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1
State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
State Development and Public Works
Organisation and Other Legislation
Amendment Bill 2005
Explanatory Notes for Amendments to be
moved during consideration in detail by The
Honourable Peter Beattie MP
Title of the Bill
State Development and Public Works Organisation and Other Legislation
Amendment Bill 2005
Objectives of the Amendments
The State Development and Public Works Organisation Act 1971 (`the
SDPWO Act') provides for `State planning and development through a
coordinated system of public works organisation, for environmental
coordination, and for related purposes.'
To support this purpose, the Bill seeks to:
· provide a mechanism by which the Coordinator-General (`the CG')
can impose conditions on a significant project for which an
Environmental Impact Statement (`EIS') has been prepared where
there are no relevant development approvals; and
· amend references to the SDPWO Act in the Freedom of Information Act
1992 (`the FOI Act') to reflect the recent changes to the administrative
arrangements of government.
Achievement of the Objectives
The objectives of the Bill have been achieved by amending the SDPWO
Act and the FOI Act.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Estimated Cost for Government Implementation
The estimated administrative costs to government of implementing the
proposed amendments are as proposed in the Explanatory Notes.
Consistency with Fundamental Legislative Principles
The Legislative Standards Act 1992 defines fundamental legislative
principles as `principles relating to legislation that underlie a parliamentary
democracy based on the rule of law'.
Section 4(3)(g) of the Legislative Standards Act 1992 provides that
legislation should not adversely affect rights and liberties, or impose
obligations, retrospectively.
The amendments depart from those principles as follows:
-- retrospective application of the new s 35(4)(d) and Division 8,
and
-- retrospective application of the amendments to the FOI Act.
Retrospective application of the new s35(4)(d) and Division 8, Part 4 of the
SDPWO Act
The Departure
Clause 63 inserts new Transitional Provisions in the SDPWO Act to
provide that the conditions recommended by the CG in the report
evaluating the EIS for the North-South Bypass Tunnel (`the NSBT')
project are taken to be conditions imposed by the CG under the new
Division 8 (see clause 39A).
The Reason for Departure
The CG's report about the EIS for the dated 25 August 2005 recommended
conditions that should apply to the NSBT project and recommended that a
mechanism be drafted to provide for the statutory enforcement of the CG's
conditions. It is desirable to give certainty to the public and the proponent
as well as the consortia bidding for the project that the conditions
recommended by the CG can be enforced.
The Premier announced in Parliament on the same day that, while giving
urgent consideration to the CG's recommendation to introduce a
mechanism to ensure that the CG's recommendations are enforced,
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
adequate arrangements would be put in place well before construction on
the NSBT project starts.
The proponents of the NSBT project have been consulted and support the
amendments.
The imposition of this retrospective amendment is therefore considered
appropriate.
Retrospective application of amendments to the Freedom of Information
Act 1992.
The Departure
Clause 67 of the Bill inserts a new section in Part 11 of the FOI Act
(Transitional Arrangements). This clause inserts a new s 123 Application
of amendment of definition `department'. This clause provides that clause
66, which inserts a new definition of `department', is taken to have
commenced from the commencement of the Administrative Arrangements
Order (No. 2) 2005.
The Reason for Departure
These amendments, although retrospective, will not affect the rights and
liberties of individuals as they enable the continued exemption of these
documents from access under freedom of information.
The amendment neither increases nor decreases the accessibility of
documents and information through the FOI Act.
There are currently no applications on foot in respect of any documents
exempted by section 47A of the FOI Act.
The imposition of this retrospective amendment is therefore considered
appropriate.
Consultation
The following relevant organisations have been consulted:
Department of the Premier and Cabinet
Queensland Treasury
Department of Local Government, Planning, Sport and Recreation
Environmental Protection Agency
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Department of Transport
Department of Justice and Attorney-General
Department of State Development, Trade and Innovation
Brisbane City Council
The proposed amendments have been supported.
NOTES ON PROVISIONS
Part 3 Amendment of the State
Development and Public Works
Organisation Act 1971
The new term `imposed conditions' is included to refer to the conditions
stated under the new s 54B(2) for a significant project which does not
involve a material change of use that, under the Integrated Planning Act, is
impact assessable; and Division 4, subdivision 2 and Divisions 5, 6, 6A and
7 do not apply to the project.
The new term `nominated entity' is included to refer to the entity
nominated by the CG to have jurisdiction for the imposed conditions under
the new s 54B(2).
The new term `relevant local government' means the local government for
the local government area in which the project is, or is to be, undertaken.
Clause 20 deletes `carrying out' and replaces it with `undertaking' for
consistency with the SDPWO Act in which `undertake' is a defined term in
Schedule (Dictionary).
Clause 26 inserts a new s 35(4)(d) (CG evaluates EIS, submissions, other
material and prepares report) to provide that, if Division 8 applies to the
project, the CG in preparing a report evaluating the EIS for the project, may
impose conditions for the undertaking of the project.
Clause 27 insert a new s 35A(3) to provide that if Division 8 applies to the
project and the CG imposes conditions for the project, the CG's report does
not lapse unless the project (as evaluated by the CG in the CG's report
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
prepared under s 35) is not substantially started within 4 years after the
CG's report is prepared.
Clause 28 inserts the words `or a condition of the project' in the new s 35B
to enable a proponent to request the CG to assess a change to a condition
for a significant project that was stated or imposed by the CG in the CG's
report prepared evaluating the EIS for the project.
Clause 28 also inserts a new s 35I(2)(d) to enable the CG, when making
his/her evaluation of a change to a project under s 35I, to impose conditions
for the undertaking of the project pursuant to the new division 8, Part 4.
Clause 39A inserts a new Division 8 in Part 4 (ss 54A - 54G below). The
new s 54A explains the scope of the new Division 8. Division 8 applies if
the significant project does not involve a material change of use that, under
the Integrated Planning Act, is impact assessable; and Division 4,
subdivision 2 and Divisions 5, 6, 6A and 7 do not apply to the project.
Ordinarily, where the CG declares a project to be a significant project for
which an EIS is required and proceeds to facilitate the project culminating
in the evaluation of the EIS for the project in the CG's report in which the
CG can either recommend or state conditions to be attached to the relevant
approvals for the project. This serves to link the environmental assessment
and approval stages of the project. However, the CG considers that
proponents of significant projects should comply with environmental
management plans and other measures designed to lessen the impact of the
project even where there is no relevant regulatory approval required for the
project.
It is considered desirable to have a statutory mechanism to enable
conditions to be imposed by the CG on a significant project where there is
no other approval to which the CG can recommend or state conditions to be
attached. The new division will provide a mechanism to ensure that
conditions the CG determines for the project are complied with by the
proponent or any entity undertaking the project. This will provide for the
proponent to comply with conditions requiring the preparation of, for
example, environmental management plans required by the CG, and
mechanisms for monitoring complaints.
The new s 54B(1) provides that the CG's report prepared under division 8
may impose conditions for the project and state when the conditions take
effect.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
The new ss 54B(3) and (4) also provides that if the CG's report imposes
conditions, it may also nominate one of more entities to have jurisdiction
for one or more of the conditions.
The new ss 54B(5) and (6) provide that the CG may either nominate an
entity in the CG's report prepared under s 35 or by public notification made
at any time. Public notification of the entity to have jurisdiction for a
condition may be made at any time in accordance with the public
notification provisions in s 171 of the SDPWO Act, whereby the CG must
place a link to the document nominating the entity on the agency's website.
The news s 54B(7) requires that the CG give a copy of the CG's report for
the relevant project to the nominated entity that will have jurisdiction for a
condition in the CG's report.
The new s 54B(8) provides that if the CG nominates an entity for an
imposed condition by public notification, the CG must give a copy of the
notice to the nominated entity; the project proponent; and the relevant local
government. A copy of the notice nominating the entity to have jurisdiction
will also be provided to the department administering the Environmental
Protection Act to recognise that agency's interest in dealing with
complaints in its administration of the Environmental Protection Act and
ensure that it is aware which entity is responsible for the enforcement of a
conditions and can direct enquiries to the appropriate entity if necessary.
The new s 54C provides that the test for conditions imposed by the CG in
Division 8 is that they be reasonable and relevant to the project as set out in
ss 3.5.30(1) and 3.5.31(1) of the Integrated Planning Act.
The new s 54D details the effect of the conditions imposed by the CG
under Division 8 for the undertaking of a significant project.
The new s 54D(2) provides that for the purposes of s 4.3.3 (Compliance
with development approval) of the Integrated Planning Act, the
undertaking of the project as if it were `development' as defined in
Integrated Planning Act; and the imposed conditions as if they were a
`development approval' for the development under the Integrated Planning
Act. Accordingly, a person must not contravene an imposed condition and
the penalty provisions set out in s 4.3.3 will apply to a contravention.
In addition to the penalty provisions set out in s 4.3.3 of the Integrated
Planning Act, the penalty provisions of the Chapter 8, Parts 2A and 3 of the
Environmental Protection Act 1994 apply as if the imposed conditions were
development conditions for a development approval under the
Environmental Protection Act. The new s 54D(3) provides that Chapter 8,
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Parts 2A and 3 of the Environmental Protection Act, which provide for
offences relating to conditions and environmental harm, applies to the
project as if the conditions imposed by the CG were imposed under that
Act.
The new s 54D(3) provides that compliance with the imposed conditions
can be relied upon as a defence to possible offences relating to unlawful
environmental harm under s 436 of the Environmental Protection Act.
The conditions imposed by the CG apply to anyone undertaking the
project, including the proponent, the proponent's contractors,
subcontractors, agents, licensees and executive officers, and any of their
contractors, subcontractors, agents, licensees and executive officers.
The new s 54E provides for the circumstance where there is another
approval given for a significant project where the CG has imposed
conditions under the new Division 8. In the event that the project required
an approval under another piece of legislation, or under a local government
planning scheme after the CG had imposed conditions and there is an
inconsistency between conditions, the conditions imposed by the CG
prevails to the extent of any inconsistency.
The new s 54F(1) provides that a proceeding may be brought in the
Planning and Environment Court, either under chapter 4, part 3, division 5
of the Integrated Planning Act for an enforcement order; or under s 505 of
the Environmental Protection Act for a restraint of contraventions of the
SDPWO Act. The nature of the conditions will determine the appropriate
proceeding that would apply, that is those conditions relating to
`environmental' matters would be dealt with under s 435 of the
Environmental Protection Act. A party bringing a proceeding will have to
choose to bring the action under either chapter 4, part 3, division 5 of the
Integrated Planning Act or under s 505 of the Environmental Protection
Act.
The new s 54F(1)(b) provides that the remedies available for an offence or
threatened or anticipated offence relating to the project under the new
54F(1)(a) apply as if the offence was an offence relating to a development
approval for the development under the Integrated Planning Act or an
offence relating to a development condition of a development approval
under the Environmental Protection Act.
The new s 54F(2) provides that the proceedings able to be started under
chapter 4, part 3, division 5 of the Integrated Planning Act and s 505 of the
Environmental Protection Act are restricted to persons genuinely affected
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
by the project. A proceeding under s 54F can only be started by the
following people:
-- the Coordinator-General;
-- the entity nominated by the CG under s 54B to have jurisdiction
for a condition imposed by the CG in the CG's report;
-- the local government for the local government area in which the
project is, or is to be, undertaken;
-- the proponent of the project; and
-- someone else whose interests are significantly adversely affected
by the subject matter of the proceeding.
The new s 54G(1) provides that a proceeding for a declaration under s
4.1.21 of the Integrated Planning Act can not be started about a significant
project for which the CG has imposed conditions under division 8.
The new s 54G(2) provides that only a person mentioned in the new s
54F(2) (that is, the CG; the entity nominated by the CG under the new s
54B to have jurisdiction for a condition imposed by the CG in the CG's
report; the local government for the local government area in which the
project is, or is to be, undertaken; the proponent of the project; and
someone else whose interests are significantly adversely affected by the
subject matter of the proceeding) may bring a proceeding in the Planning
and Environment Court for a declaration about whether there has been
substantial compliance with a condition imposed by the CG for the
undertaking of the project.
The nature of the conditions imposed by the CG for a project may be stated
as objectives to be achieved in the undertaking of the project or desired
outcomes which are capable of being achieved by range of measures, rather
prescriptive conditions which have clearly identifiable parameters.
Accordingly, it is appropriate for the court to consider a range of relevant
policies in determining what order can be made in a proceeding about
whether there has been substantial compliance with an imposed condition.
The new s 54G(3) provides that the Planning and Environment Court has
jurisdiction to hear and decide a proceeding under the new s 54G(2).
The new s 54G(4) provides that the Court may make orders about a
declaration in accordance with s 4.1.22 of the Integrated Planning Act as if
it were a proceeding under s 4.1.21 of the Integrated Planning Act. The
provisions of s 4.1.23 of the Integrated Planning Act apply to costs in
relation to a proceeding under s 54(2).
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
The new s 54G(5) provides that in deciding what orders the Court can
make, the Court may have regard to one or more of the following:
-- the laws and policies applying when the condition was imposed;
-- the environmental impact statement for the project;
-- the Coordinator General's report and a Coordinator-General's
change report for the project;
-- the financial implications of the imposed conditions or any
proposed orders;
-- the public interest;
-- any applicable environmental management plan for the project as
identified in the CG's report;
-- any other matter the Court considers relevant.
Section 4.1.56 of the Integrated Planning Act applies to proceedings to
enable appeal rights from enforcement orders and declaratory relief to the
Court of Appeal. Sections 4.1.56, 4.1.57 and 4.1.58 of the Integrated
Planning Act apply to a party to a proceeding commenced pursuant to
provisions of this Division.
Clause 63 provides new transitional provisions in Part 9 by inserting a new
Division 2, s 178, providing for the application of the new s 35(4)(d) and
Division 8 (see clauses 28 and 39A) to the NSBT project. The conditions
recommended by the CG in appendix 1, schedule 3 of the CG's report
evaluating the Environmental Impact Statement for the NSBT project dated
25 August 2005 are taken to be imposed conditions under the new division
8.
Clause 64 inserts the following definitions in the Schedule (Dictionary):
-- `imposed condition' means a condition imposed by the CG in the
CG's report for the undertaking of the project and is defined in
the new s 54B(2);
-- `nominated entity' means, for an imposed condition, the entity
nominated to have jurisdiction for the condition by the CG and is
defined in s 24, and
-- `relevant local government' means, for a project, the local
government for the local government area in which the project is,
or is to be, undertaken and is defined in s 24.
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State Development and Public Works Organisation
and Other Legislation Amendment Bill 2005
Part 4 Amendment of the Freedom of
Information Act 1992
Clause 65 defines the Act being amended as the Freedom of Information
Act 1992.
Clause 66 amends the definition of `department' in section 47A of the Act
to reflect the changes to the administrative arrangement of government.
Clause 67 inserts a new Part 11, which contains a transitional provision that
ensures the amendment under clause 66 has effect from the commencement
of the Administrative Arrangement Order (No.2) 2005.
© State of Queensland 2005