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Environment Protection and Biodiversity Conservation Bill 1999

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1998

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION BILL

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by Authority of the Minister for the Environment and Heritage , Senator the Hon Robert Hill)

 

 

 

 



Environment Protection and Biodiversity Conservation Bill 1998

 

General outline

 

The objects of this Bill are to:

_       provide for the protection of the environment, especially those aspects of the environment which are matters of national environmental significance,

_       promote ecologically sustainable development through the conservation and sustainable use of natural resources,

_       promote the conservation of biodiversity bodiversity ,

_       promote a co-operative approach to the protection and management of the environment involving governments, the community, and landholders, and

_       assist in the co-operative implementation of Australia's international environmental responsibilities.

 

The Bill has 8 Chapters.

 

Chapter 1 is a preliminary Chapter. 

 

Environmental assessments and approvals (Chapters 2 and 4)

 

The Bill applies to an action that has, will have, or is likely to have a significant impact on a matter of national environmental significance. 

 

The matters of national environmental significance are: 

_       world heritage properties;

_       Ramsar wetlands of international importance;

_       nationally threatened species and communities,

_       migratory species protected under international agreements;

_       nuclear actions;

_       the Commonwealth marine environment (generally outside 3 nautical miles from the coast); and

_       any additional matter specified by regulation (after consultation with the States). 

 

The Bill also applies to actions on Commonwealth land and actions by the Commonwealth and Commonwealth agencies (‘Commonwealth actions’). 

 

Actions which have, may have or are likely to have a significant impact on a matter of national environmental significance may be taken:

 

_         in accordance with a bilateral agreement (including an accredited State approval process) or a declaration (including an accredited Commonwealth approval process); or

_         with the approval of the Minister under Part 9 of the Bill; or

_         in accordance with a conservation agreement. 

 

In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

The Minister may also exempt specific actions on the basis of the national interest.

 

If the Minister provides advice that an action does not require approval, a person will not contravene the Bill if the action is taken in accordance with that advice. 

 

For actions requiring approval, the environmental assessment and approval process is set out in Chapter 4. 

 

If a person takes an action that requires approval without obtaining that approval, the person is liable to pay a civil penalty. 

 

 

Bilateral agreements with States and Territories (Chapter 3)

 

The Minister may enter into bilateral agreements with States or Territories. Bilateral agreements are an integral feature of the Bill.  Through bilateral agreements, the Commonwealth may accredit and rely upon State assessment and approval processes for actions impacting upon matters of national environmental significance. 

 

A bilateral agreement may declare that actions in a specified class do not require approval under the Bill if they are approved by the State in a particular manner or if they are taken in a specified manner.  Actions covered by a bilateral agreement do not require approval under the Bill. 

 

Bilateral agreements must be consistent with the objects of the Bill and must meet any standards or criteria identified in regulations.  In this way, the Commonwealth can be satisfied that accredited State processes meet appropriate standards.  

 

The Commonwealth may cancel or suspend bilateral agreements in certain circumstances.

 

Other Commonwealth processes may be similarly accredited under declarations.

 

 

 

 

 

Listed species and communities (Chapter 5, Part 16)

 

The Bill provides for the establishment of lists of:

_       nationally threatened native species (classified as extinct, extinct in the wild, critically endangered, endangered, vulnerable, and conservation);

_       nationally threatened ecological communities (which may be classified as critically endangered, endangered or vulnerable);

_       key threatening processes;

_       internationally protected migratory species; and

_       marine species (in Commonwealth waters). 

 

The Bill:

_       creates the Australian Whale Sanctuary;

_       regulates certain activities in Commonwealth areas which affect whales and dolphins, listed species and listed ecological communities

 

The Minister is required to:

_       prepare recovery plans for listed threatened species (except those listed as extinct or conservation dependent) and listed threatened communities, and

_       prepare threat abatement plans for listed key threatening processes.

 

The Minister may make wildlife conservation plans for the protection, conservation, and management of listed migratory species, listed marine species, and cetaceans.

 

Protected areas (Chapter 5, Part 20)

 

Protected areas are:

_       World Heritage Properties,

_       Wetlands of international importance,

_       Biosphere reserves, and

_       Commonwealth reserves.

 

The Bill sets out some steps to be followed before a property can be nominated as a world heritage property or designated as a Ramsar wetland, including consultation with relevant States and persons.  The Bill promotes the preparation of management plans for these areas by the Commonwealth and the States.    

 

The Bill sets out some requirements for creating and managing Commonwealth reserves (only on land owned by the Commonwealth).  These include requirements for the preparation of management plans and the involvement of indigenous people in reserves which include indigenous people's land.

 

 

 

 

Conservation agreements with persons (Chapter 5, Part 17)

 

The Minister for the Environment may enter into Conservation agreements with private landholders.  Under conservation agreements, land is managed in an agreed manner to enhance conservation, and the Commonwealth may provide financial or other assistance.  Conservation agreements must result in a net benefit to the conservation of biodiversity in the place covered by the agreement.  A conservation agreement may specify actions that are exempt from Commonwealth environmental assessment and approval.

 

Access to biological resources (Chapter 5, Part 16, Division 6)

 

The Bill enables the Government to establish regulations about access to biological resources on Commonwealth land and waters.

 

Acts replaced

 

The Bill replaces the National Parks and Wildlife Conservation Act 1975 , the Whale Protection Act 1980 , the World Heritage (Properties Conservation) Act 1983 , the Endangered Species Protection Act 1992 , and the Environment Protection (Impact of Proposals) Act 1974 .

 

Financial impact statement

 

The Environment Protection and Biodiversity Conservation Bill 1998 will not cost the Commonwealth more than the existing legislative arrangements which it will replace. Not done yet.

 

Regulation impact statement for the Environment Protection and Biodiversity Conservation Bill 1998 .

 

Problem

 

Market failure

 

Many of the benefits provided by the environment are used free of charge, and often access cannot be denied.  Without government involvement, free access and use can result in adverse effects on the environment.

 

Any use of environmental resources may involve some loss of environmental quality.  If the users of environmental resources do not pay for the use of those resources, or are not otherwise made responsible, the resources will be used excessively, and impose losses not only on those currently alive, but also on those yet to be born.  Governments can intervene to correct this failure.

 

In Australia, over the years, State and Commonwealth Governments have put in place policies to encourage better use of environmental resources, and backed these with legislation and regulation.  This was often done in an ad hoc fashion, as problems arose, without a clear understanding of which level of Government was best placed to address damage to the environment.  Consequently, this proposal concerns improving government processes and environmental outcomes.

 

What is the problem being addressed?

 

On taking office the Howard Government was faced with a division of responsibilities between the Commonwealth, States and Territories, together with a series of governmental environmental processes which were in need of reform. The reforms were necessary to remove  unnecessary impediments to business/industry and to improve the effectiveness of environmental protection measures were  not optimally effective.  The Government also inherited an environmental law regime which:

_         developed in an ad hoc and piecemeal fashion.

- Accordingly, the various Acts are not integrated within an appropriate conceptual framework. This limits the ability of the existing legislation to secure good environmental outcomes in an efficient manner.

 

_         does not reflect an appropriate role for the Commonwealth in environmental matters.

- In some cases, the Commonwealth does not currently have adequate legislative capacity to discharge its responsibilities for national environmental matters. In other cases, Commonwealth environmental legislation is triggered by matters which are more appropriately the responsibility of local or State governments.

 

_       was enacted at a time when most States did not have any significant environmental legislation.

- However, most States have now enacted relatively comprehensive environmental law regimes. In fact, some States have recently enacted their second or third generation of environmental statutes. The evolution of State law has not been adequately recognised in the Commonwealth’s legislative framework, thus hindering seamless and productive integration of Commonwealth and State laws.

 

_       largely fails to recognise and implement the principles of ecologically sustainable development.

 -The principles of ecologically sustainable development are now universally accepted as the basis upon which environmental, economic and social goals should be integrated in the development process. The failure to fully recognise and implement the principles of ecologically sustainable development is regarded as a fundamental deficiency in the Commonwealth’s existing regime.

 

_       Does not adequately equip the Commonwealth to address current and emerging environmental issues. It has not been amended to reflect best practice.

 

Why is government action needed to correct the problem?

 

Government action was clearly the only way to address problems associated with intergovernmental relations on the environment.  It was through the 1992 Intergovernmental Agreement on the Environment (IGAE) that governments established a framework for intergovernmental consultation, and provided mechanisms to accommodate each other's interests on particular matters.  The IGAE also established the responsibilities and interests of governments for environment matters. 

 

It was also necessary for the Government to take action to reform its environmental legislation.

 

OBJECTIVES

 

What are the objectives of the review processes?

 

The aim of the Government's action was to more effectively implement the IGAE, put in place Commonwealth environmental law which operates more effectively and efficiently, and, most importantly, deliver better environmental outcomes.

 

To address the problems the Government took action on two fronts. 

 

Through the Council of Australian Governments (COAG) it instigated a Review of Commonwealth/State Roles and Responsibilities for the Environment.  The objective of the review was

 

To develop a more effective framework for inter-governmental relations on the environment which will provide greater certainty for participants in environment issues, minimise duplication of effort to achieve common goals and facilitate improved environmental outcomes.

 

Legislation reform was an essential part of the COAG Agreement.  Therefore, following on from the COAG Review, the Government embarked on a Review of Commonwealth Environmental Legislation, with the objective of reforming the legislation to

 

deliver better environmental outcomes in a manner that promotes certainty for all stakeholders and minimises the potential for delay and inter-governmental duplication.

 

Both the Reviews are an integral part of the Government's Commonwealth/State reform agenda.  A priority of the Review of Commonwealth Environmental Legislation is to implement the outcomes of the COAG Review of Commonwealth/State Roles and Responsibilities for the Environment.

 

COAG Review process

 

The Review of Commonwealth/State Roles and Responsibilities for the Environment was conducted by a senior level Working Group of the Intergovernmental Committee for Ecologically Sustainable Development

 

In November 1996 the Government endorsed the objectives and approaches pursued by the Commonwealth in the Review.  In September 1997 the Government agreed its position for both the final negotiations and the COAG meeting which considered the reforms resulting from the Review.  The Government also noted that amendments to Commonwealth environment legislation will be required to implement the outcomes of the COAG Review, to proceed immediately after the Review had been concluded.

 

In November 1997 COAG gave in-principle endorsement to a Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment.  Fundamental changes to Commonwealth Environmental Legislation are required to give effect to the Agreement.  A majority of States and Territories have now signed the agreement, and it is a Government priority to introduce legislation into Parliament to implement to agreement.  There is an expectation, particularly on the part of business and industry, that the Government will introduce legislation quickly to provide certainty of outcome for the review process and deliver its benefits to the community.

 

Objectives of the Bill flowing from the COAG review

 

In summary, the major outcomes of the Review process to be reflected in the Environment Protection and Biodiversity Conservation Bill 1998 are:

 

-      The Commonwealth focussing on matters of national environmental significance. This will result in the Commonwealth not being involved in matters of only State or local significance.

 

-      That for activities or proposals involving both the Commonwealth and a State, the Commonwealth environmental assessment and approval process will be triggered only by those actions which may have a significant impact on matters of national environmental significance.  This will overcome the problem of Commonwealth legislation being triggered in an indirect manner by Commonwealth decisions that are not directly related to the environment, such as export approval and foreign investment, and funding decisions.

 

-      Improving the efficiency and timeliness of environmental and development approvals processes;

 

-      Greater transparency and certainty in decision making in relation to development proposals;

 

-      A reliance on State processes and management approaches which will, as appropriate, accommodate Commonwealth interests;

 

-      Recognition of the Commonwealth’s role in international and national environmental matters with strengthened Commonwealth/State partnership arrangements for dealing with these matters;

 

Is there a regulation/policy currently in place?  Who administers it?

 

Pieces of legislation which the Bill is designed to replace are: 

_       the Environment Protection (Impact of Proposals) Act 1974 ,

_       the National Parks and Wildlife Conservation Act 1975 ,

_       the Whale Protection Act 1980 ,

_       the World Heritage (Properties Conservation) Act 1983 ,  and

_       the Endangered Species Protection Act 1992

These Acts are administered by the Department of the Environment.

 

The Government committed itself to reform environmental legislation in the 1996 pre-election environment policy statement, Saving Our Natural Heritage , and the 1996 Budget statement, Investing in Our Natural Heritage .   

 

Options

 

In light of the COAG Agreement, the only options available to the Government were to continue with the existing Commonwealth/State regime and environmental legislation, or to implement the Agreement through the reform of Commonwealth environmental legislation.

 

Option 1:  Status quo

 

The current Commonwealth-State environmental arrangement and Commonwealth regulatory regime involves:

_       Commonwealth environmental assessments and approvals being activated by ad hoc triggers that are not directly related to the environment (eg: foreign investment).

_       No clear timeframes for Commonwealth environmental assessments and approvals.

_       Commonwealth environmental assessments and approval being triggered at any stage of the development process.

_       Proponents (ie those taking or proposing to take an action which may require assessment under the act) having no certainty about whether Commonwealth processes will be triggered by their activities and/or proposals.

_       Procedures for accrediting State processes and decisions with no legislative basis.

_       The Commonwealth's environmental statutes largely fail to recognise and implement the principles of ecologically sustainable development.

_       Overall, the Commonwealth's environmental law regime has not been amended to reflect best practice.  For example, in the conservation field, it primarily focuses on first generation issues, such as national park management, and has not evolved to embrace contemporary approaches to biodiversity conservation.

 

Option 2: Reform of Commonwealth environmental legislation

 

Reform of Commonwealth environmental legislation is to be achieved through the Environment Protection and Biodiversity Conservation Bill 1998 .  A particular focus of the Bill is to implement the outcomes of the COAG Agreement.  Consideration was given to enacting these provisions in two separate Bills.  However, incorporating the provisions in a single Bill has advantages in terms of administrative convenience and because of the links between Environment Protection and Biodiveristy Conservation.  Using a single Bill has no impact on the actual provisions contained in the Bil, except to prevent repitition.

 

Features of the Bill are:

_         Commonwealth involvement in the environmental assessment and approval process is focussed on matters of national environmental significance.

_         Promotion of ecologically sustainable development.

_         Proponents will be able to initiate the triggering process in the Act.

_         Decisions on Commonwealth involvement will be made early in the process and will be binding.

_         A transparent legislative mechanism for accreditation of State assessment processes and, in some cases, State decisions will be adopted. The goal will be to maximise reliance on State processes which meet appropriate standards. Bilateral agreements will provide for Commonwealth accreditation of State processes and, in appropriate cases, State decisions (for example, decisions under agreed management plans). Accordingly, bilateral agreements will allow the Commonwealth to accredit State systems which meet specified criteria. The Bill contains provisions to ensure that the level of protection afforded by State processes must be at least equivalent to that provided by Commonwealth processes.

_         The Environment Minister to decide whether to grant consent after full consultation with other relevant Ministers.  The decision will be made on the basis of an ecologically sustainable development approach which includes consideration of economic and social factors.

_         An improved, integrated framework for the conservation and use of Australia's biodiversity so that conservation priorities can be determined in a more systematic and strategic manner, and regional approaches to biodiversity conservation promoted.

_         Promotion of the identification and monitoring of Australia’s biodiversity and  bioregional planning;

_         Ensuring that the Commonwealth’s protected area system covers the full range of IUCN categories from strict nature conservation to multiple use;

_         Recognising that the matters of national environmental significance which trigger the assessment and approval process in the Environment Protection Act include World Heritage Properties, Ramsar wetlands, nationally endangered and vulnerable species and endangered ecological communities, and migratory species;

_         Providing for conservation agreements to protect biodiversity on private and public land; and

 

 

 

 

 

IMPACT ANALYSIS

 

The regulations will affect government, business, and the community to varying degrees.  The most significant regulatory impacts arise from changes to the environmental assessment and approvals regime.

 

Following is a comparison between the two options, with respect to environmental assessment and approvals.

 

Status quo

 

 

Commonwealth legislation can be triggered by  projects which have only local or State significance.

 

Reform of Commonwealth Environmental Legislation

 

Commonwealth legislation will be triggered only by projects which may have a significant impact on matters of national environmental significance, and also by projects on Commonwealth land, or by Commonwealth actions.

 

It can be several months before a project is referred to the Commonwealth Environment Minister, creating unnecessary delays.

 

The proponent may trigger the process as early as convenient.

Indirect triggers (eg foreign investment approval) may occur late in the project development process.  This creates additional delay and hinders seamless integration of Commonwealth and State assessment and approval processes.

 

Reliance on direct environmental triggers eliminates the potential for late triggers.

Proponents may be uncertain about whether any trigger for Commonwealth involvement will occur.

 

Proponents will know up-front whether the Commonwealth is involved in the environmental assessment and approval process.

Ad hoc triggers mean that two projects can raise identical environmental issues, with only one triggering Commonwealth involvement.

Environmentally-based triggers mean that two projects raising identical environmental issues will either both trigger or both fail to trigger Commonwealth processes.

 

Different action Ministers may reach different decisions about whether a project trigger Commonwealth processes.

 

There is one, early, binding decision on whether Commonwealth processes are triggered.

Up-front accreditation of State processes, assessments and decisions is not possible.

 

Up-front accreditation of State processes, assessments and decisions is provided for.

Time-frames for Commonwealth environmental assessment and approval processes are not adequately set out.

Time-frames for Commonwealth environmental assessment and approval processes are fully specified, increasing clarity of the process for proponents.

 

The Commonwealth assesses all environmental issues raised by a project.

 

Only matters of national environmental significance will be assessed by the Commonwealth for projects occurring outside Commonwealth land.

 

 

More focussed Commonwealth involvement in environmental issues based on matters of national environmental significance will lead to better use of Commonwealth resources and improved environmental outcomes.

 

Who is affected by the problem, and who is likely to be affected by its proposed solutions?

 

The main parties affected by the problem and its proposed solutions are the Commonwealth, States and Territories, and industry.

 

The community will also be affected by changes in the management of the environment to the extent that these are manifested in environmental outcomes.

 

 

 

 

 

 

Identify and categorise the expected impacts of the proposed options as likely benefits, or likely costs

Determine which groups are likely to experience these benefits and costs.

 

Option 1: Status quo

 

Benefits

 

The only significant benefit to the Commonwealth, States and industry from continuing with the status quo is that it will not be necessary to revise current procedures, thus saving some  minor one off costs.

 

The community will continue to benefit from the same level of environmental protection and biodiversity conservation that they presently enjoy.

 

Costs

 

The main costs to the Commonwealth are:

_       unnecessary duplication of State assessment and approval processes will continue,

_       the Commonwealth will continue to assesses matters that are of State and local significance only, and

_       some proposals affecting matters of genuine national environmental significance will continue to escape Commonwealth assessment and approval.

 

The main costs to the States arise from:

_       continuing unnecessary duplication of Commonwealth assessment and approval processes,

_       uncertainty about whether and when the Commonwealth will become involved in environmental assessment and approval.

 

The main costs to industry are:

_       some proposals will continue to be unnecessarily subject to both Commonwealth and State assessment and approvals,

_       uncertainty about whether Commonwealth assessment and approval processes are triggered, and associated delays in assessment, will continue, and

_       delays because Commonwealth assessment and approval processes are triggered late in the development process will continue.

 

 

Option 2: Reform of Commonwealth environmental legislation

 

Benefits

 

The main benefits to the Commonwealth are:

_       improved efficiency and transparency in decision making on environmental matters involving the Commonwealth and the States,

_       more focussed Commonwealth involvement in environmental issues based on matters of national environmental significance, which will lead to better use of Commonwealth resources and improved environmental outcomes,

_       the removal of unnecessary duplication of environmental assessment and approval processes through the framework for accreditation of State processes and decisions,

_       Commonwealth level of involvement determined early in an assessment and approvals process,

_       removal of action based triggers will remove the obligation (and costs) of Commonwealth Ministers and Departments requiring environment impact assessment for matters that are of State or local significance only,

_       opportunities for coordinating and streamlining Commonwealth decision making on environmental matters involving the States,

_       clear Commonwealth role on environmental matters and clear arrangements for determining whether matters of national environmental significance exist,

_       the total cost of assessments and approvals processes to the Government sector will be reduced, because duplications and inefficiencies are being eliminated, particularly through accreditation and bilateral agreements,

_       capacity that the Commonwealth and the States can agree on additional matters of national environmental significance,

_       the use of bilateral agreements, conservation agreements and other instruments will encourage a focus on long-term planning and monitoring, and

_       a simpler, more flexible legislative basis for promoting the conservation and sustainable use of biodiversity.

 

The main benefits to States are:

_       recognition that environmental matters of State or local significance will be dealt with by the States together with greater certainty of Commonwealth responsibilities and involvement in environment issues based on matters of national environmental significance,

_       Commonwealth will no longer be involved in matters that are of only state or local significance,

_       improved efficiency and transparency in decision making on environmental matters involving the Commonwealth and the States with mechanisms that involve the States in decision making,

_       clear arrangements for determining whether matters of national environmental significance exist,

_       capacity that the Commonwealth and the States can agree on additional matters of national environmental significance, and

_       removal of unnecessary duplication of Commonwealth environmental assessment and approval processes through streamlined accreditation arrangements.

 

The main benefits to industry are:

_       greater certainty of Commonwealth and State roles, responsibilities and processes relating to the environment, particularly Commonwealth involvement in environmental issues,

_       simplified and clearer framework in which industry can pursue proposals requiring environmental and development approval,

_       a framework for improved accreditation arrangements whereby only one government environmental assessment and approval process will be applied to an activity or proposal - the government best placed to undertake an assessment will do so with unnecessary duplication removed,

_       a framework for integrated Commonwealth and State processes and improved public interfaces for dealing with activities and proposals involving matters of national environmental significance,

_       environmental and development approvals that are not of national environmental significance will be considered in accordance with State environmental and planning processes,

_       the delay, uncertainty and inefficiency associated with indirect triggers for Commonwealth assessments will be eliminated,

_       the legislation will require an early, binding decision by the Commonwealth on whether its assessment process will apply,

_       there will be set timeframes within which decisions must be made,

_       the increased use of voluntary conservation agreements, which allow a flexible approach to conserving biodiversity on private land, and

_       enforcement and compliance provisions which are consistent with the criminal code, and thus offer greater certainty and internal consistency.

 

The main benefits to the community are:

_       enhanced protection of the environment, with potential benefits such as better health outcomes,

_       enhanced conservation of biodiversity leading to more resilient ecosystems, and greater environmental amenity, and

_       while the Bill retains current opportunities for community input to environmental assessments and approvals, earlier triggering and more certain process with explicit timelines will ensure that community comment is considered earlier in the development process, and is therefore more effective.  Decisions will continue to be transparent, and information will continue to be available to the public.

 

 

 

 

Costs

 

There will be minor one-off costs to the Commonwealth, States, and industry associated with revising procedures for environmental assessments and approvals.  Most of these costs will be borne by Government, and will arise from the need to revise regulations and procedures, and negotiate and implement bilateral agreements.  Costs to industry will result from the need to become familiar with the new procedures and train staff to comply with them  While it is not possible to quantify one-off costs, they should be small compared to the ongoing benefits of more streamlines and efficient processes.

 

While total costs will be reduced, the savings for specific jurisdictions cannot be predicted until such accreditation arrangements and  agreements are in place.

 

 

 

 

Consultation

 

The Review of Commonwealth-State Roles and Responsibilities for the Environment involved extensive consultation between the Commonwealth, States, Territories, and the Australian Local Government Association.  The Review also involved consultation with relevant Ministerial Councils and non-government organisations.  In December 1996 the views of key non-government organisations on a consultation paper were sought.  Submissions from these organisations were considered by the senior level Working Group conducting the review, which also held discussions with representatives of key community organisations.

 

Consultation on the reform of Commonwealth environment legislation was primarily through 5000 copies of a consultation paper, which was distributed to all interested government and non-government organisations.  The consultation paper was also made available electronically on the internet.  Submissions on the paper were invited, and considered in the development of the Bill.   Both the Minister and officials held discussion with key interests.

 

 

Who are the main affected parties?

What are the views of those parties?

 

The main affected parties and their views are:

 

Government

All States and Territories endorsed in principle the COAG Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment.  The Agreement has now been signed by most States and Territories.

 

 

Industry

Industry generally support the substance of the proposed reforms, particularly the clarification of Commonwealth and State roles and responsibilities, the efficiencies that will be gained through the streamlining of the environmental assessment and approvals processes, and the simplification of the regulatory regime.  Industry notes that the precise benefits of the reforms will, to some extent, depend upon implementation of accreditation arrangements and bilateral agreements between the Commonwealth and individual States and Territories.

 

Conservation organisations

Conservation groups are concerned that accreditation of State and Territory processes may reduce the overall level of protection for the environment.  There is also concern that approaches such as the use of bilateral agreements should be transparent, and provide scope for public involvement.  A number of conservation organisations believe that a wider range of national environmental significance matters should be triggers for environmental assessment and approvals (eg greenhouse, vegetation clearance).  Conservation organisations generally support the suggested reforms relating to an integrated approach to the conservation of biodiversity.

 

 

 

 

Conclusion and recommended option

 

The package of measures contained in the Bill is the preferred option because they:

_       implement the Heads of Agreement on Commonwealth/State Roles and Responsibility for the Environment,

_       focus Commonwealth involvement in the environment on matters of national environmental significance and eliminate the need for Commonwealth involvement in matters which have only State or local significance,

_       will deliver significant ongoing benefits to the Commonwealth, States and Territories, and industry, particularly in terms of more streamlined and efficient environmental assessment and approvals processes,

_       will result in an effective and efficient environmental law regime, which will deliver better environmental outcomes in a manner that promotes certainty for all stakeholders, and

_       will result in enhanced protection for the environment, and enhanced conservation of Australia's biodiversity.

 

 

 

 

 

Implementation and review

 

How will the preferred option be implemented?

 

The option will be implemented through the operation of the legislation.  This will involve developing bilateral agreements and accreditation arrangements.

 

The Act established by this Bill will be administered by existing Commonwealth Agencies.  The Act would be administered by the Department of the Environment.

 

Many of the regulatory instruments contained within the Bill will have a limited life time, and be subject to regular evaluation and review of their operation and effectiveness.

 

The following Acts will be repealed: National Parks and Wildlife Conservation Act 1975 , the Whale Protection Act 1980 , the World Heritage (Properties Conservation) Act 1983 , the Endangered Species Protection Act 1992 , and the Environment Protection (Impact of Proposals) Act 1974 .

 

 

Is the preferred option clear, consistent, comprehensible and accessible to users?

 

Environment assessment and approval procedures will be simplified and streamlined.  Circumstances under which Commonwealth processes are triggered will be much clearer than at present, and clear timelines will be set out.

 

Consultation with business/industry demonstrates a high level of support for, and understanding of, the proposed changes.

 

What is the impact on business, including small business, and how will compliance and paper burden costs be minimised?

 

The Bill implements relevant commitments to streamline government processes contained in the Government statement More Time for Business .  In particular, the mutual recognition and accreditation procedures established by the IGAE are further developed and accelerated.

 

Continuing compliance costs will be negative (ie the changes are beneficial) due to the increased certainty and efficiency of the environmental assessment and approvals process, as outlined above.

 

There is likely to be some one-off compliance cost for business and conservation non-government organisations in adjusting to the new regulatory regime initiated by this Bill.  It will be necessary for organisations to familiarise themselves with the new provisions and their implication s.

 

 

 

 

 

 

 

 



 



 

Environment Protection and Biodiversity Conservation Bill 1998

 

Notes on Clauses

 

Chapter 1 - Preliminary

 

Part 1 - Preliminary

 

Clause 1 - Short title

1       This clause provides for the Act to be cited as the Environment Protection and Biodiversity Conservation Act 1998 .

 

Clause 2 - Commencement

2       This clause provides that the Act will commence on a day to be fixed by proclamation, but not more than six months after receiving Royal Assent

 

Clause 3 - Object

3       This clause sets out the object of the Act.

 

Clause 4 - Act to bind Crown

4       This clause provides that the Act shall bind the Crown in each of its capacities. The Crown is not liable to be prosecuted for an offence.

 

Clause 5 - Application of the Act

5       Except where the contrary intention appears, the Act applies only to acts, omissions ommissions , matters and things within the Australian jurisdiction (defined in subclause 5(5)).  In the Australian jurisdiction, the Act applies to everyone.  Where the Act applies outside the Australian jurisdiction, it applies only to Australian citizens and certain other persons domiciled in Australia, Australian corporations, Australian aircraft, Australian vessels, Commonwealth agencies and the Commonwealth. 

 

Clause 6 - Act to have effect subject to Australia's international obligations

6       This c C lause provides that the Act has effect subject to Australia's international obligations.

 

Clause 7 - Application of the criminal code

7       This c C lause provides that Chapter 2 of the Criminal Code applies to all offences against the Act.

 

Clause 8 - Native title rights not affected

8       This c C lause provides that the Act does not affect the operation of section 211 of the Native Title Act 1993 , which provides that holders of native title rights covering certain activities do not need authorisation required by other laws (including this Act) to engage in those activities.

 

Clause 9 - Relationship with  other Acts

9       The Act does not affect the operation of the Airports Act 1996.  In particular, it is intended to operate concurrently with the scheme for environmental regulation established under that Act and the regulations under that Act. 

 

10     To avoid doubt, subclause 9(2) preserves the operation of subsection 7(1) of the Antarctic Treaty (Environment Protection Act) 1980 .  This is intended to ensure that persons do not need approval or a permit under this Act for actions authorised by a permit or authority granted by another party to the Antarctic Treaty (except as provided for in regulations under the Antarctic Treaty (Environment Protection Act) 1980 ).  

 

11     Clause 9 also provides that making a decision or giving an approval under this Act shall not trigger section 30 of the Australian Heritage Commission Act 1975.

 

Clause 10 - Relationship with State law

12     Except where a contrary intention appears, the Act is not intended to exclude or limit the operation of any State or Territory law providing for the protection protecion of the environment.  The scheme established by this Act is intended to complement State and Territory environment laws and, through bilateral agreements and other means, provide for the integration of Commonwealth and State regimes. 

 

Chapter 2 - Protecting the environment

 

Part 2 - Simplified outline of this Chapter

 

Clause 11  Simplified outline of this Chapter

 

13     This clause gives a simplified outline of the chapter.

 

Part 3 - Requirements for environmental approvals

 

Division 1

 

14     This Division applies to an action that has, will have, or is likely to have a significant impact on one or more of the matters of national environmental significance.  The matters of national environmental significance are: 

_              world heritage properties;

_              Ramsar wetlands of international importance;

_              nationally threatened species and communities,

_              migratory species protected under international agreements;

_              nuclear actions;

_              the Commonwealth marine environment (generally outside 3 nautical miles from the coast); and

_              any additional matters specified by regulation (any such matters can only be added after consultation with the States).

 

15     Actions which have, may have or are likely to have a relevant impact on a matter of national environmental significance may be taken only:

_              in accordance with a bilateral agreement (which may accredit a State approval process) or a declaration (which may accredit another Commonwealth approval process); or

_              with the approval of the Minister under Part 9 of the Act; or

_              in some cases, in accordance with a conservation agreement. 

 

16     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

17     The Minister may also exempt specific actions on the basis of the national interest.

 

18     If the Minister provides advice that an action does not require approval, a person will not contravene the Act if the action is taken in accordance with that advice. 

 

19     For actions requiring approval, the environmental assessment and approval process is set out in Chapter 4. 

 

20     If a person takes an action that requires approval without obtaining that approval, the person is liable to pay a civil penalty. 

 

Subdivision A - World Heritage

 

Clause 12 - Requirement for approval of activities with a significant impact on a declared World Heritage property

 

21     This clause provides that a person must not take an action that has, will have, or is likely to have a significant impact on the world heritage values of a declared World Heritage property except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

22     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and certain forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

23     Not all actions impacting on a world heritage property will have, or are likely to have, a significant impact on the world heritage values of that property.  This clause therefore does not regulate all actions affecting a world heritage property.  In order to discharge Australia's responsibilities under the World Heritage Convention, this clause regulates those activities that will, or are likely to, have a significant impact on the values which give the property its world heritage status.  

 

24     The Minister will issue administrative guidelines to provide guidance on determining whether an action has, will have or is likely to have a significant impact on the world heritage values of a world heritage property.  These guidelines will also identify relevant bilateral agreements (including accredited State approval processes) and relevant declarations (including accredited Commonwealth processes) , compliance with which will obviate the need for approval.

 

25     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para 12(2) ( c ) ).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

26     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

Clause s 13

 

27     This clause stipulates that a property is a declared World Heritage property if:

_              it is included in the World Heritage List under the World Heritage Convention; or

_              it is specified in a declaration made by the Minister under clause 14.

 

 

 

 

 

Clause s 14

 

28     The Minister may declare a specified property to be a declared world heritage property if:

_              the Commonwealth has nominated the property for listing under the World Heritage Convention; or

_              the Minister is satisfied that the property has, or is likely to have, world heritage values and some or all of the values are under threat.

 

29     The appropriate Minister of the relevant State or Territory must be consulted before a declaration is made, except where the threat to a property is imminent. 

 

30     The Minister must specify a period for which the decision is to be in force.  The period must not be longer than the Minister believes:

_              the World Heritage committee needs to decide whether to include a nominated property in the List; or

_              the Commonwealth needs to decide whether the property has world heritage values and whether to nominate the property.

 

31     The period of a declaration is limited in this way to ensure the Act does not apply to properties which are not of world heritage value or which the Commonwealth is not genuinely assessing for possible nomination.  Prior to nomination, declaration s would only be used as a mechanism of last resort and only then to deal with significant threats to some or all of the world heritage values of a property. the Act would apply to a property in only the most exceptional of circumstances - for example, where an important feature of the property or its integrity as a whole were likely to be damaged or destroyed. 

 

32     In particular, the purpose of clauses 13 and 14 is to ensure the Commonwealth can discharge Australia's obligations under the World H h eritage Convention by providing for the identification and protection of a property which has world heritage values but which is not yet listed. 

 

33     A property may be nominated for listing under the World Heritage Convention only if the Commonwealth has sought to reach agreement with the owner or occupier of an area that is part of the property and the relevant State or Territory (clause 314). 

 

Clause 15 - Amending or revoking a declaration of a declared World Heritage property

34     This clause specifies circumstances under which the Minister must revoke or amend a declaration under clause 14.  A declaration must be revoked or amended so that it does not specify a property that is withdrawn from a nomination or, in relation to properties that have not been nominated at the time of the declaration, which the Commonwealth has decided not to nominate or which the Minister believes either does not have world heritage values or those values are not under threat. 

 

Clause 16 - Requirement for approval of activities with a significant impact on a declared Ramsar wetland

 

35     This clause Clause provides that a person must not take an action that has, will have, or is likely to have a significant impact on the ecological character of a declared Ramsar wetland except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

36     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and certain forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

37     Not all actions impacting on a Ramsar wetland will have, or are likely to have, a significant impact on the ecological character of that wetland.  This clause therefore does not regulate all actions affecting a Ramsar wetland.  In order to discharge Australia's responsibilities under the Ramsar Convention, this clause regulates those activities that will, or are likely to, have a significant impact on the ecological character of a wetland - that is, those values of the wetland that make it a wetland of international importance.  

 

38     The Minister will issue administrative guidelines to provide guidance on determining whether an action has, will have or is likely to have a significant impact on the ecological character of a Ramsar wetland.  These guidelines will also identify relevant bilateral agreements (including accredited State approval processes) and relevant declarations (including accredited Commonwealth processes) , compliance with which will which obviate the need for approval.

 

39     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para 12(2)c).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

40     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

Clause 17 - What is a declared Ramsar wetland ?

 

41     This clause stipulates that a wetland, or part of a wetland, is a declared Ramsar wetland if it is either:

_              designated by the Commonwealth under Article 2 of the Ramsar Convention and not excluded or delete in accordance with the Convention; or

_              declared by the Minister to be a declared Ramsar wetland.

 

42     A wetland may be declared to be a declared Ramsar wetland prior to designation under the Convention only if the Minister is satisfied that the wetland is, or is likely to be, of international significance and the ecological character of the wetland is under threat. 

 

43     The purpose of allowing the Minister to declare a wetland (or part of a wetland) to be a declared Ramsar wetland is to ensure that the Commonwealth can discharge Australia's obligations under the Convention in relation to wetlands that are, or are likely to be, of international importance but which have not yet been designated under Article 2 of the Ramsar Convention.  The c C lause provides that declarations must be for a specified period no longer than the Minister believes will be required to evaluate the wetland's international importance and, if appropriate, designate the wetland under Article 2 of the Ramsar Convention. 

 

44     The Minister must revoke a declaration if satisfied that the wetland is not of international importance or if it is no longer under threat. 

 

45     A wetland may be designated under the Ramsar Convention only if the Commonwealth has sought to reach agreement with the owner or occupier of an area that is part of the wetland and the relevant State or Territory (clause 326). 

 

Subdivision C - Listed threatened species and communities

 

Clauses 18 Clauses18 and 19

 

46     This clause provides that a person must not take an action that has, will have, or is likely to have a significant impact on a nationally threatened species or ecological community except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

47     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

48     For the purposes of these clauses a A nationally threatened species or nationally threatened ecological community is a species or community listed under this Act in any of the following folowing categories:

_              species that are extinct in the wild; or

_              critically endangered species; or

_              endangered species; or

_              vulnerable species; or

_              critically endangered ecological communities; or

_              endangered ecological communities.

 

49     Not all actions affecting a nationally threatened species or community will have, or are likely to have, a significant impact on that species or community.  For example, approval will not be required for some actions which, if carried out on Commonwealth land, would require a permit under Chapter 5 of this Act - injury or death to one member of a species will, except in the case of the most critically endangered species, not have a significant impact on the species.  This clause therefore does not regulate all actions affecting members of a species or community.  In order to discharge Australia's international responsibilities, including obligations under the Convention on Biological Diversity, this clause regulates those activities that will, or are likely to, have a significant impact on nationally threatened species or communities.  

 

50     The Minister will issue administrative guidelines to provide guidance on determining whether an action has, will have or is likely to have a significant impact on a nationally threatened species or community.  These guidelines will reflect the fact that, in determining whether an action will have a significant impact on a species or community, it is necessary to have regard to factors such as: the extent to which the action damages or modifies habitat for the species or community (particularly critical habitat identified in a recovery plan), the extent to which the action will result in injury or death to members of the species or community or will interfere with essential behavioural characteristics (such as breeding and feeding ), the effect on important populations of the species or community, the impact on the geographic distribution of the species or community, and so on.  The guidelines will also identify relevant bilateral agreements (including accredited State approval processes) and relevant declarations (including accredited Commonwealth processes) , compliance with which will obviate the need for approval. 

 

51     In determining whether an action will have a significant impact on a species or community it is necessary to take into account the environment in which the action is to be taken, including other threats or pressures on the species.  However, A a n action carried out by an individual which is not likely to have a significant impact on a threatened species or community will not require approval , even if the overall impact of a large number of individuals independently carrying out actions of the same kind may have a significant impact on the species or community.  The cumulative impact of independent actions by different persons, all of which are below the significant impact threshold threshhold , are primarily to be addressed through State planning and land management legislation , and recovery plans .  Such actions will not require approval under this Act (although they may be addressed in bilateral agreements). 

 

52     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para 12(2)c).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

53     Clause 19 ensures that an action for which approval has been granted does not require another approval if the species or community is subsequently listed in a new category. 

 

54     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

55     The procedures and requirements for listing native species and ecological communities are set out in Chapter 5, Part 13, Division 1.

 

 

Subdivision D - Migratory species

 

Clause 20 - Requirement for approval of activities with a significant impact on a listed migratory species

56     This clause Clause provides that a person must not take an action that has, will have, or is likely to have a significant impact on a listed migratory except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

57     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

58     A listed migratory species is a species listed under one of the following Conventions:

_              the Bonn Convention; or

_              JAMBA; or

_              CAMBA; or

_              an international agreement dealing with the conservation of migratory species approved by the Minister under Chapter 5.

 

59     Not all actions affecting a migratory species will have, or are likely to have, a significant impact on that species.  For example, approval will not be required for some actions which, if carried out on Commonwealth land, would require a permit under Chapter 5 of this Act - injury or death to one member of a species is unlikely to have a significant impact on the species.  This clause therefore does not regulate all actions affecting members of a species.  In order to discharge Australia's international responsibilities in relation to migratory species, this clause regulates those activities that will, or are likely to, have a significant impact on a listed migratory species.  

 

60     The Minister will issue administrative guidelines to provide guidance on determining whether an action has, will have or is likely to have a significant impact on a listed migratory species.  These guidelines will reflect the fact that, in determining whether an action will have a significant impact on a species, it is necessary to have regard to factors such as: the extent to which the action damages or modifies habitat for the species or community, the extent to which the action will result in injury or death to members of the species or community or will interfere with essential behavioural characteristics (such as breeding   and feeding ), the extent to which the action alters the migratory route, the effect on important populations of the species or community, the impact on the geographic distribution of the species or community . , and so on .  The guidelines will also identify relevant bilateral agreements (including accredited State approval processes) and relevant declarations (including accredited Commonwealth processes) , compliance with which will obviate the need for approval. 

 

61     In determining whether an action will have a significant impact on a species it is necessary to take into account the environment in which the action is to be taken, including other threats or pressures on the species.  However, a A n action carried out by an individual which is not likely to have a significant impact on a listed migratory species will not require approval, even if the overall impact of a large number of individuals independently carrying out actions of the same kind may have a significant impact on the species.  The cumulative impact of independent actions by different persons, all of which are below the significant impact threshold threshhold , are primarily to be addressed through State planning and land management legislation , and recovery plans .  Such actions will not require approval under this Act (although they may be addressed in bilateral agreements). 

 

62     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para 12(2)c).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

63     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

64     The procedures and requirements for listing migratory species are set out in Chapter 5, Part 13, Division 2, Subdivision A.

 

Subdivision E - Protection of the environment from nuclear actions

 

Clause 21 - Requirements for approval of nuclear actions

 

65     This clause provides that a constitutional corporation, the Commonwealth or a Commonwealth agency must not take a nuclear action that has, will have, or is likely to have a significant impact on the environment except:

_              where approval has been obtained from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process).  

 

66     The clause also provides that a person must not take a nuclear action for the purposes of interstate or overseas trade or commerce or in a Territory if that action has, will have, or is likely to have a significant impact on the environment except in the circumstances identified in the paragraph above.

 

66     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para 12(2)c).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

67     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

Clause 22 - What is a nuclear action ?

68     This c C lause defines nuclear actions.

 

69     Nuclear actions include mining or milling uranium ore.  To avoid any doubt, this does not include operations for the recovery of mineral sands or rare earths. 

 

70            "Establishing or significantly modifying a large scale disposal facility for radioactive waste" is also a nuclear action.  It is intended that a judgement about whether a disposal facility is large scale will be based on factors including: the including:

the activity of radioisotopes to be disposed of (ie the more active the isotopes the more likely the facility would be considered large scale) ,

the half life of the material (ie the longer the half-life, the more likely the facility would be considered large scale) ,

the form of the radioisotopes (ie the more elaborate the methods required to contain or handle the isotopes, the more likely the facility would be considered large scale) , and the and

the quantity of isotopes handled.

 

71     For example, a National Radioactive Waste Repository would be considered to be a large scale disposal facility. Conversely, radioactive waste disposal facilities operated by hospitals would not be large scale disposal facilities.

 

72     Regulations can be made to define 'large scale disposal facility' for radioactive wastes. 

 

Subdivision F - Marine environment

 

Clause 23 - Requirement for approval of activities with a significant impact on the Commonwealth marine environment

 

73     This clause Clause provides that a person must not:

_              take an action in a Commonwealth marine area that has, will have, or is likely to have a significant impact on the environment; or

_              take an action outside a Commonwealth marine area (including in the coastal waters of a State or the Northern Territory) that has, will have, or is likely to have a significant impact on the environment in a Commonwealth marine area; or

_              take an action that is fishing in a fishery managed by the Commonwealth under the Fisheries Management Act 1991 in the coastal waters of a State or the Northern Territory that has, will have, or is likely to have a significant impact on the environment in those coastal waters;

        

         except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

74     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, do not need approval. 

 

75     This clause does not apply to actions by the Commonwealth or a Commonwealth agency - relevant actions by the Commonwealth or a Commonwealth agency will require approval under clause 28. 

 

76     Not all actions in the Commonwealth marine area will have, or are likely to have, a significant impact on the environment.  This clause therefore does not regulate all actions in the Commonwealth marine area.  

 

77     The Minister will issue administrative guidelines to provide guidance on determining whether an action has, will have or is likely to have a significant impact on the environment.  Guidelines will also be issued to assist in determining whether an action outside a Commonwealth marine area has, will have or is likely to have a significant impact on the environment in a Commonwealth marine area.  These guidelines will also identify relevant bilateral agreements (including accredited State approval processes) and relevant declarations (including accredited Commonwealth processes such as fisheries management plans) , compliance with which will obviate the need for approval.

 

78     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para 12(2)c).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

79     In determining whether an action will have a significant impact on the marine environment it is necessary to take into account the environment in which the action is to be taken, including other threats or pressures to that aspect of the marine environment .  However, A a n action carried out by an individual which is not likely to have a significant impact on the environment protected by this clause will not require approval, even if the overall impact of a large number of individuals independently carrying out actions of the same kind may have a significant impact on the relevant environment.  The cumulative impact of independent actions by different persons, all of which are below the significant impact threshold threshhold , are not addressed by this clause (although they may be addressed in bilateral agreements). 

 

80     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

Clause 24 - What is a Commonwealth marine area ?

81     This clause defines the Commonwealth marine area.

 

 



 

 

Subdivision G - Additional matters of national environmental significance

 

Clause 25 - Requirement for approval of prescribed actions

 

82     This clause provides that actions, representing additional matters of national environmental significance, can be specified in regulations. 

 

83     A person must not take an action that is specified in the regulations except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

84     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and forestry operations covered by the Regional Forest Agreements process will not need approval under this clause. 

 

85     If it is unclear whether an action requires approval under this clause, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para. 12(2)(c)).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

86     This clause provides for a civil penalty of up to 5,000 penalty units for an individual or up to 50,000 penalty units for a body corporate.

 

87     The clause recognises that regulations could be made for the purposes of this clause only after close consultation with all States and Territories and only after they have been given a reasonable opportunity to comment.  The regulations must not be inconsistent with Australia's international obligations. 

 

 

 

 

 

Division 2 - Protection of the environment from proposals involving the Commonwealth

 

Subdivision A - Protection for environment of Commonwealth land

 

Clause 26 - Requirement for approval of activities with a significant impact on the environment on Commonwealth land

 

88     This clause provides that a person must not:

_              take an action on Commonwealth land that has, will have, or is likely to have a significant impact on the environment; or

_              take an action outside Commonwealth land that has, will have, or is likely to have a significant impact on the environment on Commonwealth land;

         except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

89     This clause does not apply to actions by the Commonwealth or a Commonwealth agency - relevant actions by the Commonwealth or a Commonwealth agency will require approval under clause 28. 

 

90     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

91     The Minister may also exempt certain actions on the basis of Australia's defence or security interests or in the case of a national emergency. 

 

92     If it is unclear whether an action requires approval, the person proposing to take the action can refer the action to the Minister for a decision on whether approval is required (clause 68).  If the Minister provides advice that an action does not require approval (clause 75), a person will not contravene this clause if the action is taken in accordance with that advice (para. 12(2)(c)).  The Minister must provide advice within twenty days of receiving the referral (clause 75). 

 

93     This C c lause provides for a penalty of up to 1,000 penalty units for an individual or up to 10,000 penalty units for a body corporate.

 

Clause EP 27 - What is Commonwealth land ?

94     This clause defines Commonwealth land.

 

Subdivision B - Protection of the environment from Commonwealth activities and decisions

 

Clause 28 - Requirement for approval of activities of Commonwealth agencies significantly affecting the environment

 

95     This clause provides that the Commonwealth or a Commonwealth agency must not take an action that has, will have, or is likely to have a significant impact on the environment (inside or outside the Australian jurisdiction) except:

_              where a person has obtained approval from the Minister for the taking of the action for the purposes of this clause; or

_              where a bilateral agreement provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited State approval process); or

_              where a declaration provides that the action does not require approval (for example, because it is to be taken in accordance with an accredited Commonwealth approval process); or

_              where a conservation agreement provides that the action does not require approval. 

 

96     The Minister may also exempt certain actions on the basis of Australia's defence or security interests or in the case of a national emergency.  An exemption may also be given in relation to operations of a Commonwealth agency when the agency that is bound to comply with a corresponding State or Territory law dealing with environment protection in undertaking those operations (for example, relevant operations of Telstra). .  

 

97     In addition, actions taken in accordance with the Great Barrier Reef Marine Park Act 1975 , or instruments under that Act, and certain forestry operations covered by the Regional Forest Agreements process do not need approval. 

 

98     The definition of 'action' ensures that this clause applies only in circumstances where the Commonwealth is the proponent - for example, when the Commonwealth or a Commonwealth agency is undertaking a project or a development.  It does not , for example, apply to Commonwealth decisions (such as a decision to approve an action), the provision of funding by the Commonwealth or the entering into an agreement by the Commonwealth.   Accordingly, the scope of this clause is very significantly narrower than the scope of the Environment Protection (Impact of Proposals) Act 1974 PUT IT IN THE 2ND READING SPEECH or Accordingly, matters considered under the Environment Protection (Impact of Proposals) Act which d o not have a significant direct impact on the environment will not require approval under this Act . A limited set of such matters fall within the scope of clause 160  

 

 

 

Part 4 - Cases in which environmental approvals are not needed

 

Division 1 - Actions covered by bilateral agreements

 

Clause 29 - Actions declared by agreement not to need approval

 

99     This clause provides that an action may be taken without approval under Part 9 for the purposes of one or more provisions in Part 3 if the action is one of a class of actions declared by a bilateral agreement not to require approval under that provision (or those provisions, as the case may be).  

 

100   The bilateral agreements mechanism is an integral feature of the Act.  It is through bilateral agreements that the Commonwealth intends to accredit State assessment processes and, in some cases, State approval decisions provided appropriate standards and criteria are met. 

 

101   Bilateral agreements are dealt with in Chapter 3.

 

Clause 30 - Extended operation in State and Northern Territory waters

 

102   This clause extends the application of clause 29 to enable bilateral agreements to cover actions taken in the coastal waters of the States and the Northern Territory and, where relevant State or Territory laws apply, to actions in the Commonwealth marine area. 

 

Clause 31 - Extended operation in non-self-governing Territories

 

103   This clause extends the application of 29 to enable bilateral agreements to cover actions taken in Territories (which are not self- governing govering Territories), where relevant State or Territory laws apply.  For example, a bilateral agreement may provide that approval is not required under a provision in Part 3 for an action on Christmas Island if approval is obtained in a specified manner under a specified Western Australian law.

 

Division 2 - Actions covered by Ministerial declarations

 

Clause 32 - Actions declared by Minister not to need approval

 

104   This clause provides that an action may be taken without approval under Part 9 for the purposes of one or more provisions in Part 3 if the action is one of a class of actions declared by the Minister not to require approval under that provision (or those provisions, as the case may be).  

 

Clause 33 - Making declarations

 

105   The Minister may declare that an action in a specified class of actions does not require approval for the purposes of a provision, or provisions, in Part 3 if it is approved in a specified manner by the Commonwealth or a specified Commonwealth agency. 

 

106   Before making a declaration, the Minister must be satisfied that the Commonwealth or the Commonwealth agency, in deciding whether to approve an action, will consider the impacts it has, will have or is likely to have on the aspects of the environment protected by the relevant provision or provisions (subclause 33(2)).

 

107   The clause lists a number of ways in which a declaration may specify a manner of approving the taking of an action.  This list is illustrative and is not exhaustive. 

 

Clause 34 - What is matter protected by a provision of Part 3?

 

108   This clause lists the aspects of the environment protected by each provision in Part 3 of the Act and defines them as the matter protected by the relevant provision.  This definition, combined with the definition of 'relevant aspects of the environment' is used throughout the Act to ensure that any Commonwealth assessment is limited to examining impacts on these matters. Commonwealth approval decisions are, in taking into account environmental factors, similarly limited to these matters. 

 

 

 

Clause 35 Clause35 - Revoking declarations

109   This clause empowers the Minister to revoke declarations made under clause 33.  However, the Act will continue to apply to an action which has been approved by the Commonwealth or a Commonwealth agency in accordance with a declaration before the declaration was revoked as if the revocation had not occurred. 

 

Clause 36 - Other rules for declarations

110   This clause provides that in revoking declarations the Minister must not give preference in the sense of clause 99 of the Constitution.

 

Division 3 - Actions covered by conservation agreements

 

Clause 37 - Actions specified as not needing approval

111   This clause provides that an action which is specified in a conservation agreement as not needing approval for the purposes of a provision, or provisions, of Part 3 does not require approval for the purposes of that provision or those provisions.  Conservation agreements are described in Part 17.

 

Division 4 - Forestry operations in certain regions

 

Clause 38 - Approval not needed for forestry operations permitted by regional forestry agreements

 

112   RFA forestry operations that are undertaken in accordance with a regional forest agreement do not require approval for the purposes of any provision in Part 3.

 

Clause 39 - Object of this Subdivision

 

113   The object of this subdivision recognises that in each RFA region a comprehensive assessment is being, or has been, undertaken to address the environmental, economic and social impacts of forestry operations.  In particular, environmental assessments are being conducted in accordance with the Environment Protection (Impact of Proposals) Act 1974 .  In each region, interim arrangements for the protection and management of forests are in place pending finalisation of an RFA.  The objectives of the RFA scheme as a whole include the establishment of a comprehensive, adequate and representative reserve system and the implementation of ecologically sustainable forest management.  These objectives are being pursued in relation to each region.  The objects of this Act will be met through the RFA process for each region and, accordingly, the Act does not apply to forestry operations in RFA regions.  

 

Clause 40 - Forestry operations in regions not yet covered by regional forestry agreements

 

114   Subclause 40(1) provides that forestry operations in an RFA region for which there is no regional forestry agreement in force do not require approval for the purposes of any provision in Part 3. 

 

115   Subclause 40(1) does not apply apply in relation to a RFA region that is the subject of a declaration made under subclause 40 subclause40 (4).  Government policy is to complete an RFA for each RFA region by 1 January 2000.  Subclause 40(4) provides the Government with the capacity to ensure the Act applies after 1 January 2000 to any region where the RFA process has not been completed in accordance with government policy or where satisfactory progress is not being made.  It is not intended that a declaration will be made before 1 January 2000, unless (for example) the RFA process ceases to apply in relation to a region and it is necessary to make a declaration to ensure no preference is given to that region. 

 

Clause 41 - What is an RFA region?

116   This clause provides a definition for each RFA region.  Regulations can amend the definition of RFA regions. boundaries.  IS THIS MEANT?

 

Subdivision C - Limits on application

 

Clause 42 - This division does not apply to some forestry operations

 

117   This division does not apply to forestry operations:

•       in a property included in the World Heritage List; or

•       in a wetland designated under Article 2 of the Ramsar Convention.

 

118   In addition, the division does not apply to forestry operations that are incidental to another action the primary purpose of which does not relate to forestry.  For example, the division does not obviate the need for approval for clearing activity (even if such activity falls within the definition of a 'forestry operation') which is incidental to the construction of a residential subdivision (the primary purpose of the subdivision does not relate to forestry).  Approval would only be required for the clearing activity if it was likely to have a significant impact on a matter of national environmental significance - see Part 3. 

 

 

Division 5 - Actions in the Great Barrier Reef Marine Park

 

Clause 43 - Actions taken in accordance with permission

119   This clause provides that actions relevantly authorised under the Great Barrier Marine Park Act 1975 do not require approval.

 

 

 

 

 

 

 

 

Chapter 3 - Bilateral agreements

 

Part 5 - Bilateral agreements

 

Division 1 - Object of Part

 

Clause 44 - Object of this Part

 

120   This clause sets out the object of this Part. 

 

Division 2 - Making bilateral agreements

 

Subdivision A - Power to make bilateral agreements

 

Clause 45 - Minister may make agreements

 

121   The Minister may enter into a bilateral agreement with a State or a self-governing Territory about one or more of the matters identified in clause 45.  Bilateral agreements may detail the Commonwealth accreditation of, for example, State assessment processes, State decision-making processes and management plans prepared under State legislation.  A bilateral agreement may also identify other measures that a State or the Commonwealth agrees to implement to protect the environment and promote the conservation and sustainable use of natural r e sources - accreditation could be conditional upon such measures being taken .  This will cause significant problems with the states.  

 

 

Clause 46 - Agreement may declare actions do not need approval under Part 9

 

122   A bilateral agreement may declare that actions in a specified class of actions do not require approval for the purposes of one or more provisions in Part 3 if:

_       the taking of the action is approved by a State or Territory (or agency thereof) in a specified manner - for example, after assessment in accordance with specified State legislation and after applying certain criteria when deciding whether to grant approval; or

_       the taking of the action is approved by the Commonwealth or a Commonwealth agency in a specified manner- for example, after considering an assessment conducted under specified State legislation and reaching agreement with the State on whether approval should be granted; or

_       the action is taken in a specified manner - for example, in accordance with a management plan agreed by the State and the Commonwealth. 

 

123   If a bilateral agreement declares that actions in a class of actions do not need approval under Part 9 for the purposes of one or more provisions in Part 3, then a person does not need approval under those provisions to take an action in that class.  The Commonwealth is, in effect, agreeing to rely upon an accredited approval process. 

 

124   A bilateral agreement may only declare that a class of actions does not need approval if the Minister is satisfied that the person giving approval will take relevant impacts into account in deciding whether to grant approval.  The impacts that must be taken into account relate to the matters protected by the provisions for which approval will not be required. 

 

125   A bilateral agreement may declare that actions taken in a specified manner do not need approval by the Commonwealth Comonwealth or a State only if the Minister is satisfied that taking the action in the specified manner will reduce to acceptable levels the impacts on any matter protected by the provisions for which approval will not be required.

 

 

Clause 47 - Agreement may declare classes of action do not require assessment

 

126   A bilateral agreement can declare that actions in a specified class do not require assessment under Part 8 of this Act if they are assessed in a specified manner.  The Commonwealth may, accordingly, accredit and rely upon State assessment processes instead of requiring assessment under this Act. 

 

127   A specified manner of assessment can be accredited under a bilateral agreement for a class of actions only if the Minister is satisfied that the assessment will cover all impacts of the actions on each matter protected by a provision in Part 3. 

 

128   The bilateral agreement must provide for the Minister to receive an assessment report if the action being assessed under the accredited process will require approval by the Minister under Part 9.  The report must contain enough information to allow the Minister to make an informed decision.

 

Clause 48 - Other provisions of bilateral agreements

129   This clause lists some matters for which provision may be made in bilateral agreements.  This list is not exhaustive. 

 

Clause 49 - Express provision needed to affect Commonwealth areas or actions

130   A bilateral agreement will not apply to actions in Commonwealth areas or actions by the Commonwealth or a Commonwealth agency unless an express provision is included to that effect. 

 

 

 

 

 

 

Subdivision B Prerequisites for making bilateral agreements

 

Clause 50 - Minister may only enter into agreement if prescribed criteria are met

 

131   The Minister may enter into a bilateral agreement only if it accords with the objects of the Act and if it accords with any requirements prescribed precribed by the regulations.  The regulations may identify criteria and standards - either generally or in relation to specific matters of national environmental significance - that must be met before an assessment or an approval process can be accredited under a bilateral agreement.

 

Clauses 51 to 56

 

132   These clauses set out the matters on which the Minister must be satisfied before entering into a bilateral agreement.  The intention of these clauses is to ensure that accreditation of State assessment and approval processes promotes the objects of the Act, including the protection of world heritage properties, Ramsar wetlands, nationally threatened species, migratory species and the Commonwealth marine environment.  The Minister may not enter into bilateral agreements which will provide an inadequate level of protection for these matters of national environmental significance. 

 

 

Division 3  Ending and suspending the effect of bilateral agreements

 

Subdivision A Cancellation and suspension of effect

 

Clauses 57 to 63

 

133   These clauses empower the Minister to cancel or suspend all or part of a bilateral agreement either generally or in relation to actions in a specified class classs .

 

134   The Minister may cancel or suspend all or part of a bilateral agreement if he or she is satisfied that the relevant State or Territory:

_              has not complied or will not comply with the agreement, or

_              has not given or will not give effect to the agreement in a manner consistent with the objects of the Act and that promotes the discharge of Australia's relevant international obligations.

 

135   These clauses also provide for the emergency suspension of a bilateral agreement, set out certain consultation and notice requirements and provide for the revocation of a suspension or cancellation. 

 

A person with standing to seek an injunction may refer an alleged contravention of a bilateral agreement to the Minister.  The Minister must decide whether the bilateral agreement has been contravened and, if so, decide what action, if any, is necessary. 

 

136   The Minister may cancel or suspend a bilateral agreement if requested by the other party to the bilateral agreement. 

 

 

Clause 64 - Cancellation or suspension of bilateral agreement does not affect certain actions

 

137   If, at the time of the suspension or cancellation of a bilateral agreement, an action did not require approval under Part 9 because:

_              it had been approved in accordance with the bilateral agreement; or

_              it was being taken in the manner specified in the bilateral agreement;

         then the Act continues to operate in relation to that action as if the s s uspension or cancellation had not occurred. 

 

 

Subdivision B Expiry of bilateral agreements

 

Clause 65 - Expiry and review of bilateral agreements

 

138   The term of a bilateral agreement may not exceed five years , and must be subject to a review of their operation

 



 

 

 

Chapter CHAPTER 4 - Environmental Assessment and Approvals ENVIRONMENTAL ASSESSMENT AND APPROVALS

 

Part 6 - Simplified outline of this Chapter

 

Clause 66 - Simplified outline of this Chapter

 

139   This clause provides a simplified outline of Chapter 4 (environmental assessments and approvals)

 

Part 7 - Deciding whether approval of actions is needed

 

Division 1 - Referral of proposals to take action

 

Clause 67 What is a controlled action

 

140   Controlled actions are actions described in Part 3 which require the Minister ' s approval under Part 9 Accordingly, an action which does not require approval under Part 9 because of the operation of a bilateral agreement is not a controlled action. 

This clause defines a controlled action with reference to Parts 3 and 9 of the Act.  Part 3 defines the situations in which an environmental approval is needed.  Part 9 describes how the Environment Minister gives an approval and the matters he may take into account in doing so.

 

Clause 68 - Person proposing to take action may refer proposal to Minister

141   A person (including a Commonwealth agency, a State or an agency of a State) who proposes to take an action which the person believes is a controlled action must refer it to the Minister for decision on whether that action requires approval.  The person may also refer an action for a decision if the person believes it is not a controlled action .  

 

This clause describes the circumstances in which a proposed action is to be referred to the Environment Minister for a decision on whether the action is a controlled action.

 

Subclause 210(1) provides that a proposed action which a person knows to be or considers may be a controlled action must be referred to the Environment Minister

 

Subclause 210(2) provides that a proposed action which a person considers is not a controlled action may still be referred to the Environment Minister

 

Subclause 210(3) provides that in referring a proposed action to the Environment Minister a person must state whether or not they consider it to be a controlled action.

 

Subclause 213(4) provides that in referring a proposed action to the Environment Minister a person must state why they consider it to be a controlled action with reference to clauses in Part 3 eg. will the proposed action have a significant impact on the world heritage values of a declared World Heritage property? (EP15)

 

Clause 69 State or Territory may refer proposal to Minister

 

142   This c C lause provides that if a State, a self-governing Territory or an agency of either becomes aware of a proposed action for which it has administrative responsibility, it may refer the proposed action to the Environment Minister for a decision on whether the proposed action requires approval. is a controlled action   This is intended to facilitate arrangements whereby States can refer actions on behalf of proponents. 

 

Clause 70 - Minister may request referral of proposal

143   The Minister may ask for a proposed action to be referred if he or she believes approval is required

 

This clause provides that if the Environment Minister is aware of a proposed action that is or may be a controlled action, the Minister may request that the proposed action be referred by either the person proposing the action or a State, self-governing Territory or agency of either with administrative responsibility for the proposed actio

Clause 71 - Commonwealth agency may refer proposal to Minister

144         

 

A Commonwealth agency may refer a proposed action to the Minister.

 

Clause 72 -  Form and content of referrals

145   Regulations must be made prescribing the form and content of referrals.

 

 

 

Clause 73 - Notifying person proposing to take action of referral

 

146   If a proposal by a person to take an action is referred to the Minister by a State or Territory (or an agency thereof) or a Commonwealth agency, the Minister must inform the person of the referral.

This clause provides that a referral to the Environment Minister for a decision on whether the proposed action is a controlled action must be in a form and include such information as is prescribed in the regulations

 

Clause 74 - Inviting provision of information on referred proposal

147   After receiving a referral, the Environment Minister must invite:

_              Commonwealth Ministers with administrative responsibilities relating to the proposed action to provide relevant information; and

_              if the action relates to a matter of national environmental significance, the appropriate State or Territory Minister to comment on whether the action requires approval ; and

_              the person proposing to take the action to provide relevant information (if that person did not refer the action).

This clause provides that the Environment Minister may inform and invite comments from relevant Commonwealth, State and self-governing Territory Ministers about a referral to the Environment Minister for a decision on whether the proposed action is a controlled action

 

Subclause EP235(1) provides that as soon as practicable after receiving a referral the Environment Minister must inform any Commonwealth Minister with administrative responsibility for the proposed action and invite that Minister to give the Environment Minister information about the proposed action.  This information must be provided within 10 business days.

 

Subclause EP245(2) provides that as soon as practicable after receiving a referral of a proposed action that will take place in a State or self-governing Territory, the Environment Minister must inform the appropriate State or Territory Minister and invite that Minister to give the Environment Minister information about the proposed action.  This information must be provided within 10 business days.  However, this is not necessary if it was the State or Territory or agency of either that referred the proposed action to the Environment Minister.

 

148   If the person referring the proposed action considers it to be a controlled action, the Environment Minister need not invite information or comments from consultwith relevant State, Territory or other Commonwealth Ministers.  The intent of this provision is to allow the person proposing to take the action to streamline the process by avoiding certain consultations. 

 

 

 

 

Division 2 - Ministerial decision whether action needs approval

 

Clause 75 - Does the proposed action need approval?

 

149   The Environment Minister must decide whether an action that has been referred is a controlled action and, if so, which provisions of Part 3 are controlling provisions - that is, under which provisions is approval required. 

 

150   A proponent must be designated in relation to a controlled action.  A proponent may be a person other than the person proposing to take the action only if both persons agree. 

 

151          If the person who proposes to take the action referred it and indicated that he or she thought it was a controlled action, the Environment Minister must decide whether it is a controlled action and designate a proponent within ten business days.  In other cases, the Environment Minister must decide whether it is a controlled action and designate a proponent within twenty business days.   

 

 

152   The time for making the decision may be extended only:

_              with the agreement of the person proposing to take the action; or

_              if the Minister believes on reasonable grounds that the referral does not contain enough information infromation

 

153   In deciding whether an action is a controlled action - whether it has a significant impact on any of the matters protected by the provisions of Part 3 - the Minister must consider any adverse impacts but not beneficial impacts.  The intent of this provision is to ensure that an action which has only beneficial impacts on a matter protected by any of the provisions of Part 3 is not a controlled action.  

 

 

Clause 76 - Minister may request more information for making decision

 

154   If the Minister believes on reasonable grounds that a referral does not contain enough information infromation to make a decision under clause 75 EP250 , he or she may request additional specified information. 

 

Clause 77 - Notice and reasons for decision

 

155   The Minister must give written notice of a decision under clause 75 and, if requested, a statement of reasons.  Reasons are not required when the person proposing to take the action referred it to the Minister and indicated he or she believed it was a controlled action. 

 

156   If the Minister decides that the action is not a controlled action in relation to one or more provisions in Part 3 because it will be taken in a particular manner, the notice must identify the manner of taking the action.  This applies even if the action is not being taken in accordance with a bilateral agreement or a declaration. 

 

Clause 78 - Reconsideration of decision

 

157   The Environment Minister may reconsider his or her decision under clause 75 only in strictly limited circumstances. 

 

158   The Environment Minister may remake a decision under clause 75 only 75only if:

_              substantial new information has become available or there has been a substantial change in circumstances not foreseen at the time of the original decision (these grounds will be satisfied only in exceptional circumstances);

_              the Minister originally decided that the action was not a controlled action because it was to be taken in a particular manner specified in the notice under clause 77 and the Minister is now satisfied that the action is not being, or will not be, taken in the particular manner; or

_              the Minister originally decided that the action was not a controlled action because of provisions in a bilateral agreement or a declaration under clause 33 and the relevant provisions are no longer in effect (but see clause 64 and subclause 35(2)); or

_              a State or Territory Minister requests that the first decision be reconsidered under clause 79;

 

159   A decision may not be reconsidered after the action has been taken or after the Minister has granted or refused approval for the taking of the action. 

 

Clause 79 Reconsideration of decision on request of a State or Territory

 

160   The relevant State or Territory Minister may request the Environment Minister to reconsider his or her decision under clause 75.  This does not apply if the person proposing to take the action referred the action and indicated he or she thought it was a controlled action. 

 

161   The relevant State or Territory Minister may make such a request within five business days of receiving notice of the decision.

 

162   The Environment Minister must either confirm the original decision or make a new decision within twenty business days.

 

Part 8 - Assessing impacts of controlled actions

 

Division 1 - Simplified outline of this Part

 

Clause 80 Simplified outline of this part

 

163   This clause provides a simplified outline of Part 8 (assessing impacts of controlled actions)

 

 

Division 2 - Application of this Part

 

Clause 81 Application

 

164   This clause provides that the provisions of Part 8 (assessing impacts of controlled actions) apply to the assessment of the 'relevant impacts' of a controlled action. 

 

Clause 82 Relevant impacts of an action

 

165   The relevant impacts of an action are the impacts that the action has, will have, or is likely to have on the matters protected by each provision of Part 3 that is a controlled provision (ie, the provisions for which a approval is required).  The intention of this clause is to define the environmental impacts for which the Commonwealth is responsible for assessing and taking into account when deciding whether to give approval.  In this way, Commonwealth involvement in environmental matters is focussed on matters of national environmental significance.  The Commonwealth does not assess all impacts of an action (unless asked to do so by a State - see, for example, subclause 97(3)). 

 

 

Subclause 264AA(1) provides that the clause applies to controlled actions.  It also applies to  actions that would have been controlled actions if they weren’t covered by a bilateral agreement or a ministerial declaration.

 

Subclause 264AA(2) sets out the relevant aspects of the environment in a table for easy reference.

 

Subclause 264AA(3) provides that the relevant impacts of an action are those that the action has, will have or is likely to have on the relevant aspects of the environment as described in the table in 264AA(2).

 

Clause 83 This Part does not apply to impacts to be assessed under bilateral agreement

 

166   Subclause 83(1) provides that an action is not assessed under Part 8 if a bilateral agreement declares that actions in a class of actions that includes the action need not be assessed. 

 

 

Clause 84 - This Part does not apply if action is covered by a declaration

 

167   This clause provision provides that the Minister may declare that actions in a specified class of actions already being assessed by the Commonwealth or a Commonwealth agency in a specified manner does not require assessment under this Part.

Subclause EP264A(1) provides that Part 8 will not apply to an action if it is in a class of actions for which the Minister has made a declaration and the declaration is in operation.

 

Subclause EP264A(2) provides that the Minister may make a declaration in writing.

 

168   The clause also sets out some prerequisites for making a declaration. 

 

Division 3 - Decision on assessment approach

 

Subdivision A - Simplified outline of this division

 

Clause 85 - Simplified outline of this division

 

169   This clause provides a simplified outline of Division 3 (decision on assessment approach)

 

 

 

 

 

 

Subdivision B - Deciding on approach for assessment

 

Clause 86 - Designated proponent must provide preliminary information for assessment

 

170   Before the Minister decides on an assessment approach, the proponent or designated proponent must give information to the Minister, the form and content of which is prescribed in the regulations.

 

Clause 87 - Minister must decide on approach for assessment

 

171   This clause provides that the Environment Minister must decide on an approach for assessing the relevant impacts of a controlled action (where the action is not being assessed under a bilateral agreement or a declaration). 

 

172   The Minister can chose one of the following assessment approaches:

_              assessment by a specially accredited process [IS THIS A PROCESS SPECIFIED BY A DECLARATION UNDER EP264A]

_              assessment on preliminary documentation (see Chapter 4, Part 8, Division 4)

_              assessment by public environment report (see Chapter 4, Part 8, Division 5)

_              assessment by environmental impact statement (see Chapter 4, Part 8, Division 6)

_              assessment by inquiry (see Chapter 4, Part 8, Division 7)

 

173   This clause sets out the information that must be considered by the Minister in making his or her decision, including when consultation is required with State or Territory Ministers. 

 

174   The option of assessment by a specially accredited process ensures there can be up-front accreditation of a State or Territory process or of another Commonwealth process.   It therefore provides for case-by-case accreditation of State or Commonwealth processes for actions not covered by a bilateral agreement or a declaration.  Subclause 87(4) provides that an assessment can only be made by a specially accredited process if the Minister is satisfied that the process meets standards prescribed by the regulations, will assess all relevant impacts, and will provide a report containing enough information to allow the Minister to make an informed decision about whether to approve the action.

_                  any information provided to him at the time of referral and any information subsequently provided by the proponent;

_                  any other information available to the Minister e.g. from State and Territory agencies, or the outcomes of a strategic assessment of a policy, plan or program;

_                  whether the information as described above is sufficient to allow the Minister to make an informed decision whether to approve the taking of the controlled action;

_                  any suggestions received in consultation with relevant State or Territory Ministers;

_                  [ANZECC GUIDELINES]

_                  any other matters prescribed by the regulations

 

175          Subclause EP273(4) provides that if the Minister is to decide that the appropriate assessment approach is assessment by specially accredited process [IS THIS BY DECLARATION UNDER EP264A) he must be satisfied that the action will be assessed in a manner that meets certain standards (as described in the regulations).  He must also be satisfied that as a result of that assessment he will receive an assessment report containing enough information to make a decision whether or not to approve the controlled action.  [THIS DUPLICATES EXACTLY EP264A(30]

 

The Minister may decide that the appropriate assessment approach is assessment on preliminary documentation only if satisfied that sufficient information has been provided he must be satisfied that the information provided to him at the time of referral, any information subsequently provided by the proponent and any other information available to him is sufficient to allow him to make an informed decision about whether to approve the taking of the controlled action to be made ; .

 

A PER is the appropriate form of assessment [insert test]

 

An EIS is the appropriate form of assessment [insert test].   We are better off leaving this flexible.

 

 

Clause 88 - Timing on decision on assessment approach

176   The Minister must decide which assessment approach to use within 20 business days of deciding the action is a controlled action or of receiving information under clause 271 .  The time for making this decision can be extended only if :

_              the Minister selects a different approach to that suggested by a relevant State or Territory Minister (see subclause 87 (2) ), - in which case 30 business days are allowed for a decision; or

_              the Minister and the proponent agree on an extended period ; or

_              the Minister request s more information under clause 89

 

Subclause EP276(1) provides that after receiving information from the proponent as required by Clause EP271, the Environment Minister has twenty working days to make a decision on the appropriate assessment approach

 

Subclause EP276(2) provides that if the Environment Minister’s view of an appropriate assessment approach conflicts with that any suggestions received in consultation with relevant State or Territory Ministers, the Environment Minister has thirty working days to make a decision on the appropriate assessment approach.

 

Subclause EP276(3) provides that the Environment Minister need not wait for a response from a State or Territory before making a decision, nor must he wait the whole twenty days before making a decision.

 

Subclause EP276(4) provides that if the Environment Minister requests further information on which to make a decision, time stops running on the day the information is requested.  Time starts again the day after the Minister receives the requested information.

 

Subclause EP276(5) provides that the Environment Minister and the proponent may agree to stop time running for a specified period.

 

Clause 89 Minister may request more information for making decision

 

177   The for the purpose of making an informed decision whether to approve the taking of the controlled action the Environment Minister may request further specified specified information from the designated proponent if he or she believes on reasonable grounds that it is required in order to make an informed decision about which assessment process to use .  

 

Clause 90 Directing an inquiry after trying another approach

 

178   The Minister may decide that the appropriate assessment approach is an inquiry after considering a draft EIS or a draft PER.  The Minister should only decide to direct an inquiry under this clause in exceptional circumstances , where , if the draft EIS or PER identifies significant potential impacts that were not originally anticipated or the Minister decides that the action c annot be adequately assessed except by an inquiry  [NOTE NEED TO CHECK THAT BILL AMENDED SO THAT IT IS POSSIBLE TO GO TO INQUIRY FROM ANY OF THE OTHER APPROACHES, NOT JUST PER/EIS]

 

 

 

Clause 91 Notice of decision of assessment approach

 

179   Within ten business days of deciding on an assessment approach, the Environment Minister must give written notice of the decision on assessment approach .

 

180   If the assessment is to be by a specially accredited process, the notice must specify the process (see also clause 87 )

 

Subclause EP283(1) provides that the Environment Minister must notify the proponent and the appropriate State and Territory Minister if the action occurs in a State or Territory and relates to a matter of national environmental significance (Part 3 Div 1) e.g. when the proposed action will have a significant impact on the world heritage values of a declared World Heritage property (EP15).

 

Subclause EP283(1) also provides that the Environment Minister must publish notice of the decision in accordance with the regulations e.g. advertising in relevant newspapers and via the internet.

 

Subclause EP283(2) provides that if the Minister decides that an assessment by a specially accredited process is appropriate, the notices must specify the assessment process that has been accredited e.g. [A PROCESS AGREED BETWEEN THE ENVIRONMENT MINISTER AND ANOTHER CTH AGENCY?]

 

 

Division 4 - Assessment on preliminary documentation

 

Clause 92 -  Application

 

181   Division 4 outlines the assessment process to be followed for an assessment on preliminary information.

 

Clause 93 - Public comment on information included in referral

 

182   Within ten business days of deciding that the relevant impacts should be subject to an assessment on preliminary information, the Minister may direct the proponent to publish certain information and invite public comment. 

 

 

Clause 94 - Revised documentation

 

183   The proponent must revise the information already provided to the Minister after taking into account the public comments received and provide the Minister with revised information.  If no public comments are received the proponent must inform the Minister in writing.   If the proponent believes that the comments received do not warrant any changes or additions, then a statement to that effect may be made.  

 

184   The Minister may reject the revised information if he or she believes belives on reasonable grounds it is inadequate for the purpose of making an informed decision whether to approve the taking of the controlled action.

 

Clause 95 - Assessment report

 

185   The Secretary to the Department responsible for assessing the controlled action under Part 8 of this Act must prepare an assessment report for the Minister within twenty days of the information on which the assessment is to be based becoming available .  The report must be made available to members of the public upon request, with the exception of certain information. 

 

Subclause EP320(1) provides that the report must be provided to the Minister within twenty business days after the later of:

_                  the Minister deciding that an assessment on preliminary documentation is appropriate; or

_                  the Minister accepting revised information from the proponent after public comment; or

_                  the Minister being informed by the proponent that no public comment was made.

Division 5 - Public environment reports

 

Clause 96 - Application

 

186   Division 5 4 outlines the assessment process to be followed for a Public Environment Report.

 

Clause 97 - Minister must prepare guidelines for draft public environment report

 

187   The Environment Minister must prepare written provide guidelines for the content of a the draft Public Environment Report (PER).

 

188   The guidelines should address all matters specified by the regulations and should ensure that the report will contain enough information to allow the Minister to make an informed decision about whether to approve the action. 

 

189   The guidelines may also require the report to contain information on impacts other than the relevant impacts:

_              at the request of the appropriate State or Territory Minister; and

_              if the action is to be taken by a constitutional corporation or is to be taken for the purpose s of interstate or overseas trade or commerce .

 

190   The purpose of this clause is to ensure that, if a State or Territory wishes to accredit and rely upon the Commonwealth PER process, the PER can address all environmental impacts. 

 

191   The Minister may invite and take account of comments from any person on the guidelines.

 

In particular subclause EP328(2) sets out the Minister’s obligations in preparing the guidelines.  The guidelines must ensur e that the draft PER contains sufficient information for the Minister to make an informed decision whether to approve the taking of the controlled action.  The guidelines must also ensure that the draft PER addresses any particular matters specified in the regulations.

 

Subclause EP328(3) provides that State or Territory Ministers can request that the guidelines require the draft PER to include information about impacts of the action for the purposes of State or Territory decision making/approvals.  However , this subclause is limited by the Constitution.  This subclause applies if the person taking the action is taking it for the purpose of trade and commerce interstate (e.g. between two states or a state and a territory) or overseas (e.g. between Australia and another country).  This subclause also applies to corporations as defined by Section 51(20) of the Constitution i.e. foreign corporations or Australian trading and financial corporations.

 

Subclause EP328(4) provides that the information about impacts of the action for the purposes of State or Territory decision making/approvals is not constrained by the Environment Minister’s decision under Division 2 about what the Commonwealth approval relates to.

 

Subclause EP328(5) provides that the Environment Minister can release the guidelines for public comment.

 

Clause 98 - Designated proponent must invite comment on draft public environment report

 

192   The proponent must prepare a draft PER in accordance with the guidelines prepared by the Environment Minister and , if the Minister has approved publication of the draft PER, publish it in accordance with the regulations. 

 

The information and invitation must be published in accordance with the regulations e.g. advertising in relevant newspapers and via the internet.

 

Subclause EP331(1) also provides that the proponent must give the Minister a copy and summary of any public comments received.

 

193   The Minister should approve the draft PER only if it adequately addresses the information required by the guidelines.

 

194   T Subclause EP331(3) provides that t he period for public comment must be specified by the Minister , and must be at least cannot be less than 20 business days.

 

195   The proponent must provide the Minister with a copy of any comments received.

 

Clause 99 - Finalising public environment report

 

196   After the public comment period, the proponent must revise the draft PER, taking into account the public comments.

 

197   The Minister may refuse to accept the finalised PER if he or she believes on reasonable grounds that it is inadequate for the purpose of making an informed decision whether to approve the taking of the controlled action.

 

Clause 100 - Assessment report

 

198   The Secretary must prepare an assessment report for the Environment Minister within 20 days of the Minister accepting the final fianl PER.  The report must be made available to members of the public upon request, with the exception of some information.

 

 

Division 6 - Environment impact statements

 

Clause 101 - Application

 

199   Division 6 5 outlines the assessment process to be followed for an Environmental Impact Statement.

 

Clause 102 - Minister must prepare guidelines for draft environmental impact statement

 

200   The Environment Minister must prepare written provide guidelines for the content of a the draft Environmental Impact Statement (EIS).

 

201   The guidelines should address all matters specified by the regulations and should ensure that the report will contain enough information to allow the Minister to make an informed decision about w hether to approve the action. 

 

202   The guidelines may also require the report to contain information on impacts other than the relevant impacts:

_              at the request of the appropriate State or Territory Minister; and

_              if the action is to be taken by a constitutional corporation or is to be taken for the purpose s of interstate or overseas trade or commerce .

 

203   The purpose of this clause is to ensure that, if a State or Territory wishes to accredit and rely upon the Commonwealth EIS process, the EIS can address all environmental impacts. 

 

204   The Minister may invite and take account of comments from any person on the guidelines.

 

Clause 103 - Designated proponent must invite comment on draft environmental impact statement

 

205   The proponent must prepare a draft EIS in accordance with the guidelines prepared by the Environment Minister and , if the Minister has approved publication of the draft EIS, publish it in accordance with the regulations. 

 

The information and invitation must be published in accordance with the regulations e.g. advertising in relevant newspapers and via the internet.

 

Subclause EP331(1) also provides that the proponent must give the Minister a copy and summary of any public comments received.

 

206   The Minister should approve the draft EIS only if it adequately addresses the information required by the guidelines.

 

207   T Subclause EP331(3) provides that t he period for public comment must be specified by the Minister , and must be at least cannot be less than 20 business days.

 

208   The propo nent must provide the Minister with a copy of any comments received.

 

Clause 104 - Finalising draft environmental impact statement

 

209   After the public comment period, the proponent must revise the draft EIS, taking into account the public comments.

 

210   The Minister may refuse to accept the finalised EIS if he or she believes on reasonable grounds that it is inadequate for the purpose of making an informed decision whether to approve the taking of the controlled action.

 

Clause 105 - Assessment report

 

211   The Secretary must prepare an assessment report for the Environment Minister within 20 days of the Minister accepting the final EIS.  The report must be made available to members of the public upon request, with the exception of some information.

 

 

 

 

Division 7 Inquiries

 

Subdivision A - preliminary

 

Clause 106 -  Simplified outline

 

212   This clause provides a simplified outline of Division 7 (inquiries)

 

Subdivision B - Establishment of inquiries

 

Clause 107 - Appointing commissioners and setting terms of reference

213   This clause provides that, having decided that an inquiry is the appropriate means of assessment, the Minister must appoint one or more commissioners, and provide them with written terms of reference .  

 

214   The inquiry may address impacts other than the relevant impacts:

_              at the request of the appropriate State or Territory Minister; and

_              if the action is to be taken by a constitutional corporation or is to be taken for the purpose s of interstate or overseas trade or commerce .

 

215   The purpose of this clause is to ensure that, if a State or Territory wishes to accredit and rely upon the Commonwealth inquiry process, the inquiry can address all environmental impacts. 

 

 

This clause provides that the Minister can appoint a commission to conduct an inquiry and set its terms of reference.

 

Subclause EP375(1)(a) provides that the Minister can appoint one or more commissioners.  Subclause EP375(2) provides that if more than one person is appointed, one person must be appointed as presiding commi ssioner.

 

Subclause EP375(1)(b) provides that the terms of reference must be in writing and specify the matters to be inquired into and the time in which the inquiry must be conducted.  Subclause EP375(3) provides that the Minister must specify relevant impacts to be inquired into.  Subclause EP375(5) provides that the Minister can also specify the manner in which the inquiry is conducted.

 

Subclause EP375(4) provides that the inquiry may consider other impacts of the action if the action is taken in a stat e or territory and a State or Territory Ministers has requested that the inquiry consider information about impacts of the action for the purposes of State or Territory decision making/approvals.  However, this subclause is limited by the Constitution.  This subclause applies if the person taking the action is taking it for the purpose of trade and commerce interstate (e.g. between two states or a state and a territory) or overseas (e.g. between Australia and another country).  This subclause also applies t o corporations as defined by Section 51(20) of the Constitution i.e. foreign corporations or Australian trading and financial corporations.

 

Clause 108 - Publicising inquiry

 

216   Subclause 108(1) provides that the commission must publish its terms of reference and any information provided to the Minister for the purpose of making a decision that an inquiry was the appropriate form of assessment.

 

Subdivision C - Conduct of inquiries

 

Clauses 109 - 120

217   These clauses deal with the conduct of inquiries. 

 

 

Subdivision D - Inquiry reports

 

Clause 121 - Timing of report

218   The commission’s time to report will be specified in the terms of reference by the Minister.

 

Clause 122 - Publication of report

219   With the restrictions listed under paragraph 110(3)(b), the commission must publish a report in accordance with the regulations.

 

 

 

Subdivision E - Commissioners’ terms and conditions

 

Clauses 12 3 1 -129

220   These clauses deal with terms and conditions. 

 

 

Part 9 - Approval of actions

 

Division 1 - Decisions on approval and conditions

 

Subdivision A - General

 

Clause 130 - Timing of decision on approval

 

221   The Environment Minister , must decide whether or not to approve the taking of a controlled action within the maximum time period of either :

_              thirty business days from the receipt of an assessment report following assessment of the action ; or

_              forty business days from the receipt of a report from a commission that has conducted an inquiry relating to the action. 

 

222   The Minister may extend this period only if:

_              it is not practicable to adequately consider comments from another Commonwealth Minister within the time period; or

_              the Minister has requested additional information under clause 132. 

 

Clause 131- Inviting comments from other Ministers before decision

 

223   Before deciding whether to approve the taking of an action and what (if any) conditions to attach to an approval, the Environment Minister must inform other Commonwealth Ministers with administrative responsibilities relating to the action about the decision that he or she proposes to make (including any conditions that are proposed to be attached to an approval) and must invite their comment.  

 

224   The purpose of this clause is to ensure that the approval decision is taken after proper consideration of all relevant factors, including economic and social matters considered consistently with the principles of ecologically sustainable development.  If Ministers do not agree on the proposed approval decision, this clause is intended to enable the Environment Minister to seek and consider advice from the Prime Minister or Cabinet on the relevant issues. 

 

A Commonwealth Minister may provide comment to the Environment Minister but must do so within ten business days of being invited.   Without limiting the comments that may be provided by other Minsters, they may comments that relate to economic and social matters relating to the action, and that may be considered consistently with the principles of ecologically sustainable development (EP530).

 

Clause 132 - Requesting further information for approval decision

 

225   The Environment Minister may request further specified information if he or she believes on reasonable grounds that not enough information is available to make an informed decision to approve, or not approve, the  controlled action.

 

Clause 133 - Grant of approval

 

226   The Environment Minister may approve the taking of an action subject to any necessary conditions. 

 

Clause 134 - Attaching conditions to an approval

 

227   This clause provides that the Minister can attach conditions to an approval only if she or he is satisfied that the condition is necessary or convenient for:

•       protecting a matter protected by a relevant provision of Part 3, or

•       repairing or mitigating damage to that matter (or those matters).

 

228   This clause is intended to allow the Minister to impose a broad range of conditions.  For example, an approval to establish and maintain a road in a world heritage area could be subject to a condition that the person rehabilitate an existing road in the area. 

 

229   The clause identifies some classes of conditions that can be imposed.  The list is not intended to be exhaustive.  The ability to impose a condition requiring compliance with conditions identified in another instrument is intended to facilitate the 'accreditation' of agreed conditions implemented primarily through approvals granted under State legislation.  The requirement to consider any relevant conditions imposed by State or Territory laws or other Commonwealth laws is also intended to facilitate reliance on other regulatory regimes, where this is appropriate to avoid duplication. 

 

230   Finally, there is a requirement to consider the desirability of ensuring, to the extent practicable, that a condition is a cost-effective means for the person taking the action and the Commonwealth to achieve the object of the condition. 

 

 

Clause 135 - Certain approvals and conditions must not give preference

 

231   Relevant approvals and conditions must not give preference. 

 

 

Subdivision B - Considerations for approvals and conditions

 

Clause 136 - General considerations

232   This clause identifies the considerations to be taken into account when deciding whether to approve an action and what conditions (if any) to attach.  The considerations include relevant advice from other Ministers with administrative responsibilities relating to the action (including where this advice is provided through Cabinet or the Prime Minister). 

 

 

 

Clauses 137 - 141

 

233   In deciding whether to approve an action and what conditions to impose, the Minister must not act inconsistently with Australia's obligations under relevant Conventions.  One of the objects of the Act is to assist in the discharge of Australia's obligations under international environmental law. 

 

 

Division 2 - Requirement to comply with conditions

 

Clause 142 - Compliance with conditions on approval

 

234   A person must not do or fail to do an act or thing where the doing or failure contravenes a condition. 

 

Division 3 - Variation of conditions and suspension and revocation of approvals

 

Clause 143 - Variation of conditions attached to approval

 

235   This clause identifies the circumstances in which the Minister may revoke, vary or add to any conditions attached to an approval.

 

Clause 144 -  Suspension of approval

 

236   This clause identifies the circumstances in which the Minister may suspend the t approval of an action

 

Clause 145 - Revocation of approval

 

237   This clause identifies the circumstances in which the Minister may revoke the approval of an action

 

Part 10 - Strategic assessment

 

Clause 146 -  Minister may agree on strategic assessment

 

238   This clause provides for the conduct of strategic assessments.  A strategic assessment is an assessment of actions that may be carried out under a proposed policy, program or plan.   A strategic assessment of a policy, program or plan allows for the early assessment of the cumulative impacts of relevant individual actions under that policy, program or plan.  

 

239   This clause sets out the minimum requirements for a strategic assessment under the Act, allowing flexibility as to how these requirements can be implemented. 

 

240   The outcomes of a strategic assessment assesment may be taken into account in deciding what the appropriate assessment approach is for each individual action under the policy, program or plan (under clause 87). 

 

241   In addition, if the strategic assessment assesses all of the relevant impacts of the actions under the policy, plan or program, the Minister may declare under clause 33 that specified actions approved by the Commonwealth or a Commonwealth agency in accordance with the policy, plan or program do not need approval for the purposes of specified sections of Part 3. 

 

242   A bilateral agreement may also specify that actions approved or taken in accordance with a policy, plan or program do not need approval for the purposes of specified sections of Part 3. 

 

Division 2 Assessment of Commonwealth-managed fisheries

 

Clause 147 - Simplified outline of this Division

243   This clause provides a simplified outline of the Division. 

 

244   It is the intention of the Minister to make a declaration under clause 33 'accrediting' the existing plans or policies for managing fisheries covered by this Division pending the conduct of strategic assessments - that is, declaring that approval is not required for actions approved (eg, licensed licenced ) in accordance with existing plans or policies.   Should this be in  the second reading speech. We have not seen this sort of policy stateme nt in other EM’ s

 

Clause 148 - Assessment before management managment plan is determined

 

245   An agreement must be made under clause 147 to conduct a strategic assessment which assesses the relevant impacts of actions taken under a management plan for a fishery;

_              before AFMA determines a management plan (under the Fisheries Management Act 1991 ); and

_              before the Minister administering the Torres Strait Fisheries Act 1984 determines a management plan under that Act. 

 

246   Any recommendations made by the Minister as a result of the strategic assessment must be considered. 

 

Clause 149 - Assessment before determination that no plan required

 

247   An agreement must be made under clause 146 EP601 to conduct a strategic assessment which assesses the relevant impacts of actions taken under the policy for managing a fishery before AFMA determines that a management plan is not warranted for a fishery under the Fisheries Management Act 1991. 

 

248   Any recommendations made by the Minister as a result of the strategic assessment must be considered. 

 

Clause 150 - Assessment of all fisheries without plans must be started within 5 years

 

249   Before the end of three years after this Act commences, AFMA must make agreements with the Minister under clause 146 EP601 for the strategic assessment of two-thirds of the fisheries managed by AFMA under the Fisheries Management Act 1991 .  All fisheries managed by AFMA under the Fisheries Management Act 1991 must be covered by a strategic assessment agreement within 5 years. 

 

250   This clause does not apply to fisheries for which a plan of management is in force when this Act commences.  In addition, this clause does not require another agreement to be reached if a fishery is covered by an agreement made as a result of clause 148 or clause 149. 

 

Clause 151 - Assessment of all Torres Strait Fisheries to be started within 5 years

 

251   Agreements for the strategic assessment of actions taken under policies for managing fishing under the Torres Strait Fisheries Act 1984 must be made within five years, where these actions are not covered by management plans in force under that Act or an agreement for strategic assessment reached as result of clause 148.   

 

Clause 152 - Further assessment if impacts greater than previously assessed

 

252   Another agreement for strategic assessment must be made if the Environment Minister and the Minister administering the Fisheries Management Act 1991 agree that the relevant impacts of actions in a relevant fishery or under a relevant policy are likely to be significantly greater than the impacts identified in the most recent strategic assessment.  An additional agreement is not required if a management plan is in force under the Fisheries Management Act 1991

 

Clause 153 - Minister must make declaration if he or she endorses plan or policy

 

253   If, at the conclusion of a strategic assessment, the Minister endorses a relevant plan or policy, the Minister must make a declaration under clause 33 that actions approved under the plan or policy do not require approval for the purposes of clause 23. 

 

Clause 154 - This Division does not limit Division 1

254   This clause provides that this Division does not limit Division 1.

 

 

Part 11 - Miscellaneous rules about assessment

 

Division 1 - Rules about timing

 

Clause 155 - This chapter ceases to apply to lapsed proposals

256   This clause provides that assessments may be terminated if the proponent of the action does not advance the assessment within a reasonable period of having been requested to do so by the Minister. carry them out.  

 

Clause 156 - General rules about time limits

257   This clause provides some general rules about time limits. 

 

 

Division 2 - Actions in area offshore from State or Northern Territory

 

Clause 157 - Actions treated as though they were in a State or the Northern Territory

258   This clause extends the application of various provisions to actions taken in the coastal waters of a State or the Northern Territory as if they were within a State or the Northern Territory.

 

Division 3 Exemptions

 

Clause 158 -  Exemptions from Chapter 2 and this Chapter

259   This clause provides that the Minister may exempt a specified action by a specified person from any requirement of Part 3 or Chapter 4.

 

260   The effect of this provision is that the Minister may declare that a specific action by a specific person does not require approval or does not require assessment prior to approval or is exempt from any or all steps in the assessment process.

 

261   The Minister may grant exemptions under this clause Clause only in the national interest.

 

This clause provides that a person proposing to take an action, or the designated proponent, may seek an exemption from a specified requirement for an environmental approval under Part 3 of Chapter 4 (environmental assessment and approval). SHOULD ALSO INCLUDE POSSIBILITY OF AN EXEMPTION FROM ALL OR PART OF THE ASSESSMENT PROCESS.  THERE SHOULD ALSO BE A SPECIFIED PERIOD FOR AN EXEMPTION

 

The Minister has 20 business days to decide whether or not to grant an exemption in relation to a specified action.  The Minister must grant an exemption in writing and in doing so specify the date (day) of its effect.  The date of effect cannot be a day before the date of the exemption.

 

Subclause (4) requires the Environment Minister to only grant an exemption if he or she is satisfied that it is in the national interest that a specified requirement for environmental approval under Part 3 not apply to the person or to the action.

 

Subclause (5) provides guidance for the Minister in that the Minister may consider Australia’s defence or security  when determining national interest.  However, subclause (5 does not limit the matters that the Minister may consider in determining national interest.

 

The Environment Minister has ten business days after making the notice of exemption to give a copy of the notice to the person specified in the notice and publish a copy of the notice in accordance with the regulations.

 

Division 4 - Application of Chapter to actions that are not controlled actions

 

Subdivision A B - Minister’s advice on authorising actions

 

Clause 159 - Simplified outline of this Subdivision

 

262   This clause provides a simplified outline of Subdivision B which requires a Commonwealth agency or employee to seek the Environment Minister’s advice on authorising Commonwealth actions specified in EP738, or an action prescribed by the regulations under this Division .

 

Clause 160 - Requirement to take account of Minister’s advice

263   This clause requires Commonwealth agencies or employees to obtain and consider advice from the Environment Minister before authorising certain actions.  The requirement to obtain advice before granting an authorisation does not apply if a previous assessment under this subdivision has, or will, relevantly address the impacts associated with the authorisation.  

 

Clause 161 - Seeking the Minister’s advice

264   This clause provides that the actions referred to in clause 160 may be referred to the Minister either by the relevant person or agency or at the Minister's request.  When a n action is referred, a designated proponent must also be nominated.

 

This clause establishes a requirement on Commonwealth agencies and Commonwealth employees proposing to give an authorisation of an action of the kind specified in EP738 to refer the proposal to the Environment Minister for the purpose of obtaining and considering the Minister’s advice in relation to the action.  The Commonwealth agency or Commonwealth employee must also nominate a person to act as the designated proponent of the action.

 

Subclause (2) allows the Environment Minister to request a referral, and the nomination of a designated proponent, if the Minister thinks the agency or employee should have referred the proposal under Subclause (1). The Commonwealth agency or Commonwealth employee must comply with the Minister’s request.

 

Clause 162 - Assessment of the action

265   This clause provides that the action is to be assessed in accordance with Part 8 ( modified as necessary). 

 

 

This clause applies relevant parts of Part 8, and related provisions of the Act, to Commonwealth proposals being assessed under this Division, as if

- the referral of a Commonwealth proposal to authorise an action was referral of the action; and

- the Minister had decided that the action was a controlled action under EP250; and

- the person nominated as the designated proponent had been designated as the proponent under clause EP250; and

- references to making an informed decision on the taking of a controlled action were a reference to giving informed advice about the proposal to give an authorisation of the action.

 

The clause does not apply clause EP264AA which describes relevant aspects of the environment and relevant impacts for each of the controlled actions specified in the table at EP264AA(2).  Instead, the clause provides that the impacts of the action are the relevant impacts of the action on the environment.

 

C l Lause 163 - Providing advice

 

266   This clause provides for the Environment Minister to give advice to the Commonwealth agency or Commonwealth employee who referred the proposal. 

 

Clause 164 - Reporting on response to advice

 

267   This clause requires the Commonwealth agency or Commonwealth employee who referred the proposal for advice to give a report to the Environment Minister stating:

_              the action taken in relation to the Minister’s advice; and

_              if the agency or employee did not give effect to the advice why the agency or employee did not.

 

Subdivision B C - Assessment of applications for permits relating to whales, dolphins and porpoises

 

Clause 165 -  Assessment of applications for permits relating to whales, dolphins and porpoises

 

268   This clause provides for the application of the assessment process in Part 8 of the Act (modified as necessary) to the consideration of applications for a permit under Division 3, Part 16. 

 

Subdivision C D - Assessment under agreement with State or Territory

 

269   This Subdivision allows a State or Territory to accredit a Commonwealth assessment process for an action that is not a controlled action.

 

Clause 166 - This subdivision applies if Ministers agree it should

270   This clause provides that, if agreement is reached, an action of a kind identified in this clause can be assessed under this subdivision.

 

Clause 167 - Making an agreement

271   This clause empowers the Minister to enter into an agreement with a Minister of a State or Territory, but only if:

_              the action to be assessed is not a controlled action, and

_              the agreement does not give preference within the meaning of section 99 of the Constitution.

 

Clauses 168 to 170

272   These clauses provide that assessments will be carried out using one of the procedures set out in Part 8 or Part 10, with appropriate modifications.  The modifications to the procedures are described in these clauses.

 

273   The agreement must specify which procedure is to be used.

 

 

 

Chapter 5—Conservation of biodiversity

 

Part 12 —Identifying and monitoring biodiversity and making bioregional plans

 

Division 1—Identifying and monitoring biodiversity

 

Clause 171 Identifying and monitoring biodi versity

274   This clause empowers the Minister to provide a person with financial or other assistance, subject to any conditions the Minister thinks fit, for the purpose of identifying and monitoring components of biodiversity.

 

Clause 172 to 175

275   These clauses require the Minister to prepare inventories that identify, and state the abundance of, listed threatened species, listed threatened ecological communities, listed migratory species, listed marine species, and cetaceans on  Commonwealth land and in Commonwealth marine areas.  These clauses provides that areas must be covered by an inventory within 5 years of commencement of the Act (10 years for marine areas) or within 5 years of becoming a Commonwealth area (10 years for marine areas), whichever is the later.  Commonwealth agencies with an interest in Commonwealth land or a Commonwealth marine area are required to provide all reasonable assistance in preparing an inventory which is to cover the land or marine area over which they hold an interest.

 

2 76   The Minister must take reasonable steps to keep such inventories and surveys up to date.

 

277   None of the obligations that this Act imposes in respect of Commonwealth areas are affected by the lack of an inventory or survey prepared under c lauses 172 or 173 .

 

278   Listed threatened species, listed threatened ecological communities, listed migratory species, and listed marine species are described in Part 16.

 

 



Division 2—Bioregional Plans

 

Clause 176   Bioregional plans

279   This clause empowers the Minis ter to:

_              prepare bioregional plans for bioregions that are entirely within a Commonwealth area, and

_              cooperate with States and Territories (or their agencies), or other persons, in preparing bioregional plan s.

 

280   A bioregion is a n area of one whole or several interconnected ecosystems characterised by its landforms, vegetative cover, human culture, and history.   In determining the boundaries of a bioregion account will be taken of administrative and other regional boundaries. A bioregional plan provides a “ blueprint” for the ecologically sustainable management of natural resources within a bioregion, taking into account social and geographic elements. Sub clause 4 lists some matters that may be included in bioregional plans, including elements that facilitate ongoing monitoring and review to ensure that plan remains relevant.

 

281   Subclause (5) provides that the Minister may have regard to a bioregional plan when making decisions under this Act, where the plan is relevant.

 

Clause 177   Obligations under this Act unaffected by lack of bioregional plans

282   This clause provides that obligations imposed by this Act are not affected by the lack of a bioregional plan for any Commonwealth area.

 

Part 1 3 —Species and communities

 

Division 1—Threatened native species and ecological communities

 

Subdivision A—Listing

 

Clause 178   and 179 Listing of threatened species

283   These clause provide that the Minister must establish a list of threatened native species, divided into six categories: ‘extinct’, ‘extinct in the wild ’, ‘critically endangered’, ‘endangered’, ‘vulnerable’ and ‘conservation dependent.’ The eligible categories for listing are consistent with the International Union for the Conservation of Nature Red List categories. The list is to be established by instrument published in the Gazette (Subclause 1).

 

284   When first established, the list is only to include species listed under Schedule 1 of the Endangered Species Protection Act 1992 immediately prior to the date of commencement of this Act.  Species previous ly listed under the Endangered Species Protection Act 1992 as ‘presumed extinct’ are to be listed as ‘extinct’ and species previously listed as ‘endangered’ or ‘vulnerable’ are to be listed under the categories of the same name, ‘endangered’ and ‘vulnerable’, at the time of commencement of this Act.  

 

Clause 180 - Native species of marine fish

285   This clause provides that criteria specifically for listing species of native marine fish in the categories of clause 178 may be prescribed by regulations.

 

 

 

C lause 181   Listing of threatened ecological communities

286   This c lause provides that the Minister must establish a list of threatened ecological communities divided into three categories: ‘critically endangered’, ‘endangered’ and ‘vulnerable’.  The list is to be established by instrument published in the Gazette (Subclause 1).

 

287   An ecological community is an assemblage of native species that (a) inhabits a particular area in nature, and (b) meets the addition criteria specified in the regulations (if an y) made for the purposes of this definition (clause 528 )

 

288   Subclause (3) provides that if any ecological communities are listed under Schedule 2 of the Endangered Species Protection Act 1992 immediately prior to the date of commencement of this Act, then the list established under Subclause (1) must contain only those ecological communities and they must in included in the ‘endangered’ category.

 

289   Subclause (2) provides that, if satisfied that they are eligible to be listed in the category proposed, t he Minister can list ecological communities in one of the three categories.   

 

Clause 18 2   Critically endangered, endangered and vulnerable communities.

290   The three subclauses of this clause set out the circumstances under which an ecological community is eligible to be listed as ‘critically endangered’, ‘endangered’ or ‘vulnerable’ for the purposes of this Act.

 

Clause 183 Listing of key threatening processes

291   The Minister must, by published instrument in the Gazette , establish a list of key threate ning processes, which must initially include only key threatening processes already listed under Schedule 3 of the Endangered Species Protection Act at the commencement of this Act. Threatening processes and key threatening processes are defined in clause 188 .

 

Clause 184   Minister may amend lists

292   This clause provides that the Minister can  amend the lists of species, ecological communities and key threatening processes by adding, deleting, moving between categories and correcting inaccuracies (subclaus e 1).  The amendment will be by instrument published in the Gazette  and notified in a daily newspaper circulated in each State and self-governing Territory (subclause (2)).  The instrument will be disallowable and, in the case of deletions from a list, will only come into force when the period during which it could have been disallowed has expired (subclause (3)).This provision is included so that the legality of actions will not change because a species or ecological community that was removed from the li st is reincluded as a result of the instrument being disallowed.

 

293   Note that in amending lists, the Minister must consider advice from the Scientific Committee (see clause 189 ), and satisfy various other requirements, described in clauses 186 , 187 , and 188 .

 

294   An explanation of the reasons for amending a list must accompany the instrument when it is laid before each House of Parliament (subclause (4))and the information contained in the instrument must be published according to the regulations (subclau se 5).

 

Clause 185   Maintaining the lists in up-to-date condition

295   This clause provides that the Minister must take all reasonably practicable steps to ensure that the lists contain all species or ecological communities that are eligible to be listed. 

 

Clause 186   Amending list of threatened native species

296   This clause provides that the Minister must not add a native species to a category unless satisfied that the species is eligible to be included in that category or delete a native species from a category unless satisfied that the species is no longer eligible to be included in that category.  There are qualifications to this requirement, prescribed in subclauses (3) (4) and (5), relating to species in the ‘critically endangered’, ‘endangered’ and ‘vulnerable’ categories respectively.  These relate to the situation where an unlisted species may so closely resemble a listed species at some part of its lifecycle that, in order to reduce the consequences of possible confusion of the two species, it is desirable to include both the species on the same list.  Subclause (2) prescribes that the Minister must not consider any matter not related to the survival of the species in considering whether to add or delete a species from a list.

 

Clause 187   Amending list of ecological communities

297   This c lause provides that the Minister must not add an ecological community to a category unless satisfied that the community is eligible to be included in that category, or delete an ecological community from a catego ry unless satisfied that the community is no longer eligible to be included in that category.  Subclause (2) prescribes that the Minister must not consider any matter not related to the survival of the ecological community in considering whether to add or delete a community from a list.

 

Clause 188   Amending list of key threatening processes

298   This clause provides that the Minister must not add a threatening process to the list of  key threatening processes established under clause 183 unless satisfied th at the threatening process is eligible to be included in that list, or delete a key threatening process from that list unless satisfied that the threatening process is no longer eligible to be included in that list (subclauses 1 and 2).   Subclause 3 defines a threatening process, whilst subclause 4 sets out the circumstances under which a threatening process is eligible to be listed as a ‘key threatening process’ for the purposes of this Act.  

 

299   Subclause (5) requires the Minister to consult with affe cted and interested States and Territories, and their agencies, as well as  affected and interested Commonwealth agencies as to whether it would be feasible, effective or efficient to prepare and implement a nationally coordinated threat abatement plan before deciding whether the threatening process is eligible to be listed.

 

Clause 189   Minister must consider advice from Scientific Committee

300   This clause requires that before a native species, ecological community or key threatening process is added to o r deleted from any list, the Minister must consider the advice of the Scientific Committee (established under Part 23, Division 1).  However, the Minister is not required to consider the Committee's advice in cases where a native species listed as extinct is rediscovered in the wild (see clause 192 ).

 

301   In preparing its advice, the Committee may seek advice from a person with relevant expertise, but must not consider any matter that does not relate to the survival of the species or ecological community co ncerned. 

 

302   The Committee must give its advice to the Minister within 12 months (or later date if the Minister allows) of the date the Committee received the nomination.

 

303   The Minister’s decision must be made, and any necessary instrument amending a list must be published in the Gazette , within 90 days of receiving the Committee’s advice on the matter(subclause 4). 

 

304   In the period of 90 days, or until the instrument is published in the Gazette (whichever is earlier), a Committee member must not disclose the advice or any related information, except for the official purposes of the Committee (subclause (6)).

 

Clause 190 - Scientific Committee may provide advice about species or committees being threatened

305   This clause provides that the Scientific Committee may advise the Minister of actions required to protect from becoming threatened any native species or ecological community it does not consider eligible for listing under sections 178 or 181 .  The Minister must have regard to such advice in pe rforming his or her functions under the Act.

 

Clause 191   Nomination of threatened species etc

306   This clause allows for any person to nominate a species, ecological community or threatening process for listing under this Act, and requires the Minister to forward all nominations to the Scientific Committee.

 

307   Subclauses (3) and (4) require that the Minister should, in accordance with any regulations, advise the person who nominated the species, ecological community or threatening process and give reas ons to that person if the Minister decides that the nominated item is not eligible to be listed, or to be listed in the nominated category. The Minister may request further information from the person making the nomination in order to assist in arriving at a decision (Subclause 5).

 

308   Subclause (6) provides that the Minister may reject the nomination under a number of specified circumstances.

 

Clause 192   Rediscovery of threatened species that were extinct

309   This clause enables the Minister to delete a species from the ‘extinct’ list, and if necessary add it to any of the other categories of threatened species, if the Minister is satisfied that the species has been definitely located in the wild.  In this case the Minister may, but need not, obtain advice from the Scientific Committee.

 

Clause 193   Species posing a serious threat to human health

310   This clause empowers the Minister, if satisfied that a native species poses a serious threat to human health, to determine, by disallowable instrument publi shed in the Gazette , that a species is not suitable to be included in any list.  Notification of this determination should be given in a daily newspaper circulating in each State and Territory.

 

Clause 194   Minister to make lists available to the public

311   This clause provides that the Minister must make copies of all lists and amending instruments widely available to the public at a reasonable price, in accordance with any regulations.

 

 

Subdivision B—Permit system

 

Clause 195   Subdivision does not apply to cetaceans

312   This clause establishes that the Subdivision applies only to a listed threatened species that is not a cetacean (Protection of cetaceans is dealt with in Division 3).