Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT
(BILATERAL AGREEMENT IMPLEMENTATION) BILL 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for the Environment, the Hon Greg Hunt MP)
Environment Protection and Biodiversity Conservation Amendment (Bilateral
Agreement Implementation) Bill 2014
OUTLINE
The purpose of the Environment Protection and Biodiversity Conservation Amendment
(Bilateral Agreement Implementation) Bill 2014 (the Bill) is to amend the Environment
Protection and Biodiversity Conservation Act 1999 (the EPBC Act) to facilitate the efficient
and enduring implementation of the Australian Government‟s one stop shop policy for
environmental approvals.
Amongst other things, the Bill:
(a) Proposed amending subsections 29(1), 46(2) and (2A) of the EPBC Act to remove a
prohibition on the accreditation of State and Territory approval processes in relation to the
water trigger under approval bilateral agreements (Part 1 of Schedule 3 to the Bill).
(b) Proposed insertion of a new subsection 48A(2A) which would require an approval bilateral
agreement to include particular undertakings by a State or Territory in relation to obtaining
and considering advice of the Independent Expert Scientific Committee on Coal Seam Gas
and Large Coal Mining Development (the Committee). The Bill also proposed insertion of a
new subsection 48A(2B) which would have clarified that new subsection 48A(2A) would
not limit the ability of a State or Territory to seek advice from the Committee.
(c) Proposed insertion of a new paragraph 505D(1)(ba) to expand the functions of the
Committee to enable it to provide advice to the Minister about the operation of a bilateral
agreement that accredited a State or Territory for the purposes of assessing or approving
actions in relation to the water trigger.
(d) Included transitional provisions which clarified which actions the amendments relating to
the water trigger would apply to.
The purpose of the proposed amendments to the Bill (the Amendments):
(a) Retain the current EPBC Act prohibition on the accreditation of State and Territory
approval processes in relation to the water trigger under approval bilateral agreements.
That is, retaining current subsections 29(1), 46(2) and (2A) and 48A(1) of the EPBC Act.
The proposed new subsections 48A(2A) and 48A(2B), and addition to subsection 48A(1)
(requiring State or Territory undertakings to seek and take into account advice from the
Committee in relation to relevant actions) would not be inserted.
The Amendments would not effect proposed new paragraph 505D(1)(ba) to the extent it
enables the Minister to seek advice from the Committee in relation to the operation of
assessment bilateral agreements.
The Amendments would not effect the proposed repeal of subsection 505E(2) to allow the
Minister to declare any State or Territory for the purposes of requesting advice from the
Committee (regardless of whether or not the State or Territory is a party to the National
Partnership Agreement on Coal Seam Gas and Large Coal Mining Development).
(b) Make minor technical amendment to the Bill to ensure that, in the event an approval
bilateral agreement is suspended or cancelled, or ceases to apply to a specified action,
2
there is an efficient process to enable the Commonwealth to make an approval decision,
including the option to use all or part of the relevant State or Territory assessment.
(c) Make minor technical amendments to the definition of authorisation process included in
Part 2 of Schedule 3 to the Bill to ensure flexibility in the range of State and Territory
assessment processes which can be accredited under an approval bilateral agreement.
(d) Permit the possession, in a particular State or Territory, of animal or plant species that is
not on the Live Import List.
Financial Impact Statement
The Amendments to the Bill have no financial impact.
3
Environment Protection and Biodiversity Conservation Amendment (Bilateral
Agreement Implementation) Bill 2014
NOTES ON AMENDMENTS
Item 1
This item changes the title of the Bill due to the amendments at Item 14.
Items 2 and 3
Items 2 and 3 of the Amendments amend Item 3 of Schedule 1 to the Bill which is required as
a consequence of the amendments proposed by item 8 below.
These amendments to Schedule 1 of the Bill ensure that Part 7 of the EPBC Act would not
prevent the referral of an action to the Commonwealth where it was not covered by an
approval bilateral agreement in relation to some, but not all, of the controlling provisions
relevant to the action. For example, the referral of an action to the Commonwealth for the
purposes of an individual controlling provision (such as the water trigger) that was not covered
by the section 46 approval bilateral agreement declaration.
Item 4
Item 4 of the Amendments is required as a consequence of the amendments proposed by
Item 5 and clarifies the intent of the amendments to section 66, which contains a simplified
outline of Chapter 4 (Environmental assessments and approvals).
Item 5
The Amendments at Item 5 clarify the intention of new subsection 69A(1); that is, an action is
deemed to have been referred to the Commonwealth at the time a State or Territory or
Commonwealth Minister makes a declaration (the exclusion declaration) to exclude an
action from the section 46 approval bilateral agreement declaration that the action does not
require approval under the EPBC Act.
Once an exclusion declaration has been made, the specified action will no longer be assessed
and approved under the approval bilateral agreement. However, the remaining provisions of
the approval bilateral agreement, such as the information sharing requirements, will continue
to apply to the action.
Item 6
Item 6 of the Amendments is required as a consequence of the amendments at Item 5 and
amends new subsection 69A(1) to reflect the terminology now used in new subsection 69A(1).
Item 7
Item 7 of the Amendments makes technical amendments to paragraph 87(3)(ca)(ii) to clarify
the original intent of this paragraph. That is, when deciding on the approach for assessment
under Part 8 of the EPBC Act, the Minister must consider the extent to which a partially
completed assessment of the action by the State or Territory can be used. This may occur in
circumstances where: a State or Territory or Commonwealth Minister makes an exclusion
declaration excluding an action from an approval bilateral agreement declaration; and where
an action is no longer covered by an assessment or approval bilateral agreement declaration
4
(even if the action was currently going through the assessment or approval process in the
manner specified) due to the suspension or cancellation of the bilateral agreement.
Item 8
Item 8 of the Amendments would retain current subsections 29(1), 46(2) and (2A) which
prohibit bilateral agreements from including a declaration that actions within a specified class
do not require approval under Part 9 of the EPBC Act in relation to sections 24D and 24E (the
water trigger), because they have been taken in accordance with a bilaterally accredited
authorisation process or management arrangement.
Item 8 would omit the insertion of the addition to subsection 48A(1) and the insertion of
proposed new subsections 48A(2A) and 48A(2B). New subsection 48A(2A) would have
included a requirement that approval bilateral agreements covering the water trigger include
undertakings from the relevant State or Territory to seek and take into account the advice of
the Committee on relevant actions. New subsection 48A(2B) would have clarified that new
subsection 48A(2A) would not limit the ability of the State or Territory to seek advice from the
Committee. These new subsections will not be required because the Amendments would
prevent approval bilateral agreements from including the water trigger.
Item 8 would also insert a new subsection 29(1A) which provides clarity on approval of actions
which engage the water trigger in addition to another matter protected under Part 3. The new
subsection would allow a person to take an action without approval under Part 9 for the
purposes of the other matter/s protected under Part 3 if it was covered by an approval bilateral
agreement and paragraphs 29(1)(a) to (e) were satisfied. This would allow approval bilateral
agreements to cover coal seam gas and large coal mining developments in relation to all other
Part 3 protected matters with the Commonwealth‟s approval role limited to the water trigger.
Item 9
Item 9 of the Amendments is a consequential amendment to new paragraph 505D(1)(ba). The
new paragraph allows the Committee to provide advice to the Minister on the implementation
of bilateral agreements in relation to the water trigger. Item 9 removes the reference to section
46, approval bilateral agreements, as these agreements will not be able to include the water
trigger.
Item 10
Item 10 of the Amendments is a consequential amendment which omits the transitional
provisions which clarified the application of Items 1, 2, 2A, 2B, and 2C. These provisions are
not required because the Amendments at Item 8 would omit the relevant items. The
substituted provision provides that the Amendments apply to actions referred under section 68
whether made before, on or after the day they commence.
Item 11
Item 11 of the Amendments is a minor technical correction to the heading for Item 7 of Part 2
of Schedule 3 to the Bill as section 31 does not contain subsections. The heading should refer
to subparagraph „31(f)(ii)‟.
5
Item 12
Item 12 of the Amendments are consequential amendments to section 46 of the EPBC Act to
ensure consistency with the amendments in Part 2 of Schedule 3 to the Bill which expand the
definition of authorisation process in section 528 of the EPBC Act.
Item 12 amends paragraphs 46(3)(a), 46(4)(b), 46(5)(a),46(5A)(a), 46(6), 46(7) and 46(8) of
the EPBC to ensure that the Minister is able to accredit all components of a state or territory
authorisation process which are being considered for accreditation. These amendments
ensure flexibility in range of state and territory processes which can be accredited.
Item 13
Item 10 in Part 2 of Schedule 3 to the Bill repeals the definition of authorisation process and
substitutes it with a revised definition to ensure that appropriate authorisation processes can
be accredited under an approvals bilateral agreement.
Item 13 of the Amendments substitutes the definition of authorisation process in Item 10 of
Part 2 of Schedule 3 to the Bill with a new definition to ensure flexibility in the range of State
and Territory processes which can be accredited under an approvals bilateral agreement,
thereby ensuring the original policy intention of the amendment is reflected in the definition.
Item 13 amends the definition of authorisation process to ensure that Commonwealth laws
are treated differently to State and Territory laws, ensuring that any authorisation processes of
the Commonwealth are set out in a law of the Commonwealth (this is consistent with
paragraphs 32 (c)(ii) and 33(2A)(a) of the EPBC Act).
Item 13 also includes a note to clarify the reference to the word „partly‟ in paragraph (b) of the
new definition to enable an authorisation process to consist of components which do not come
within the paragraphs in section 528 of the EPBC Act. That is, one component of the process
can be administrative (and not fall under a law, or an instrument made under a law). The
definition does not include an authorisation process which is entirely made up of administrative
components with no statutory basis.
Item 14
Item 14 amends Part 13A to allow companies or individuals to apply to the Minister for
permission to possess live specimens which are part of an existing feral population in a State
or Territory.
Currently it is an offence under the EPBC Act to possess an animal or plant that is not on the
Live Import List, even when the animal has become established in the wild and there is no
possibility of eradication. This prevents scientific research and prevents using the species for
some commercial benefit.
The amendments at Item 14 would allow the authorisation of the possession of regulated live
specimens where:
those specimens are part of a feral population in the State or Territory in which they will be
possessed; and
possession of those specimens will not threaten species or biodiversity in Australia.
The amendments would allow:
a permit to be granted to a particular person to possess specimens in a particular state or
territory for testing purposes for up to two years, and
6
any person to possess specimens in a particular state or territory, by adding that species
to a list of live specimens suitable for possession.
Both the permit and the listing could be subject to conditions.
The amendments at Item 14 also include safeguards to protect native biodiversity, to prevent
the species from spreading further, and to require states to "opt-in" for the authorisation to be
effective in that jurisdiction.
The amendments at Item 14 provide for testing periods of up to two years and similarly amend
the related Live Import List testing provisions.
Item 15
Item 15 of the Amendments is a consequential amendment which reinserts the reference to
the water trigger in new subsection 46(1) (excluding it from approval bilateral agreement
declarations).
The new subsection 46(1) retains the removal of the reference to approvals of actions by State
or Territories or agencies (so that the class of actions does not need to be declared by
reference to the identity for the decision maker); and clarifies that an action may be approved
prior to the accreditation of the process for the purposes of an approvals bilateral agreement.
7
Index]
[Search]
[Download]
[Bill]
[Help]