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2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Environment Protection and Biodiversity Conservation Amendment (Protecting
Australia's Water Resources) Bill 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Waters)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (PROTECTING
AUSTRALIA'S WATER RESOURCES) BILL 2011
Outline
The Environment Protection and Biodiversity Conservation Amendment
(Protecting Australia's Water Resources) Bill 2011 will require
Commonwealth assessment and approval of mining operations likely to have a
significant impact on water resources.
NOTES ON CLAUSES
Part 1 - Preliminary
Clauses 1
This is a formal provision specifying the short title.
Clause 2 - Commencement
The amendments set out in the Schedule of the Bill are to commence on the
day the Bill is introduced into the Senate. Under normal circumstances
commencement on Royal Assent would apply, however this retrospective
commencement is required to ensure approvals for mining operations are not
fast-tracked following introduction of this Bill. The intention is to
ensure all mining operations commencing after the day this Bill is
introduced are subject to Commonwealth assessment and approval where these
operations are likely to have a significant impact on Australia's water
resources.
Clause 3 - Schedule
This provision gives effect to the amendments set out in Schedule 1 to the
Bill.
Schedule 1 - Amendments
Item 1
This amendment inserts a new Subdivision FB (protection of water resources
from mining operations) into Division 1 of Part 3 of the Act. Subdivision
FB contains sections 24D to 24G.
Section 24D (requirement for approval of mining operations with a
significant impact on water resources)
Section 24D (requirement for approval of mining operations with a
significant impact on water resources). In this core provision of the
amendment, the action that requires approval is an action taken "in the
course of mining operations that has, will have or is likely to have a
significant impact on the quality, structural integrity or hydraulic
balance of a water resource".
The term "action" is already defined in the Act to include a project, a
development, an undertaking and an activity or series of activities.
The first three subsections of section 24D impose civil penalties for these
mining actions in particular circumstances, each based on a particular
ground of Commonwealth constitutional power - over corporations, trade and
commerce, and Territories.
The fourth subsection lists the exceptions to the prohibitions -
circumstances in which the action may be taken. These are:
. the Minister has given an approval under Part 9 of the Act;
. the action does not require an approval under Part 9 because it is
covered by an accredited management arrangement;
. the action does not require an approval under Part 9 because it has prior
approval;
. the Minister has decided under Division 2 of Part 7 that this section is
not a controlling provision;
. the action is covered by a section that relates to international aid
programs
(which is not likely to apply).
Sections 24E and 24F (definitions of mining operations and water resource)
These sections define the terms mining operations and water resource, which
are central to the amendments. Both are very broadly defined.
Section 24G (offences relating to mining operations)
The actions that are liable to civil penalties under the new section 24D
may also be subject to criminal penalties under this section.
The first six subsections impose criminal penalties for the relevant mining
actions in particular circumstances, each based on a particular ground of
Commonwealth constitutional power - over Corporations, Trade and Commerce,
and Territories. They are also divided according to whether the prosecution
must prove that the impact on the water resource was certain or only
likely.
Subsection (7) gives exceptions to the prohibitions. These are the same as
for the civil penalty provisions in section 24D.
Items 2 and 3
These items provide for consequential amendments which ensure consistent
treatment of liability of third party actions under the Act.
Item 4
This amendment inserts new items 13H and 13I into the table in section 34
of the Act to include water resources as a matter protected by a provision
of Part 3 of the Act.
Item 5
This amendment adds new section 43C at the end of Division 6 (actions with
prior authorisations) of Part 4 of the Act.
Section 43C (mining operations with prior authorizations)
Section 43C provides that actions that were, or would have been, lawful
immediately before commencement of the provisions of this Bill continue to
be lawful after commencement (disregarding proposed Subdivision FB), to be
taken without approval under the Act.
Items 6 to 12
These items make consequential amendments arising from the insertion of new
Subdivision FB (protection of water resources from mining operations) into
Division 1 of Part 3 of the Act.