Environment Minister Greg Hunt’s decision to issue an exemption for the dispersal of Grey Headed Flying Foxes under national environment protection laws raises some serious questions about the use of these exemption provisions that go well beyond the issue of whether such a decision should have been made during the caretaker period.
Grey headed flying foxes are listed as vulnerable under Australia’s EPBC laws.
Right now, there’s an unusual flowering of spotted gum trees in the Eurobodella Shire, which has attracted grey headed flying foxes from other areas.
Obviously this can be annoying for residents. The bats congregate in trees, leaving droppings on cars and houses and making noise.
Environment Minister Greg Hunt has now granted an exemption to Eurobodella Shire council, from the normal operation of the EPBC Act to allow dispersal of the flying foxes.
The Minister has issued this exemption under section 158 of the Environment Protection and Biodiversity Conservation Act 1999. The best known example of the use of this section has been the shark cull in WA, where the minister allowed the culling of protected species such as Great Whites on the grounds of ‘national interest’.
What amounts to the, ‘national interest’ is not defined in the Act and is open to interpretation. The Act helpfully suggests that it could include things like ‘Australia’s defence or a security or national emergency’.
As we wrote about the use of the exemption in the case of the WA shark cull:
National interest is not defined in the legislation. Section 158 provides some examples of things that the Minister might consider in determining the national interest – “Australia’s defence or security or a national emergency” – while also making it clear that this list is not intended to be exhaustive, a standard legislative drafting technique where the discretion provided by the law is intended to be broad and flexible.
The discretion is not, however, intended to be open-ended. Clearly, the suspension of the usual rules intended to protect threatened species such as the Great White Shark should only occur in exceptional circumstances. Using such exemptions too frequently would undermine the legal protection that the Act is intended to provide, and would be inconsistent with the international obligations which the legislation implements.
The fact that it is a “national interest” exemption and the examples provided – “Australia’s defence or security or a national emergency” – back up the view that the free pass that the legislation provides for ought only to be exercised in very limited circumstances.
The history of the application of the provision to date is mostly consistent with this position. As you will see from the list on the Department’s website, the exemption has not been utilised very often since the Act commenced in 2000.
Most examples are in fact situations where the Act has been suspended to allow urgent catch-and-recover programs for threatened species on the precipice of extinction. The construction of an asylum seeker detention facility on Christmas Island is an anomaly (but we already know that rationality and the rule of law have a tenuous history when it comes to asylum seekers).
These examples aside, the exemption has typically been used to deal with emergencies: the Montara oil spill, locust plagues in SA, Black Saturday bushfires in Victoria.
While much of the media attention has been on the use of decision to make use of the exemption in the context of an election and during the caretaker period, there’s clearly a much more fundamental problem here – “turning off” the Act at any time is a serious matter, and its highly doubtful that the situation in Eurobodalla comes within the letter or the spirit of this national interest exemption.