A major review and revision of the Commonwealth environmental legislation resulted in the passage of the Environment Protection and Bio-
diversity Conservation Act 1999 (EPBC Act) which consolidated a number
of Acts dealing with regulation of activities that may have an effect on the environment. The Act is massive and its concerns include the process for approvals for all sorts of activities, prosecutions for offences and the conservation of the environment and biodiversity. It has its major appli- cation to land activities, but it also applies to the marine environment and offshore generally. It expressly extends to cover the ‘Australian jurisdiction’, which is defined to mean all persons, aircraft and vessels within the limits of the Australian EEZ and outer continental shelf and to
125 ‘Transit’ in this Act relates not to transit passage through the territorial sea, but transit in that the waste is imported into Australia and then exported again (within 30 days); s 4B.
126 Section 3. 127 Part 2 Div 4. 128 Section 57. 129 Section 33.
Australian persons, corporations, aircraft, vessels and their crews etc anywhere.130
The objects of the EPBC Act include to provide for the protection of the environment, promote ecologically sustainable development, to promote the conservation of biodiversity and the protection and conser- vation of heritage.131 A detailed consideration of the EPBC Act is not
appropriate here, but its main relevant aspects will be mentioned. Part 3 deals with the World and National Heritage listing of suitable things and areas, of which one example offshore is the listing of the Great Barrier Reef on the World Heritage list.132 The Act also touches on the
requirements and regulation of a Commonwealth marine area.133 A
person may not take an action, without approval, in a Commonwealth marine area, or even outside it, if it has or is likely to have a ‘significant impact’ on the environment, and this control extends over the fisheries covered by the Fisheries Management Act 1991 (Cth).134 The approval
process is regulated by Chapter 4 of the EPBC Act, so that an assessment must be made of the environmental impact of the proposed action.
The Act also deals with strategic assessments, including of fisheries, with particular types of fish being expressly addressed, such as whales, dolphins and porpoises (cetaceans).135 The object here is to identify threa-
tened species and to manage all fisheries so that they are sustainable. An ‘Australian Whale Sanctuary’ is established over the waters coterminous with the EEZ (the states’ three nautical mile limit area is included)136 and
this sanctuary is managed and regulated under the Act. In those waters it is an offence to kill, injure, take, import or export a cetacean, unless approval is given or one of the exceptions applies.137 If a person does kill
a cetacean in the said waters the property in that mammal vests in the
130 Section 5. See also s 15B of the Acts Interpretation Act 1901 (Cth) which provides that, except where the contrary intention appears, the provisions of every Act shall be taken to apply in the ‘coastal sea of Australia’.
131 Section 3. 132 Part 3 Subdiv A.
133 Part 3 Subdiv F. A ‘Commonwealth marine area’ is the waters, seabed and airspace in the EEZ or outer continental shelf, except those vested in the States or NT under the Coastal Waters (State Title) Act 1980 (Cth) and its NT equivalent; see also the Coastal Waters (State Powers) Act 1980 (Cth). A ‘Commonwealth area’ is defined as the land, sea, seabed and airspace in the Commonwealth including the EEZ and continental shelf, except the ‘coastal sea’ of the States and the internal Territories; s 525. In considering jurisdiction of offshore areas regard must also be had to the Seas and Submerged Lands Act 1973 (Cth).
134 Sections 23, 24, 245A. Under the Fisheries Management Act 1991 the Australian
Fisheries Area (AFZ) is coterminous with the EEZ; s 4, but excludes the ‘coastal waters’ which are the first three nautical miles offshore from the States or internal Territory; s 5.
135 Chapter 4 Pts 10, 11. 136 Sections 225-227. 137 Sections 229-235.
Commonwealth; but the Commonwealth is not liable, as are others under the Act, for thereby being in possession of that mammal.138
Chapter 5 of the EPBC Act, a lengthy piece of legislation alone, deals with the conservation of biodiversity and heritage.139 It is concerned with
recovery plans, threat abatement plans, wildlife conservation plans, international movement of wildlife, application under Australian law of CITES,140 management of heritage areas and, most importantly, giving
statutory effect to the ‘precautionary principle’ in decision-making.141
The concluding parts of this massive Act make provision for enforce- ment, including boarding vessels, arrest, seizure, and penalties.142
A perusal of the Act reveals that its regulatory provisions were not drafted from the point of view of protecting the marine environment from shipping offences. As an example, as a result of the grounding of the Bunga Teratai Satu in the Great Barrier Reef (GBR) on 2 November 2000143 a review of the Commonwealth legislation was undertaken as the
EPBC Act was seen as ineffective to deal with this shipping casualty situation. The Great Barrier Reef Marine Park Act 1975 was amended to make it more effective in groundings situations in the GBR, where no oil is spilled, but the EPBC Act was not improved.
7.12 Conclusion
The raft of Commonwealth legislation described above is, by and large, fairly effective and competent and it is backed by a Commonwealth
138 Section 246.
139 Australia was an active participant at the Rio Conference 1992 and is a party to the Rio Declaration on Environment and Development, Agenda 21 and the Convention on Biological Diversity 1992.
140 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973; mentioned in Chapter 2.
141 Sections 391, 391A.
142 Chapter 2 of the Criminal Code (Cth) applies to offences; see s 7 of the EPBC Act. 143 On 2 November 2000 Mashkoor Hussain Khan, the first mate of the Bunga Teratai
Satu, pleaded guilty in the Cairns Magistrates Court, before KJD McFadden Acting Magistrate, to an offence against s 38A of the Great Barrier Reef Marine Park
Act 1975 in that he did ‘negligently enter a Marine Habitat Protection Zone …, through the navigation of a ship, … other than [for] a purpose permitted under the zoning plan’, for which he was fined A$15,000 and ordered to pay costs. He also pleaded guilty on the same occasion to an offence against s 113 of the GBRMPA Regulations in that he ‘did damage coral in the Cairns Area Plan of Management’, for which he was fined A$1000. Mr Khan was then allowed to leave the country. Because the Commonwealth Government’s action was seen by the Queensland Government as ineffective, the Queensland EPA then laid charges which became the case of Williams v Malaysia International Shipping Corporation Berhad and Syed Naeem Jafar, Cairns Magistrates Court, Schemioneck SM, Numbers MAG-214641 and 214607 of 2000(0). The charges were for offences against s 119 of the Environmental Protection Act 1994 (Qld) in unlawfully causing serious environmental harm. On the master and owner pleading guilty to this charge the other charges were withdrawn.
administration that applies it reasonably well. The only limitation on this is the lack of legal maritime law skills in the various government departments, State and Commonwealth, although this is steadily being remedied.
This concludes the survey of Commonwealth legislation and the next chapter will deal with the States’ and Territories’ legislation.