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

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2013 - 2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

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

 

1.1       Items 1, 2 and 3 insert additional amendments to Part 1 (Amendments relating to water resources) of Schedule 3 (Accreditation of certain State processes) to the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 (the Bill ).

1.2       Schedule 3 to the Bill would amend sections 29(1), 46(2) and 46(2A) of the EPBC Act to allow States and Territories to be accredited to approve actions in relation to coal seam gas and large coal mining developments that have, will have or are likely to have a significant impact on a water resource (commonly known as the ‘water trigger’).

1.3       The Bill would also repeal subsection 505E(2) of the EPBC Act so that the Minister could declare any State or Territory for the purposes of requesting advice from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (the IESC ). This amendment would permit all States and Territories to request advice; however it would not require States or Territories to do so.

Government amendments relating to undertakings in bilateral agreements

1.4       Section 48A of the EPBC Act currently specifies mandatory provisions for bilateral agreements. To strengthen the assurances relating to States and Territories approving water trigger projects under approval bilateral agreements, the amendments in items 1, 2 and 3 would introduce a new mandatory requirement for approval bilateral agreements that cover the water trigger to include undertakings by the relevant State or Territory to seek, and to take into account, the advice of the IESC.

1.5       Under the one stop shop reform, the policy approach taken in the draft New South Wales and Queensland approval bilateral agreements is to include the requirement to seek and take into account IESC advice (clause 5.4). The amendments formalise this requirement in legislation.

1.6       Item 1 inserts new items 2A, 2B and 2C to the Bill. Items 2A and 2B to the Bill are consequential amendments as a result of item 2C, which inserts a new subsection 48A(2A) and (2B) to the EPBC Act relating to mandatory undertakings in bilateral agreements.

(a)        Item 2A to the Bill inserts a reference to the new subsection 48A(2A) so that an approval bilateral agreement would not have effect for the purposes of the EPBC Act, if the agreement did not include an undertaking specified in subsection 48A(2A).

(b)        Item 2B to the Bill inserts a reference to subsection 48A(2A) into subsection 48A(1).

 

 

 

 

1.7       Item 2C to the Bill inserts subsections 48A(2A) and (2B) to the EPBC Act. Subsection 48A(2A) would require that an approval bilateral agreement, which covers large coal mining and coal seam gas developments that are likely to have a significant impact on a water resource, must include an undertaking by the state or territory to obtain advice from the IESC if an action or any actions in a specified class of actions is likely to have a significant impact on water resource.  Paragraph 48A(2A)(b) would require that the state decision maker would have to take into account the IESC advice when deciding whether or not to approve the action or a class of actions that includes an action likely to have a significant impact on water resources.

1.8       Subsection 48A(2B) confirms that the undertakings to seek and take into account the advice of the IESC do not limit the ability of a State or Territory to request advice from the IESC.

1.9       Item 2 is a consequential numerical amendment as a result of item 3.

1.10     Item 3 adds an additional sub-item (2) on the application of the amendment. Item 3 confirms that the amendments made by items 2A, 2B and 2C apply to actions under an approval bilateral on or after the day the item commences, regardless of when the agreement was entered into.

 

Government amendments relating to advice from the IESC on the operation of bilateral agreements

1.11     As a further assurance to the Commonwealth and the community for a State or Territory’s assessment of impacts to a water resource from high risk coal seam gas or large coal mining developments under a bilateral agreement, item 1 also inserts an additional function of the IESC to section 505D.

1.12     This amendment would allow the Commonwealth Minister to request supplementary advice from the IESC on high risk coal seam gas and large coal mining developments being assessed under a bilateral agreement. This would be supplementary to the advice which the IESC would provide to the State or Territory on a particular development. This could include advice on the extent to which the State or Territory has assessed the impacts of the development and considered the initial advice of the IESC.

1.13     The supplementary advice could assist the Commonwealth in monitoring the operation of the bilateral agreements and in ensuring that high, national environmental standards are maintained. It is likely that this would, in practice, be used with regard to projects with large potential impacts, a high degree of uncertainty about potential impacts, and/or subject to significant community concern.