Chapter 2
Key issues
2.1
This chapter examines the key issues raised in submissions and evidence
in relation to each of the two schedules of the bill.
Schedule 1—Amendments relating to conservation advices
2.2
Many submissions were opposed to Schedule 1 of the bill,[1]
which would retrospectively validate certain decisions made under the EPBC Act
before 31 December 2013 which required the Environment Minister to have
regard to any relevant approved conservation advice. In contrast, the Minerals
Council of Australia and the Tasmanian Minerals and Energy Council supported
Schedule 1 of the bill.
2.3
Key issues raised in relation to Schedule 1 were:
-
the purpose of the schedule and the need for certainty; and
-
the retrospective application of the schedule.
2.4
These issues are discussed in turn below.
Purpose of Schedule 1
2.5
As outlined in Chapter 1, the stated purpose of Schedule 1 of the bill
is to provide certainty for proponents in light of the Federal Court decision
in the Tarkine case. In that decision, the Federal Court declared invalid the
approval given to Shree Minerals Ltd under the EPBC Act due to a failure to
'have regard to' a relevant approved conservation advice. The Department of the
Environment (the Department) explained that:
...the decision brief relied on by the former Minister for the
approval stated that conservation advices had been considered in the
preparation of the Department's advice and had informed the Department's
recommendations. However, the relevant conservation advice document itself was
not attached or specifically referred to in the briefing for the approval.[2]
2.6
The Department advised that:
The purpose of Schedule 1 is to address the risk to past
decisions made under the EPBC Act arising from the Federal Court's decision in
the Tarkine case.[3]
2.7
Mr Terry Long, from the Tasmanian Minerals and Energy Council, described
the Tarkine case as 'victory of detail over substance'.[4]
The Council argued that the decision in the Tarkine case 'hinged on a matter of
legal technicality' and represented 'the victory of narrow prescription over
broad intent'.[5]
2.8
Many submissions expressed concern that the bill would weaken the
EPBC Act and undermine its objectives by disregarding the need to consider
conservation advices.[6]
In this context, the committee heard the importance of conservation advices as
a source of independent scientific advice.[7]
The Australian Network of Environmental Defender's Office (ANEDO) explained
that conservation advices contain 'significant information about the health of
the relevant species and the requirements to ensure the ongoing survival of the
species' and are 'vital in ensuring that the decision maker has all the
relevant information before them and is fully aware of the potential
consequences on the particular species'.[8]
ANEDO submitted that:
Any measure that dilutes a requirement to consider scientific
advice and removes accountability of the Minister and department for failing to
follow the law is contrary to best practice and inconsistent with the
achievement of the objects of the EPBC Act.[9]
2.9
In response to these concerns, the Department described Schedule 1 'as a
minor technical amendment to address legal risks that had arisen as a result of
a court case'.[10]
The Department stated that the bill does not affect the role of conservation
advice and:
...does not remove that requirement to consider relevant
approved conservation advices before making certain decisions under the [A]ct.
Rather, the bill provides assurances to stakeholders that previous decisions
under the EPBC Act will not be invalid because of a technicality; that is, that
the department did not attach approved conservation advices to a decision
brief. Further, the EPBC Act will continue to require that all relevant
information is to be considered in any decisions on whether to approve
projects.[11]
2.10
The Department further advised that Schedule 1 'does not reduce the
level of protection provided for threatened species and ecological communities'
and that, as matter of practice, 'approved conservation advices will continue
to be used to inform the Department's advice on relevant decisions under the EPBC
Act'.[12]
2.11
Finally, the Department commented that, in making the decision in
relation to Shree Minerals which was subsequently challenged in the Tarkine
case, the 'substance of the approved conservation advice was entirely covered
in the briefing material that was provided to the minister'. The Department
went on to conclude:
...the matter of the Tasmanian devil and its approved
conservation recovery plan were well addressed in the brief that was provided
to the minister. They were certainly discussed with the minister in advance of
him making his decision in that case. But, as Justice Marshall found, the
approved conservation advice was not attached to the decision documents that
were provided to the minister.[13]
2.12
However, the Australian Conservation Foundation (ACF) suggested that:
The appropriate way to address the implications of the
Tarkine case would be to ensure that the Minister always has regard to the
relevant Conservation Advice, rather than removing accountability for failing
to do so.[14]
2.13
The Department advised that it had responded to the Tarkine case in this
way:
Since the Federal Court declared the environmental approval
given to Shree Minerals Limited invalid on 17 July 2013, the Department has
ensured that relevant approved conservation advices are included in the package
of information considered by the Minister when making relevant decisions.[15]
Need for certainty
2.14
The Minerals Council of Australia supported the proposed amendments in
Schedule 1 of the bill on the grounds of business certainty:
The industry makes significant investments on the basis of
project approval decisions. Challenges to government process (such as whether
there was appropriate consideration of approved conservation advice) post
approval, particularly after long periods, can pose a significant risk to those
investments.[16]
2.15
The Minerals Council of Australia continued:
Project proponents should not be disadvantaged where
Government is alleged to have failed to carry out its responsibilities.
Accordingly, the MCA considers the proposed amendment appropriate to ensure
business certainty and investment security is upheld.[17]
2.16
Mr Long, Tasmanian Minerals and Energy Council, also agreed that there
would be uncertainty if the proposed amendment were not passed.[18]
2.17
In contrast, Mr Brendan Sydes from ANEDO suggested that:
It is not clear that there is any uncertainty. There is no
evidence that has been put forward as to any decisions that are at risk of
being invalidated as a result of this.[19]
2.18
Other submissions expressed concern about the potential impact of the
bill on the ability of community organisations to challenge wrongly made
decisions made under the EPBC Act. For example, the Humane Society
International expressed concern that the bill would result in non‑government
organisations being prevented from access to the courts in certain
circumstances.[20]
2.19
However, the Tasmanian Minerals and Energy Council suggested that, in
fact, the bill 'will foreclose only one very narrow opportunity' for groups to
have decisions overturned and 'will not preclude similar challenges based upon
other legal technicalities in the future'.[21]
2.20
The committee also notes the evidence received that there are time
limits for seeking judicial review of decisions made under the EPBC Act. As
noted in Chapter 1, an affected party has 28 days to seek a statement of
reasons, the Minister has 28 days to provide that statement of reasons and the
affected party has 28 to lodge an application for judicial review.[22]
2.21
Mr Sydes from ANEDO acknowledged that, due to these time limits,
opportunities for challenging decisions made a long time ago 'are greatly
diminished'.[23]
Mr Greg McIntyre SC from the Law Council of Australia (the Law Council) agreed
that, although the court may have discretion to extend time, the chances of a
successful application are 'minimal'.[24]
2.22
In response to questioning, the Department advised that there are no
legal proceedings currently underway that would be affected by Schedule 1 of
the bill.[25]
The Department further advised that:
The Bill is designed to ensure the validity of decisions made
under the EPBC Act prior to 31 December 2013 to provide certainty to industry.
The Bill will not affect the rights of interested parties to challenge EPBC Act
decisions in the courts. Rather, it provides assurance to stakeholders that
previous decisions under the EPBC Act will not be invalid because of a
technicality, that is, the Department did not attach approved conservation
advices to a decision brief.[26]
2.23
And further:
The Bill provides necessary investment certainty for industry
stakeholders with existing decisions under the EPBC Act and the projects that
rely on those decisions. This is intended to ensure that all projects with
existing approvals, including major projects with long-term investment benefits
for the Australian economy, have legal certainty.[27]
Amendments in the House of
Representatives
2.24
Many submitters noted and supported the amendments in the House of
Representatives which limited the effect of the amendments proposed by Schedule
1 of the bill to decisions made before 31 December 2013.[28]
However, many submitters were nevertheless still opposed to the bill.[29]
2.25
The Minerals Council of Australia expressed disappointment at the
'sunset' amendment to the bill, but for different reasons:
The MCA has every confidence in the Government in discharging
its responsibilities under the EPBC Act; however the potential risk to industry
from challenges to government process is such that this safeguard for approval
decisions should be extended into the future.[30]
2.26
In this context, the committee notes that there is no need for the bill
to extend into the future based on the Department's evidence that conservation
advices are now included in the ministerial brief when making relevant
decisions.[31]
Retrospective application
2.27
A key concern for many submitters and witnesses was the retrospective
nature of the amendments in Schedule 1. For example, the Law Council submitted
that 'legislation should only in exceptional circumstances be given
retrospective effect'.[32]
Mr McIntyre explained the reasoning behind this:
Part of the operation of the rule of law is that you actually
know what the law is and then you act in accordance with it. You cannot
possibly know what a retrospectively operative law is and act in accordance
with it.[33]
2.28
The Law Council was concerned that 'there are not clear and compelling
reasons' for the retrospective nature of the bill.[34]
The Law Council further observed that, although the intention behind the bill
might have been to cover just approval decisions under the EPBC Act, the bill
actually allows for the retrospective validation of decisions made under many
different sections of the Act.[35]
The Law Council submitted that:
The retrospective validation of an unspecified number of
decisions that may be invalid...casts doubt on the integrity of the
implementation of Australia's primary national environment protection Act.[36]
2.29
ANEDO was similarly concerned that 'in essence the Bill is asking the
Parliament to validate conduct by the executive that breached the standard
currently required by the Parliament.'[37]
2.30
Several submitters, including WWF-Australia, ANEDO and the Law Council,
suggested that a better approach would be for an audit or review to be
conducted to ascertain the number and details of decisions have been made under
the EPBC Act in the absence of approved conservation advice and, for example,
which approvals would likely be overturned should the bill not proceed.[38]
WWF‑Australia suggested that this review should include all decisions
made under the EPBC Act since 2006, when the requirement to have regard to
conservation advices was introduced to the EPBC Act.[39]
2.31
ANEDO explained that this would allow a 'more considered decision about
whether or not the retrospective validation of conduct that was in breach of
the current Act is justified'.[40]
2.32
However, when questioned, witnesses struggled to identify any particular
decisions or cases that might be of concern.[41]
For example, Ms Saffron Zomer from ACF stated 'there are no particular cases
that we have our eye on. It is more a matter of principle'.[42]
2.33
In response to questioning on this issue, the Department advised that,
after the Tarkine case, it had 'undertaken some due diligence and risk
assessment', but did not have precise figures on the number of decisions
affected.[43]
The Department went on to comment:
...we do not have analysis that indicates the number of cases
that might be vulnerable to this particular administrative impediment, but we
do know that that it is more likely than not that there are some. The approach
that has been taken is to ensure that substantial economic activity that
depends on these EPBC approvals is able to proceed without any legal risk being
attached to it that they were not expecting.[44]
2.34
The Department also noted that, as a result of this due diligence, it
had:
...changed the administrative procedures associated with the
provision of advice to ministers. We have undertaken a process of attaching
conservation advice in full to every brief that is available and ensuring that
each piece of conservation advice is individually considered in advance of any
decision being taken.[45]
2.35
As outlined in Chapter 1, the committee notes that the issue of
retrospective application is being examined by the Senate Scrutiny of Bills
Committee, which has sought the Minister's advice on the issue. At the time of
writing, the Minister's response had not yet been received.
Drafting issues with item 2
2.36
Several submissions pointed to a potential drafting problem with the
bill as a result the amendments made in the House of Representatives. It was
argued that, although the intention of the amendments was to limit the
application of the amendments to decisions made before 31 December 2013, only
item 1 was amended in the House of Representatives. The wording of item 2 of
the bill remains the same and does not suggest its operation is limited only to
decisions made before 31 December 2013. There was concern that this
creates ambiguity and there could be confusion about the potential prospective
operation of item 2.[46]
2.37
For example, the Law Council recommended that item 2 be amended to
clarify and specify that it is intended to apply to things done prior to
31 December 2013.[47]
Mr Greg McIntyre SC, Law Council, warned that, otherwise, 'there is still a
clear danger that it [the bill] is going to operate both prospectively and
retrospectively'.[48]
2.38
In response to questioning on this drafting issue, the Department
advised:
The policy intention of Item 2 of the Environment Legislation
Amendment Bill 2013 is that the provision is time-limited to 31 December 2013
and that the decisions and instruments validated by Item 2 are those that are
covered by Item 1.
The explanatory memorandum to the Bill, specifically
paragraphs 1.1 to 1.3, clarifies the policy intention that Schedule 1 of the
Bill (Amendments relating to approved conservation advice) is limited to
decisions and instruments made under the EPBC Act prior to 31 December 2013.[49]
Schedule 2—Turtle and Dugong protection measures
2.39
Many submissions supported the increase in penalties for harming or
killing of marine turtles or dugongs in Schedule 2 of the bill.[50]
Nevertheless, issues were raised in relation to:
- the need for the penalty increases and their effectiveness in
protecting turtles and dugongs;
-
the potential impacts of the amendments on Aboriginal and Torres
Strait Islander people; and
-
the limited application of the increased penalties to dugongs and
turtles rather than all threatened species.
2.40
These issues are addressed in turn below.
Need for the penalty increases
2.41
As outlined in Chapter 1, the amendments in Schedule 2 are designed to
deter people from illegal hunting and trade in relation to dugongs and turtles.
The Department explained the amendments are 'in response to community concerns
about the ongoing illegal poaching and trading of turtles and dugongs' and:
...address concerns that the current penalty provisions in the
EPBC Act and the GBRMP Act are not high enough to protect turtles and dugong
from the increasing threats of poaching, illegal hunting and illegal
transportation and trade.[51]
2.42
However, the Law Council expressed doubt about the deterrent effect of
increasing penalties. Mr Greg McIntyre SC, Law Council, argued that:
There has never been any really comprehensive evidence that
increasing penalties actually prevents crime.[52]
2.43
He went on to explain that:
...the best way to prevent crime is to catch people in the act
and to prosecute them. It does not necessarily depend upon the penalty. If
people think they are not going to be caught then they are less likely to be
concerned about it...If you think you are up in the Torres Strait and the
chance of you being caught is one in 10,000, you are not going to really care.
It is that which is going to work rather than the penalty itself.[53]
2.44
Several submissions and witnesses also queried the extent of the problem
of illegal hunting and trade of turtles and dugong.[54]
For example, the Indigenous Advisory Committee submitted that:
While a significant concern, poaching and the illegal trade
of turtle and dugong does not represent the threat to species populations that
is implied in these proposed changes, and to date there have been no
prosecutions around this activity.[55]
2.45
In response to questioning on this issue, the Department stated that:
There are anecdotal reports and validated reports of poaching
and illegal killing—particularly around Cairns—which have provoked extensive
community concern...[56]
2.46
However, the Department acknowledged that 'there are challenges in
understanding the scale and scope of the actual activity that is occurring'.[57]
The Department noted that this is why the government has committed $2 million
for the Australian Crime Commission to investigate the nature and scope of the illegal
activity.[58]
Other impacts on turtles and
dugongs
2.47
Many submissions also noted that factors other than those addressed in
the bill have a greater impact on dugong and sea turtle populations. A range of
other important threats to dugongs and marine turtles were raised, such as
climate change, habitat loss and degradation, boat strike, marine debris and
pollution.[59]
As Ms Melissa George, Chair of the Indigenous Advisory Committee,
observed, 'people should not make the mistake of treating a cut finger on a
patient with a broken leg'.[60]
2.48
The Turtle and Dugong Taskforce argued that the amendments:
...offer no meaningful action to address the real threats to
turtle and dugong populations from pig predation, pollution, coastal
development, urban run‑off, habitat loss, agricultural run-off,
commercial fishing, marine debris and wide-scale nesting failure.[61]
2.49
For this reason, the Turtle and Dugong Taskforce of the Balkanu Cape
York Development Corporation expressed concern that the proposed amendments
could be seen as a:
...shallow, 'band-aid' measure to address what is a limited
threat to turtle and dugong species, as opposed to the key underlying threats. While
illegal activities which may harm turtle and dugong are certainly a threat, the
damage caused is vastly outweighed by other factors...[62]
Need for complementary measures
2.50
Several submissions suggested other measures are needed to complement
the penalty increases proposed in the bill.[63]
Ms George, Indigenous Advisory Committee, commented that 'the proper solutions
for these problems require a package of complementary measures'.[64]
For example, it was suggested that the amendments be accompanied by a community
education program about the importance of protecting these species, as well as
'practical enforcement measures to catch and prosecute offenders'.[65]
2.51
Both the Turtle and Dugong Taskforce and the Indigenous Advisory
Committee pointed to the need to engage with Indigenous communities. The
Indigenous Advisory Committee submitted that:
...the challenges associated with the management of turtle and
dugong could be better addressed through the building of cooperative measures
with traditional owners in northern Australia. In our view the related
resources being directed to the Australian Crime Commission, for example, could
be better applied by engaging traditional owners to increase their level of
monitoring and examining options for placing appropriate restrictions on their
rightful customary activities.[66]
2.52
The Turtle and Dugong Taskforce suggested that the government continue the
taskforce initiative in preference to, or at least in conjunction with, the
proposed amendments, as:
Ultimately, the only cost-effective way to regulate turtle
and dugong on Cape York Peninsula is to have Indigenous rangers or Indigenous
fisheries officers on the ground living in communities on the cape.[67]
2.53
Indeed, Mr Twikler on behalf of the Turtle and Dugong Taskforce, stated
that the taskforce would not particularly object to the amendments 'if they
were in conjunction with other measures'.[68]
2.54
In this context, the committee notes the Department's evidence that the
penalty increases in Schedule 2 are just one component of the government's Turtle
and Dugong Protection Plan.[69]
The Department indicated that the government is also 'committed to support a
specialised Indigenous ranger program for marine conservation along the far
north Queensland Coast and for strengthened enforcement and compliance'.[70]
2.55
The Department further explained that the Dugong and Turtle Protection
Plan is at the earliest stage of implementation, and includes a range of other
measures, including: cleaning up marine debris; funding for turtle
rehabilitation centres; working with Indigenous leaders towards a two-year
moratorium; and the Australian Crime Commission investigation into the illegal
killing, poaching and transportation of dugong and turtle meat.[71]
Finally, the Department noted that it is:
...also updating the recovery plan for marine turtles in
Australia to address major threats, including habitat loss, poor water quality,
bycatch in fisheries and marine debris and vessel activity, including boat
strike.[72]
Impact on Aboriginal and Torres
Strait Islander peoples
2.56
The main concern with Schedule 2 was its potential impact of the
proposed amendments on Aboriginal and Torres Strait Islander peoples.
2.57
The Indigenous Advisory Committee submitted that it was pleased that the
government is acting to address concerns of many traditional owners in northern
Australia about the poaching of turtle and dugong, but nevertheless described
the proposed changes in Schedule 2 as a 'poorly targeted over-reaction'.[73]
2.58
Both the Indigenous Advisory Committee and the Turtle and Dugong
Taskforce of the Balkanu Cape York Development Corporation expressed the view
that the proposed changes have been developed with insufficient consultation
with Indigenous communities.[74]
2.59
However, the Department noted that there had been consultation with a
number of Indigenous organisations 'over an extended period of time'.[75]
2.60
Nevertheless, the Turtle and Dugong Taskforce were concerned that many
people who exercise their traditional right to hunt will not be aware of the
greatly increased penalties.[76]
The Turtle and Dugong Taskforce submitted that:
For Indigenous people exercising their traditional right to
hunt, the law is often undecipherable and alienating. Because of this, many in
indigenous communities do not have the intricate understanding of the law
required to make accurate decisions and many misconceptions abound about what
is considered to be lawful or not...Without proper support, many indigenous
people are not able to negotiate through this legal tangle and may end up unwittingly
breaking the law.[77]
2.61
The Law Council was concerned that the bill has 'the potential to impose
disproportionate burdens on Aboriginal and Torres Strait Island peoples,
possibly engaging the right to equality and non-discrimination' under
international law.[78]
The Law Council explained that:
The proposed increase in penalties in the Bill is likely to
impact most heavily upon Aboriginal and Torres Strait Islander persons engaged
in hunting dugong and turtle for (non-native title) traditional purposes although
they are also very significant for other fishers. The increase in penalties has
the potential for Indigenous offenders, if prosecuted, to end up serving a term
of imprisonment in default of payment of a financial penalty, due to inadequate
means.[79]
2.62
The Indigenous Advisory Committee agreed that 'increasing the financial
penalties will simply result in offenders defaulting on their fines thus
leading them to be incarcerated anyway'.[80]
2.63
In the same vein, the Turtle and Dugong Taskforce of Balkanu Cape York
Development Corporation noted that:
For indigenous people who are intentionally undertaking
illegal activities, such as the sale of endangered species, greatly increased
civil and financial penalties may not be as effective in changing behaviour as
is anticipated. On Cape York, Indigenous communities are highly disadvantaged
such that prison sentences and an inability to pay fines are a common
occurrence compared with other regions in Australia. As such, the Taskforce is
concerned that these penalties are excessive and yet may prove to be
ineffective.[81]
2.64
The Law Council suggested that a 'better policy approach' would be to
increase and extend community-led planning at an appropriate scale and to
extend the development of Traditional Use of Marine Resources Agreements
(TUMRAs).[82]
2.65
Indeed, both the Turtle and Dugong Taskforce and the Indigenous Advisory
Committee emphasised the need to recognise the role of Indigenous communities
in protecting turtles and dugongs and for Indigenous Australians to be able to
exercise their cultural authority to manage Indigenous hunting as well as
combat poaching and illegal trade.[83]
As the Indigenous Advisory Committee observed:
Aboriginal and Torres Strait Islander peoples in northern
Australia have successfully managed their customary use to turtles and dugong
since time immemorial.[84]
2.66
The Taskforce expressed concern that the proposed amendments may 'bypass
current efforts made by Indigenous communities' to manage sustainable turtle
and dugong hunting and conservation through community actions.[85]
Ms George, Indigenous Advisory Committee, agreed that:
...the proposed amendments do not in any way give due
consideration to the work that has been undertaken by Aboriginal and Torres
Strait Islander communities and their partner organisations, such as the Great
Barrier Reef Marine Park Authority.[86]
2.67
The Taskforce proposed an alternative method to deter potential
offenders through a Conservation Agreement under the EPBC Act which allowed for
hunting carried out in accordance with community-based management plans for
turtle and dugong. The Taskforce argued that this could provide Indigenous
people 'with the cultural authority to regulate the way in which hunting is
conducted'.[87]
2.68
The Indigenous Advisory Committee agreed and stated:
Ultimately, sanctions handed down through customary law to
those who poach and conduct the illegal trade of turtle and dugong is going to
deliver more effective outcomes than simply increasing financial penalties.[88]
2.69
As outlined above, the Department's submission indicated that the
amendments were part of the government's Dugong and Turtle Protection Plan
announced on 15 August 2013, and that in this plan, the government also
'committed to support a specialised Indigenous ranger program for marine
conservation along the far north Queensland Coast and for strengthened
enforcement and compliance'.[89]
2.70
The committee sought further detail from the Department on future
engagement with Indigenous communities in relation to turtle and dugong
management. The Department responded:
The Department of the Prime Minister and Cabinet is lead
agency for the Specialised Indigenous Ranger programme. In early February 2014,
Ministers Scullion and Hunt wrote jointly to Commonwealth-funded Indigenous
ranger groups in north Queensland seeking their input in the implementation of
the Protection Plan.
The Dugong and Turtle Protection Plan will build on the
existing efforts of Indigenous communities and rangers to care for their
country and manage the sustainable use of these species.[90]
2.71
The Department also emphasised that native title hunting rights will not
be affected by the bill:
...the proposed changes to the EPBC Act do not overshadow
native title rights in any way, shape or form. So if a person is operating
genuinely within the cultural authority at the community level then there would
be no need for them to be concerned in any way, shape or form about this
proposed bill.[91]
Limits to species covered
2.72
Other submitters queried why the increased penalties apply only to
dugongs and turtles and not all threatened species.[92]
ANEDO explained:
In all other respects the EPBC Act creates no distinction
between the various listed threatened species protected by the Act and the
basis upon which these two species are considered differently from the other
species that are otherwise afforded the same level of protection by the Act has
not been explained. ANEDO submits that the increase in penalties should apply
to all threatened species protected by the Act.[93]
2.73
In response to questioning on this issue, the Department stated that
this was a 'question of policy', and 'a decision of the government to make the
Dugong and Turtle Protection Plan an element of their election platform. This
bill is intended to implement that election commitment.'[94]
Amendments relating to approval powers
2.74
Some submissions[95]
and witnesses[96]
supported proposed amendments to the bill to remove the provisions of the EPBC
Act enabling approval powers to be delegated to State and Territory governments
under approval bilateral agreements.[97]
These amendments are similar to those proposed in the Environment Protection
and Biodiversity Conservation Amendment (Retaining Federal Approval Powers)
Bill 2012, which was considered by the Environment and Communications
Legislation Committee in March 2013.[98]
This committee does not intend to revisit this issue and notes that the
previous report on this issue recommended, amongst other matters, that the
Environment Protection and Biodiversity Conservation Amendment (Retaining
Federal Approval Powers) Bill 2012 not be passed.[99]
Committee view
2.75
The committee recognises that the purpose of Schedule 1 of the bill is
to provide certainty to proponents in relation to decisions made under the EPBC
Act, particularly in light of the findings of the Federal Court in the Tarkine case.
2.76
The committee considers that the concerns raised in relation to Schedule
1 of the bill are largely unwarranted. The bill is merely remedying a technical
oversight – that is, that conservation advices were not attached to ministerial
briefs.
2.77
The Department indicated that, since the Tarkine case, conservation
advices are now attached to the brief to the Minister when making relevant
decisions under the EPBC Act. As such, the committee considers that relevant
decisions made under the EPBC Act since July 2013 are unlikely to be vulnerable
to challenge on the same technical legal grounds as in the Tarkine case. As to
decisions made before then, the committee notes the evidence that statutory
time limits for seeking judicial review of decisions would mean that decisions
made before that date are highly unlikely to be challenged.[100]
The Department also indicated that there are no legal proceedings currently
underway which would be impacted upon by the bill.[101]
As such, the potential impact of the bill is minor, but is nevertheless
important to provide reassurance and certainty to proponents and developers who
have made significant investments based on decisions made under the EPBC Act.
2.78
However, the committee notes the issue raised in relation to the
drafting of item 2 of Schedule 1 of the bill, as a result of amendments in the
House of Representatives. Those amendments were intended to restrict the
application of the bill to decisions made before 31 December 2013, but item 2
is not clear in that regard. The committee suggests that the government
consider clarifying the drafting of item 2 to ensure it is also specifically
limited to things done before 31 December 2013, as is the stated intention in
the Explanatory Memorandum.
2.79
In relation to Schedule 2 of the bill, the committee considers that the
increased penalties will provide an important deterrent to illegal poaching and
trade in turtles and dugongs. The committee acknowledges the important role of
Indigenous communities in managing and protecting turtle and dugong
populations. The Department's evidence indicated that native title hunting
rights will not be affected by the bill in any way and that a range of other
complementary measures are being implemented alongside the bill, including an Indigenous
ranger program.
2.80
The committee acknowledges that there are a broader range of threats
impacting on turtle and dugong populations, but considers these to be outside
the scope of this bill and this inquiry.
Recommendation 1
2.81
The committee recommends that the Senate pass the bill.
Senator John Williams
Chair
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