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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Waters)
ENVIRONMENT AND INFRASTRUCTURE LEGISLATION AMENDMENT
(STOP ADANI) BILL 2017
OUTLINE
The Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017:
proposes to make sure that the Australian Government cannot hand out $1
billion to Adani for their coal railway via the Northern Australia Infrastructure
Facility (NAIF) by creating a broad "suitable person" test under the Northern
Australia Infrastructure Facility Act 2016,
o this test would involve consideration of any investigations and findings
against members or executive officers of the Adani corporate group for
environmental destruction, fraud, money laundering, tax minimisation
and corruption, and
o it would also involve mandatory consultation with the Australian
Securities and Investments Commission (ASIC) and the Australian
Criminal Intelligence Commission (ACIC);
strengthens our national environment law, the Environment Protection and
Biodiversity Conservation Act 1999, to make sure environmental history,
including overseas environmental history, must always be considered when
approvals are given, varied, suspended, revoked or transferred; and
triggers an automatic review of Adani's existing approvals focusing on the
group's environmental history, including approvals for the Carmichael mine,
coal railway and the Abbot Point coal port in light of the damning evidence
that has emerged since those approvals were first given in 2014 and 2015.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision specifying that the short title of the Act may
be cited as the Environment and Infrastructure Legislation Amendment (Stop Adani)
Act 2017.
Clause 2: Commencement
2. The Bill's provisions are to commence the day after the Act receives the Royal
Assent.
Clause 3--Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set
out in the applicable items in the Schedule. Any other item in a Schedule to this Act
has effect according to its terms.
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Schedule 1 - Environment Protection and Biodiversity Conservation Act 1999
Part 1 - Amendments
Environment Protection and Biodiversity Conservation Act 1999
Items 1 to 5 - Paragraph 131AA(2)(c), Subsection 136(1), Subsection
136(2)(heading), Subsection 136(2) and Subsection 136(4)
4. These items change the obligations on the Minister in making an approval
decision under the Act. In particular, they change the consideration of a person's
history in relation to environmental matters under in the approval process from a
discretionary consideration to a mandatory consideration. They also broaden the
categories of persons or entities whose history in relation to environmental matters the
Minister must consider. They add associated entities and the entity's executive
officers to those categories. Further, they clarify that the history in relation to
environmental matters which the Minister must consider includes history outside
Australia.
Items 6 to 9 - Subsection 143(3), Subsection 144(3), Subsection 145(3) and
Subsection 145B(4)
5. These items insert the new mandatory and broader requirements for
consideration of a person's history in relation to environmental matters to the
decisions by the Minister to vary, suspend, revoke or transfer an approval under Part 9
of the Act.
Item 10 - Section 528
6. This item provides that associated entity has the same meaning as in the
Corporations Act 2001.
Part 2 - Application and transitional provisions
Item 11 - Application
7. This item provides that amendments made by this Part apply to decisions
made on or after the day this item commences.
Item 12 - Review of existing approvals
8. This item provides for review of approval decisions in relation to three
specified referrals under the Act. The review will be conducted by the Secretary, and
must consider the new broader consideration of the approval holder's history in
relation to environmental matters. On the basis of the review, the Minister must
consider or reconsider whether the approval holder is suitable person to hold the
approval with reference to their history in relation to environmental matters.
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Schedule 2 -Northern Australia Infrastructure Facility Act 2016
Northern Australia Facility Act 2016
Items 1 to 2 - Section 5 and After subsection 11(2)
9. These items add an obligation on the Northern Australia Infrastructure Facility
(NAIF) to include in any proposal notice (proposing to provide financial assistance)
an assessment about whether the entity responsible for the project for which the
financial assistance is proposed to be provided is a suitable person to benefit from the
financial assistance.
10. The suitable person test is intended to be broad given the wide range of
possible projects which could benefit from funding under the NAIF and the broad
public interest in ensuring that public money is not wasted. It includes mandatory
consideration of the person's history in relation to environmental matters whether
within or outside Australia. It also includes mandatory consultation with the
Australian Securities and Investments Commission and the Australian Crime
Commission.
Item 3 - At the end of section 11
11. This item provides that if the Facility considers that if the entity responsible
for the project for which the financial assistance is proposed to be provided is not a
suitable person to benefit from the financial assistance, the Minister must issue a
rejection notice under section 11(4).
Item 4 - Application of amendments
12. This item provides that amendments to the Northern Australia Infrastructure
Facility Act 2016 apply in relation to proposal notices given on or after the day this
item commences.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Environment and Infrastructure Legislation Amendment (Stop Adani) Bill 2017:
Makes sure that the Australian government cannot hand out $1 billion to
Adani for their coal railway via the Northern Australia Infrastructure Facility
(NAIF) by creating a broad "suitable person" test under the Northern
Australia Infrastructure Facility Act 2016.
o This test would involve consideration of any investigations and
findings against members or executive officers of the Adani corporate
group for environmental destruction, fraud, money laundering, tax
minimisation and corruption.
o It would also involve mandatory consultation with ASIC and the
Australian Criminal Intelligence Commission;
Strengthen our national environment law, the Environment Protection and
Biodiversity Conservation Act 1999, to make sure environmental history,
including overseas environmental history, must always be considered when
approvals are given, varied, suspended, revoked or transferred; and
Trigger an automatic review of Adani's existing approvals focusing on the
group's environmental history, including approvals for the Carmichael mine,
coal railway and the Abbot Point coal port in light of the damning evidence
that has emerged since those approvals were first given in 2014 and 2015.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator Waters
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