2013-2014-2015

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

THE SENATE

 

 

 

 

 

Landholders’ Right to Refuse (Gas and Coal) Bill 2015

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of Senator Waters)

 

 

 

 

 

 

 

 

Landholders’ Right to Refuse (Gas and Coal) Bill 2015

 

Outline

 

The Landholders’ Right to Refuse (Gas and Coal) Bill 2015 provides Australian landholders the right to refuse the undertaking of gas and coal mining activities on their land and bans the practice of hydraulic fracturing for coal seam gas, shale gas and tight gas by constitutional corporations.

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clauses 1

This is a formal provision specifying the short title.

 

Clause 2

The Bill’s provisions are to commence the day after the Bill receives Royal Assent.

 

Clause 3

 

This clause includes a simplified outline of the proposed Act.  While simplified outlines are included to assist readers to understand the substantive provisions, the outlines are not intended to be comprehensive. It is intended that readers should rely on the substantive provisions.

 

Clause 4 and 5 - Definitions

 

These clauses provide definitions of key terms used in the Act, including the meaning of ownership interests and hydraulic fracturing operations.

 

Clause 6 - 7 Act binds the Crown, extension to external Territories

These clauses provide that the Crown is bound by the Act, and that the Act will extend to Australia’s external territories.

 

Clause 8 - Relationship to State and Territory laws

This clause clarifies that, to the extent possible, the Act is not intended to exclude or limit the operation of any state or territory laws that are capable of operating concurrently.

 

Part 2 -Gas or coal mining

 

Clause 9 - Application  of Division

This clause requires that corporations need to secure written authorisation prior to commencing any exploration or production of gas or coal. The intention is that prior written authorisation must be secured prior to any new activities commencing. The provisions are not intended to apply to activities already being undertaken before the commencement of the Act. For example, if a corporation has already started exploring for gas or coal on particular land before the Act commences, authorisation to continue that activity after commencement will not be required. Authorisation will be required, however, if the corporation wishes to engage in activities for the purpose of producing gas or coal on that land after commencement.

 

Clause 10 - Gas or coal mining on food producing land without prior written authorisation is unlawful

This clause provides that it is an offence for constitutional corporations to enter or remain on land for the purpose of engaging in gas or coal mining activity, or to actually engage in such activity if the corporation does not own that land. The penalty is high, reflecting the seriousness of the offence. There is an exception for corporations; that is, if they have a prior written authorisation from every person with an ownership interest in the land to engage in the otherwise-prohibited activity. The corporation bears an evidential burden in relation to this matter, which is appropriate given that it is a straightforward matter for the corporation to produce a written authorisation if they do indeed have one.

 

Clause 11 - Action for gas or coal mining on land without prior written authorisation.

This clause provides that a land holder can bring a civil action against a constitutional corporation that has contravened clause 10 of the Act in relation to that land holder’s land, within 6 years of the contravention.

 

Clause 12 - Obtaining prior written authorisation

This clause provides for the steps that constitutional corporations need to follow in order to comply with the Act when conducting gas or coal mining activities on land. The clause sets out the process that needs to be followed in acquiring prior written authorisation from relevant landholders, and also what must be contained in a prior written authorisation. A prior written authorisation is invalid if it does not comply with the requirements of this clause.

 

Crucially, the prior written authorisation must include an independent assessment of the current and future risks associated with the proposed as or coal mining activity on, or affecting, the land and any associated groundwater systems.  This will assist landholders in deciding whether to allow coal or gas mining activity on their land. 

 

Clause 13 - Remedies in actions for gas or coal mining on food producing land without prior written authorisation

This clause sets out the relief that a court may grant to a land holder bringing an action in accordance with clause 11, and specifically that:

-          A court may grant, vary or discharge a permanent or interim injunction;

-          The court must order that all costs incurred by a land owner in an action under this Act are to be paid by the respondent corporation, except where the action is vexatious or unreasonable.

 

 

Part 3 - Hydraulic fracturing operations ban

 

Clause 14 - Hydraulic fracturing operations by constitutional corporation is unlawful

This clause provides a civil penalty provision that constitutional corporation must not engage in hydraulic fracturing operations.

 

Clause 15 -Injunctions for contravention of hydraulic fracturing ban

This clause provides for the granting of prohibitory, mandatory or interim injunctions by the Federal Court where a person has engaged or proposes to engage in conduct contrary to clause 14. These may be granted on the application of the Environment Minister, an interested person or a person acting on behalf of an unincorporated association that is an interested person. 

 

Clause 16 - Discharge of injunctions

This clause provides for the discharge of injunctions.

 

Clause 17 - Certain considerations for granting injunctions not relevant

This clause provides that certain considerations are not relevant for the granting of prohibitory or mandatory injunctions. 

 

Clause 18 - Powers conferred are in addition to other powers of the Court

This clause provides that powers conferred on the Federal Court are in addition to other powers of the Court. 

 

Clause 19  Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision

This clause provides that, on application by the Environment Minister on behalf of the Commonwealth, a person contravening a civil penalty may be ordered by the Federal Court to pay a pecuniary penalty.  The Court must have regard to particular matters in determining the penalty, including:

-           the nature and extent of the contravention; and

-           the nature and extent of any loss or damage suffered as a result of the contravention; and

-           the circumstances in which the contravention took place; and

-           whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

Clause 20 - Contravening a civil penalty provision is not an offence

This clause provides that a contravention of a civil penalty provision is not an offence. 

 

Clause 21 - Recovery of a pecuniary penalty

This clause provides that a pecuniary penalty which the Federal Court orders a person to pay is payable to the Commonwealth and that the Commonwealth may enforce the order as if it were a judgement of the Federal Court. 

 

Clauses 22 - 25 - Civil proceedings and criminal proceedings

These clauses make sure that pecuniary penalty provisions and criminal proceedings for conduct which is substantially the same do not interfere with one another, and that evidence given in proceedings for pecuniary penalty provisions is not admissible in criminal proceedings under certain circumstances. 

 

Clause 26 - Persons involved in contravening civil penalty provision

This clause provides that person must not aid, abet, counsel, procure, induce, conspire or be knowingly concerned in a contravention of a civil penalty provision. 

 

Clause 27 - Civil penalty provisions contravened by employees, agents or officers

This clause provides that elements of civil penalty provisions done by an employee, agent or officer of a constitutional corporation acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority must also be attributed to the corporation.

 

Part 3 - Miscellaneous

 

Clause 28 - Application of this Act to joint ventures and partnership

This clause provides for the application of the Act to joint ventures and partnerships. The Act is intended to apply to any constitutional corporation that engages in gas or coal activities, even when the activities are undertaken within a partnership or joint venture arrangement. The clause sets out how corporations within such arrangements are able to discharge their obligations under the Act.

 

Clause 29 - Regulations

This clause provides for the Governor-General to make regulations under this Act.

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Landholders’ Right to Refuse (Gas and Coal) Bill 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Bill provides Australian landholders the right to refuse the undertaking of gas and coal mining activities on their land.  It also bans the practice of hydraulic fracturing for coal seam gas, shale gas and tight gas by constitutional corporations. 

 

Human rights implications

This Bill has no negative human rights implications.

 

Conclusion

This Bill has no negative human rights implications.