MAY 2007

Chapter 6

Legal Framework

We submit that the Channel Deepening project as outlined in the SEES fails to meet requirements of both Federal and State legislation and guidelines.

Dredge spoil is both toxic waste and industrial waste

Environment Protection Act 1970 (Vic)

"Industrial waste" means—
(a) any waste arising from commercial,
industrial or trade activities or from
laboratories; or
(b) any waste containing substances or
materials which are potentially harmful
to human beings or equipment

The National Ocean Disposal Guidelines includes the following definitions:

Confined Disposal at Sea

Disposal of material in a location where transport away from the disposal site is minimised; and contaminated material is covered with a layer of dredged material that is of acceptable quality for unconfined ocean disposal and of an appropriate thickness such that burrowing organisms would be unable to reach the contaminated material


Spoil is defined as contaminated if it fails acute toxicity testing or elutriate testing


The quality or degree of being poisonous, or harmful, to plant, animal or human life.

We submit that substantial quantities (the total volume remains in question, but is likely to be more than stated in the SEES)of the dredge spoil from the Yarra River and Williamstown Channel is both toxic waste and industrial waste and under state law should not be disposed of in state waterway. The Environment Protection Act 1970 was amended in August 1997 with the inclusion of Schedule 6 (Waters of Port Philip Bay).

In relation to Dredging and disposal of dredged material, of Schedule (section 13) includes the following clauses:

1. Protection agencies or bodies undertaking dredging or spoil disposal must ensure that –

c)   these activities do nor re-suspend and/or disperse sediments or accumulated contaminants that will be detrimental to the long term protection of beneficial uses; and

d)   dredge spoil is disposed to land in preference to water wherever practicable and environmentally beneficial as determined by the Authority.     

We submit that dredging of contaminated sediment in the Yarra will result in dispersal of sediments or accumulated contaminants that will be detrimental to the long term protection of beneficial uses.

We submit that placing contaminated spoil within a bund, but leaving it “uncapped” for at least 140 days (and possibly much longer) and therefore subject to at least 560 tidal movements, cannot be deemed to be “Confined Disposal”.

We submit that the 0.5m thickness of the proposed capping is insufficient to prevent burrowing organisms from reaching the contaminated material.

Is it world’s best practice?

We note National Ocean Disposal Guidelines for Dredged Material 2002 (NODG) and its parent Act [Environment Protection (Sea Dumping) Act 1981 (Cloth)] are said not to apply directly to this project because the disposal of dredged material will be contained within state waters. We see this as a loophole which has been cynically exploited by the proponent.

We submit that Port Phillip Bay is a mostly enclosed body of water, surrounded by a large human population. To knowingly exploit the “loophole” displays recklessness towards the environment and human health.

NODG guidelines are designed for disposal in deep ocean waters, whereas the proposed dumping sites are in quite shallow water in the Bay, not an ocean.  This is of particular concern as the Bay has a very narrow entrance and a very slow flushing time of 359 days (reducing by 24 days if the project were to proceed), so it is particularly prone to contaminant accumulation.  The bay is surrounded by a dense population of people, many of whom regularly consume fish, and shellfish from the bay.

The EES Panel took the view that “in line with the Assessment Guidelines, the proponent is required to comply with the Best Practice Environmental Management Guidelines for Dredging (BPEMGD) published by the EPA 2001 and the National Ocean Disposal Guidelines (NODG) Commonwealth 2002

To comply with both of these guidelines it is obvious to the Panel it would be necessary for the proponent to compare all the relevant conditions and to assemble a body of practice that follows the more stringent requirement….As the Panel makes it clear in its policy analysis (see Appendix F) this is very directive language, not supportive of the proponent’s view that the guidelines may be easily departed from”1

The proponent has ignored the EES Independent Panel recommendation and its legal interpretation of policy, and has used just the NODG, without reference to the EPA guidelines. The state policy preference is clearly for disposal of all dredge spoil to land (see Environment Protection Act 1970. Schedule F6. (Waters of Port Phillip Bay).

The proponent’s plan for disposal is in breach of the law, is not best practice and is not acceptable either from an environmental or public health perspective. 

PoMC has in 2004 and again in 2007 relied upon guidelines for the disposal of sediment which do not adhere to state law or the Independent Panel recommendations are not best practice and will expose the public to unacceptable risk.

We submit that NODG guidelines are not applicable, and reliance on them is not world’s best practice, and is unlawful.

Is it legal to do what the proponent proposes?

Acts and listings protecting Port Phillip Bay wildlife

Flora and Fauna Guarantee (FFG) Act 1988 (Vic)

The purpose of this Act is to establish a legal and administrative structure to enable and promote the conservation of Victoria's native flora and fauna and to provide for a choice of procedures which can be used for the conservation, management or control of flora and fauna and the management of potentially threatening processes.

EPBC Act 1999 (C/th)

The EPBC Act promotes the conservation of biodiversity by providing strong protection for:

  • Threatened species and ecological communities
  • Migratory and Marine species
  • Cetaceans (all whales, dolphins and porpoises) in Commonwealth waters and outside Australian waters

Port Phillip Bay contains 11 marine species/groups of importance protected under Australian EPBC and/or FFG legislation that are of conservation significance.
These include:
  • 2 migratory freshwater fish species
  • 3 species of shark
  • 4 marine invertebrates
  • 1 marine turtle
  • and species within the syngnathid group of pipefishes and seahorses.
  • IUCN listing Since their adoption by IUCN (World Conservation Union) Council in 1994, the IUCN Red List Categories have become widely recognized internationally, and they are now used in a range of publications and listings produced by IUCN, as well as by numerous governmental and non-governmental organizations.
SEES Assessment Guidelines require assessment of risks to populations or habitat of listed fauna or other fauna of conservation significance. It is noteworthy that although the
SEES discusses the effects of sedimentation and noise on protected species, there is no discussion of the impacts of toxicants in the water, which may cause avoidance in fish or have lethal effects, or impact fertility. We have chosen a few species of conservation significance, not an exhaustive list, to illustrate our view that what the proponent is proposing is not legal.

Australian Grayling Prototroctes maireana
, is listed under both FFG Act (protected species) and EPBC Act (vulnerable), and is on the IUCN2 list (vulnerable) as well.

The grayling was described by Lake (1971) as one of the four most seriously threatened freshwater fish on the Australian continent and more recently was described by Koehn and O'Connor (1990) as vulnerable.

It is not known when these fish spawn in the Yarra but it is possibly between late summer and autumn. The SEES consultant3 suggests the trigger for spawning may be high water flow.

As the Yarra catchment is currently in drought conditions spawning success for these fish may be reduced, and remain so for as long as dry conditions prevail. Grayling can reabsorb eggs into the ovary if spawning conditions are not suitable.4 A recent survey of the Yarra by the Arthur Rylah Institute failed to locate any Grayling5

The larvae are positively photactic, swimming to the surface where they are swept downstream to the estuary or sea: (Mcdowall 1996). Juvenile fish approximately 55-75 mm. length return to freshwater habitats around 6 months later: (Faragher 1999).
Nothing is known about the movement of Grayling within the bay, or whether they stay for an extended time within the Yarra estuary or in the Bay, or go straight out to sea.

The work of David Crook at Arthur Rylah Institute demonstrates that Grayling do move into the marine environment. What the juvenile fish feed on in the marine environment is not known.

This puts Grayling at particular risk during downstream migration of larva. Dredging in the Yarra and Williamstown channels is scheduled for late autumn in 2008 and summer/autumn in both channels in 20096 Dredging includes use of mid-sized TSHD in Williamstown Channel plus backhoe/grab dredge in Yarra Channel during the 2009 downstream migration period.

‘This species is highly likely to encounter disturbances created by the dredging operations, but it is unknown what its tolerances are to the dredging effects7

Given that Australian Grayling live only 2-3 years, any dredging impact on larval or juvenile survival rates over 2 years may eliminate the Yarra population.

Will the proponents be in a position to know when these threatened fish are spawning and cease dredging to allow safe passage of the larval fish? Will the proponents be in a position to know whether the larval fish spend extended times in the Yarra estuary before moving to a completely marine environment?

Australian Mudfish listed as a protected species under the FFG Act.

The SEES consultant8 (Jenkins) reports movement of the larvae to sea takes place in winter. Upstream migration of juveniles is in spring.

The spawning time of these fish is probably in winter.9 Extent of movement of juveniles while in the bay or at sea is unknown.

The dredging proposed for Yarra and Williamstown channels coincides with the supposed downstream larval drift of the Australian Mudfish10

Will the proponents be in a position to know when these Mudfish are spawning and cease dredging to allow safe passage of the larval fish? Will the proponents be in a position to know whether the larval fish spend extended times in the Yarra estuary before moving to a completely marine environment?

It is known that for marine fauna, larval forms are usually particularly susceptible to chemical contamination of water and in their food supply11 Chemicals at very low levels in ambient water can produce sex alteration characteristics in fish, reduce fertility, growth rates and cause greater susceptibility to disease or infection.

Dwarf Gallaxias Galaxiella pusilla and Yarra Pygmy Perch Nannapercha obscura are not discussed ‘as they inhabit fresh water’12 This is a severe oversight. As the fresh river water floats on top of seawater in the estuary and forms backwaters and ponds along the edges of the stream, there is potentially habitat for both these species of fish on the lower Yarra, where they would certainly be threatened by dredging. The Yarra Pygmy Perch has been recorded from the Yarra Estuary.  If threatened species are discounted because they are rare or because they have been wrongly assessed by the proponent then what is the point of threatened species legislation? In a more enlightened world on could suppose that the proponents might be required to give consideration to providing habitat for these fish species.


Possible impacts on syngnathids is given even more cursory scrutiny, in spite of 3 full pages of individual species listed the SEES Main Report, and acknowledgement that 24 species exist within Port Phillip Bay and surrounding waters13. The SEES does admit that as the audiograms for syngnathids (including pipefish, and seahorses) are not understood the impacts of underwater noise are not known14.

Close to the source (tens of metres) noise has the potential to cause physiological damage or death to Syngnathids. Noise is sound pressure and becomes a physical force at high intensity. Noise can dismember a soft bodied organism such as a syngnathid, or indeed a human.

We question how PoMC has ensured they have met the requirements of the EPBC Act in relation to this protected species, and how potential outcomes which include likely death of various organisms can be so de-valued as to be considered of no consequence.

A detailed examination of potential impacts on each species is required.

The SEES proposes that:

“As an indicator of the sensitivity of migratory fish to suspended sediment levels, migratory juveniles of the New Zealand galaxiid fish avoid suspended sediments when turbidity is greater than 25 NTU. As these levels will be exceeded during dredging in the Yarra and northern Hobsons Bay it is likely that the plume may form a barrier to the upstream migration of these species during dredging.”

“As a result of the predicted risks to the Australian Grayling and Australian Mudfish, a commitment has been made to avoid dredging of the Yarra River and Williamstown channels during spring.”15

If the fish haven’t survived their downstream migration, due to dredging impacts, they will not be migrating upstream in spring, no matter what dredging is occurring at that time. If the proponent had undertaken more targeted research they might have been able to say when larval drift downstream was going to occur. As it stands, no-one knows.

The SEES concludes16 that “The effects on these species will be short term and localised, and not affecting migration opportunities in the long term”.

We note the proponent’s assurances that risk assessment indicates adverse impacts will be short term, lasting perhaps only two years. The words “from the completion of the project” are often not included or little understood by the public, but are the fact, and the project will have its effects for a minimum of four years – even the proponent concedes that.

The assessment of risk as “short term” is particularly misleading in relation to the protection of an already threatened or vulnerable species such as the grayling, already threatened, and with a life span of only 2-3 years.

Since the proponents do not know what the impacts of dredging will be on the particular species under discussion there is no scientific basis for the above statement.

Victorian Planning Provisions

State Planning Policy Framework (SPPF)


15.01 Protection of catchments, waterways and groundwater
15.01-1 Objective

To assist the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater, and the marine environment.

15.01-2 General implementation
Decision-making by planning and responsible authorities must be consistent with any relevant requirements of State environment protection policies as varied from time to time (Waters of Victoria and specific catchment policies).

Coastal Areas

15.08-1 Objective

To protect and enhance the natural ecosystems and landscapes of the coastal and marine environment.
To ensure sustainable use of natural coastal resources.
To achieve development that provides an environmental, social and economic balance.
To recognise and enhance the community’s value of the coast.

15.08-2 Strategies


Land use and development planning should be coordinated with the requirements of the
Coastal Management Act 1995 to:
Provide clear direction for the future sustainable use of the coast, including the marine environment, for recreation, conservation, tourism, commerce and similar uses in appropriate areas.
Protect and maintain areas of environmental significance.

We submit the proposal is in breach of all the Victorian Planning Provisions above. The project will not protect or enhance or restore waterways, water bodies, groundwater or the marine environment. The project will not enhance natural ecosystems, nor achieve a balance between environment, social and economic values. The project will not protect and maintain areas of environmental significance. The project will have an adverse impact on all areas of the SPPF.


The proponent has ignored the correct interpretation of some state and federal laws and contorted the spirit and intent of others, as well as international treaty obligations. As such the proponent is in breach of a range of Acts and policies.

The final arbiter is the Federal Environment Minister. Unless the Panel deliberates on direct and indirect impacts of the proposal it cannot properly inform the Federal Environment Minister, who, if the proposal were to proceed, would be required to approve the proposal under the EPBC Act 1999.

We remind the Panel of the ‘Nathan Dam’ appeal to the Federal Court17 where it was ruled that the Federal Minister had not properly considered the ‘indirect impacts’ of the proposal and its effects on matters of national environmental significance – in that case the Great Barrier Reef Marine Park.

The Panel now faces the same fate of not being able to deliberate properly on the direct and indirect impacts of the Channel Deepening proposal, and not being able to properly inform the Federal government, because insufficient and inaccurate information has been presented to it. 


  [1] Independent Panel Report Page 126, February 2005.
  [3] SEES Technical Appendix 57 Page 45
  [4] O'Connor J. P., Mahoney J. C. Observations of ovarian involution in the Australian grayling (Prototroctes mareana) Ecology Of Freshwater Fish. 2004 13(1). p.70).
  [5] pers. com. Kris Pitman, ARI, 1 May 2007
  [6] SEES Main Report Figure 12-9
  [7] Channel Deepening EES Chapter 47 Commonwealth Assessment, Section 47.5.1
  [8] SEES Technical Appendix 57 Page 46 Jenkins
  [9] As per Footnote 6
  [10] SEES Main Report Figure 12-9
  [11] Anthropogenically induced changes in Environment – Effects on Fisheries. K. Richardson
  [12] SEES Main Report Chapter 9 Page 12
  [13] SEES Main Report Chapter 12 Page 30 - 34
  [14] SEES Main Report Chapter 14.6.2 Impact Assessment
  [15] SEES Main Report Chapter 12 Page 38
  [16] SEES Main Report 12 Section 5.4
  [17] Minister for Environment & Heritage vs Queensland Conservation Council and WWF Australia [2004] FCAFC 190 

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