Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download PDFDownload PDF 

Previous Fragment    Next Fragment

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT BILL 2013

Order of the day read for the further consideration of the bill in committee of the whole.

In the committee

Consideration resumed of the bill—and of the amendment moved by Senator Waters:

 Schedule 1, page 8 (after line 4), after item 6, insert:

 6A After section 131AB

  Insert:

 

131AC Minister must be satisfied that owners and occupiers of land have consented etc.

  (1) This section applies to the taking of an action if a provision of Subdivision FB of Division 1 of Part 3 is a controlling provision for the action.

  (2) The Minister must not approve, for the purposes of the controlling provision, the taking of the action, unless the Minister is satisfied that any owner, and any occupier, of land that would be likely to be affected by the taking of the action:

 (a) has obtained independent legal advice; and

 (b) has obtained independent advice in relation to the likely impacts of the taking of the action; and

 (c) has freely given informed consent in relation to the taking of the action.

Debate resumed.

Closure: Senator Waters moved—That the question be now put.

Question—That the question be now put—put.


The committee divided—

AYES, 39

Senators—

Bilyk

Bishop

Brown

Cameron

Carr, Bob

Collins

Conroy

Crossin

Di Natale

Farrell

Faulkner

Feeney

Furner

Gallacher

Hanson-Young

Hogg

Lines

Ludlam

Ludwig

Lundy

Marshall

McEwen (Teller)

McLucas

Milne

Moore

Polley

Pratt

Rhiannon

Siewert

Singh

Stephens

Sterle

Thorp

Urquhart

Waters

Whish-Wilson

Wong

Wright

Xenophon

NOES, 32

Senators—

Abetz

Back

Bernardi

Birmingham

Boswell

Boyce

Brandis

Bushby

Colbeck

Cormann

Edwards

Eggleston

Fawcett

Fifield

Heffernan

Humphries

Johnston

Joyce

Kroger (Teller)

Macdonald

Mason

McKenzie

Nash

Parry

Payne

Ronaldson

Ruston

Ryan

Scullion

Sinodinos

Smith

Williams

Question agreed to.

Question—That the amendment be agreed to—put.

The committee divided—

AYES,10


Senators—
Di NataleMilneWatersWright
Hanson-YoungRhiannonWhish-WilsonXenophon
LudlamSiewert (Teller)

NOES, 45


Senators—
BackCrossinLundyRuston
BilykEdwardsMarshallScullion
BirminghamEgglestonMcEwenSingh
BoswellFarrellMcKenzieSmith
BoyceFaulknerMcLucasStephens
BrownFawcettMooreSterle
CameronFurnerNashThorp
Carr, BobGallacherParryUrquhart
ColbeckHoggPayneWong
CollinsKroger (Teller)Polley
ConroyLinesPratt
CormannLudwigRonaldson

Question negatived.


Senator Birmingham moved the following amendments together by leave:

 Schedule 1, page 9 (after line 31), after item 18, insert:

 18A Section 528 (at the end of the definition of coal seam gas development)

  Add ", but does not include exploration, assessment or appraisal pursuant to a petroleum title granted under a law of a State or Territory.".

 Schedule 1, page 9 (after line 31), after item 18, insert:

 18B Section 528 (at the end of the definition of large coal mining development)

  Add ", but does not include exploration, assessment or appraisal pursuant to a minerals exploration licence or permit granted under a law of a State or Territory.".

Debate ensued.

Closure: The Minister for Broadband, Communications and the Digital Economy (Senator Conroy) moved—That the question be now put.

Question—That the question be now put—put.

The committee divided—

AYES,36


Senators—
BilykFarrellLudwigSiewert
BishopFaulknerLundySingh
BrownFeeneyMarshallStephens
CameronFurnerMcEwen (Teller)Sterle
Carr, BobGallacherMilneThorp
CollinsHanson-YoungMooreUrquhart
ConroyHoggPolleyWaters
CrossinLinesPrattWhish-Wilson
Di NataleLudlamRhiannonWright

NOES, 30


Senators—
AbetzColbeckHumphriesRuston
BackCormannJohnstonRyan
BernardiEdwardsMacdonaldScullion
BirminghamEgglestonMcKenzieSinodinos
BoswellFawcettNashSmith
BoyceFierravanti-WellsParryWilliams (Teller)
BushbyFifieldPayne
CashHeffernanRonaldson

Question agreed to.

Question—That the amendments be agreed to—put.


The committee divided—

AYES,30


Senators—
AbetzColbeckHumphriesRuston
BackCormannJohnstonRyan
BernardiEdwardsMacdonaldScullion
BirminghamEgglestonMcKenzieSinodinos
BoswellFawcettNashSmith
BoyceFierravanti-WellsParryWilliams (Teller)
BushbyFifieldPayne
CashHeffernanRonaldson

NOES, 36


Senators—
BilykFaulknerLundySingh
BishopFeeneyMarshallStephens
BrownFurnerMcEwen (Teller)Sterle
CameronGallacherMilneThorp
CollinsHanson-YoungMooreUrquhart
ConroyHoggPolleyWaters
CrossinLinesPrattWhish-Wilson
Di NataleLudlamRhiannonWright
FarrellLudwigSiewertXenophon

Question negatived.

Senator Waters moved the following amendments together by leave:

 Schedule 1, items 20 and 22, page 10 (line 26) to page 12 (line 28), omit the items, substitute:

 20 Application

  (1) Except as provided by subitem (2), the amendments made by this Schedule apply in relation to an action involving coal seam gas development or large coal mining development that is taken on or after the day this item commences, even if the action began before that time.

 (2) The amendments made by this Schedule do not apply in relation to the taking of an action if, before 10 February 2013:

 (a) the Minister approved the action under Part 9 of the old law; or

 (b) the Minister decided under Division 2 of Part 7 of the old law that the action was not a controlled action; or

 (c) the action was specifically authorised in accordance with section 43A of the old law.

 Schedule 1, item 23, page 12 (line 33) to page 13 (line 14), omit subitem (1), substitute:

  (1) This item applies if, immediately before the day this item commences, there was in force a decision of the Minister, under Division 2 of Part 7 of the old law, that an action involving coal seam gas development or large coal mining development is a controlled action, regardless of:

 (a) whether the taking of the action has been approved by the Minister under Part 9 of the old law for the purposes of a provision of Part 3 of the old law (unless subsection 20(2) applies to the approval); and


 (b) whether advice has been obtained from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development in relation to the action.

 Schedule 1, page 17 (after line 1), after item 24, insert:

 24A Requirement for assessment of impacts of certain actions

  (1) If, on or after 14 September 2010, the Minister approved the taking of an action involving coal seam gas development or large coal mining development, the Minister must assess the relevant impacts of so much of the action as has been taken before this item commences.

 (2) For the purposes of assessing the relevant impacts, Part 8 of the old law applies as if:

 (a) section 24D or 24E had been a controlling provision for the action; and

 (b) the Minister were required to complete the assessment no later than 12 months after the day this item commences.

  (3) No later than 13 months after the day this item commences, the Minister must publish a report in relation to each action assessed under this item, setting out the relevant impacts of the action on the matter protected by the controlling provision.

 Page 17 (after line 13), at the end of the bill, add:

  

Schedule 2—Preventing the Commonwealth from handing to a State or Territory responsibility for approving proposed actions that significantly impact matters protected under the Environment Protection and Biodiversity Conservation Act 1999

 

Environment Protection and Biodiversity Conservation Act 1999

 1 Paragraph 11(a)

  Omit "a bilateral", substitute "an".

 2 Division 1 of Part 4

  Repeal the Division.

 3 Paragraphs 44(c) and (d)

  Omit "and approval" (wherever occurring).

 4 Subparagraphs 45(2)(a)(iii) and (iv)

  Omit "and approval" (wherever occurring).

 5 Section 46

  Repeal the section.

 6 Subsection 47(4)

  Omit "but the action must still be approved under Part 9".

 7 Subsection 48(3) (heading)

  Repeal the heading, substitute:

   Relationship with section 47


 8 Subsection 48(3)

  Omit "sections 46 and", substitute "section".

 9 Subsection 48A(1)

  Omit "46 or".

 10 Subsection 48A(1)

  Omit "(2) or" (wherever occurring).

 11 Subsection 48A(1)

  Omit "(as appropriate)".

 12 Subsection 48A(2)

  Repeal the subsection.

 13 Subsection 51(1)

  Omit "(1)".

 14 Subsection 51(2)

  Repeal the subsection.

 15 Subsection 51A(1)

  Omit "(1)".

 16 Subsection 51A(2)

  Repeal the subsection.

 17 Subsection 52(1)

  Omit "(1)".

 18 Subsection 52(2)

  Repeal the subsection.

 19 Subsection 53(1)

  Omit "(1)".

 20 Subsection 53(2)

  Repeal the subsection.

 21 Subsection 54(1)

  Omit "(1)".

 22 Subsection 54(2)

  Repeal the subsection.

 23 Section 55

  Omit ", or accredit for the purposes of a bilateral agreement a management arrangement or an authorisation process,".

 24 Subsection 59(1) (examples 1 to 3)

  Repeal the examples.

 25 Section 64

  Repeal the section.

 26 Section 65A

  Repeal the section.

 27 Section 66

  Omit "(It does not deal with actions that a bilateral agreement declares not to need approval.)".


 28 Paragraph 77A(1A)(b)

  Omit "relates; or", substitute "relates."

 29 Paragraph 77A(1A)(c)

  Repeal the paragraph.

 30 Subparagraph 78(1)(ba)(i)

  Omit "a bilateral agreement and a management arrangement or an authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement", substitute "an agreement".

 31 Subparagraph 78(1)(ba)(ii)

  Omit ", or the management arrangement or authorisation process is no longer in force under, or set out in, a law of a State or a self-governing Territory identified in or under the agreement".

 32 Subsection 82(2)

  Omit "1,".

 33 Subsection 82(2)

  Omit "a bilateral", substitute "an".

 34 Subsection 146(2) (note 2)

  Omit ", or make a bilateral agreement declaring,".

 35 Section 528 (definition of bilaterally accredited authorisation process)

  Repeal the definition.

 36 Section 528 (definition of bilaterally accredited management arrangement)

  Repeal the definition.

 Page 17 (after line 13), at the end of the bill, add:

  

Schedule 2—Further amendments

 

Environment Protection and Biodiversity Conservation Act 1999

 1 After section 12

  Insert:

 

12A Requirement for approval of activities with a significant impact on a National Park

  (1) A person must not take an action that:

 (a) has or will have a significant impact on the environment within a National Park; or

 (b) is likely to have a significant impact on the environment within a National Park.

   Civil penalty:

 (a) for an individual—5,000 penalty units;

 (b) for a body corporate—50,000 penalty units.


 (2) Subsection (1) does not apply to an action if:

 (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

 (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

 (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

 (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

  (3) A property is a National Park for the purpose of this Act if it is:

 (a) an area that is a National Park for the purpose of a law of the Commonwealth, a State or a Territory as at 17 June 2013, or is an area that becomes a National Park, or is added to an existing National Park, on or after that date; or

 (b) an area that is a nature reserve for the purpose of a law of the State of Western Australia as at 17 June 2013, or is an area that becomes a nature reserve, or is added to an existing nature reserve, on or after that date; or

 (c) an area that is declared under the National Parks Act 1975 of the State of Victoria as at 17 June 2013, or is an area that is declared under that Act, or is added to an existing area declared under that Act, on or after that date; or

 (d) an area that is land designated for conservation under the Conservation, Forests and Lands Act 1987 of the State of Victoria as at 17 June 2013, or is an area that becomes land designated for conservation under that Act, or is added to an existing area that is land designated for conservation, on or after that date; or

 (e) an area that is a state reserve or a nature reserve under the National Parks and Reserves Management Act 2002 of the State of Tasmania as at 17 June 2013, or is an area that becomes a state reserve or a nature reserve, or is added to an existing state reserve or nature reserve, on or after that date; or

 (f) an area that is a reserve under the National Parks and Wildlife Act 1975 of the State of South Australia as at 17 June 2013, or is an area that becomes a reserve, or is added to an existing reserve, on or after that date; or

 (g) an area that is a wilderness protection area under the Wilderness Protection Act 1992 of the State of South Australia as at 17 June 2013, or is an area that becomes a wilderness protection area, or is added to an existing wilderness protection area, on or after that date; or


 (h) an area that is a park or reserve under the Territory Parks and Wildlife Conservation Act 2006 of the Northern Territory as at 17 June 2013, or is an area that becomes a park or reserve, or is added to an existing park or reserve, on or after that date.

 2 After section 15A

  Insert:

 

15AA Offences relating to National Parks

  (1) A person is guilty of an offence if:

 (a) the person takes an action; and

 (b) the action results or will result in a significant impact on the environment of a property; and

 (c) the property is a National Park.

   Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

  (1A) Strict liability applies to paragraph (1)(c).

   Note: For strict liability, see section 6.1 of the Criminal Code.

  (2) A person is guilty of an offence if:

 (a) the person takes an action; and

 (b) the action is likely to have a significant impact on the environment of a property; and

 (c) the property is a National Park.

   Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

  (2A) Strict liability applies to paragraph (2)(c).

   Note: For strict liability, see section 6.1 of the Criminal Code.

  (3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term of not more than 7 years, a fine not more than 420 penalty units, or both.

   Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

   Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

   Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.

  (4) Subsections (1) and (2) do not apply to an action if:

 (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

 (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

 (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or


 (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

   Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

 3 Subsection 29(1)

  After "or 24E", insert " or section 12A or 15AA".

 4 Section 34 (after table item 1A)

  Add:

1AAsection 15AAthe environment within a National Park

 5 After section 34BA

  Insert:

 

34BB Declarations relating to National Parks

  (1) The Minister may make a declaration under section 33 relating to a National Park only if:

 (a) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under the Convention on Biological Diversity;

 (b) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party; and

 (c) the declaration meets the requirements (if any) prescribed by the regulations.

  (2) For the purpose of this Act, the Convention on Biological Diversity means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992.

 6 After section 37D

  Insert:

 

37DA Declarations relating to National Parks

   The Minister may make a declaration under section 37A relating to a National Park only if:

 (a) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under the Convention on Biological Diversity; and

 (b) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party.

 7 Subsection 46(1)

  After "or 24E", insert " or 12A or 15AA".

 8 Subsections 46(2) and (2A)

  After "or 24E", insert " or 12A or 15AA".


 9 After section 51A

  Insert:

 

51B Agreements relating to National Parks

  (1) The Minister may enter into a bilateral agreement containing a provision relating to a National Park only if:

 (a) the Minister is satisfied that the provision is not inconsistent with Australia's obligations under the Convention on Biological Diversity;

 (b) the Minister is satisfied that the provision is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party; and

 (c) the provision meets the requirements (if any) prescribed by the regulations.

  (2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a National Park only if:

 (a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia's obligations under the Convention on Biological Diversity; and

 (b) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party.

 10 After section 137A

  Insert:

 

137B Requirements for decisions about National Parks

   In deciding whether or not to approve, for the purposes of section 12, the taking of an action and what conditions to attach to such an approval, the Minister must not act inconsistently with:

 (a) Australia's obligations under the Convention on Biological Diversity; and

 (b) any other relevant international environment convention to which Australia is a party which aims to protect the natural environment.

 11 After section 146G

  Insert:

 

146GA Approvals relating to National Parks

   If the approval relates to a National Park, the Minister must not act inconsistently with:

 (a) Australia's obligations under the Convention on Biological Diversity; and

 (b) any other relevant international environment convention to which Australia is a party which aims to protect the natural environment.


Debate ensued.

Closure: Senator Conroy moved—That the question be now put.

Question—That the question be now put—put.

The committee divided—

AYES, 37

Senators—

Bilyk

Bishop

Brown

Cameron

Carr, Bob

Carr, Kim

Collins

Conroy

Crossin

Di Natale

Farrell

Faulkner

Feeney

Furner

Gallacher

Hanson-Young

Hogg

Lines

Ludlam

Ludwig

Marshall

McEwen

Milne

Moore

Polley (Teller)

Pratt

Rhiannon

Siewert

Singh

Stephens

Sterle

Thorp

Urquhart

Waters

Whish-Wilson

Wong

Wright

NOES, 30

Senators—

Back

Bernardi

Birmingham

Boswell

Boyce

Brandis

Bushby

Cash

Colbeck

Cormann

Edwards

Eggleston

Fawcett

Fierravanti-Wells

Fifield

Heffernan

Humphries

Johnston

Joyce

Macdonald

McKenzie

Nash

Parry

Payne

Ronaldson

Ruston

Ryan

Sinodinos

Smith

Williams (Teller)

Question agreed to.

Question—That the amendments be agreed to—put.

The committee divided—

AYES,8


Senators—
Di NataleLudlamSiewert (Teller)Whish-Wilson
Hanson-YoungMilneWatersWright

NOES, 57


Senators—
BackConroyHumphriesPratt
BernardiCormannJohnstonRonaldson
BilykCrossinJoyceRuston
BirminghamEdwardsKrogerRyan
BishopEgglestonLinesSingh
BoswellFarrellLudwigSmith
BoyceFaulknerMacdonaldStephens
BrandisFawcettMarshallSterle
BrownFeeneyMcEwenThorp
CameronFierravanti-WellsMcKenzieUrquhart
Carr, BobFifieldMooreWilliams (Teller)
Carr, KimFurnerNashWong
CashGallacherParry
ColbeckHeffernanPayne
CollinsHoggPolley

Question negatived.


Question—That the bill stand as printed—put.

The committee divided—

AYES,37


Senators—
BilykFaulknerMcEwenThorp
BishopFeeneyMilneUrquhart
BrownFurnerMooreWaters
CameronGallacherPolley (Teller)Whish-Wilson
Carr, KimHanson-YoungPrattWong
CollinsHoggRhiannonWright
ConroyLinesSiewertXenophon
CrossinLudlamSingh
Di NataleLudwigStephens
FarrellMarshallSterle

NOES, 27


Senators—
Back (Teller)CormannHumphriesPayne
BernardiEdwardsJohnstonRonaldson
BirminghamEgglestonJoyceRuston
BoswellFawcettMacdonaldRyan
BoyceFierravanti-WellsMcKenzieSmith
CashFifieldNashWilliams
ColbeckHeffernanParry

Question agreed to.

Question—That the bill be reported—put.

The committee divided—

AYES,37


Senators—
BilykFaulknerMcEwenThorp
BishopFeeneyMilneUrquhart
BrownFurnerMooreWaters
CameronGallacherPolley (Teller)Whish-Wilson
Carr, KimHanson-YoungPrattWong
CollinsHoggRhiannonWright
ConroyLinesSiewertXenophon
CrossinLudlamSingh
Di NataleLudwigStephens
FarrellMarshallSterle

NOES, 28


Senators—
Back (Teller)ColbeckHumphriesParry
BernardiCormannJohnstonPayne
BirminghamEdwardsJoyceRonaldson
BoswellEgglestonKrogerRuston
BoyceFawcettMacdonaldRyan
BushbyFierravanti-WellsMcKenzieSinodinos
CashFifieldNashSmith

Question agreed to.


The President resumed the chair and the Chair of Committees (Senator Parry) reported accordingly.

Senator Conroy moved—That the report from the committee be adopted.

Debate ensued.

Closure: Senator Conroy moved—That the question be now put.

Question—That the question be now put—put and passed.

Question—That the report from the committee be adopted—put and passed.

Senator Conroy moved—That this bill be now read a third time.

Debate ensued.

Question put and passed.

Bill read a third time.