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Environment Protection and Biodiversity Conservation Amendment Bill 2013

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7394

2010-2011-2012-2013

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Environment Protection and Biodiversity Conservation Amendment Bill 2013

 

 

(1)           Page 17 (after line 13), at the end of the Bill, add:

Schedule 2—Further amendments

 

Environment Protection and Biodiversity Conservation Act 1999

1  After section 12

Insert:

12A Requirement for approval of activities with a significant impact on a National Park

             (1)  A person must not take an action that:

                     (a)  has or will have a significant impact on the environment within a National Park; or

                     (b)  is likely to have a significant impact on the environment within a National Park.

Civil penalty:

                     (a)  for an individual—5,000 penalty units;

                     (b)  for a body corporate—50,000 penalty units.

             (2)  Subsection (1) does not apply to an action if:

                     (a)  an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

                     (b)  Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

                     (c)  there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

                     (d)  the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

             (3)  A property is a National Park for the purpose of this Act if it is:

                     (a)  an area that is a National Park for the purpose of a law of the Commonwealth, a State or a Territory as at 17 June 2013, or is an area that becomes a National Park, or is added to an existing National Park, on or after that date; or

                     (b)  an area that is a nature reserve for the purpose of a law of the State of Western Australia as at 17 June 2013, or is an area that becomes a nature reserve, or is added to an existing nature reserve, on or after that date; or

                     (c)  an area that is declared under the National Parks Act 1975 of the State of Victoria as at 17 June 2013, or is an area that is declared under that Act, or is added to an existing area declared under that Act, on or after that date; or

                     (d)  an area that is land designated for conservation under Conservation, Forests and Lands Act 1987 of the State of Victoria as at 17 June 2013, or is an area that becomes land designated for conservation under that Act, or is added to an existing area that is land designated for conservation, on or after that date; or

                     (e)  an area that is a state reserve or a nature reserve under the National Parks and Reserves Management Act 2002 of the State of Tasmania as at 17 June 2013, or is an area that becomes a state reserve or a nature reserve, or is added to an existing state reserve or nature reserve, on or after that date; or

                      (f)  an area that is a reserve under the National Parks and Wildlife Act 1975 of the State of South Australia as at 17 June 2013, or is an area that becomes a reserve, or is added to an existing reserve, on or after that date; or

                     (g)  an area that is a wilderness protection area under the Wilderness Protection Act 1992 of the State of South Australia as at 17 June 2013, or is an area that becomes a wilderness protection area, or is added to an existing wilderness protection area, on or after that date; or

                     (h)  an area that is a park or reserve under the Territory Parks and Wildlife Conservation Act 2006 of the Northern Territory as at 17 June 2013, or is an area that becomes a park or reserve, or is added to an existing park or reserve, on or after that date.

2  After section 15A

Insert:

15AA   Offences relating to National Parks

             (1)  A person is guilty of an offence if:

                     (a)  the person takes an action; and

                     (b)  the action results or will result in a significant impact on the environment of a property; and

                     (c)  the property is a National Park.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

          (1A)  Strict liability applies to paragraph (1)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (2)  A person is guilty of an offence if:

                     (a)  the person takes an action; and

                     (b)  the action is likely to have a significant impact on the environment of a property; and

                     (c)  the property is a National Park.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

          (2A)  Strict liability applies to paragraph (2)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code .

             (3)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term of not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1:       Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2:       An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

Note 3:       If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.

             (4)  Subsections (1) and (2) do not apply to an action if:

                     (a)  an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

                     (b)  Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

                     (c)  there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

                     (d)  the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

Note:          The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

3  Subsection 29(1)

After “or 24E”, insert “ or section 12A or 15AA”.

4  Section 34 (after table item 1A)

Add:

1AA

section 15AA

the environment within a National Park

 

5  After section 34BA

Insert:

34BB  Declarations relating to National Parks

             (1)  The Minister may make a declaration under section 33 relating to a National Park only if:

                     (a)  the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under the Convention on Biological Diversity;

                     (b)  the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party; and

                     (c)  the declaration meets the requirements (if any) prescribed by the regulations.

             (2)  For the purpose of this Act, the Convention on Biological Diversity means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992.

6  After section 37D

Insert:

37DA  Declarations relating to National Parks

                   The Minister may make a declaration under section 37A relating to a National Park only if:

                     (a)  the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under the Convention on Biological Diversity; and

                     (b)  the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party.

7  Subsection 46(1)

After “or 24E”, insert “ or 12A or 15AA”.

8  Subsections 46(2) and (2A)

After “or 24E”, insert “ or 12A or 15AA”.

9  After section 51A

Insert:

51B  Agreements relating to National Parks

             (1)  The Minister may enter into a bilateral agreement containing a provision relating to a National Park only if:

                     (a)  the Minister is satisfied that the provision is not inconsistent with Australia’s obligations under the Convention on Biological Diversity;

                     (b)  the Minister is satisfied that the provision is not inconsistent with Australia’s obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party; and

                     (c)  the provision meets the requirements (if any) prescribed by the regulations.

             (2)  The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a National Park only if:

                     (a)  the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the Convention on Biological Diversity; and

                     (b)  the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party.

10  After section 137A

Insert:

137B  Requirements for decisions about National Parks

                   In deciding whether or not to approve, for the purposes of section 12, the taking of an action and what conditions to attach to such an approval, the Minister must not act inconsistently with:

                     (a)  Australia’s obligations under the Convention on Biological Diversity; and

                     (b)  any other relevant international environment convention to which Australia is a party which aims to protect the natural environment.

11  After section 146G

Insert:

146GA  Approvals relating to National Parks

                   If the approval relates to a National Park, the Minister must not act inconsistently with:

                     (a)  Australia’s obligations under the Convention on Biological Diversity; and

                     (b)  any other relevant international environment convention to which Australia is a party which aims to protect the natural environment.

[National Parks]