Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to provide Australian landholders the right to refuse the undertaking of coal seam gas mining activities on their land without prior written authorisation, and for related purposes
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Registered 26 Aug 2011
Introduced Senate 24 Aug 2011

 

2010‑2011

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Landholders’ Right to Refuse (Coal Seam Gas) Bill 2011

 

No.      , 2011

 

(Senator Waters)

 

 

 

A Bill for an Act to provide Australian landholders the right to refuse the undertaking of coal seam gas mining activities on their land without prior written authorisation, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Definitions.......................................................................................... 2

4............ Meaning of ownership interest in food producing land...................... 2

5............ Act binds the Crown........................................................................... 3

6............ Extension to external Territories.......................................................... 3

7............ Relationship to State and Territory laws.............................................. 3

Part 2—Coal seam gas mining on food producing land without prior written authorisation is unlawful                                                                                                                                        4

8............ Application of this Part....................................................................... 4

9............ Coal seam gas mining on food producing land without prior written authorisation is unlawful               4

10.......... Action for coal seam gas mining on food producing land without prior written authorisation 5

Part 3—Prior written authorisations for coal seam gas mining on food producing land              6

11.......... Obtaining prior written authorisation.................................................. 6

Part 4—Remedies                                                                                                                   8

12.......... Remedies in actions for coal seam gas mining on food producing land without prior written authorisation             8

Part 5—Other matters                                                                                                         9

13.......... Application of this Act to joint ventures and partnerships................... 9

14.......... Regulations......................................................................................... 9

 


A Bill for an Act to provide Australian landholders the right to refuse the undertaking of coal seam gas mining activities on their land without prior written authorisation, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Landholders’ Right to Refuse (Coal Seam Gas) Act 2011.

2  Commencement

                   This Act commences on the day after this Act receives the Royal Assent.

3  Definitions

                   In this Act:

coal seam gas mining activity means any activity undertaken for the purpose of exploration for or production of coal seam gas.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

court means the Federal Court of Australia.

food producing land means land that has produced food at any time in the previous 10 years from the day the first coal gas seam mining activity has been, or is proposed to be, undertaken on the land.

land includes:

                     (a)  land within the beds and banks of streams, watercourses and inundated land; and

                     (b)  waters in, upon and above land; and

                     (c)  subterranean land.

ownership interest in food producing land: see section 4.

prior written authorisation means an authorisation given under section 11 that has not expired.

4  Meaning of ownership interest in food producing land

             (1)  A person has an ownership interest in food producing land if the person has a legal or equitable interest in it or a right to occupy it.

             (2)  Despite subsection (1), a person does not have an ownership interest in food producing land if the interest or right in the land arises as a result of a right granted under a law of the Commonwealth, a State or a Territory to engage in coal seam gas mining activities.

5  Act binds the Crown

                   This Act binds the Crown in each of its capacities.

6  Extension to external Territories

                   This Act extends to every external Territory.

7  Relationship to State and Territory laws

                   This Act is not intended to exclude or limit the operation of any law of a State or Territory, to the extent that that law is capable of operating concurrently with this Act.

Part 2Coal seam gas mining on food producing land without prior written authorisation is unlawful

  

8  Application of this Part

             (1)  This Part applies in relation to any coal seam gas mining activity engaged in by a constitutional corporation on, or in relation to, food producing land on or after the day this section commences.

             (2)  Despite subsection (1), this Part does not apply in relation to a coal seam gas mining activity engaged in by a constitutional corporation on, or in relation to, particular food producing land after the day this section commences if:

                     (a)  the activity is for the purpose of exploring for coal seam gas; and

                     (b)  the constitutional corporation commenced exploring for coal seam gas on, or in relation to, the land before the day this section commences.

             (3)  Despite subsection (1), this Part does not apply in relation to a coal seam gas mining activity engaged in by a constitutional corporation on, or in relation to, particular food producing land after the day this section commences if:

                     (a)  the activity is for the purpose of producing coal seam gas; and

                     (b)  the constitutional corporation commenced producing coal seam gas on, or in relation to, the land before the day this section commences.

9  Coal seam gas mining on food producing land without prior written authorisation is unlawful

             (1)  A constitutional corporation commits an offence if:

                     (a)  the corporation either:

                              (i)  enters, or remains on, food producing land for the purposes of engaging in a coal seam gas mining activity; or

                             (ii)  engages in a coal seam gas mining activity on, or in relation to, food producing land; and

                     (b)  the corporation is not the owner of the food producing land.

Penalty:  5,000 penalty units

             (2)  A constitutional corporation that contravenes subsection (1) commits a separate offence in relation to each day (including a day of conviction for the offence or any later day) during which the contravention continues.

             (3)  Subsection (1) does not apply if the corporation has a prior written authorisation from each person with an ownership interest in the food producing land to engage in the coal seam gas mining activity on, or in relation to, the food producing land.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

10  Action for coal seam gas mining on food producing land without prior written authorisation

             (1)  A person (an owner) with an ownership interest in food producing land may bring an action against another person if:

                     (a)  the other person is a constitutional corporation; and

                     (b)  the other person either:

                              (i)  enters, or remains on, the food producing land for the purpose of engaging in a coal seam gas mining activity; or

                             (ii)  engages in a coal seam gas mining activity on, or in relation to, the food producing land; and

                     (c)  the other person does not have a prior written authorisation from the owner to engage in the coal seam gas mining activity on, or in relation to, the food producing land.

             (2)  An action under subsection (1) may be commenced by the owner at any time within 6 years after the day on which the cause of action accrued.

Part 3Prior written authorisations for coal seam gas mining on food producing land

  

11  Obtaining prior written authorisation

             (1)  A constitutional corporation wishing to enter, or remain on, food producing land to engage in a coal seam gas mining activity may apply to a person with an ownership interest in the food producing land for an authorisation (a prior written authorisation) to engage in that activity on that land.

Note:          If more than one person has an ownership interest in the food producing land, the constitutional corporation must obtain a prior written authorisation from each of them to avoid an action under section 10.

             (2)  A prior written authorisation must contain the following information:

                     (a)  the names and details of the parties to the authorisation;

                     (b)  the food producing land to which the authorisation relates;

                     (c)  the coal seam gas mining activity proposed to be undertaken by the constitutional corporation in relation to the land;

                     (d)  when and where the activity is proposed to be engaged in;

                     (e)  an independent assessment of the current and future risks associated with the proposed coal seam gas mining activity on, or affecting, the food producing land and any associated groundwater systems ; and

                      (f)  the date the authorisation has effect and its expiry date;

                     (g)  any other information prescribed by the regulations (if any).

             (3)  A prior written authorisation is invalid unless:

                     (a)  the authorisation contains the information required by subsection (2); and

                     (b)  the authorisation is in writing; and

                     (c)  the person with the ownership interest in the food producing land (the owner) has been advised, in writing, by the constitutional corporation that is a party to the authorisation, that the owner:

                              (i)  may refuse to sign the authorisation; and

                             (ii)  should seek independent advice about the authorisation before signing it; and

                     (d)  the authorisation is signed and dated by the owner.

Part 4Remedies

  

12  Remedies in actions for coal seam gas mining on food producing land without prior written authorisation

             (1)  Without limiting the relief that a court may grant to a person (the plaintiff) in an action under section 10 (coal seam gas mining without a prior written authorisation), the relief may include an injunction (including an interim injunction).

             (2)  The court must order that all costs incurred by a person commencing an action under this Act are to be paid by the defendant to the action unless the court considers that:

                     (a)  the person instituted the action vexatiously or without reasonable cause; or

                     (b)  it would be unreasonable, in all the circumstances, to do so.

             (3)  The court may discharge or vary an injunction or other order made under this section.

Part 5Other matters

  

13  Application of this Act to joint ventures and partnerships

             (1)  This section sets out the way this Act applies to a partnership or joint venture (an entity) that consists of 2 or more constitutional corporations. Those corporations are referred to in this section as the participants.

             (2)  If this Act requires or permits something to be done by a constitutional corporation, the thing may be done by one or more of the participants on behalf of the entity.

             (3)  If a provision of this Act refers to a constitutional corporation bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.

             (4)  If a provision of this Act refers to a constitutional corporation doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the entity.

             (5)  If a provision of this Act requires a constitutional corporation to do something, or prohibits a constitutional corporation doing something, the provision applies as if the reference to the constitutional corporation were a reference to each participant.

14  Regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.