ventilate political arguments on the merits of decisions under the EPBC Act.
ACCC forces company to amend its ‘environmentally friendly’ claims
A company has provided court-enforceable undertaking to the Australian Competition and Consumer Commission (ACCC) that it will not make misleading environmental claims about its portable air-conditioning products.
De Longhi Australia Pty Limited (De Longhi) admitted to making misleading representations in its marketing that its portable air conditioners contained ‘non-harmful gases’ and were ‘environmentally friendly’.
De Longhi was required to amend its advertising messages, published a corrective notice in a retailer trade magazine, and agreed to implement a trade practices compliance program.
In June 2008, the ACCC published a guide entitled Carbon Claims and the Trade Practices Act.
Goodyear Tyres to provide partial customer refunds following ACCC investigation
Under the terms of a court enforceable undertaking, Goodyear Tyres is offering customers partial refunds. Throughout 2007 and 2008 the company made claims regarding the environmental benefits of a particular new range of tyres, including a production process resulting in reduced carbon dioxide emissions. Goodyear Tyres admitted that the environmental claims could not be substantiated and has withdrawn all affected material.
Goodyear has apologised to its customers and offered a partial refund to customers who relied on the claims. It has also undertaken to refrain from making the representations, implement Trade Practices compliance program, and place a corrective notice in major newspapers and its website and Autocare centres.
Mining company fails in application to stop three open cut mines adjacent to its own: Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185
Ulan Coal Mines Limited (Ulan) has failed to prevent three open cut mines opening adjacent to its own mines. Ulan was concerned about water availability at its mines, but the Land and Environment Court rejected the application.
On 6 September 2007 the Minister for Planning granted approval to Moorlarben Coal Mines Pty Ltd to carry out a project involving the construction and operation of three open cut coal mines and an underground mine. The land for the project is immediately adjacent to the Ulan Coal Mine owned and operated by Ulan.
The approval was subject to conditions including that ‘the proponent must ensure that it has sufficient water for all stages of the project, and if necessary, adjust the scale of mining operations to match its water supply’ (condition 29).
Ulan argued that this condition lacked certainty and might result in a ‘significantly different project’ to that which was approved, and that the minister’s decision to grant the approval was devoid of plausible justification.
Justice Preston rejected the arguments advanced by Ulan and made the following findings:
- ‘Once it is recognised that condition 29 (and indeed no other condition of the approval) requires Moolarben to operate at the maximum scale permitted and that condition 29 does not mandate that the only means by which Moolarben can balance water supply and demand is to adjust the scale of operations, no illogicality arises.’
- ‘Mere ambiguity or uncertainty of the meaning of words does not necessarily lead to invalidity.’
- ‘… the possibility that, if available water supply at any stage of the Project is less than the water demand of the Project at that stage, it might be necessary to adjust the scale of mining operations to reduce the water demand to match the available water supply, does not result in a different project, let alone a significantly different project, to that for which approval was sought.’
- ‘… the mere existence of uncertainly is not a bar’ to making an approval decision. By its nature, environmental impact assessment involves a prediction of likely future impacts of a project that has not yet occurred on an environment about which there will invariably be imperfect knowledge. Where the environment is to a large extent hidden, such as underground strata and aquifers, the uncertainly is necessarily heightened. Nevertheless, decisions need to be made.’
In the end, the court held that the degree of uncertainty surrounding the water supply was not as extreme as Ulan had made out.
Ulan was required to pay the costs of the Minister for Planning and Moolarben Coal Mines Pty Limited.
Ministers to get broader powers under recommendations made following a review of the National Environment Protection Council Act 1994
The National Environment Protection Council (NEP Council) published its response to the 2007 review of the National Environment Protection Council Act 1994 (NEPC Act) in April 2008.
The NEP Council is a statutory body with law making powers. Its current members include the Minister for the Environment, Heritage and the Arts, and state and territory government environment ministers.
Currently National Environment Protection Measures (NEPMs) can only be declared by the Council of Ministers on seven matters. The review recommends, among other things, that the NEPC Act be amended to allow an NEPM to be made on ‘any environmental protection matter as determined unanimously by NEPC’. The NEP Council agrees with this recommendation.
The NEP Council of Ministers gave conditional support for some other recommendations, including that the annual report should allow comparisons of the performance of individual states and territories in implementing and enforcing NEPMs.
Environmental taxes to be considered in tax reform
On 11 May 2008 the Treasurer announced a review of Australia’s tax system. The Terms of Reference for the review indicate that any recommended tax structure should enable Australia to deal with, among other things, the ‘environmental challenges of the 21st century’. The review is to consider:
- the ‘role to be played by environmental taxes’, and
- the interrelationship between the existing tax systems and the proposed Emissions Trading Scheme (ETS).
The review will be conducted in stages with an initial discussion paper due for release by the end of July 2008 and a final report to the Treasurer expected by the end of 2009.
No developments for this quarter.
Towards unified gas regulation: National Gas (Victoria) Act 2008
The National Gas (Victoria) Act 2008 (NGV Act) aims to implement the National Gas Law (NGL) reforms in Victoria. The NGL proposes a regime for the national coordination of gas management.
The NGV Act implements a number of components of the national reforms including:
- the implementation of a framework for third parties to access certain natural gas pipeline services (achieved by applying the schedule to the National Gas (South Australia) Act 2008 as Victorian law)
- incentives to encourage investment in gas infrastructure. Incentives include the continuation of greenfields pipeline incentives, a new ‘light handed’ regulatory regime, and improvements to the rules around cost recovery for investment in expanding existing gas infrastructure capacity
- the creation of a bulletin board to increase market transparency and assist with gas emergency response
- transitional provisions that transfer responsibility for economic regulation of gas access distribution networks from Victoria’s jurisdictional regulator (the Essential Services Commission) to the Australian Energy Market Regulator
- exemptions from state duties or taxes for specified matters
- the principle that where a pipeline crosses state borders, any action taken under the NGL by a minister or court in which the pipeline is situated is considered to have also been taken by their counterpart in the other participating jurisdiction, and
- the principle that any proceeding for judicial review or action for a declaration, injunction, writ or remedy again a ministerial action, with respect to a border-crossing pipeline, must be brought in the jurisdiction with which the pipeline is most closely connected.
The NGV Act came into force on 1 July 2008.
Bill to alter the regulation of the Channel Deepening Project rejected: Port Services Amendment (Disposal of Material) Bill 2008 (VIC)
The Port Services Amendment (Disposal of Material) Bill 2008 (PSADOM Bill) was a Private Members Bill proposing to amend the Port Services Act 1995 (PS Act). The PSADOM Bill aimed to prohibit the Port of Melbourne Corporation (POMC) from disposing of certain excavated material in Port Phillip Bay during POMC’s channel deepening project.
Specifically, the PSADOM Bill aimed to:
- prohibit from disposal any material that is noxious, poisonous, harmful or potentially harmful to human health, wildlife or plants, or detrimental to any beneficial use made of Port Phillip Bay waters
- place the onus on the POMC and the Victorian Regional Channels Authority (VRCA) to establish whether any dredged material was within the prohibited category, and
- ensure that the POMC and the VRCA address the disposal of any such material in accordance with relevant state environment protection and waste management policies.
Unusually, the PSADOM Bill sought to significantly alter the regulation of a major project once work had already begun. As a result, the PSADOM Bill was defeated on 25 June 2008.
Energy and Resources Legislation Amendment Act 2008
The Energy and Resources Legislation Amendment Act 2008 (VIC) (ERLA Act) amends three relevant environmental instruments.
Firstly, the ERLA Act amends the Geothermal Energy Resources Act 2005 by:
- introducing a requirement that applicants for a retention lease lodge their application at least 90 days prior to the date that their exploration permit expires, and
- clarifying that where a tender process has not resulted in the issue of an exploration permit, another tender process can be run immediately for the same land.
Secondly, the ERLA Act amends the Mineral Resources (Sustainable Development) Act 1990 (VIC) by:
- clarifying that a Tourist Fossicking Authority (TFA) may be granted to both an individual and a company (a TFA authorises a person, and any person accompanied by that person, to search for minerals using non-mechanical tools), and
- ensuring that the penalty for damage to land caused by a person acting under a TFA is consistent with the penalty for the same offence committed when the person is acting pursuant to Miner’s Right.
Thirdly, the ERLA Act amends the Extractive Industries Development Act 1995 to clarify that the Department Head has one month to make a decision on whether to approve Work and Rehabilitation Plans.
The ERLA Bill received a second reading before the Legislative Assembly on 17 April 2008 and came into force on 3 June 2008.
Third party appeal rights and the doctrine of legitimate expectations: Geelong Community for Good Life Inc v Environment Protection Authority & Anor [2008] VSC 185
On 3 June 2008, the Supreme Court of Victoria (Justice Cavanough) held that the Geelong Community for Good Life (GCGL) was not denied procedural fairness in relation to the decision by the Environmental Protection Authority (EPA) to amend a waste discharge licence held by Shell Refining Australia Pty Ltd (Shell).
GCGL relied on the doctrine of legitimate expectation to establish its procedural fairness claim. It was argued that its legitimate expectation was based on the following:
- the ‘principle of accountability’ contained within the objects of the Environment Protection Act 1970 (EP Act). This principle outlines that the public should be given opportunities to participate in developing policy and programs
- a general statement on the EPA website concerning public consultation in connection with EPA works approvals
- a notice issued by the EPA to Shell requiring a report on the community consultation undertaken by Shell in relation to the licence amendment, and
- previous consultative conduct between the EPA, Shell and GCGL regarding Shell’s environmental performance. This conduct had since ceased due to a fall-out between GCGL and Shell.
Justice Cavanough rejected GCGL’s application as a matter of principle. Assessing relevant authorities, he concluded that the requirements of procedural fairness could only apply to an individual who is not singled out or directly affected by the decision. The effect of this is that GCGL did not have a legal basis to challenge the EPA’s decision.
This was enough to dispose of the case. However Justice Cavanough went on to consider whether the evidence presented could be said to found a legitimate expectation anyway. He set out five reasons why this could not be the case:
- Although there was a principle of accountability contained within the objects of the EP Act, it was directed more at policy development rather than specific decisions such as licence amendment approvals. The principle of accountability was also balanced against the need to consider, among other things, economic and practical considerations.
- The decision related to a licence amendment, not a works approval. There was no need to advertise the amendment on the EPA’s website and GCGL’s submission relating to the advertising of works approvals was therefore irrelevant.
- There was a relatively short period in which the EPA had to make a decision on the licence amendment application (60 days).
- The notice issued by the EPA to Shell was not sufficient to create a legitimate expectation that the EPA would act fairly with respect to GCGL.
- Even if a legitimate expectation did arise, it was later brought to an end by both the EPA and Shell’s conduct. Of note was the fact that the GCGL had been excluded from participation by the manager of the EPA with respect to the licence amendment. Therefore there could be no subsisting legitimate expectation that the EPA would act fairly towards GCGL.
The case is significant in outlining the scope of third party appeal rights in relation to licence amendment applications. It is also significant in clarifying how the doctrine of legitimate expectations will be applied to third parties in the planning and environment context.
EPA cutting red tape on licensing requirements
Recent changes to the Environment Protection Act (1970) allow corporations holding two or more EPA licences to voluntarily amalgamate their licences into a single corporate licence.
The new approach reduces the costs of compliance with EPA licences while maintaining the EPA’s regulatory powers.
As an indication of the effectiveness of the new procedures, East Gippsland Water recently amalgamated EPA licences for ten of its wastewater management facilities into a single licence. This reduced the amount of licensing documentation from over 100 pages to just under 10.
It is expected that these procedures will have immediate benefits for business, including directing time away from the business maintenance costs of regulatory compliance and toward more productive endeavours.
Mineral exploration guidelines
The Department of Primary Industries has launched the Code of Practice for Mineral Exploration (code). The purpose of the code is to provide practical guidance on complying with relevant obligations under the Mineral Resources (Sustainable Development) Act 1990 and the Mineral Resources Development Regulations 2002.
The code lists common conditions included in a exploration licences and provides guidance on how to comply with the condition. It also outlines best practice in relation to mineral exploration.
The code adds to the comprehensive procedures regulating mineral exploration in Victoria.
$500 million dedicated to improving rail services
The Victorian Government has announced a joint $503 million agreement aimed at revitalising Victoria's north-east rail corridor.
The project will include:
- construction of a single track five kilometre bypass of Wodonga
- major track upgrades between Seymour and Albury (including altering from broad gauge to standard gauge tracks)
- upgrades to the line between Seymour and Melbourne
- refurbishment of passenger locomotives and passenger carriages, and
- new platform construction along the north-east rail line.
The work is expected to increase freight volumes by 70 per cent in the next 20 years. Works on the project will begin in late 2008 and are due to be completed by 2010.
Mining amendment commenced: Mining Legislation Amendment and Validation Act 2008
The Mining Legislation Amendment and Validation Act 2008 (MLAV Act) commenced on 20 May 2008. The MLAV Act:
- validates Miscellaneous Licences made for a purpose approved by the Director General of Mines
- validates extensions to the term of certain Exploration Licences that were lodged incorrectly, and
- provides for lodging an extension to the term of an Exploration Licence and for compulsory surrenders at any office of the department.
Mines safety and inspection amendments now in force: Mines Safety and Inspection Amendment Act 2008 (QLD)
The Mines Safety and Inspection Amendment Act 2008 (QLD) (MSIA Act) commenced on 16 April 2008.
The MSIA Act aims to improve the existing provisions of the Mines Safety and Inspection Act 1994 by amending certain errors and clarifying a range of provisions.
Specifically, the MSIA Act:
- inserts a new definition for ‘exploration manager’ and amends the definition of ‘principal employer’
- repairs drafting oversights resulting from the transition to the general penalty provisions that came into effect on 4 April 2005
- inserts new sections 46A (Appointment of Exploration Manager) and 47A (Exploration Manager to be treated as a manager in certain circumstances), and
- inserts section 102AA to provide an avenue for review by the Occupational Safety and Health Tribunal of certain decisions made by the state mining engineer under the Mines Safety and Inspection Regulations 1995.
State of the Environment Report released
Queensland State Government has released Queensland’s third State of the Environment Report (report). The report assesses Queensland’s environment in terms of sustainability, atmosphere, land, inland waters and wetlands, the coastal zone, biodiversity, invasive plants and animals, human settlements, and natural and cultural heritage.
The state government has released a response to the report, which outlines how various legislation and regulation, partnerships and research and monitoring programs have been implemented to respond to the environmental challenges highlighted by the report.
State budget handed down
The Queensland Treasurer delivered the 2008–09 Queensland budget on 3 June 2008. A total of $2.22 billion has been allocated for projects comprising the South East Queensland Water Grid, which include:
- $795 million to complete the Western Corridor Recycled Water Project by December 2008
- $448 million towards the Gold Coast Desalination Project at Tugun
- $442.3 million to progress the Traveston Crossing Dam, and
- $217 million to complete Southern Regional Water Pipeline by November 2008.
Among the climate change initiatives included in the budget are:
- $16.1 million to complete a feasibility study for the ZeroGen project
- $12 million to help Queensland businesses develop energy conservation strategies, and
- $20 million through Queensland Renewable Energy Fund to offer aid projects that can be used to boost supply to the electricity grid.
The Environmental Protection Agency (EPA) has been allocated $411 million to contribute to:
- a review of Queensland’s climate change strategy, ClimateSmart 2050
- developing the ecoFundQ which will deliver environmental offsets and develop carbon offsetting opportunities to meet voluntary and future mandatory requirements
- increasing the area of nature refuges in Queensland to 750,000 hectares (15 per cent increase), and
- employing 60 additional staff.
Magellan Metals still unresolved
The Environment Minister has yet to provide Magellan Metals Pty Ltd (Magellan) with final conditions to regulate the company’s plan to ship lead carbonate through Fremantle. As advised in the May 2008 edition of Environmental Quarterly the minister gave Magellan interim approval subject to a number of strict environmental conditions.
Meanwhile, the project’s interim approval has been referred to the Parliamentary Environment and Public Affairs Committee with a petition of 6,000 signatures being tabled in the Legislative Council. The committee is reviewing the petition and will decide what further action, if any, is appropriate.
Magellan has assured the community of its commitment to protecting the health of the community and the environment, including:
- undertaking to transport the lead double-bagged and sealed on site, vacuumed, checked, washed and placed on rail and transferred to ships unopened, and
- preparing an Emergency Response Plan to manage any emergencies that may arise.
DEC releases revised Enforcement and Prosecution Policy
The DEC’s Enforcement and Prosecution Policy (policy) was revised in May 2008, aiming to reinforce a community and corporate culture of positive action, accountability, consultation and cooperation with DEC. The revision is primarily structural and has not resulted in any substantial changes to the content of the policy. The most significant changes include:
- extending the policy's application to biodiversity and the environment
- an explanation of the organisational background of the DEC, and
- the addition of factors which may be considered by the DEC which weigh for or against prosecution.
The policy clarifies the DEC’s enforcement and prosecution capabilities, aiming for better coordination and consistency between all sections of the DEC. An outline of the enforcement principles and relevant factors that may be considered by the DEC provide a guide to how issues of enforcement and prosecution are approached, including how the DEC determines the appropriate offender, the appropriate enforcement action and the principle of prosecutorial discretion.
Disclosure and notification, even in situations where mandatory disclosure is not required, is a key consideration for the DEC. The DEC will consider whether disclosure occurred prior to the DEC or any other regulatory body obtaining knowledge of the incident.
However even where the alleged offender has fully cooperated and voluntarily disclosed information, prosecution may still be the most appropriate enforcement action in the circumstances. The factors which weigh for and against prosecution are listed on pages 10–11 of the policy.
Clients should ensure that systems for notification of, and response to, incidents are reviewed and staff are appropriately trained. Prompt notification to the DEC will be an important factor where notification is required (and should be carefully considered both in terms of notification and discretionary factors, as well as in terms of the availability of defences or modified penalties). Where investigations are to occur, clients should also consider whether or not the investigations are being undertaken for internal or legal advice purposes in order to maintain legal professional privilege where appropriate. Reports produced and disclosures made should also have regard to legislative factors, prosecution risks and the policy.
New guidance statement released by EPA
The Western Australia Environmental Protection Authority (EPA) has released Guidance Statement 33: Environmental Guidance for Planning and Development (May 2008) (guidance statement).
The guidance statement aims to assist land developers, consultants and the public to protect and conserve the environment by outlining the EPA’s:
- environmental protection processes, including the Environmental Impact Assessment process under Part IV of the Environmental Protection Act 1986, and
- advice on a range of environmental considerations to assist in land use planning and development.
The guidance statement is divided into four parts:
- Environmental protection and land use planning in Western Australia
- Biophysical factors
- Pollution management, and
- Social surroundings.
EPA Bulletins released
During April–June 2008 the EPA released the following bulletins:
- EPA Bulletin 1285: Spinifex Ridge Molybdenum Project, which provides reports and recommendations to the Environment Minister on Moly Metals Australia Pty Ltd's proposal to ‘develop an open pit mine and process 20 million tonnes per annum of ore’
- EPA Bulletin 1286: Port Facility Upgrade—Anderson Point, Port Hedland, Dredging and Wharf Construction—Third Berth, which provides reports and recommendations to the Environment Minister on Fortescue Metals Group Ltd's proposal ‘to upgrade its port facility at Anderson Point, Port Hedland via dredging’, and
- Bulletin 1288: Windimurra Vanadium Project: Land Clearing and Mining Below the Base of Weathering which advises that the Windimurra Vandium mine can be managed provided that the recommended EPA conditions are made legally binding.
Towards unified gas regulation: National Gas (South Australia) Act 2008
The National Gas (South Australia) Act 2008 (SA) (NGSA Act) implements the National Gas Law (NGL) reforms in South Australia. The NGL proposes a regime for the national coordination of gas management.
The NGSA Act implements a number of components of the national reforms including:
- the implementation of a framework for third parties to access certain natural gas pipeline services
- incentives to encourage investment in gas infrastructure. Incentives include the continuation of greenfields pipeline incentives, a new light handed regulatory regime and improvements to the rules around cost recovery for investment in expanding existing gas infrastructure capacity
- the creation of a bulletin board to increase market transparency and assist with gas emergency response
- exemptions from state duties or taxes for specified matters
- the principle that, where a pipeline crosses state borders, any action taken under the NGL by a minister or court in which the pipeline is situated is considered to have also been taken by their counterpart in the other participating jurisdiction, and
- the principle that any proceeding for judicial review or action for a declaration, injunction, writ or remedy again a ministerial action, with respect to a border-crossing pipeline, must be brought in the jurisdiction with which the pipeline is most closely connected.
The NGSA Act came into force on 26 June 2008.
No genetically modified food to be grown in South Australia: Genetically Modified Management Crops Management Regulations 2008
The Genetically Modified Crops Management Regulations 2008 (GMCM Regs) declare the state of South Australia as an area in which no genetically modified food crops may be grown. The GMCM Regs have been made under the authority of the Genetically Modified Crops Management Act 2004 (SA). The regulations commenced on 28 April 2008.
Port Stanvac Desalination Plant to be constructed using DBOM procurement option
The South Australian Government has opted for a Design, Build, Operate and Construct (DBOM) procurement option to finance the $1.1 billion dollar Port Stanvac Desalinisation Plant.
The DBOM option was given preference over a public-private partnership (PPP) option after a report suggested that the PPP might delay the commencement of the desalinisation plant by an extra six months.
Project finance will be provided through increased water charges for consumers.
The Port Stanvac Desalinisation Plant forms an integral part of South Australia’s $2.5 billion Water Infrastructure Plan. The 50-gigalitre plant is scheduled to be brought online by early 2012.
Natural Resources Management Report released
The Department of Primary Industries and Water (DPIW) has released the final report in the Review of the Tasmanian Natural Resources Management Framework and Legislation (report). The report outlines 18 recommendations which cover a number of matters, including:
- the setting of state natural resource management priorities
- the functions and membership of the regional committees, and
- the operation of the Natural Resource Management Council.
The DPIW Minister has indicated that the state government intends to implement all of the report’s recommendations.
Environmental Protection Authority Board announced
Minister for Environment, Parks, Heritage and the Arts, Michelle O’Byrne has recently announced the board of Tasmania’s first Environmental Protection Authority (EPA) which begins operations on 1 July 2008. The board comprises Chairperson John Ramsay, Deputy Chairperson Dr Christine Mucha, and Wayne Petrass and Ian Abernathy as the other board members. Warren Jones will be the director of the EPA.
The EPA will have a wide variety of roles and functions which are established by the Environmental Management and Pollution Control Act 1994.
Implementing the National Gas Framework: National Gas (Northern Territory) Act 2008
The National Gas (Northern Territory) Act 2008 (NT) (NG Act) received assent on 24 June 2008 but has not yet been proclaimed.
The NG Act implements the National Gas Law (NGL), as set out in the National Gas (South Australia) Bill 2008 (SA), into Northern Territory law. Please refer above to the relevant gas law reforms in Western Australia for the general aims of the national NGL reforms.
The NGL, as contained within the NG Act, will operate to the full extent of the Northern Territory’s extra-territorial legislative power and will be applicable to the territory’s coastal waters.
Dangerous Goods Amendment Regulations 2008
The Dangerous Goods Amendment Regulations 2008 (NT) (DGA Regs) commenced on 28 May 2008 and amend the Dangerous Goods Regulations 1985.
The DGA Regs:
- insert definitions for ‘explosives’ and ‘intoxicated’
- repeal regulation 71 (Prescribed explosives)
- repeal and substitute regulation 127 (Exemption from requirements to be licensed) and regulation 129 (Sale of explosives)
- repeal and substitute regulation 222 (Offences) to prescribe that the maximum penalty for an offence against the regulations is $2,000 and that all offences, except those against regulations 5L(2) or 129, are regulatory offences
- make a number of amendments to the licensing requirements, and
- make other related, consequential and miscellaneous provisions.
Local government reforms now in place: Local Government Act 2008
The Local Government Act 2008 (LG Act) received assent on 23 May 2008. As advised in the May 2008 Environment Quarterly, the LG Act will repeal the Local Government Act 1993 and establish a new framework for the function, structure and administration of local government in the Northern Territory. Notably, many of the provisions of the repealed Act are incorporated in the new legislation.
Sections 1, 2 and 257 of the LG Act commenced on 23 May 2008, while the remaining provisions will commence on 1 July 2008.
EPA to develop sustainability principles
The Northern Territory Environment Protection Authority (EPA) announced in June 2008 that it would develop principles of sustainability for the Northern Territory, which will be used as a benchmark to guide future EPA functions and decisions. It is hoped that the principles will provide guidance for providing ecologically sustainable development in the Northern Territory.
A discussion paper will be produced and is expected to be released for public comment in September 2008.
ACT Government signs up to United Nations Principles For Responsible Investment
The ACT Government has recently become a formal signatory to the United Nations Principles for Responsible Investment (principles). The principles prescribe a number of environmentally orientated standards, primarily to guide investment decision-making.
The signing makes the ACT Government the first sovereign signatory entity.
Opposition to Macarthur Gas Plant results in significant downsizing
Fierce opposition to a gas-fired power plant proposal near Macarthur has led to a significant downsizing of the proposal.
The original proposal was for a 210 megawatt power station. This has now been downgraded to 28 megawatts. The decision to downsize the plant instead of relocate it has led to significant parliamentary discussion and resulted in the introduction of Projects of Territory Importance Bill 2008, currently before parliament.
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