Changes to the Victorian Environment Protection Act

Law firm Allens Arthur Robinson summarises changes proposed in the Environment Protection (Amendment) Bill recently introduced to Victorian Parliament.

Among the proposed changes are:

• • a plastic bag phase-out;

  • reform of the industrial waste landfill levy;

  • changes to streamline the administration of licences, clean-up notices and prosecutions under the Environment Protection Act 1970;

  • new obligations on Victoria's 250 biggest energy- and water-using companies via the introduction of environment and resource efficiency plans.

• environmental+law australian+law victorian+law law+news

Green law firms

If you're interested in environmental law, you might also be interested in going some way to being a 'green' law firm.

If you haven't seen it before, Lawyers for Forests' Forest-friendly Eco Kit for law firms (pdf) is worth checking out. It provides thorough advice on how you can make your firm's energy and resource use more sustainable. It might save you money too.

More on the Federal Court windfarm challenge

The Australian over the weekend reported that Federal Environment Minister Ian Campbell has settled a legal challenge to his decision under the Environment Protection and Biodiversity Conservation Act to refuse consent for the Bald Hills windfarm, agreeing to orders setting aside his original decision:

Facing legal defeat, Senator Campbell agreed to an offer - foreshadowed last week in The Weekend Australian - from Wind Power Pty Ltd to resubmit the proposal in exchange for dropping its legal challenge. Costs awarded to the company will be footed by taxpayers.

The Federal Court issued consent orders setting aside Senator Campbell's decision to veto the project in Bald Hills, south Gippsland. Under the court order, Senator Campbell will reconsider his decision "according to law", opening the way for the project, which is strongly opposed by many local residents, to win approval.

The report speculates that the Minister may have been advised that he was likely to lose the challenge because of a failure to provide procedural fairness to the company before making the decision:

It is believed Wind Power had been told by government lawyers that it would win the legal challenge because the minister had denied the company natural justice by not showing it the Biosis report before stopping the wind farm.

It will be interesting to see how the decision is remade. I've suggested before that granting consent to the windfarm with conditions that could reduce negative impacts and fund recovery projects for the orange-bellied parrot could allow the windfarm to go ahead and still improve conservation outcomes for the endangered parrot.

technorati tags: federal+court environmental+law epbc+act australian+law windfarm wind+power bald+hills

Illegal fishing detention ships

Yesterday the Federal Government has announced a plan to hold:

[i]llegal fishermen and asylum-seekers intercepted in Australian waters … at sea on an armed, purpose-built prison ship for up to a month at a time under tough new border-security provisions.

Concerned that its patrol vessels, particularly in northern waters, must make long voyages returning to port after intercepting each illegal boat, the Australian Customs Service has advertised for tenders to lease a civilian vessel to act as a floating detention centre for extended periods of time. The ship, which will be leased at a cost of $10million a year, will need to be converted at an additional cost to hold up to 30 detainees.

… The [tender] documents state that the ship must be able to cater for a full crew, 30 government officials and 30 detainees "for a minimum of 30 days".

However, Don Rothwell, Professor of International Law at the ANU has indicated:

“Australia's [planned] actions would not be in conformity with the provisions of the [UN Law of the Sea] convention,” he said.

“Certainly any intention to create a prison ship system as has been proposed, I think would … raise even more concerns.

“The law of the sea does envisage that Australia could cooperate with a country like Indonesia, whose fishermen would presumably be the main target of these arrests.”

While the reporting is not very clear, I presume Professor Rothwell has in mind Article 73(2) of the UN Law of the Sea Convention (UNCLOS), which provides:

Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

Indonesia could certainly raise claims that detention for 30 days at sea is not compatible with “prompt release”, and litigate those claims before the International Tribunal for the Law of the Sea.

Australia has had prompt release proceedings initiated against it in ITLOS in the past over the arrest of vessels suspected of illegal fishing in Australian waters (see the Volga Case).

However, in some ways this policy could represent a human rights improvement in Australian practice. The past policy of detaining Indonesian fisherman in their boats in Darwin harbour resulted in deaths in custody in February 2003 and again in April 2005.

It appears that the Australian Fisheries Management Authority has had difficulty in ensuring persons detained in the these highly exposed conditions have access to prompt medical assistance in case of emergencies.

At least the proposed “prison ship” would have a two-bed sick bay and a surgical theatre and detainees will be able to be properly supervised, as opposed to being visited occasionally by a supply boat dropping off food and water.

Further, Senator Ellison the Customs Minister has said

"We anticipate people will be detained for a very short period of time, we anticipate a matter of days."

If the detainees are rapidly moved to shore, processed and released on bond or bail, then the new system could actually bring Australia closer into line with UNCLOS.

Environmental law update

Clayton Utz's Planning and Environment Insights for July is out and has some worthwhile articles about:

1. changes to native vegetation laws in Victoria
2. proposed biodiversity trading scheme in NSW
3. application of the precautionary principle in Australian law
4. streamlining of approvals under NSW threatened species law
5. bilateral agreements under the Commonwealth EPBC Act.