5. Legislative reporting Operation of the Environment Protection and Biodiversity Conservation Act 1999



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5. Legislative reporting


Operation of the Environment Protection and Biodiversity Conservation Act 1999


Section 516 of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) requires the Minister to prepare an annual report on the operation of the EPBC Act. This section meets this reporting requirement for 2015–16.

Purpose


The objects of the EPBC Act are to:

  • provide for the protection of the environment, especially matters of national environmental significance

  • conserve Australian biodiversity

  • protect and conserve world, national and Commonwealth heritage

  • promote ecologically sustainable development

  • promote a cooperative approach to the protection and management of the environment

  • implement Australia’s international environmental responsibilities

  • recognise the role of Aboriginal and Torres Strait Islander people in the conservation of Australia’s biodiversity

  • promote the use of Aboriginal and Torres Strait Islander people’s knowledge of biodiversity.

Further information is on the Department’s website

www.environment.gov.au/epbc/about


Operation

Environmental referrals, assessments and approvals

Matters of national environmental significance

The EPBC Act assessment and approval processes apply to any action likely to have a significant impact on a matter of national environmental significance. The nine matters of national environmental significance are:

  • world heritage properties

  • national heritage places

  • wetlands of international importance (often called ‘Ramsar’ wetlands after the international treaty under which such wetlands are listed)

  • nationally threatened species and ecological communities

  • migratory species

  • Commonwealth marine areas

  • the Great Barrier Reef Marine Park

  • nuclear actions (including uranium mining)

  • a water resource, in relation to coal seam gas development and large coal mining development.

When an action is referred to the Commonwealth for consideration under the EPBC Act, the Department of the Environment and Energy looks at the details of the action to see whether it will have a significant impact on matters of national environmental significance.

The Minister or their delegate will then decide whether the action needs to be assessed further—this is the ‘referral decision’.

A referral decision will be one of the following:


  • Controlled action: this means that a significant impact on a matter of national environmental significance is likely and the activity needs Commonwealth assessment and approval. A method of assessment will then be chosen, which will vary depending on the scale and complexity of the activity (alternatively, the activity might be assessed under a bilateral agreement between the Commonwealth and a state or territory)

  • Not controlled action, particular manner: this means the activity does not need further assessment but must be carried out in the manner prescribed in the decision

  • Not controlled action: this means the activity does not need further assessment because it is not likely to have a significant impact on matters of national environmental significance

  • Clearly unacceptable: this means the activity cannot proceed because it is clear that it will have an unacceptable impact on matters of national environmental significance. This is a decision to refuse approval for the project.

For actions determined to be a ‘controlled action’ the Commonwealth will do an environmental impact assessment using one of the following methods:

  • Assessment on referral information: completed solely on the information provided in the referral form

  • Assessment on preliminary documentation: completed based on the referral form and any other material identified by the Minister as being necessary to adequately assess a proposed action

  • Assessment by environmental impact statement or public environment report

  • Assessment by public inquiry

  • Assessment under a bilateral agreement in accordance with a state/territory assessment process specified in a bilateral agreement between the Commonwealth and the state/territory

  • Accredited assessment in accordance with a state/territory or Australian Government process that has been accredited by the Minister on a case-by-case basis.

Following the assessment, the Minister or their delegate will then make a decision to approve, approve with conditions or not approve the proposed action.

State and local government approvals may cover matters other than those protected by national environment law under their legislation, so an activity may need approval from all three levels of government. Throughout the assessment, the Department works with its state and territory counterparts to ensure information is shared and assessments are aligned where possible.

Alternatively, if a proposed action is covered by an assessment bilateral agreement then that action is assessed under the accredited state/territory process. After assessment, the proposed action still requires approval from the Minister under the EPBC Act.

Further information on EPBC Act referrals, approvals, assessments and matters of national environmental significance is provided in Tables 5.1–5.5 in Appendix A to this report and on our website. The Department publishes all referrals on its website to give the public an opportunity to comment.

www.environment.gov.au/epbc/public-notices

Strategic approaches

Strategic assessments under the EPBC Act consider Commonwealth and state or territory environmental planning issues in a single assessment. These assessments can reduce the regulatory burden and reduce uncertainty for developers, landholders, planners, industry and government. Strategic assessments explicitly consider landscape-scale and cumulative environmental impacts.

Under section 146 of the EPBC Act the Minister may agree to assess the impacts of actions under a policy, plan or program, such as:


  • regional-scale development plans and policies

  • large-scale industrial development and associated infrastructure

  • fire, vegetation, resource or pest management policies, plans or programs

  • policies for water extraction and use

  • industry sector policies.

For further information see ‘Environment and heritage regulation’ in Part 2, ‘Annual performance statements’, page 37.

Actions by the Australian Government and actions on Commonwealth land

As well as protecting nine matters of national environmental significance, the EPBC Act regulates actions that have a significant environmental impact on Commonwealth land or that are carried out by an Australian Government agency, including the disposal of Commonwealth land. The agency or employee must inform the Minister of the proposal, and the Minister must assess the action before advising the agency or employee on how to proceed. The referral, assessment and approval process described above applies in the same way to actions on Commonwealth land and actions by Australian Government agencies.

In 2015–16, the Minister determined that two actions relating to Commonwealth land were controlled actions and that two were not controlled actions provided they are done in a particular manner.

We received five requests for advice from the Department of Infrastructure and Regional Development and Airservices Australia in relation to proposals involving Commonwealth airports. The Minister’s delegate determined that advice was not required for three of the proposals and that advice was required for two proposals. In one case we provided the advice; in the other case the provision of advice is pending, subject to internal processes.



Antarctic Treaty environment protection

The EPBC Act exempts certain actions from requiring permits if a permit for that action has been issued under the Antarctic Treaty (Environment Protection) Act 1980 (ATEP Act). The EPBC Act states that, where an action is taken in accordance with a permit issued under the ATEP Act and the permit is in force, certain actions involving listed threatened species and ecological communities, migratory species and listed marine species are not offences. Two of the permits issued by the Department under the ATEP Act in 2015–16 granted such exemptions.


Access to biological resources and benefit sharing


Part 8A of the Environment Protection and Biodiversity Conservation Regulations 2000 controls access to biological resources in Commonwealth areas for the purposes of research and development on genetic resources and biochemical compounds.

Under Part 8A of the Regulations, the Department issued 35 permits for access to biological resources in Commonwealth areas in 2015–16.


Cetacean permits

In the Australian Whale Sanctuary (all Commonwealth waters from the three nautical mile state waters limit out to the boundary of Australia’s Exclusive Economic Zone) a permit under the EPBC Act is required to take, keep, move or interfere with (harass, chase, herd, tag, mark or brand) a cetacean or to possess or treat (divide or cut up, or extract any product from) a cetacean. Australian residents must get a permit to carry out such activities in waters beyond the sanctuary—that is, in international or foreign waters. In 2015–16, Australia issued five cetacean permits and varied the conditions of two existing cetacean permits (see Appendix A, Table 5.6).

www.environment.gov.au/marine/marine-species/cetaceans/australian-whale-sanctuary


Protection of natural and cultural places and values


The Government provides protection under the EPBC Act for World Heritage properties and for places on the National Heritage and Commonwealth Heritage lists. Under the EPBC Act, the Minister must give an approval before a proponent takes any action that may have a significant impact on the heritage values of a listed place.

Where a World Heritage property or National Heritage place is entirely within a Commonwealth area (or areas), the Minister must make a written plan for managing it. Where a World Heritage property or National Heritage place is in a state or a self-governing territory, the Commonwealth must use its best endeavours to ensure that a plan is prepared and implemented cooperatively with the state or territory. State and territory governments are responsible for managing most of Australia’s World Heritage places. As at 30 June 2016, management plans for eight of these World Heritage properties were under review or being updated.

Management plans are in place for all World Heritage properties managed by the Commonwealth. The Department is undertaking a review of the management arrangements for listed heritage places, including contacting place owners and managers and reviewing the consistency of plans with the management principles in the EPBC Regulations.

Management plans for World Heritage properties must be consistent with Australia’s obligations under the World Heritage Convention and Australia’s World Heritage management principles. The EPBC Regulations prescribe principles for managing National Heritage places.

The Commonwealth agency that owns or controls a Commonwealth Heritage place must make a written plan for managing it. The plan must address matters prescribed by the EPBC Regulations and not be inconsistent with the Commonwealth Heritage management principles.

World Heritage List

Australia has 19 properties on the World Heritage List. These properties—some of which have multiple sites—are protected under the EPBC Act and have associated management requirements. All Australian properties on the World Heritage List have management plans.

At its meeting in July 2015 the World Heritage Committee requested that Australia invite a monitoring mission to review and provide advice on the Tasmanian Wilderness World Heritage Area, including on the revision of the management plan, a survey of the property’s cultural attributes, further work on the Statement of Outstanding Universal Value and the state of conservation of the property as a whole.

In November 2015, experts representing the International Union for the Conservation of Nature and the International Council on Monuments and Sites visited Tasmania to see first-hand the management of the property and meet with stakeholders representing a wide range of community interests.

The Australian and Tasmanian governments welcomed the report of the reactive monitoring mission when it was released by the United Nations Educational, Scientific and Cultural Organisation World Heritage Centre in March 2016. The governments accepted all of the mission’s recommendations. Responses to each recommendation were included in the State Party Report on the State of Conservation of the Tasmanian Wilderness World Heritage Area that was submitted to the World Heritage Centre in April 2016.


National Heritage List

Each year the Minister is required to set a Finalised Priority Assessment List for the National Heritage List identifying places that the Australian Heritage Council will assess for their National Heritage values. The complete list of places that the council is currently assessing for National Heritage values is published on our website.

www.environment.gov.au/topics/heritage/heritage-places/finalised-priority-assessment-lists

The council completed preliminary consultations and National Heritage assessments for four places during 2015–16, and its final assessment for another. The Minister added three places to the National Heritage List: the Burke, Wills, King and Yandruwandha National Heritage Place (SA, QLD); Fitzgerald River National Park (WA) and Lesueur National Park (WA). In accordance with the requirements of the EPBC Act the Department will use its best endeavours to ensure a plan for managing the National Heritage values of each of these places is prepared in cooperation with place owners and managers.

Commonwealth Heritage List

Eight places were added to the Commonwealth Heritage List: six air traffic control towers (NSW, VIC, SA, TAS), Bundanon Trust Property (NSW) and the Royal Australian Mint (ACT). One place became ineligible (after its transfer to a non-Commonwealth agency) and was removed. There are 396 places on the Commonwealth Heritage List.
Commonwealth reserves

The EPBC Act provides for establishing and protecting Commonwealth reserves, including marine and terrestrial areas, through preparing and implementing management plans and issuing permits for a range of activities.

The Director of National Parks is responsible for managing an estate of marine and terrestrial protected areas that are Commonwealth reserves. The Director of National Parks prepares a separate annual report on their management which is available on the Parks Australia website.

www.environment.gov.au/topics/national-parks/parks-australia/publications

As at 30 June 2016, the Director of National Parks is responsible for managing seven Commonwealth terrestrial and 59 Commonwealth marine reserves. Of these, management plans are in place for all terrestrial reserves and the South-east Commonwealth Marine Reserves Network, which comprises 14 marine reserves.

An independent Commonwealth Marine Reserves Review was completed with reports of the Bioregional Advisory Panel and Expert Scientific Panel provided to Government in December 2015. The review addressed zoning and management arrangements and the future research and monitoring priorities for the Commonwealth marine reserves proclaimed in 2012. The panels undertook extensive consultation, including over 260 stakeholder meetings conducted in five regions, a round of public submissions and an online survey. The review will be publicly released and will inform public consultations on the new management plans that will be developed by the Director of National Parks.

Under delegation from the Director of National Parks, staff of the Department’s Australian Antarctic Division manage the Heard Island and McDonald Islands Marine Reserve under the Heard Island and McDonald Islands Marine Reserve Management Plan 2014–2024.

The EPBC Act and Regulations prohibit a range of activities in Commonwealth reserves unless authorised. Under the Regulations, the Director of National Parks may prohibit, restrict or determine the manner of conduct of certain activities. Contravening a provision of the Act or Regulations is a criminal offence and civil pecuniary penalties may be imposed for certain unauthorised actions.

A whole-of-government approach is taken to compliance and enforcement in Commonwealth marine reserves, supporting aerial and vessel patrols, vessel monitoring and enforcement investigations. In addition to the role of officers of the Australian Federal Police and the Australian Border Force, officers from other agencies—including the Australian Fisheries Management Authority, state and territory police, and fisheries and conservation agencies


—can be appointed as wardens under the EPBC Act after completing the required training. These arrangements greatly increase the ability of the Director of National Parks to enforce the EPBC Act in remote Commonwealth reserves. Further information on compliance and enforcement in terrestrial (Table 5.7) and marine (Table 5.8) reserves is in Appendix A.

Protection of species and ecological communities


The EPBC Act provides for the protection of Australia’s native species and ecological communities through a range of measures, including:

  • identifying and listing threatened species and ecological communities and migratory and marine species

  • developing conservation advices and, where appropriate, recovery plans for listed threatened species and ecological communities to identify threats and prioritise actions to provide for recovery

  • developing wildlife conservation plans for the protection, conservation and management of listed migratory species, listed marine species, species of cetaceans and conservation dependent species

  • recognising key threatening processes and, where appropriate, developing threat abatement plans to guide action to abate threats

  • regulating export trade in specimens derived from regulated native species

  • assessing the management arrangements of Australian fisheries, including all Commonwealth-managed fisheries and all state and territory fisheries with an export component, to help ensure they are managed in an ecologically sustainable way.
Species and ecological community listing assessment outcomes

The Minister may list threatened fauna and flora in six categories defined by the EPBC Act: extinct, extinct in the wild, critically endangered, endangered, vulnerable, and conservation dependent. Species listed as extinct in the wild, critically endangered, endangered or vulnerable are matters of national environmental significance. The Threatened Species Scientific Committee advises the Minister on these listings.

The Minister made listing decisions on assessments for 72 species. There were 40 new species listings, 19 deletions, five transfers to higher threat categories and eight species retained in the same category. The listings are detailed in Tables 5.9 and 5.10 in Appendix A.

At the time of listing, extensive information was published in approved conservation advices on the status and distribution of each species, the main factors that led to its eligibility for listing and priority conservation actions.

Ecological communities can be listed as critically endangered, endangered or vulnerable. Those listed as critically endangered and endangered are matters of national environmental significance. Listing ecological communities helps to protect vital species habitat and ecosystem functions.

The Minister made listing decisions on the assessments for five ecological communities. There were four new listings:


  • Southern Highlands shale forest and woodland in the Sydney Basin Bioregion (critically endangered)

  • Eucalypt woodlands of the Western Australian wheatbelt (critically endangered)

  • Natural temperate grassland of the South Eastern Highlands (critically endangered)

  • Warkworth Sands woodland of the Hunter Valley (critically endangered).

Following a listing review, Natural temperate grassland of the Southern Tablelands (NSW and ACT) was deleted.
Conservation advices and recovery plans

The EPBC Act provides for making or adopting recovery plans and approved conservation advices for listed threatened species and ecological communities.

Approved conservation advices provide guidance on recovery and threat abatement activities, including research priorities to ensure the conservation of newly listed species or ecological communities. The Minister is required, in certain circumstances, to have regard to approved conservation advices when deciding whether to approve an action under Part 9 of the EPBC Act. The Minister or his delegate approved 176 new or revised conservation advices for species and five new conservation advices for ecological communities.

The Department prepared and published on our website conservation advices for all new listings and for species and ecological communities that have been transferred between categories.

www.environment.gov.au/cgi-bin/sprat/public/sprat.pl

Recovery plans set out the research and management actions needed to stop the decline and support the recovery of listed threatened species or threatened ecological communities. The Department, with state and territory government environment agencies, invested in the recovery of threatened species and ecological communities by developing and implementing recovery plans. The Minister approved 10 recovery plans, covering 20 species and one ecological community (see Appendix A, Tables 5.11 and 5.12).

The Department published six guidelines that provide information to help with regulatory decision-making about individual listed species or groups of listed species. The Department published guides to help land managers, environment professionals and the general public to identify, assess and manage two ecological communities (Natural temperate grassland of the South Eastern Highlands and Central Hunter Valley eucalypt forest and woodland) on the Species Profile and Threats database. These publications are listed in Appendix C.


Wildlife conservation plans

A wildlife conservation plan sets out the research and management actions necessary to support survival of one or more migratory, marine, conservation-dependent or cetacean species listed under the EPBC Act that, while not considered threatened, would benefit from a nationally coordinated approach to conservation. The Minister approved one wildlife conservation plan covering 35 species of migratory shorebirds.

www.environment.gov.au/biodiversity/publications/wildlife-conservation-plan-migratory-shorebirds-2016


Key threatening processes and threat abatement plans

The EPBC Act provides for the listing of key threatening processes. A threatening process is one that threatens or may threaten the survival, abundance or evolutionary development of a native species or ecological community (Appendix A, Table 5.13 details all listed threatening processes). The Threatened Species Scientific Committee advises the Minister on the listing of key threatening processes and on whether a threat abatement plan or other action is needed to abate these processes.

The Minister approved the Threat abatement plan for predation by feral cats.

The Department completed statutory reviews of the:


  • Threat abatement plan for the biological effects, including lethal toxic ingestion, caused by cane toads (2011)

  • Threat abatement plan to reduce the impacts of exotic rodents on biodiversity on Australian offshore islands of less than 100,000 hectares (2009)

  • Threat abatement plan for beak and feather disease affecting endangered psittacine species (2005).

Threat abatement plans are published on our website.

www.environment.gov.au/biodiversity/threatened/threat-abatement-plans


Wildlife trade and management


Under the EPBC Act, the Department can grant approvals to export specimens derived from regulated native species or species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) or to import regulated live animals. Trade in native or CITES-listed specimens may be permitted in certain circumstances if the trade is for an authorised commercial or non-commercial purpose, such as where the species have been derived from an approved captive breeding program, an artificial propagation program, an aquaculture program, a wildlife trade operation or a wildlife trade management plan.

In 2015–16, the Department approved:



  • five artificial propagation programs

  • two aquaculture programs

  • four wildlife trade operations (non-fisheries)

  • two wildlife trade management plans.

We completed 58 assessments for transfers of a wide range of live animals, including gorilla (Gorilla gorilla), common wombat (Vombatus ursinus) and Philippine crocodile (Crocodylus mindorensis), for exhibition in zoos and aquaria. Of these, 52 required assessments of the facilities to ensure their suitability to house the animals.
Import of wildlife products

Under Part 13A of the EPBC Act it is an offence to import or export a CITES-listed specimen, export a regulated native specimen or import a regulated live specimen unless a permit has been issued or the import or export is covered by an exemption under the Act. Where products from CITES-listed species are imported into Australia without the required permits, the products may be seized (Appendix A, Table 5.14). The most common items seized were traditional medicines that included extracts of animal or plant products.



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