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Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

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2013-2014-2015

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (BILATERAL AGREEMENT IMPLEMENTATION) BILL 2014

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be moved on behalf of the Government

 

(Circulated by authority of the Minister for the Environment , the Hon Greg Hunt MP)



 

Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

OUTLINE

The purpose of the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill ) is to amend the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act ) to facilitate the efficient and enduring implementation of the Australian Government’s one stop shop policy for environmental approvals.

Amongst other things, the Bill:

(a)   Proposed amending subsections 29(1), 46(2) and (2A) of the EPBC Act to remove a prohibition on the accreditation of State and Territory approval processes in relation to the water trigger under approval bilateral agreements (Part 1 of Schedule 3 to the Bill).

(b)   Proposed insertion of a new subsection 48A(2A) which would require an approval bilateral agreement to include particular undertakings by a State or Territory in relation to obtaining and considering advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (the Committee). The Bill also proposed insertion of a new subsection 48A(2B) which would have clarified that new subsection 48A(2A) would not limit the ability of a State or Territory to seek advice from the Committee.

(c)   Proposed insertion of a new paragraph 505D(1)(ba) to expand the functions of the Committee to enable it to provide advice to the Minister about the operation of a bilateral agreement that accredited a State or Territory for the purposes of assessing or approving actions in relation to the water trigger.

(d)   Included transitional provisions which clarified which actions the amendments relating to the water trigger would apply to.

The purpose of the proposed amendments to the Bill (the Amendments):

(a)   Retain the current EPBC Act prohibition on the accreditation of State and Territory approval processes in relation to the water trigger under approval bilateral agreements. That is, retaining current subsections 29(1), 46(2) and (2A) and 48A(1) of the EPBC Act. 

The proposed new subsections 48A(2A) and 48A(2B), and addition to subsection 48A(1) (requiring State or Territory undertakings to seek and take into account advice from the Committee in relation to relevant actions) would not be inserted.

The Amendments would not effect proposed new paragraph 505D(1)(ba) to the extent it enables the Minister to seek advice from the Committee in relation to the operation of assessment bilateral agreements.

The  Amendments would not effect the proposed repeal of subsection 505E(2) to allow the Minister to declare any State or Territory for the purposes of requesting advice from the Committee (regardless of whether or not the State or Territory is a party to the National Partnership Agreement on Coal Seam Gas and Large Coal Mining Development).

(b)   Make minor technical amendment to the Bill to ensure that, in the event an approval bilateral agreement is suspended or cancelled, or ceases to apply to a specified action, there is an efficient process to enable the Commonwealth to make an approval decision, including the option to use all or part of the relevant State or Territory assessment.

(c)   Make minor technical amendments to the definition of authorisation process included in Part 2 of Schedule 3 to the Bill to ensure flexibility in the range of State and Territory assessment processes which can be accredited under an approval bilateral agreement.

(d)   Permit the possession, in a particular State or Territory, of animal or plant species that is not on the Live Import List.

Financial Impact Statement

 

The Amendments to the Bill have no financial impact.



 

Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014

NOTES ON AMENDMENTS

Item 1

This item changes the title of the Bill due to the amendments at Item 14.

Items 2 and 3

Items 2 and 3 of the Amendments amend Item 3 of Schedule 1 to the Bill which is required as a consequence of the amendments proposed by item 8 below.

These amendments to Schedule 1 of the Bill ensure that Part 7 of the EPBC Act would not prevent the referral of an action to the Commonwealth where it was not covered by an approval bilateral agreement in relation to some, but not all, of the controlling provisions relevant to the action. For example, the referral of an action to the Commonwealth for the purposes of an individual controlling provision (such as the water trigger) that was not covered by the section 46 approval bilateral agreement declaration.

Item 4

Item 4 of the Amendments is required as a consequence of the amendments proposed by Item 5 and clarifies the intent of the amendments to section 66, which contains a simplified outline of Chapter 4 (Environmental assessments and approvals).

Item 5

The Amendments at Item 5 clarify the intention of new subsection 69A(1); that is, an action is deemed to have been referred to the Commonwealth at the time a State or Territory or Commonwealth Minister makes a declaration (the exclusion declaration ) to exclude an action from the section 46 approval bilateral agreement declaration that the action does not require approval under the EPBC Act. 

Once an exclusion declaration has been made, the specified action will no longer be assessed and approved under the approval bilateral agreement. However, the remaining provisions of the approval bilateral agreement, such as the information sharing requirements, will continue to apply to the action.

Item 6

Item 6 of the Amendments is required as a consequence of the amendments at Item 5 and amends new subsection 69A(1) to reflect the terminology now used in new subsection 69A(1).

Item 7

Item 7 of the Amendments makes technical amendments to paragraph 87(3)(ca)(ii) to clarify the original intent of this paragraph. That is, when deciding on the approach for assessment under Part 8 of the EPBC Act, the Minister must consider the extent to which a partially completed assessment of the action by the State or Territory can be used. This may occur in circumstances where: a State or Territory or Commonwealth Minister makes an exclusion declaration excluding an action from an approval bilateral agreement declaration; and where an action is no longer covered by an assessment or approval bilateral agreement declaration (even if the action was currently going through the assessment or approval process in the manner specified) due to the suspension or cancellation of the bilateral agreement.

Item 8

Item 8 of the Amendments would retain current subsections 29(1), 46(2) and (2A) which prohibit bilateral agreements from including a declaration that actions within a specified class do not require approval under Part 9 of the EPBC Act in relation to sections 24D and 24E (the water trigger), because they have been taken in accordance with a bilaterally accredited authorisation process or management arrangement.

Item 8 would omit the insertion of the addition to subsection 48A(1) and the insertion of proposed new subsections 48A(2A) and 48A(2B). New subsection 48A(2A) would have included a requirement that approval bilateral agreements covering the water trigger include undertakings from the relevant State or Territory to seek and take into account the advice of the Committee on relevant actions. New subsection 48A(2B) would have clarified that new subsection 48A(2A) would not limit the ability of the State or Territory to seek advice from the Committee. These new subsections will not be required because the Amendments would prevent approval bilateral agreements from including the water trigger.

Item 8 would also insert a new subsection 29(1A) which provides clarity on approval of actions which engage the water trigger in addition to another matter protected under Part 3. The new subsection would allow a person to take an action without approval under Part 9 for the purposes of the other matter/s protected under Part 3 if it was covered by an approval bilateral agreement and paragraphs 29(1)(a) to (e) were satisfied. This would allow approval bilateral agreements to cover coal seam gas and large coal mining developments in relation to all other Part 3 protected matters with the Commonwealth’s approval role limited to the water trigger.

Item 9

Item 9 of the Amendments is a consequential amendment to new paragraph 505D(1)(ba). The new paragraph allows the Committee to provide advice to the Minister on the implementation of bilateral agreements in relation to the water trigger. Item 9 removes the reference to section 46, approval bilateral agreements, as these agreements will not be able to include the water trigger.

Item 10

Item 10 of the Amendments is a consequential amendment which omits the transitional provisions which clarified the application of Items 1, 2, 2A, 2B, and 2C. These provisions are not required because the Amendments at Item 8 would omit the relevant items. The substituted provision provides that the Amendments apply to actions referred under section 68 whether made before, on or after the day they commence.

Item 11

Item 11 of the Amendments is a minor technical correction to the heading for Item 7 of Part 2 of Schedule 3 to the Bill as section 31 does not contain subsections. The heading should refer to subparagraph ‘31(f)(ii)’.

 

 

Item 12

Item 12 of the Amendments are consequential amendments to section 46 of the EPBC Act to ensure consistency with the amendments in Part 2 of Schedule 3 to the Bill which expand the definition of authorisation process in section 528 of the EPBC Act.

Item 12 amends paragraphs 46(3)(a), 46(4)(b), 46(5)(a),46(5A)(a), 46(6), 46(7) and 46(8) of the EPBC to ensure that the Minister is able to accredit all components of a state or territory authorisation process which are being considered for accreditation. These amendments ensure flexibility in range of state and territory processes which can be accredited.

Item 13

Item 10 in Part 2 of Schedule 3 to the Bill repeals the definition of authorisation process and substitutes it with a revised definition to ensure that appropriate authorisation processes can be accredited under an approvals bilateral agreement.

Item 13 of the Amendments substitutes the definition of authorisation process in Item 10 of Part 2 of Schedule 3 to the Bill with a new definition to ensure flexibility in the range of State and Territory processes which can be accredited under an approvals bilateral agreement, thereby ensuring the original policy intention of the amendment is reflected in the definition.

Item 13 amends the definition of authorisation process to ensure that Commonwealth laws are treated differently to State and Territory laws, ensuring that any authorisation processes of the Commonwealth are set out in a law of the Commonwealth (this is consistent with paragraphs 32 (c)(ii) and 33(2A)(a) of the EPBC Act).

Item 13 also includes a note to clarify the reference to the word ‘partly’ in paragraph (b) of the new definition to enable an authorisation process to consist of components which do not come within the paragraphs in section 528 of the EPBC Act. That is, one component of the process can be administrative (and not fall under a law, or an instrument made under a law). The definition does not include an authorisation process which is entirely made up of administrative components with no statutory basis.

Item 14

Item 14 amends Part 13A to allow companies or individuals to apply to the Minister for permission to possess live specimens which are part of an existing feral population in a State or Territory.

 

Currently it is an offence under the EPBC Act to possess an animal or plant that is not on the Live Import List, even when the animal has become established in the wild and there is no possibility of eradication. This prevents scientific research and prevents using the species for some commercial benefit.

 

The amendments at Item 14 would allow the authorisation of the possession of regulated live specimens where:

·          those specimens are part of a feral population in the State or Territory in which they will be possessed; and

·          possession of those specimens will not threaten species or biodiversity in Australia.

 

The amendments would allow:

·          a permit to be granted to a particular person to possess specimens in a particular state or territory for testing purposes for up to two years, and

·          any person to possess specimens in a particular state or territory, by adding that species to a list of live specimens suitable for possession.

 

Both the permit and the listing could be subject to conditions.

The amendments at Item 14 also include safeguards to protect native biodiversity, to prevent the species from spreading further, and to require states to “opt-in” for the authorisation to be effective in that jurisdiction.

The amendments at Item 14 provide for testing periods of up to two years and similarly amend the related Live Import List testing provisions.

Item 15

Item 15 of the Amendments is a consequential amendment which reinserts the reference to the water trigger in new subsection 46(1) (excluding it from approval bilateral agreement declarations).

The new subsection 46(1) retains the removal of the reference to approvals of actions by State or Territories or agencies (so that the class of actions does not need to be declared by reference to the identity for the decision maker); and clarifies that an action may be approved prior to the accreditation of the process for the purposes of an approvals bilateral agreement.