Past Court Cases · Nature & the Reef

Booth v Bosworth ("Flying-fox case 1")

04 December, 2004

In the first legal action ever taken under Australia’s current federal environment laws, EDO Qld acted for conservationist Carol Booth in a case that halted the large-scale electrocution of spectacled flying-foxes on a lychee property in north Queensland and led to the end of government-permitted electrocution of flying-foxes.

This case in the Federal Court under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) demonstrated the great value of third party rights, defined various concepts in the EPBC Act and demonstrated that the Act could be used to regulate actions taken outside a World Heritage Area that were likely to have a significant impact on its values.

Dr Booth provided evidence that during November-December 2000 lychee farmers Rohan and Frances Bosworth electrocuted thousands of spectacled flying-foxes on a 6.4 km long aerial electric grid erected to protect their 60 hectare lychee crop. When the killings were first detected and reported to Queensland’s Environmental Protection Agency, the Bosworths did not hold a permit to kill flying-foxes. The Queensland Government declined to prosecute them, and instead issued a permit to kill 500 flying-foxes, a number which was exceeded within two days. The Federal Government also declined to take action.

An initial application to the Federal Court for an interim injunction was unsuccessful due to the short time remaining in the lychee harvest, and the potential for unrecoverable economic losses by the growers.

In the main trial, Justice Branson found that use of the electric grid was likely to have a significant impact on the values of the Wet Tropics World Heritage Area and granted an injunction restraining further operation. This remains in force unless approval for operation of the grid is obtained under the EPBC Act. (An application by Mr Bosworth in 2002 to operate the grid to kill 5,500 flying-foxes was refused by the Federal Environment Minister, the first ever refusal under the Act.)

The Court found that an estimated 18,000 spectacled flying-foxes were electrocuted during the 2000 lychee season, and that continued operation of the grid would cause the species to become endangered within five years. This decline would undermine the capacity of the spectacled flying-fox to contribute to the genetic and biological diversity of the World Heritage Area. Justice Branson held that the loss of a single species could constitute a significant impact on the world heritage values of a World Heritage property.

In 2004, Rohan Bosworth appealed the decision on the basis that the EPBC Act could not regulate freehold land and amounted to an acquisition of land by the Commonwealth for which just terms had not been paid. He also alleged that the original hearing had been an abuse of process of the Court. Justice Kiefel found that there was no reasonable basis for the appeal and struck out the application. In 2005 the Full Federal Court refused an appeal by Mr Bosworth against Justice Kiefel’s decision.

Costs in the main hearing and appeals were awarded to our client.

For more information see the following education site: http://envlaw.com.au/flying-fox-case/

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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