Chapter 1
Background
Introduction
1.1
On 12 December 2013, the Selection of Bills Committee referred the
Environment Legislation Amendment Bill 2013 (the bill) to the Senate
Environment and Communications Legislation Committee (the committee) for
inquiry and report by 12 February 2014.[1]
1.2
The reason for referral was 'to allow stakeholder comment on the
provisions of the legislation'.[2]
Conduct of the inquiry
1.3
In accordance with usual practice, the committee advertised the inquiry
on its website and wrote to relevant organisations inviting submissions by 17
January 2014.
1.4
The committee received 20 submissions relating to the bill and these are
listed at Appendix 1. The submissions may be accessed through the committee's
website.
1.5
The committee held a public hearing in Canberra on
6 February 2014. A list of witnesses who appeared at the hearing may
be found at Appendix 2.
1.6
The committee would like to thank all the organisations and individuals
that contributed to the inquiry and the witnesses who attended the public
hearing.
Note on references
1.7
Hansard references in this report are to the proof committee Hansard.
Page numbers may vary between the proof and the official Hansard transcript.
Purpose of the bill
1.8
The Environment Legislation Amendment Bill 2013 contains two key
components:
-
validation of certain decisions made under the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) before 31
December 2013 which required the Environment Minister to have regard to any
relevant approved conservation advice (Schedule 1); and
-
additional protection for dugong and turtle populations from the
threats of poaching, illegal trade and illegal transportation (Schedule 2).
Schedule 1—Amendments relating to conservation advices
1.9
Schedule 1 of the bill proposes to validate decisions made under the
EPBC Act prior to 31 December 2013 that required the Environment Minister
to have regard to any relevant approved conservation advice. The Explanatory
Memorandum states that the schedule is designed to address the implications
arising from the Federal Court's decision in Tarkine National Coalition
Incorporated v Minister for Sustainability, Environment, Water, Population and
Communities[3]
(the Tarkine case).[4]
Background—conservation advices and
decision-making under the EPBC Act
1.10
Listed threatened species and ecological communities are listed as one
of a number of 'matters of national environmental significance' under the EPBC
Act. Actions which are likely to have a significant impact on a matter of
national environmental significance require approval from the Environment
Minister under the EPBC Act.
1.11
In addition, the Environment Minister is required to ensure that there
is an approved 'conservation advice' in place for each listed threatened
species and ecological community.[5]
Conservation advices are developed in consultation with the Threatened Species
Scientific Committee, an independent scientific advisory body appointed under
the EPBC Act. They contain information on the factors causing a species to be
threatened, as well as actions that can be taken to stop the decline of, or
support the recovery of, that species or community.[6]
1.12
The Environment Minister is required to have regard to relevant
conservation advices in making a number of decisions under the EPBC Act. For
example, the Minister must, in deciding whether to approve the taking of an
action which is likely to have a significant impact on a listed threatened
species or community, have regard to any approved conservation advice for that
species or community.[7]
1.13
Decisions made under the EPBC Act are subject to judicial review by the
Federal Court under the Administrative Decisions (Judicial Review) Act 1977
(ADJR Act).[8]
That is, a person aggrieved by a decision made by a government official can
have that decision scrutinised by the court. The court is not concerned with
the merits of the decision, and is only concerned with whether there has been
an error of law in the making of the decision. For example, the court may
consider whether, in making a decision, the decision‑maker took into
account all relevant considerations, and did not take into account irrelevant
considerations. The court can then send the decision back to the original
decision-maker to make a new decision.[9]
1.14
Under the ADJR Act, reasons for an administrative decision (including a
decision made under the EPBC Act) may be sought and must be provided within
28 days after receiving the request.[10]
An application for judicial review under the ADJR Act must usually be made
within 28 days of the date of receipt of the reasons for the decision. However,
in appropriate cases, extensions of time can be sought.[11]
The Tarkine Case
1.15
On 18 December 2012, the then Environment Minister, the Hon Tony
Burke MP, gave approval under the EPBC Act to Shree Minerals Ltd to
develop and operate an iron ore mine in north west Tasmania.[12]
The Tarkine National Coalition challenged the approval decision in the Federal
Court under the ADJR Act.
1.16
On 17 July 2013, the Federal Court set aside the Minister's decision on
the basis that the Minister had failed to have regard to a mandatory
conservation advice under subsection 139(2) of the EPBC Act—that is, the
Approved Conservation Advice for Sarcophilus harrisii (Tasmanian Devil).[13]
1.17
On 29 July 2013, the Environment Minister granted a new approval for the
Shree Minerals' mine.[14]
Overview of Schedule 1
1.18
The Explanatory Memorandum states that the purpose of Schedule 1 of the
bill is 'to address the risk to past decisions made under the EPBC Act arising
from the Federal Court's decision in the Tarkine case'.[15]
1.19
Schedule 1 does not directly amend the EPBC Act.[16]
Rather, the changes will be contained in the Environment Legislation
Amendment Act 2014, if the bill is enacted. As the Parliament Library Bills
Digest observes:
This approach might be expected to make it more difficult for
interested parties to find and confidently appreciate the practical operation
of approved conservation advice, than if the new provisions were inserted into
the EPBC Act.[17]
1.20
Item 1 of Schedule 1 provides that, if the Minister fails to have regard
to conservation advices as required under the EPBC Act, this will not
invalidate anything done by the Minister prior to 31 December 2013.[18]
1.21
Item 2 provides that decisions and other instruments that have been made
under the EPBC Act are not invalid because of any failure to have regard to any
approved conservation advice as required by the EPBC Act.[19]
1.22
In relation to future decisions, the intention is to maintain the
requirements in the EPBC Act for the Minister to have regard to any relevant
approved conservation advice.[20]
1.23
In the second reading speech, it was explained that the bill 'will
provide certainty for industry stakeholders with existing decisions and
projects that rely on those decisions'.[21]
Amendments to Schedule 1 in the
House of Representatives
1.24
The bill was introduced into the House of Representatives on
14 November 2013, and debated on 5 and 9 December 2013. The House of
Representatives agreed to two Government amendments to Schedule 1 of the bill.
Those amendments inserted a sunset clause into the legislation to cover
decisions made by 31 December 2013, whereas previously the bill applied to all
decisions, both past and future. Further, Schedule 1 originally added a new
section 517B to the EPBC Act, whereas the bill no longer directly amends
the EPBC Act.[22]
The Environment Minister explained that:
This is actually fixing up a mess caused by the previous
government. We are helping them out. There is an existing set of appeals. There
could potentially be more based on technicalities. These could cause endless
delay without there being any substantive basis for the claims of improper
decision making.[23]
1.25
The Environment Minister further stated that:
...I can guarantee that every decision I have taken and every
decision I will take is made with reference to expert conservation advice, in
the presence of the conservation advice and after consideration of the
conservation advice.[24]
1.26
The Australian Greens unsuccessfully moved amendments to the Bill in the
House of Representatives, which were supported by the Australian Labor Party.
These amendments would have removed the provisions of the EPBC Act enabling
approval powers to be delegated to State and Territory Governments under
bilateral agreements.[25]
These proposed amendments have been foreshadowed in the Senate by Senator
Waters[26]
and 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.[27]
Amongst other recommendations, the committee recommended that that bill not be
passed.[28]
Comments by the Senate Scrutiny of
Bills Committee
1.27
The Senate Scrutiny of Bills Committee has raised concerns relating to
Schedule 1 of the bill, and in particular, the retrospective validation of
decisions made under the EPBC Act. The committee noted that:
The retrospective validation of administrative decisions may
have a detrimental effect on a person's rights or liberties. In this case, the
detrimental effect may be on the right of an 'aggrieved person' to bring
proceedings under the ADJR Act to enforce the requirements of the
EPBC Act. The practical effect of item 2 of Schedule 1 is that a decision
which was invalid when made cannot be challenged by such an aggrieved person
under the ADJR Act...[29]
1.28
The committee noted that the justification for this approach is to
provide certainty for proponents,[30]
but then stated:
Although certainty for proponents is of relevance, the
committee considers that a fuller justification for the approach should be
sought in light of the retrospective operation. It is not clear that the impact
of the Federal Court decision in the Tarkine case is that many other decisions
under the EPBC Act are also invalid. Other decisions under that Act would only
be invalid if it could be established on the facts of each case that the
Minister had failed to comply with his or her statutory obligation to consider
any approved conservation advice. Here it is noted that challenges under the
ADJR Act (like the Tarkine case) must, in general, be brought within 28 days of
the provision of a statement of reasons for the decision.[31]
1.29
The Scrutiny of Bills committee has sought the Environment Minister's
advice as to:
...the extent of uncertainty for proponents and why this is
thought sufficient to justify retrospectively validating decisions that are
contrary to statutory obligations imposed by the Parliament. The committee also
seeks the Minister's advice as to whether the amendment may affect any
proceedings which have yet to be determined.[32]
1.30
At the time of writing, the Minister's response had not yet been
received.
Schedule 2—Turtle and Dugong protection measures
1.31
Schedule 2 of the bill proposes to amend the EPBC Act and Great
Barrier Reef Marine Park Act 1975 (GBR Marine Park Act) to provide
additional protection for dugong and turtle populations from the threats of
poaching, illegal trade and illegal transportation.
Background: Turtle and Dugong
Protection Plan
1.32
On 15 August 2013, during the federal election campaign, the Coalition
announced its 'Dugong and Turtle Protection Plan'. Under this plan, the
Coalition committed to provide an additional $5 million for dugong and turtle
protection, including $2 million for an Australian Crime Commission
investigation into the practice of illegal killing, poaching and transportation
of turtle and dugong meat. The plan also included a commitment to introduce legislation
tripling the penalties for poaching and illegal transportation of turtle and
dugong meat.[33]
This bill implements this policy commitment.[34]
Summary of provisions
1.33
Schedule 2 of the bill proposes to amend the EPBC Act and the GBR Marine
Park Act to provide additional protection for dugong and turtle populations
from the threats of poaching, illegal trade and illegal transportation. The
amendments increase the financial penalties for various offences and civil
penalty provisions relating to listed dugong and turtles. The Explanatory
Memorandum states that:
These amendments will deter persons from committing offences
or breaching civil penalty provisions by imposing increased penalties in
respect of the illegal killing, injuring, taking, trading, keeping or moving of
turtles and dugong.[35]
1.34
The EPBC Act currently contains various criminal offences relating to
the killing, injuring, taking, trading, keeping or moving of listed threatened,
migratory or marine species.[36]
Six species of marine turtle are listed as threatened species under the EPBC
Act. They are also listed migratory species and listed marine species. The
dugong is listed as a migratory species and a marine species under the EPBC Act
(but not a threatened species).[37]
1.35
Schedule 2 of the bill proposes to increase the maximum penalties for
new 'aggravated offences' under these provisions from $170,000 to $510,000.[38]
An 'aggravated offence' is an offence relating to a dugong, marine turtle or
leatherback turtle.[39]
For the strict liability[40]
version of these offences, the maximum penalty will increase from $85,000 to
$255,000.[41]
1.36
The GBR Marine Park Act also currently contains criminal offences and
civil penalty provisions which apply to the taking of, or injury to, turtles
and dugong where they are a protected species under that Act.[42]
The maximum penalty for the aggravated offence of taking or injuring dugong,
marine turtles or leatherback turtles that are protected species under the GBR
Marine Park Act will increase from $340,000 to $1,020,000. For the strict
liability version of these offences, the penalty will increase from $10,200 to
$30,600. For an aggravated contravention against section 38BB, the penalty
increases from $850,000 to $2.55 million for an individual, and from
$8.5 million to $25.5 million for a corporation.[43]
1.37
The bill does not create new offence provisions under either the EPBC
Act or GBR Marine Park Act. Rather, it increases the maximum financial
penalties for specific existing offences where the prohibited conduct concerns
dugong or turtles. It does not affect or increase the imprisonment terms
currently set out in these Acts.[44]
1.38
The Explanatory Memorandum states that:
Increasing the maximum fines allows greater flexibility to
ensure the penalty will outweigh any financial benefits from committing the
relevant offence and provide an increased disincentive without the additional
financial and social costs associated with increased incarceration.[45]
1.39
According to the Explanatory Memorandum, the amendments would not affect
the rights of native title holders to harvest dugong and turtles for the
purposes of domestic, non-commercial communal needs preserved by section 211 of
the Native Title Act 1993.[46]
Comments by the Scrutiny of Bills
Committee: penalties and strict liability
1.40
The Scrutiny of Bills Committee noted that the amendments to the EPBC
Act and the GBR Marine Park Act would triple the penalties for offences relating
to the killing, illegal trade and transportation of dugong and turtle
populations and that strict liability applies to the physical elements of the
offences.[47]
The Scrutiny of Bills Committee further noted that the statement of human
rights compatibility contained in the Explanatory Memorandum explains that
strict liability still allows a defence of honest and reasonable mistake to be
raised, and that:
...the application of strict liability is a proportionate
limitation to the right to the presumption of innocence because of the high
public interest in protecting and conserving marine turtle and dugong
populations. The increase in penalties is thought necessary to ensure strong
deterrence.[48]
1.41
The Scrutiny of Bills Committee concluded that:
In light of the justification provided in the statement of
compatibility and explanatory memorandum the committee leaves the question of
whether the proposed approach is appropriate to the Senate as a whole.[49]
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