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2010 - 2011 - 2012 - 2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT BILL 2013
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Sustainability, Environment, Water,
Population and Communities, the Honourable Tony Burke, MP)
Environment Protection and Biodiversity Conservation
Amendment Bill 2013
OUTLINE
This Bill amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (EPBC Act) to provide for the establishment of a new matter of national
environmental significance (NES) in relation to the significant impacts or likely
significant impacts of coal seam gas development and large coal mining development
on a water resource.
The amendments create a new Subdivision FB of Division 1 of Part 3 of the EPBC Act
to:
put in place robust environmental impact assessment processes for actions
involving coal seam gas or large coal mining development that have, will
have or are likely to have a significant impact on a water resource;
create civil penalty and offence provisions for taking an action involving coal
seam gas or large coal mining development that has, will have or is likely to
have a significant impact on a water resource without an approval or
exemption from obtaining an approval. These civil penalty and offence
provisions are consistent with similar provisions already in the EPBC Act.
The Bill also provides transitional provisions designed to minimise disruption to the
assessment of existing projects as far as possible, while meeting the objectives of the
amendments to provide robust assessment of coal seam gas and large coal mining
development that has, will have, or is likely to have, a significant impact on a water
resource.
FINANCIAL IMPACT STATEMENT
Financial implications of this Bill will be dependent on the number of projects referred
under Chapter 4 of the EPBC Act, and consequential impacts on the volume of
regulatory work required.
REGULATORY IMPACT STATEMENT
The Prime Minister has granted an exemption from the regulatory impact statement
requirements. However, a post-implementation review will commence within two
years from the date the Bill is implemented.
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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 Bill 2013
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
This Bill amends the Environment Protection and Biodiversity Conservation Act 1999
(Cth) (EPBC Act) to provide for the establishment of a new matter of National
Environmental Significance (NES) in relation to the significant impacts or likely
significant impacts of coal seam gas development and large coal mining development
on water resources.
Human rights implications
The Bill engages the human right of the presumption of innocence.
The Bill will create new criminal offences in respect of people who take an action
involving coal seam gas or large coal mining development for the purposes of trade or
commerce that has, will have, or is likely to have a significant impact on a water
resource without an approval or exemption from obtaining an approval under the
EPBC Act. The Bill also applies existing offences in respect of people are executive
officers of bodies corporate (relating to providing false or misleading information) and
people who are landholders in relation to the new matter of NES.
Strict liability does not apply to any elements of the offences created by the Bill.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate to the objective of
preventing people from taking actions involving coal seam gas development or large
coal mining development that may have a significant impact on a water resource
without an approval or exemption from obtaining an approval.
Minister for Sustainability, Environment, Water, Population and Communities
the Hon Tony Burke MP
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NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides that the short title by which the Act may be cited is the
"Environment Protection and Biodiversity Conservation Amendment Act 2013".
Clause 2: Commencement
2. This clause provides that the Act, with the exception of Schedule 1, will
commence the day that the Act receives the Royal Assent. Schedule 1 will
commence on the day after the Act receives the Royal Assent.
Clause 3: Schedules
3. This clause provides for amendments to the Act specified in the Schedule.
Schedule 1 - Protection of water resources from coal seam gas development and
large coal mining development
Part 1 - Amendments to the EPBC Act
Item 1 - Establishing a new matter of National Environmental Significance
4. This item establishes a matter of National Environmental Significance (NES) in
relation to protection of water resources from coal seam gas and large coal
mining development. This ensures that the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) (EPBC Act) assessment and approval
requirements apply to actions involving coal seam gas development or large coal
mining development that has, will have, or is likely to have a significant impact
on a water resource.
5. Civil penalty and offence provisions are established to prohibit actions involving
coal seam gas development or large coal mining development that has, will
have, or is likely to have a significant impact on a water resource, unless done in
accordance with an approval issued under Part 9 of the EPBC Act or unless
otherwise exempted. These penalties and offences are consistent with penalties
and offences for other matters of NES in Division 1 of Part 3.
Items 2-3 - Consequential changes to section 25AA
6. These items are a consequence of establishing the new matter of NES (see
Item 1). Section 25AA provides a defence/exception to the offence and civil
penalty provisions of Division 1, Part 3 of the EPBC Act. The defence/exception
ensures that a person cannot be tried for impacts caused by the actions of third
parties which are consequential to the actions of the first person, but which are
not directed or requested by the first person. This does not prevent enforcement
measures being taken against the third party for taking an action without an
approval which has significant impacts on a matter protected by Part 3 of the
EPBC Act.
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7. The current item ensures that the section 25AA defence/exception applies in
relation to the new offences and civil penalty provisions that establish the new
matter of NES.
Item 3A - amendment to subsection 29(1)
8. Under section 29 of the EPBC Act, a person may take an action that may
otherwise require approval under Part 9 if the action is one of a class of actions
declared by a bilateral agreement with a state or territory not to require an
approval. Item 3A provides that section 29 will not apply to the new matter of
NES created by item 1 of the Bill.
Item 4 - Consequential changes to section 34
9. This item is a consequence of establishing the new matter of NES (see Item 1).
Part 4, Division 2 of the EPBC Act provides for the accreditation of
authorisation processes or management arrangements, and the making of
declarations that an action in a class of actions does not require approval under
Part 9 for the purposes of a specified provision of Part 3 if the action is taken in
accordance with an accredited management arrangement. In accrediting a
management arrangement, the Minister must be satisfied that there has been or
will be an adequate assessment of the impacts of relevant actions on the "matter
protected" by the provision of Part 3 in relation to which it is proposed to make a
declaration.
10. The current item amends the table in section 34 to provide that, for the purposes
of declarations relating to the new matter of NES, the "matter protected" is "a
water resource".
Item 4A - Consequential changes to subsection 46(1)
11. This is a consequential amendment as a result of the amendment to section
29(1). Section 46(1) of the EPBC Act provides that bilateral agreements may
declare that actions do not need approval under Part 9. The insertion of item 4A
provides that bilateral agreements may not declare, in relation to the new matter
of NES, that actions in a class of actions specified in a bilateral agreement do not
require approval under Part 9 of the EPBC Act.
Item 4B - Consequential changes to subsection 46(2) and (2A)
12. Item 4B makes consequential amendments to sections 46(2) and 46(2A) which
define a ,,bilaterally accredited management arrangement and ,,bilaterally
accredited authorisation process respectively.
Items 5-6 - Consequential changes to sections 75 and 82
13. These items are a consequence of establishing the new matter of NES (see
Item 1). Under subsection 75(2), in deciding whether an action referred under
the Act is a "controlled action", the Minister must consider the adverse impacts
the action has, will have, or is likely to have on each matter protected by Part 3
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of the EPBC Act. Similarly, section 82 provides that the "relevant impacts" of an
action for the purposes of assessment and approval under Parts 8 and 9 of the
Act are the impacts the action has, will have, or is likely to have on each matter
protected by each provision of Part 3 of the EPBC Act that the Minister has
decided under section 75 is a "controlling provision".
14. The items provide that, in relation to subsections 24D(3) and 24E(3), the impacts
of the action on the matter protected by those provisions are only those impacts
that are part of the action that is taken in or on a Commonwealth area, a
Territory, a Commonwealth marine area or Commonwealth land. This is
consistent with qualifications applying to actions within National Heritage
places, the Commonwealth marine environment and Commonwealth land. These
provisions, and the current item, reflect the powers and role of the
Commonwealth in relation to environmental matters.
Items 7-15 - Consequential changes to subparagraph 304-306
15. These items are a consequence of establishing the new matter of NES (see
Item 1). Section 304 establishes the object of Part 14 of the EPBC Act, in
relation to providing for conservation agreements between the Commonwealth
and persons related to the protection and conservation of matter of NES.
16. The items provide for the addition of the new matter of NES to the matters about
which conservation agreements may be entered into.
Items 16-17 - Consequential changes to sections 495 and 496C
17. These items are a consequence of establishing the new matter of NES (see
Item 1). Section 495 provides for criminal liability of executive officers of
bodies corporate in relation to offences relating to providing false or misleading
information. Section 496C relates provides for criminal liability of landholders
where an action is taken by a third party, but the landholder was reckless as to
whether a contravention would occur, the landholder was in a position to
influence the conduct of the third party, and the landholder failed to take all
reasonable steps to prevent the contravention.
18. The items provide for the addition of the offences relating to the new matter of
NES to the lists in paragraphs 495(2)(a) and 496C(1)(a).
Item 18 - Definition of evidential burden
19. This item provides a definition of "evidential burden". The definition is the same
as the definition in the Criminal Code Act 1995 (Cth).
Part 2 - Application and transitional provisions
Items 19-23 - Application and transitional provisions
20. These items establish whether the provisions of Schedule 1 apply to particular
projects, and transitional provisions for where provisions of Schedule 1 apply to
projects that have been referred under Part 7 of the EPBC Act.
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21. Item 19 provides definitions for the purposes of the application and transitional
provisions in Part 2 of the Act.
Application of Schedule 1
22. Item 20 specifies that the amendments made by Schedule 1 apply in relation to
an action involving coal seam gas development or large coal mining
development that is taken on or after the day the item commences.
23. This applies even if the action began before the day the item commences unless
item 22 of Schedule 1 applies in relation to the taking of the action or the
Minister decides, under item 23 of Schedule 1, that sections 24D and 24E of the
new law are not controlling provisions for the action.
24. Item 22 establishes that the provisions of Schedule 1 do not apply to certain
actions involving coal seam gas development or large coal mining development
if, immediately before the day the item commences, any of the below
circumstances are satisfied in relation to the action and the person:
an approval for the taking of the action by the person is in operation under
Part 9 of the EPBC Act for the purposes of any other provision of Part 3 of
the EPBC Act; or
there is in force a decision under Division 2 of Part 7 of the EPBC Act that
the taking of the action is not a controlled action for the purposes of each
other provision of Part 3 of the EPBC Act; or
there is in force a decision under Division 2 of Part 7 of the EPBC Act that
the taking of the action is not a controlled action for the purposes of each
other provision of Part 3 of the EPBC Act, because the Minister believes the
action will be undertaken in a particular manner; or
both:
the Minister has informed the persons in paragraph 131AA(1)(a) of the
old law of the decision the Minister proposes to make in relation to the
action; and
the Minister has, as required by section 131AB of the old law, obtained
advice from the Independent Expert Scientific Committee on Coal Seam
Gas and Large Coal Mining Development in relation to the action; or
the action was authorised by a prior environmental authorisation. Subitem
22(3) specifies that an action involving coal seam gas development or large
coal mining development has a prior environmental authorisation where the
action was authorised by a specific environmental authorisation and,
immediately before the commencement of this item, no further specific
environmental authorisation was necessary to allow the action to be taken
lawfully. At the time the action is taken, the specific environmental
authorisation must continue to be in force. Item 19 provides definitions of
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"specific environmental authorisation" and "environmental authorisation".
The intent of this subitem is to ensure that actions that have obtained, prior to
the commencement of Schedule 1, all required authorisations under
Commonwealth, State and Territory laws with the objective of protecting the
environment and/or promoting the conservation and ecologically sustainable
use of natural resources are not subject to the provisions of Schedule 1. Any
project that has a State or Territory environmental authorisation, but which is
the subject of a referral under EPBC Act would not satisfy the requirements
of Subitem 22(3)(c), and would therefore not be exempt from the
requirement for an approval under Part 9 of the EPBC Act.
25. Item 22 also establishes an alternative to the exemption described immediately
above. The alternative exemption is set out in paragraph 22(1)(b) in conjunction
with subitem 22(2A) specifically that the amendments made by Schedule 1 do
not apply to the taking of an action involving coal seam gas development or
large coal mining development if, immediately before 13 March 2013, none of
the provisions of Part 3 of the old law were controlling provisions for the action
and an appropriate Minister of a declared State or Territory has, under paragraph
505D(1)(b) of the old law, obtained advice from the Independent Expert
Scientific Committee on Coal Seam Gas or Large Coal Mining Development in
relation to the action for the purposes of giving a specific environment
authorisation for the action under a State or Territory law.
26. Subitem 22(4) provides that a renewal or extension of a specified environmental
authorisation is presumed to be a new specific environmental authorisation
unless the circumstances in Subitems 22(4)(a) and (b) are met. The consequence
of this is that the conditions to establish an exemption under Subitem 22(3)
would not be satisfied.
Decision as to whether the new matter of NES is a controlling provision
27. Item 23 establishes transitional provisions relating to actions that, immediately
prior to the commencement of Schedule 1, have been determined to be a
controlled action under Division 2 of Part 7 of the EPBC Act and, on the day of
commencement of item 23, either:
the taking of the action has not been approved by the Minister under Part 9
of the old law for the purposes of a provision of Part 3 of the old law; or
the Minister had not informed the persons mentioned in paragraph
131AA(1)(a) of the old law of the decision the Minister proposes to make in
relation to the action or advice from the Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining Development has not
been obtained by the Minister under section 131AB in relation to the action.
28. Subitem 23(2) provides that, in relation to the actions to which Subitem 23(1)
applies, the Minister must decide whether the new matter of NES is a controlling
provision for the action within 60 business days after the commencement of
Schedule 1.
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29. Subitems 23(3)-(9) provide requirements for making a decision under
Subitem 23(2) that the new matter of NES is a controlling provision for an
action. These include that the Minister:
must notify the proponent of the proposed decision and invite the proponent
to provide written comments on the proposed decision within 10 business
days.
may notify any other relevant Ministers of the proposed decision and invite
the Minister to provide written comment on the proposed decision within 10
business days.
may, if he or she believes on reasonable grounds that he or she does not
have enough information to decide whether the new matter of NES is a
controlling provision for the action, request the proponent to provide
specified information relevant to making the decision. Time, for the
purposes of the transitional period during which the Minister must make his
or her decision, does not run while the further information is being sought.
This is consistent with other provisions of the EPBC Act regarding requests
for further information, such as section 77(6) of the EPBC Act.
must consider:
any comments received from a proponent or Minister within the
relevant 10 business day period;
any further information provided in response to a request.
must, within 10 business days after making a decision, give written notice of
the decision to the person proposing to take the action and publish notice of
the decision in accordance with regulations.
must give reasons give reasons for the decision to a person who has been
given notice of the decision and makes a written request that the Minister do
so. The written request must be made within 28 days of being given the
notice of the decision. The Minister must provide the reasons for decision as
soon a practicable, within 28 days of receiving the request.
30. Subitem 23(10) provides that anything done by the Minister under Item 23 is not
invalid merely because it was not done within the required time period.
Where the new matter of NES is a controlling provision
31. Item 24 provides transitional arrangements where the Minister makes a decision
under Item 22 that the new matter of NES is a controlling provision for an
action.
32. Subitem 24(2) provides that the decision, made before the commencement of
Schedule 1, under section 75 of the EPBC Act on whether any other provision of
Division 1 of Part 3 of the EPBC Act is a controlling provision (the primary
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decision) is taken to be varied by the Ministers decision that the new matter of
NES is a controlling provision for the action (the new decision).
33. Subitem 24(3) provides that the validity of the primary decision is not affected
by the making of the new decision, nor can the original decision be revoked,
varied, suspended, challenged, reviewed, set aside or called in question because
of, or for reasons relating to, the new decision or the variation of the primary
decision.
34. Subitem 24(4) provides that any approval process decision, as defined in
Item 19, that was made before the new decision is made continues to have the
effect it would have if the primary decision had not been varied by the new
decision.
35. Subitems 24(5)-(7) provide for transitional provisions in relation to actions
covered by a bilateral agreement. Subitem 24(5) provides that, if section 83 of
the EPBC Act applied immediately before the new decision is made, then that
section continues to apply. The consequence of this is that Part 8 of the EPBC
Act (in relation to assessment of the impacts of controlled actions) does not
apply to those actions. Subitem 24(6) provides that the validity of anything done
before the new decision for the purposes of a relevant bilateral agreement is not
affected by the making of the new decision, nor can it be revoked, varied,
suspended, challenged, reviewed, set aside or called in question because of, or
for reasons relating to, the new decision or the variation of the primary decision.
Subitem 24(7) provides that anything done for the purposes of a bilateral
agreement before the new decision is made continues to have the effect that it
would have if the primary decision had not been varied by the new decision.
36. Subitem 24(8) provides transitional provisions in relation to actions being
assessed under Part 8. The subitem provides, that for the purposes of Part 8 of
the EPBC Act, "relevant impacts" as defined in section 82 of the EPBC Act do
not include the impacts of coal seam gas developments and large coal mining
developments on water resources under Item 1. Subitem 24(9) provides that, for
the purposes of a bilateral assessment, "relevant impacts" as do not include the
impacts of coal seam gas developments and large coal mining developments on
water resources under Item 1. The purpose of these subitems is to ensure that an
assessment is not made invalid by the inclusion of the new matter of NES.
37. The intent of Subitems 24(5)-(9) is to ensure that the assessment of the impacts
of a controlled action, under either a bilateral agreement or Part 8 of the EPBC
Act, is not substantially disrupted by the designation of the new matter of NES
as a controlling provision for the action. Impacts relating to the new matter of
NES may be considered in deciding whether to approve the action and whether
to impose conditions under Part 9 of the EPBC Act. The Minister remains able
to request further information on the impacts of the action in relation to the new
matter of NES under section 132 of the EPBC Act if the Minister believes on
reasonable grounds that he or she does not have enough information to make an
informed decision about whether or not to approve the taking of the action.
Review of operation of Act
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38. Item 25 provides that the Minister must cause an independent review to be
undertaken of the operation of the Act and the extent to which its objectives
have been achieved. The person undertaking the review must provide the
Minister with a report. Within 15 sitting days of the relevant House of
Parliament, the Minister must table the report in each House of the Parliament.
Modifications that may be made by regulations
39. Item 26 provides for additional provisions of a transitional nature relating to the
amendments in Part 1 of Schedule 1, including saving or application provisions,
to be prescribed in regulations.
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