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1
State Development and Other Legislation
Amendment
STATE DEVELOPMENT AND OTHER
LEGISLATION AMENDMENT BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
The State Development and Public Works Organisation Act 1971 is `An
Act which provides for State planning and development through a
coordinated system of public works organisation, for environmental
coordination, and for related purposes.'
The original Act was first passed in 1938 as a post Depression measure
to create employment and to develop the State, through a system of
coordinated public works.
The Act was substantially revised and updated in 1971 when specific
powers relating to supervision of the environment were introduced to the
Act (which were subsequently amended in 1978).
The Act was further amended in 1999, clarifying the
Coordinator-General's role in coordinating impact assessment for
significant projects; enabling the Coordinator-General to acquire and access
land for persons other than the State, and updating enforcement provisions
for land use established within a state development area.
Objectives of The Legislation
The proposed amendments seek to make a number of modifications to
the State Development and Public Works Organisation Act 1971 (SDPWO
Act), the Environmental Protection Act 1994, the Integrated Planning Act
1997 (IPA), the Electricity Act 1994 and the Mineral Resources Act 1989
(MR Act).
The amendments to the SDPWO Act are principally needed to reflect
recent changes to other legislation dealing with environmental impact
assessment, together with further recognition of the changing role in
government in the provision of infrastructure.
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State Development and Other Legislation
Amendment
The amendment to the IPA provides for the Minister to proceed straight
to designation for community infrastructure projects having coordinated
assessment of the environmental effects under section 29A of the SDPWO
Act.
The amendments to the EP Act and the MR Act indicate that the
provisions of the Act relating to the assessment of environmental impacts
for mining projects do not apply to projects declared significant projects
under the SDPWO Act.
The amendments to the Electricity Act 1994 are needed to facilitate the
development of the Australian Magnesium Corporation Plant to be located
adjacent to the Stanwell Power Station by ensuring that the Plant is not
required to comply with emergency rationing orders or restriction
regulations for its minimum electricity demand.
The Bill amends the SDPWOA to:
· reflect the changes to the assessment of mining which have
occurred with the transfer to the Environmental Protection
Agency of the environmental regulation of the mining industry
from the Department of Mines and Energy. The amendments
will maintain the Coordinator-General's ability to coordinate
impact assessment for significant projects which require an
Environmental Authority (Mining Lease);
· provide clarification of administration and enforcement provisions
for conditions attached to development approvals issued
following the completion of an EIS for a significant project
pursuant to section 29B of the Act;
· provide linkages between the assessment of environmental effects
under section 29 and the designation of community infrastructure
pursuant to the IPA;
· provide for the Coordinator-General to delegate and transfer
authorised works under sections 68 and 84;
· provide for the Coordinator-General to take an interest in land less
than fee simple, including an easement, for persons other than the
State, for the purposes of section 78;
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State Development and Other Legislation
Amendment
· update the finance provisions contained in Part 9 to reflect
changes to the Statutory Bodies Financial Arrangements Act
1982 (SBFA Act). The amendments will enable the
Coordinator-General to borrow moneys from the Queensland
Treasury Corporation without the need to obtain the prior
approval of the Governor-in Council, as a Statutory Body under
the SBFA Act;
· provide for the Coordinator-General to enforce the regulation of
the use by the public of lands or property vested in or under the
management of or control of the Coordinator-General under
section 121;
· provide for the Coordinator-General to prepare regulations for the
requirements for environmental impact statements or processes,
such as those proposed to be accredited under the Commonwealth
Environmental Protection and Biodiversity Conservation Act
1999 (EPBC Act);
· include in the transitional provisions the ability for the
Coordinator-General to declare as a significant project, a project
which include lands intended to be designated as community
infrastructure pursuant to IPA for which a study about the
environmental effects of the proposal was being undertaken.
Reasons For The Bill
The attached Bill amends the SDPWOA to provide clarification as to the
administration and enforcement provisions for conditions attached to a
development approval granted following the completion of an EIS for a
significant project pursuant to s. 29B of the Act. The amendments clarify
that from the time that a development approval takes effect, the
Coordinator-General's (COG) involvement ceases. The amendments
provide for the COG's report to identify the agency to administer any
conditions required to be attached to a development approval. Resolution of
this issue originally raised by the government departments will clarify
agency responsibilities in relation to the administration of development
approvals. In the case of the administration of the EP Act, the amendment
will provide for the enforcement of conditions within the jurisdiction of the
EPA by the use of Environmental Protection Orders if needed.
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State Development and Other Legislation
Amendment
The Bill amends the SDPWO Act, EP Act 1994 and the Mineral
Resources Act 1989 to enable the Coordinator-General to maintain an ability
to coordinate the assessment of environmental impacts through the
preparation of an Environmental Impact Statement (EIS) for significant
projects which involve an environmental authority (mining lease) pursuant
to the new arrangements within the EP Act. The amendments respond to
the recent transfer of responsibility for the environmental assessment of
mining from the Department of Mines and Energy to the Environmental
Protection Agency.
The provisions will enable the assessment of those mining projects
declared by the Coordinator-General to be significant projects pursuant to
section 29C to be coordinated through the provisions of the SDPWO Act
rather than the provisions of the EP Act.
The Bill amends section 78 to provide that the Coordinator-General may
acquire land less than an estate in fee simple as is currently provided in the
Act. Specifically, it provides for the acquisition of an easement. This
amendment relates to the acquisition of land by the Coordinator-General for
the purposes of an infrastructure facility, including those facilities, which are
to be built, owned, operated and maintained by persons other than the State.
This amendment will provide for situations where the limitation on taking
land in fee simple would result in unnecessary hardship for landowners
where an easement or lesser title may be more appropriate. It is expected
that this amendment will have application in the facilitation of pipeline
proposals in the State such as the PNG gas pipeline.
The Bill amends Part 7 of the SDPWO Act in the interests of legislative
consistency and currency, to replace the COG's current express financial
powers with a cross-reference to the relevant provisions of the Statutory
Bodies Financial Arrangements Act 1982 (SBFA Act). The amendments
provide that the COG is a statutory body for under the SBFA Act.
Part 7 of the SDPWO Act empowers the COG to borrow, raise money
or make financial arrangements, including the power to issue debentures,
bonds and stock. Part 7 of the Act also contains a range of provisions
relating to the exercise of these powers. A number of these provisions
contained cumbersome approval requirements and many were outdated in
their references to other Acts.
The amendments maintain the objectives of the Acts.
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State Development and Other Legislation
Amendment
ESTIMATED COSTS FOR GOVERNMENTAL
IMPLEMENTATION
Any costs incurred are a result of the amendments to the Act in respect to
drafting and preparation of the Bill represent a minimal cost to Government.
In other words, the impact of the changes should be `Budget neutral'.
RESULTS OF CONSULTATION
The proposed amendments have been supported.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINCIPLES
The Bill raises two Fundamental Legislative Principles issues with
respect to:
· commencement provisions; and
· retrospective commencement for subsection 1 and the partial
exclusion of the Acts Interpretation Act 1954, s15DA for
subsections (3) and (4).
The commencement provisions provide for the provisions relating to the
assessment of mining projects to commence by Proclamation up to two
years after the date of assent. Because of the potential implications of the
Alternative State Provisions on this part of the Act, the timing for their
commencement has been made to enable consultation with the
Commonwealth Government should any issues arise which could
otherwise have the provisions set aside.
Retrospective commencement in the provisions relate only to the
administration and enforcement of conditions attached to a development
approval granted following the completion of an EIS for a significant
project. This retrospective commencement will not affect any interests but
will provide clarification as to the ability of State agencies such as the EPA,
to fully administer and enforce conditions attached to a development
approval.
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State Development and Other Legislation
Amendment
CONSULTATION
The following relevant organisations have been consulted:
Department of the Premier and Cabinet
Department of Communication and Information, Local Government
and Planning
Environmental Protection Agency
Queensland Treasury
Crown Law
NOTES ON CLAUSES
The section numbers in the State Development and Other Legislation
Amendment Bill 2000 are referred to as clauses in these explanatory notes.
PART 1--PRELIMINARY
Clause 1 states that the short title of the Act is the State Development and
Other Legislation Amendment Act 2000.
Clause 2 provides that section 29PA of the SDPWO Act is taken to have
to commenced on 16 June 1999 and that the remaining provision of the Act
commence on a day to be fixed by proclamation but not more than 2 years
from the date of assent.
PART 2--AMENDMENT OF THE ELECTRICITY ACT
1994
Clause 3 defines the Act amended in Part 2 as being the Electricity Act
1994.
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State Development and Other Legislation
Amendment
Clause 4 inserts a new division in chapter 5, part 2 of the Electricity Act
1994.
Section 129A applies to the Stanwell Magnesium Plant, and stipulates
that regulations or rationing orders under sections 122 and 124 of the
Electricity Act 1994, can only apply to the electricity demand at the Plant that
is greater than an amount prescribed by regulation. This prescribed amount
must be at least 50 MW but no more than 100 MW.
The Australian Magnesium Operations magnesium metal project will be
located at Stanwell inland from Rockhampton and as such, a large
proportion of the benefits from the development and operation of this plant
will accrue to the Fitzroy region and also possibly Gladstone/Calliope. The
project will provide significant economic benefits to the region and create
skilled and unskilled jobs during construction and operation.
Smelters of various kinds are concerned about security of electricity
supply. If electricity supply is interrupted for sufficiently long periods,
molten metal can solidify in "baths" or "pots". The cost required to clear
the equipment of solid metal is substantial, and significant losses in
production time would also result.
Therefore, given the significant economic benefits of this project,
legislative protection of the minimum electricity supply to the smelter has
been created to cover these potential commercial and sovereign risks, to
ensure the future development of this project.
This protection is given by restricting the operation of sections 122 and
124 of the Electricity Act 1994, so that any emergency rationing orders or
restriction regulations only apply to the plant's demand in excess of their
minimum demand level (initially 50 MW). This minimum demand level is
expected to change in future with the anticipated expansion of the plant,
hence the proposed amendments provide for the minimum demand level to
be prescribed by regulation.
The division expires on 31 December 2033.
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State Development and Other Legislation
Amendment
PART 3--AMENDMENT OF THE ENVIRONMENTAL
PROTECTION ACT 1994
Clause 5 defines the Act amended in Part 3 as being the Environmental
Protection Act 1994.
Clause 6 amends section 34(1) of the Environmental Protection Act
1994 (EP Act) to clarify that the Environmental Impact Statement (EIS)
process under the EP Act does not apply to a significant project as declared
under section 29B of the SDPWO Act on the basis that Part 4 of that
legislation provides for an EIS process for significant projects.
Clause 7 amends section 34AW of the EP Act by declaring that for the
purposes of an application for an environmental authority under the EP Act
where an EIS process must be completed, that process will be taken to have
been completed where the application relates to a significant project and
where the COG has issued a report on the EIS for the project under Part 4
of the SDPWO Act and that report has been given to the proponent. This
will mean that wherever there is an EIS requirement for an environmental
authority for mining activities under the EP Act, that requirement will be
taken to have been met in the case of a significant project where the EIS
process under the SDPWO Act has been completed.
Clause 8 amends section 34FD of the EP Act. Part 2C of the EP Act (in
which section 34FD is located) relates to environmental authorities required
for mining activities. Essentially, there are two types of application for such
environmental authorities--standard or non-standard. A standard
application is intended to cover a project of low labour and operational
requirements. The amendments to section 34FD(3)(a) and (b) in effect
provide that where an application is for an environmental authority (mining
lease) as part of a significant project then the application will be treated as a
non-standard application.
Clause 9 amends section 34FF of the EP Act. That section currently
provides that where an application is a non-standard application the
administering authority must specify that an EIS is required. The
amendment makes clear that no EIS will be required where the application
for the environmental authority (mining lease) is part of a significant project.
This is because the issue of an EIS for such a matter would have been
addressed under the SDPWO Act Part 4.
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State Development and Other Legislation
Amendment
Clause 10 amends section 34FG in a similar manner to the amendment
to section 34FD. Section 34FG allows the Minister administering the EPA
(EPA Minister) to make a decision about the assessment level of an
application, ie whether it is non-standard or standard. Consistent with the
amendment to section 34FD, the EPA Minister cannot make an assessment
level decision on an application for an environmental authority relating to a
significant project which application must be treated as a non-standard
application.
Clause 11 amends section 34GS(1) of the EP Act which relates to the
content requirements of an EMOS which must be submitted as part of an
application for an environmental authority (mining lease) where it is a
non-standard application. The amendment requires the EMOS to state
whether an EIS under the SDPWO Act has been prepared for the project.
Clause 12 amends section 34GU which sets out the entitlement of the
administering authority for an environmental authority (mining lease) to
give an applicant an assessment report about a submitted EMOS relating to
that application. The ability of the administering authority to give such an
assessment report does not apply if the application relates to a significant
project, an EMOS is included as part of the EIS process under the SDPWO
Act for that project and the COG in giving his report on the project states
that the EMOS complies with or substantially complies with the content
requirements for an EMOS under section 34GS of the EP Act.
Clause 13 amends section 34GV subclause (b) by limiting the ability of
the EP Act administering authority upon an application for an
environmental authority (mining lease) to make an EMOS assessment
report. In making its assessment report, the administering authority must,
where the application relates to a significant project, consider the EIS
prepared under the SDPWO Act and the COG's report thereon.
Clause 14 amends section 34GY(2)(a) and (b) of the EP Act, which
deals with the conditions which an administering authority, may apply in the
case of a standard application for an environmental authority (mining
activities). The introduction of new subclause (2)(b) requires the
administering authority to include in the draft environmental authority
relating to a mining lease which is part of a significant project any
conditions to the environmental authority which are stated in the COG's
report for the project made under the SDPWO Act.
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State Development and Other Legislation
Amendment
The ability of the administrating authority under the EP Act to include
additional conditions in such an authority is limited by the amendment to
section 34GY(6) to the extent that any additional conditions cannot be
inconsistent with the conditions stated in the COG's report with respect to
the environmental authority for a significant project.
Clause 15 amends section 34GZ relating to the conditions for a
non-standard application for an environmental authority (mining lease) in
the same manner as the amendments to section 34GY relating to a standard
application. It seeks to preserve the applicability of any conditions to the
draft environmental authority stated in the COG's report so that those
conditions are included in the draft authority and there can be no additional
inconsistent conditions imposed under the EP Act.
Clause 16 amends section 34HF of the EPA which gives a legal right to
any party to object to an application for an environmental authority, or the
draft environmental authority or a condition included in the draft. The
introduction of new subsection 2A is to the effect that no person, with the
exception of a native title party, can object to a condition included in the draft
environmental authority relating to a significant project where that condition
was included in the COG's report on the significant project.
The introduction of new subsection (4) of section 34HF is to make clear
that an objection to an application for an environmental authority is an
objection relating to the application and not to any of the application
documents which would include an EIS. That is, ancillary documents such
as the EIS will not be open to objection.
Clause 17 amends section 34HL of the EP Act which sets out the type of
decision which the Land and Resources Tribunal (Tribunal) can make when
an objection is made to an application for an environmental authority
(mining activities). The Tribunal has the power to recommend to the
Minister administering the MR Act (MRA Minister) that the application be
granted upon stated conditions that are different to the conditions in the draft
environmental authority. The introduction of subsection (1A) makes clear
that no such recommendation can be made which would either exclude
conditions recommended by the COG under a report on a significant project
under the SDPWO Act or which would include conditions which are
inconsistent with any such conditions included in the COG's report.
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State Development and Other Legislation
Amendment
Clause 18 amends the EP Act by deleting existing section 34HN and
introducing a new section. The new section requires the EPA Minister,
after the recommendations of the Tribunal on an objection to an
environmental authority (mining lease) have been made, not only to seek
advice from the MRA Minister on the decision but also where the
application relates to a significant project, seek the advice of the Minister
administering the SDPWO Act (State Development Minister).
Clause 19 amends section 34HO. Currently the section requires the
EPA Minister when considering granting an environmental authority
(mining activities) to consider any conditions for the environmental
authority recommended by the COG under the SDPWO Act. Presently,
section 34HO(4) does not require the EPA Minister to impose such a
recommended condition. To reflect the amendment to the SDPWO Act by
the introduction of section 29W thereto which allows the COG's report on
the EIS for a significant project to state conditions for the proposed
environmental authority (mining lease) relating thereto, which conditions
will be taken to be imposed on any environmental authority to be issued,
The introduction of new section 34HO(3)(b) is to the effect that the EPA
Minister must consider the conditions included in the draft environmental
authority for standard or non-standard applications.
Clause 20 amends section 34KQ(1)(f) to reflect the amendments to
section 29W of the SDPWO Act which allows the COG's report on the
EIS process for a significant project to state conditions for an environmental
authority (mining lease) relating thereto.
Clause 21 introduces a new section 34KRA which provides that if in an
environmental authority (mining lease) relating to a significant project which
includes conditions stated in the COG's report for the project, there is any
inconsistency between those conditions and any other conditions placed on
the environmental authority the COG's conditions, will prevail to the extent
of any inconsistency.
Clause 22 amends schedule 4 by introducing the definitions of
"significant project" and "Coordinator-General's report" consistent with
those in the SDPWO Act.
12
State Development and Other Legislation
Amendment
PART 4--AMENDMENT OF THE INTEGRATED
PLANNING ACT 1997
Clause 23 defines the Act amended in Part 4 as being the Integrated
Planning Act 1997.
Clause 24 amends section 2.6.8 of the Integrated Planning Act 1997
(IPA) which deals with community infrastructure designation. The
amendment provides that where the Minister may proceed straight to
designation (using the process set out in Schedule 7 of IPA), if the Minister
is satisfied that the Coordinator-General (COG) has coordinated the
assessment of environmental effects of the community infrastructure in
accordance with section 29A of the SDPWO Act.
This amendment clarifies that the Minister may proceed to designation
after assessment has been completed for both a significant project (for
which a report is prepared pursuant to section 29K of the SDPWO Act) or,
for which the environmental effects have been assessed pursuant to section
29A(1) which provides that the COG coordinate departments of the
Government and local bodies throughout the State to ensure that in any
development proper account is taken of the environmental effects. The
"Policies and Administrative Arrangements--Impact Assessment in
Queensland" document, commonly referred to as "the Green Book",
applies to the assessment of environmental effects undertaken pursuant to
section 29A(1).
PART 4A--AMENDMENT OF THE MINERAL
RESOURCES ACT 1989
Clause 25 defines the Act amended in Part 4A as being the Mineral
Resources Act 1989.
Clause 26 deletes section 276(5) to reflect the changes in the SDPWO
Act which confirms that the conditions in the COG's report are included in
the Mining Lease for a significant project.
13
State Development and Other Legislation
Amendment
PART 5--AMENDMENT OF THE STATE
DEVELOPMENT AND PUBLIC WORKS
ORGANISATIONON ACT 1971
Clause 27 defines the Act amended in Part 5 as being the State
Development and Public Works Organisation Act 197
Clause 28 amends the definitions in section 5 of the State Development
and Public Works Organisation Act 1971 (SDPWO Act) to amend the
definition of "local bod
The "local bodies" definition is amended to remove an outdated reference
to the Local Bodies Loan Guarantee Act 1923 which has been repealed.
The amended definition provides that a `local body' is a government owned
corporation; or a statutory body as defined in the Statutory Bodies Financial
Arrangements Act 1982; or another body established under an Act.
Clause 29 inserts the following definitions for Part 4--Environmental
Coordination:
"approval" includes authority, lease, licence, permit or other approval.
"Coordinator-General's report", for an EIS, means the report the
Coordinator-General must prepare under section 29K(3).
"environmental authority (mining lease)" means an environmental
authority (mining lease) under the Environmental Protection Act 1994.
"EPA Minister" means the Minister for the time being administering
the Environmental Protection Act 1994.
"Environmental Protection Act" means the Environmental Protection
Act 1994.
"Integrated Planning Act" means the Integrated Planning Act 1997.
"Mineral Resources Act" means the Mineral Resources Act 1989.
"MRA Minister" means the Minister for the time being administering
the Mineral Resources Act 1989.
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State Development and Other Legislation
Amendment
The insertion of the 'approval' definition provides for the range of
approvals that may require EIS under other legislation. The remainder of
the definitions reflect changes in other legislation related to Environmental
Coordination, which are addressed in subsequent amendments to the
SDPWO Act.
Clause 30 inserts a new section 29B(4) which provides that if the project
involves a proposed environmental authority (mining lease), the
Coordinator-General (COG) must give a copy of the gazette notice to the
EPA and MRA Ministers. Previously this subsection required the COG
when declaring a project to be a significant project, for which an EIS was
required, to give a copy of the gazette notice of the declaration to the MRA
Minister. This notice will now be given not only to the MRA Minister but
also to the EPA Minister.
Clause 31 amends section 29K by replacing subsection 4 to specify what
the COG may do in evaluating an EIS for a significant project. Specifically,
it clarifies that the COG may state conditions under section 29O, 29S or
29W; and recommendations about the project or a matter related to the
project under section 29Q or 29Y and for community infrastructure as
mentioned in section 29R.
Furthermore, new subsection 5 provides for the public notification of the
COG's report. This provision provides for the outcome of the EIS process
to be made publicly available by the placement on a website of the COG's
report. This process is consistent with that in other legislation, in particular
Commonwealth environment legislation. The COG's report will be placed
on the website of the Department administering the Act, currently the
Department of State Development.
Clauses 32 and 33 insert a subdivision dealing with the relationship of
the SDPWO Act and development approvals granted pursuant to IPA.
Clause 34 amends section 29M to provide that the COG's conditions are
treated as concurrence agency conditions until a development approval
pursuant to IPA takes effect. This provision provides the COG with the
same powers as a concurrence agency including the ability to amend
conditions in the same way concurrence agencies may in the IDAS process
pursuant to IPA before a decision is made by the assessment manager.
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State Development and Other Legislation
Amendment
Clause 35 amends section 29O to clarify that the COG's conditions
apply only to the development approval which has been the addressed in the
EIS and not for each development approval required for the project. These
changes to section 29O clarify that the conditions stated in the COG's report
are only to be attached to those development approvals for the project which
have been assessed during the EIS process. While it is intended that
proponents are able to benefit from the assessment of all development
approval requirements for a project through the conduct of a coordinated
assessment process, it is sometimes the case that there is insufficient detail
available about future development approvals required at the time of the
preparation of the EIS, and that further development assessment processes
will be required. This situation occurs in the case of operational approvals
in the form of "environmentally relevant activities" which require an
application for a material change of use pursuant to IPA. The proper
assessment of other development approvals which might be required for a
project but which have not been considered during the EIS, or for which
there has been insufficient material provided during the EIS are not
precluded because of the assessment process coordinated by the COG. The
new section 29O(2A), provides clarification that following the completion
of the COG's report the assessment manager's powers to assess the
development application and impose conditions are not altered. Any
additional conditions imposed by the assessment manager must not be
inconsistent with conditions stated in the COG's report.
This section clarifies that the assessment manager can impose its own
conditions on an approval in accordance with its powers contained in IPA.
The new section 29O(5) clarifies that where the COG's report provides
for conditions that must be attached to a development approval, the report
may state the entity that is to have jurisdiction for the condition. The section
also provides that the condition is taken to be a concurrence agency
condition under IPA and should be treated as a concurrence agency
condition.
Clause 36 inserts a new section 29PA that provides for the
administration and enforcement of conditions attached to development
approvals granted following completion of an EIS for a significant project.
This section provides that when a development approval takes effect,
agencies are able to administer the conditions as if assessment had occurred
under the referral coordination process within IDAS.
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State Development and Other Legislation
Amendment
Section 29PA(2) provides the COG with the ability to identify and
include as part of his or her report prepared pursuant to section 29K, the
agency which has jurisdiction for the conditions stated in the report. If the
COG's report does not state the entity to have jurisdiction for the conditions,
an entity is taken to have jurisdiction if it would have been a referral agency
for the application if not for the operation of the provisions of the significant
project EIS process; and the condition would have been within the entity's
jurisdiction.
The provision provides agencies, proponents and the assessment
manager with certainty as to the ability to fully administer development
approval conditions. The commencement of these provisions is
retrospective to clarify the responsibility for the administration of conditions
attached to development approvals already granted where following the
completion of an EIS for a significant project since the June 1999
amendments to the Act.
A new subdivision provides for linkages to the community infrastructure
designation process provisions of IPA. Section 29R recognises that
pursuant to section 2.6.8 of IPA, provides a process by which a Minister
may proceed straight to designation after assessment has been completed
for a significant project and for which a report has been prepared pursuant to
section 29K of the SDPWO Act.
Section 29Q(2) provides that the COG's report evaluating the EIS may
recommend requirements for inclusion in the community infrastructure
designation. Further, the entity making the community infrastructure
designation pursuant to s.2.6.8 of IPA may have regard to the COG's
recommendation to ensure that the designation includes any appropriate
requirements to address the environmental effects of the proposed use as
assessed during the EIS process.
Clause 37 replaces existing Division 5 of Part 4 with a new Division 5
which still relates to the interrelationship between the declaration of a
significant project relating to mining and the MR Act. Previously section
29R made reference to the COG giving notice in respect of a statement of
proposals or environmental management overview strategy which was
relevant in applying for mining leases. The recent amendments to the EP
Act have removed these matters from the jurisdiction of the Mining
Registrar under the MR Act. They are now relevant in relation to the
application for an environmental authority (mining lease).
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State Development and Other Legislation
Amendment
A new section replaces the former section 29S which allowed the COG's
report to recommend to the MRA Minister the conditions to be attached to
any mining lease issued under the MRA for the project. New section 29S
provides on a general basis that the COG, in reporting on a significant
project, may state conditions for the proposed mining lease and that if a
mining lease is granted under the MR Act the COG's conditions are taken
to be included as conditions of the mining lease.
A new section 29T is inserted. This section makes clear that subject to
s.29U, if there is any inconsistency between the conditions of a mining lease
as determined under the MR Act and the conditions imposed from a COG's
report, then the COG's conditions will prevail to the extent of the
inconsistency.
Section 29U provides that a native title issues condition prevails over the
COG's conditions to the extent of any inconsistency. A new division 5A
creates the relationship between the declaration of a significant project under
the SDPWO Act and the need for that project where it relates to mining to
obtain environmental authorities (mining activities) under the EP Act.
A new section 29W provides that the COG's report for a significant project
may state conditions for any draft proposed environmental authority
(mining lease) relating thereto, to be issued under the EP Act. The section
provides for the COG to give a copy of the report to the EPA Minister.
Clause 38 amends section 29W which deals with the relationship of the
COG's report with other legislation. The amendment clarifies that the
COG's report has a relationship with other approval processes in the EP
Act outside of that for environmental authorities for mining activities in
chapter 2 of the EP Act.
Clause 39 amends section 29Y to provide the COG with the ability
recommend that an application for an approval be refused; or that stated
conditions contained in the COG's report be imposed on an approval. These
provisions provide for the application of the COG's report in the
consideration of approvals, licences and other permits other than those
specifically contemplated in other parts of the Act.
Clause 40 amends section 29ZA clarifies that the person considering an
approval must take the COG's report into consideration required for a
project. The existing provision was ambiguous in that it contemplated a
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Amendment
person approving of a project. The amendment makes clear that
consideration of the COG's report is linked to the consideration and
decision about an approval required under legislation for a project.
Clause 41 amends section 68 to include a provision for the COG to
delegate to the chief executive of a department the construction of approved
works pursuant to section 66. The existing provisions enable the COG to
delegate to a local body. The additional ability for the COG to delegate these
works to the chief executive of a department recognises that once approved
by Governor in Council, the COG is required to undertake the works as
soon as is practicable. Before delegating a power, function, or duty
conferred on him or her under section 66, the COG is required to obtain the
approval of the Governor in Council.
Clause 42 inserts a new section 77B to provide that a project board
established under the Act is statutory body for the Statutory Bodies
Financial Administration Act 1982. The amendment replaces an outdated
reference to the Local Bodies Loan Guarantees Act 1923 which has been
repealed.
Clause 43 amends the provisions in section 78(1) dealing with the power
of the COG to take land for the benefit of a third party. The existing
provisions provide that the COG can only take land in "an estate in fee
simple". The amendment provides for the COG to take "land" as defined
in the SDPWO Act. "Land" is defined as "any estate or interest in land,
and any easement, right, power or privilege in, over, or in connection with
land, and any wharf." The amendment to section 78 will provide for the
Coordinator-General to take an interest in land, including an easement.
This provision will allow for the taking of an easement to facilitate
significant infrastructure facilities where taking land in fee simple would not
be warranted to accommodate the project and where the taking of an
easement would reduce the potential hardship of affected landowners. The
provision is likely to have application in the acquisition process for the PNG
and other pipeline proposals.
Clause 44 amends section 84 to provide for the COG to negotiate the
transfer of approved works to any entity established under an Act. The
amendment recognises that upon the completion of authorised works or
when works have attained such a stage as to be available to for use for the
purpose for which they were undertaken, the COG having taken
responsibility for undertaking the works is unlikely to retain ownership of
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State Development and Other Legislation
Amendment
them. However, in line with current trends regarding the ownership of
infrastructure, the transfer of works is no longer reasonably constrained to
agencies representing the Crown or local bodies as defined in the Act.
Under this section, the Coordinator-General would still require the
Governor in Council's approval of the terms of any proposed transfer.
Clause 45 removes outdated finance provisions by deleting sections 95 to
101A. This amendment is consistent with current legislative provisions
regarding financial arrangements. The amendment provides for the
substitution of the COG's existing express financial powers with a
cross-reference to the relevant provisions of the Statutory Bodies Financial
Arrangements Act 1982 (SBFA Act).
A new section 95(1) provides that the COG is a statutory body for the
SBFA Act and clarifies that the SBFA Act sets out the way in which the
COG's powers are affected.
Clause 46 inserts a new section dealing with publication of information
by the COG. New section 119(A)(1) provides that where the COG is
required to notify a document of information, notification must be made by
placing the information on the department's website or such other website
considered appropriate by the COG. No limitation is placed on the COG
also publicly notifying documents and information in other ways such as
newspaper advertisements.
Clause 47 amends the regulation making ability to clarify that the
provisions relating to the use by the public and the safeguarding of securing
against trespass, injury, misuse or relates to authorised works approved
pursuant to section 66.
Section 121(1)(i) updates the penalty units from $50 to 20 penalty units,
which addresses the outdated penalty provision and updates it with a more
appropriate provision.
Clause 48 further amends section 121(1) to provide for the making of
regulations for with respect to environmental impact statements or
processes, such as those proposed to be accredited under a bilateral
agreement made pursuant to the Commonwealth Environmental Protection
and Biodiversity Conservation Act 1999 (EPBC Act). Under the provisions
of the EPBC Act, in order to be accredited by the Commonwealth, the
State's assessment process must be in law. The amendments provide that
additional benchmarks required by the Commonwealth can be included in
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Amendment
the EIS process provided in Part 4 of the Act by way of Regulation. This
allows Part 4 to remain intact while providing that additional requirements
for EISs (where there is a matter of national environmental significance) set
by the Commonwealth can be incorporated in the process without fettering
the discretion of the COG.
A new provision is provided in the transitional provisions contained in
section 123. The section is amended to include the ability for the COG to
declare as a significant project, a project which includes land intended to be
designated as community infrastructure pursuant to IPA for which a study
about the environmental effects of the proposal was being undertaken. This
amendments provides recognition that the transitional arrangements should
apply for an EIS or similar study being prepared for a project on land that is
proposed to be designated for community infrastructure rather than
requiring a development approval.
© State of Queensland 2000