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Environment Protection and Biodiversity Conservation Amendment (Protecting Australia’s Water Resources) Bill 2011

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2010-2011

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

THE SENATE

 

 

 

 

 

Environment Protection and Biodiversity Conservation Amendment (Protecting Australia’s Water Resources) Bill 2011

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator Waters)

 

 

 

 

 

 



 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (PROTECTING AUSTRALIA’S WATER RESOURCES) BILL 2011

 

Outline

The Environment Protection and Biodiversity Conservation Amendment (Protecting Australia’s Water Resources) Bill 2011 will require Commonwealth assessment and approval of mining operations likely to have a significant impact on water resources.

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clauses 1

This is a formal provision specifying the short title.

 

Clause 2 - Commencement

The amendments set out in the Schedule of the Bill are to commence on the day the Bill is introduced into the Senate. Under normal circumstances commencement on Royal Assent would apply, however this retrospective commencement is required to ensure approvals for mining operations are not fast-tracked following introduction of this Bill. The intention is to ensure all mining operations commencing after the day this Bill is introduced are subject to Commonwealth assessment and approval where these operations are likely to have a significant impact on Australia’s water resources.

 

Clause 3 - Schedule

This provision gives effect to the amendments set out in Schedule 1 to the Bill.

 



Schedule 1 - Amendments

Item 1

This amendment inserts a new Subdivision FB (protection of water resources from mining operations) into Division 1 of Part 3 of the Act. Subdivision FB contains sections 24D to 24G.

 

Section 24D (requirement for approval of mining operations with a significant impact on water resources)

Section 24D (requirement for approval of mining operations with a significant impact on water resources). In this core provision of the amendment, the action that requires approval is an action taken “in the course of mining operations that has, will have or is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource”.

The term “action” is already defined in the Act to include a project, a development, an undertaking and an activity or series of activities.

The first three subsections of section 24D impose civil penalties for these mining actions in particular circumstances, each based on a particular ground of Commonwealth constitutional power - over corporations, trade and commerce, and Territories.

The fourth subsection lists the exceptions to the prohibitions - circumstances in which the action may be taken. These are:

• the Minister has given an approval under Part 9 of the Act;

• the action does not require an approval under Part 9 because it is covered by an accredited management arrangement;

• the action does not require an approval under Part 9 because it has prior

approval;

• the Minister has decided under Division 2 of Part 7 that this section is not a controlling provision;

• the action is covered by a section that relates to international aid programs

(which is not likely to apply).

 

Sections 24E and 24F (definitions of mining operations and water resource)

These sections define the terms mining operations and water resource, which are central to the amendments. Both are very broadly defined.

 

Section 24G (offences relating to mining operations)

The actions that are liable to civil penalties under the new section 24D may also be subject to criminal penalties under this section.

The first six subsections impose criminal penalties for the relevant mining actions in particular circumstances, each based on a particular ground of Commonwealth constitutional power - over Corporations, Trade and Commerce, and Territories. They are also divided according to whether the prosecution must prove that the impact on the water resource was certain or only likely.

Subsection (7) gives exceptions to the prohibitions. These are the same as for the civil penalty provisions in section 24D.

Items 2 and 3

These items provide for consequential amendments which ensure consistent treatment of liability of third party actions under the Act.

Item 4

This amendment inserts new items 13H and 13I into the table in section 34 of the Act to include water resources as a matter protected by a provision of Part 3 of the Act.

 

Item 5

This amendment adds new section 43C at the end of Division 6 (actions with prior authorisations) of Part 4 of the Act.

Section 43C (mining operations with prior authorizations)

Section 43C provides that actions that were, or would have been, lawful immediately before commencement of the provisions of this Bill continue to be lawful after commencement (disregarding proposed Subdivision FB), to be taken without approval under the Act.

Items 6 to 12

These items make consequential amendments arising from the insertion of new Subdivision FB (protection of water resources from mining operations) into Division 1 of Part 3 of the Act.