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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (GREAT AUSTRALIAN BIGHT) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Storer)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (GREAT AUSTRALIAN BIGHT) BILL 2018
OUTLINE
The purpose of the Bill is to amend the Environment Protection and Biodiversity
Conservation Act 1999 (the EPBC Act) to require that any application to undertake
petroleum or greenhouse gas related activity in the Great Australian Bight that is approved by
the National Offshore Petroleum Safety and Environmental Management Authority must be
assessed a second time under that Act.
The Bill is a response to increasing consensus that NOPSEMA takes insufficient criteria into
account when deciding on whether or not to approve petroleum or greenhouse gas related
activity in the Bight.
For example, insufficient weighting of social, economic and environmental consequences;
lack of transparency and accountability; weak powers of review; and poor penalties for non-
compliance have been raised as criticisms.
However, there is also agreement that NOPSEMA does have helpful expertise in the
examination of scientific and engineering evidence that is site-specific, especially in terms of
health and safety, which should be retained in the assessment process.
So, the Bill aims to address those concerns by providing for an additional level of assessment
when required, which takes into account broader and more sophisticated criteria under the
EPBC Act, whilst retaining initial NOPSEMA assessment. The Bill ensures that ultimate
oversight and responsibility for decisions on petroleum activity in the Bight is returned to the
Minister.
The primary desired consequence of installing a two-stage assessment process is to enhance
the rigour and quality of decision-making to appropriately match high-stakes activity such as
drilling for oil which could have catastrophic ramifications in the case of a spill.
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NOTES ON CLAUSES
Clause 1 - Short Title
1. Clause 1 is a formal provision specifying that the short title of the Bill may be cited as
the Environment Protection and Biodiversity Conservation Amendment (Great
Australian Bight) Act 2018.
Clause 2 - Commencement
2. Clause 2 provides that the Act commences the day after the Act receives the Royal
Assent.
Clause 3 - Schedules
3. Clause 3 provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned,
and any other item in a Schedule to the Act (for example an item in Schedule 2) has
effect according to its terms.
Schedule 1 - Amendments
4. Schedule 1 to the Act amends the Environment Protection and Biodiversity
Conservation Act 1999 (the EPBC Act).
Item 1
5. The amendment made by item 1 provides that section 87 of the EPBC Act, which
provides that the Minister must decide which approaches must be used for assessment of
the relevant impacts of an action that the Minister has decided is a controlled action, has
effect subject to section 87A, which applies in relation to certain actions in the Great
Australian Bight.
Item 2
6. Item 2 inserts a new section 87A into the EPBC Act.
7. Subsection 87A(1) provides that the requirements in section 87A apply in relation to
petroleum activities, or greenhouse gas activities, taken in the Great Australian Bight
that the Minister has decided are controlled actions.
8. Subsection 87A(2) provides that a petroleum or greenhouse gas activity proposed in
the Great Australian Bight would continue to be assessed by NOPSEMA as
currently occurs, however if NOPSEMA approves an application in that context then
a second assessment would be triggered. The approach of that second stage
assessment would necessarily be through environmental impact statement (Division
6) or public inquiry (Division 7) of the EPBC Act, decided by the Minister.
9. Subsection 87A(3) defines the term "Great Australian Bight" for the purposes of
section 87A. The definition includes the terms "continental shelf" and "exclusive
economic zone", which are defined in the Acts Interpretation Act 1901.
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10. Subsection 87A(3) also defines the terms "greenhouse gas activity", "NOPSEMA",
"NOPSEMA program" and "petroleum activity" for the purposes of section 87A.
Items 3 and 4
11. These items make amendments that are consequential to the insertion of section 87A
into the EPBC Act by item 2.
Item 5
12. Item 5 amends subsection 146B(1) of the EPBC Act with the effect that an approval
by the Minister of the taking of an action or a class of actions in accordance with an
endorsed policy, plan or program must be a legislative instrument. This ensures that
such approvals are subjected to an appropriate level of parliamentary scrutiny.
Items 6 and 7
13. Items 6 and 7 make amendments to section 146B of the EPBC Act that remove
various requirements for the making of an approval under that section. The removal
of these requirements is appropriate because the provisions in the Legislation Act
2003 that relate to legislative instruments will apply in relation to approvals because
of the amendment made by item 5.
Item 8
14. This item makes an amendment that is consequential to the amendment made by
item 7.
Item 9
15. This item makes an amendment that is consequential to the insertion of section 87A
into the EPBC Act by item 2.
Schedule 2 - Modifications of 2014 approval
16. Schedule 2 to the Act make modifications to the approval, as in force at the
commencement of Schedule 2, given on 27 February 2014 by the Minister for the
Environment under section 146B of the EPBC Act.
Item 1
17. Item 1 defines the terms "2014 approval", "approved class of actions", "coastal
waters" and "petroleum and greenhouse gas activities" for the purposes of Schedule
2.
Item 2
18. Item 2 modifies the 2014 approval with the effect that the 2014 approval does not
apply in relation to petroleum and greenhouse gas activities undertaken in the Great
Australian Bight. This means that such activities need to be assessed in accordance
with section 87A of the EPBC Act as inserted by item 2 of Schedule 1.
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Item 3
19. Item 3 provides that the modifications of the 2014 approval made by Schedule 2
apply in relation to an application for approval to take an action made under the
EPBC Act after the commencement of Schedule 2.
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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 PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (GREAT AUSTRALIAN BIGHT) BILL 2018
The 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 purpose of the Bill is to amend the Environment Protection and Biodiversity
Conservation Act 1999 to require that any application to undertake petroleum or greenhouse
gas related activity in the Great Australian Bight that is approved by the National Offshore
Petroleum Safety and Environmental Management Authority must be referred to the EPBC
Act for additional assessment.
Human rights implications
The Bill does not engage any of the applicable rights or freedoms.
Conclusion
The Bill is compatible with human rights as it does not raise any human rights issues.
Senator Storer
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