Long overdue Federal Environment Law is on the table right now, and is likely to go in front of Parliament in a matter of weeks. We urgently need you to write to federal environment minister Murray Watt, and ask him to remove one of the key loopholes in the current Act.
Section 43B is long abused loophole, that may well have made sense when the Act was written in 1999, but no longer has a place today.
A suggested email template is below, but please feel free to customise before you email it to minister.watt@dcceew.gov.au:
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Subject Line: Exemptions Under Sections 43A and 43B of the EPBC Act and the Impacts of Shark Control (Culling) Programs
I am writing to express my deep concern about the continued operation of shark control (culling) programs in Queensland and New South Wales, without oversight, which have serious impacts on threatened and protected marine species, the Great Barrier Reef World Heritage Area and other Matters of National Environmental Significance.
These two programs, alongside a small number of other activities in Australia, have been allowed to operate without any federal environmental assessment or approval whatsoever due to “lawful continuation of use” exemptions in sections 43A and 43B of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).
Now over 25 years since the Act was introduced, it is clear that it is no longer appropriate that these exemptions remain in place, giving carte blanche to these programs to continue environmental harm without assessment or oversight, especially as the evidence of significant harm has become undeniable.
For ease of reference, I insert the pertinent sections of the Act below which outline actions that are currently considered lawful continuations of use of land etc.
(1) A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.
(2) However, subsection (1) does not apply to an action if:
(a) before the commencement of this Act, the action was authorised by a specific environmental authorisation; and
(b) at the time the action is taken, the specific environmental authorisation continues to be in force.
Note: In that case, section 43A applies instead.
(3) For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:
(a) an enlargement, expansion or intensification of use;
(b) either:
(i) any change in the location of where the use of the land, sea or seabed is occurring; or
(ii) any change in the nature of the activities comprising the use;
that results in a substantial increase in the impact of the use on the land, sea or seabed.
The EPBC Act is now 25 years old, and these provisions (43A and B) were inserted to “grandfather” in activities occurring prior to its proclamation. It is now, beyond doubt, time to sunset these clauses, s43B in particular.
A removal or sunsetting of this arrangement would mean that parties wanting to conduct activities in breach of the EPBC Act (such as the Queensland and New South Wales shark culling programs) would need to apply to DCCEEW, and have their application assessed under the EPBC Act, just like everyone else.
This is entirely logical, and most people are astounded to realise that 43B effectively provides a loophole for parties; simply because they were doing something when the Act came into place 25 years ago, they can keep doing it indefinitely without any form of assessment, approval or oversight.
We support your current proposed environment law reform, however, it would be a catastrophic failure if this reform does not also sunset section 43A and, in particular, 43B. I remind you of your legal obligation to the environment and also that this change does not ban these activities, or burden them in red tape, it simply forces them to adhere to the same standards as everyone else.
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