Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 12 Sep 2011
Introduced HR 12 Sep 2011
Table of contents.

2010‑2011

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and Water Resources) Bill 2011

 

No.      , 2011

 

(Mr Windsor)

 

 

 

A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes

  

  


Contents

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

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 2

Schedule 1—Amendments                                                                                                3

Environment Protection and Biodiversity Act 1999                                             3

 


A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and Water Resources) Act 2011.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after the Bill for this Act is introduced into the House of Representatives.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

  

Environment Protection and Biodiversity Act 1999

1  After Subdivision FA of Division 1 of Part 3

Insert:

Subdivision FBProtection of water resources from mining operations

24D  Requirement for approval of mining operations with a significant impact on water resources

             (1)  A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action in the course of mining operations that has, will have or is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Civil Penalty:

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

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

             (2)  A person must not, for the purposes of trade or commerce:

                     (a)  between Australia and another country; or

                     (b)  between 2 States; or

                     (c)  between a State and Territory; or

                     (d)  between 2 Territories;

take an action in the course of mining operations that has, will have or is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Civil Penalty:

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

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

             (3)  A person must not take an action in the course of mining operations in:

                     (a)  a Commonwealth area; or

                     (b)  a Territory;

that has, will have or is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Civil Penalty:

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

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

             (4)  Subsections (1) to (3) (inclusive) do not apply to an action if:

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

                     (b)  Division 2, 5A or 6 of Part 4 lets the constitutional corporation, Commonwealth agency, Commonwealth or 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).

24E  What are mining operations?

             (1)  The following are mining operations:

                     (a)  operations or activities connected with, or incidental to, the mining or recovery of minerals (including petroleum or gas) or the production of material from minerals, including:

                              (i)  prospecting and exploration for minerals; and

                             (ii)  milling, refining, treatment and processing of minerals; and

                            (iii)  storage and disposal of minerals and materials produced from minerals;

                     (b)  the construction and use of towns, camps, dams, pipelines power lines or other structures for the purposes of operations or activities described in paragraph (a);

                     (c)  the performance of any other work for the purposes of operations or activities described in paragraph (a).

             (2)  A mineral is any non‑living substance that can be extracted from the ground, whether naturally occurring or created by or during the process of extraction:

                     (a)  including, but not limited to, coal, ores, petroleum, natural gas, coal seam gas, rock, sand and gravel; but

                     (b)  not including water, except where water is extracted as a part of the process of extracting another substance.

24F  What is a water resource?

A water resource is:

                     (a)  the whole or any part of a river, lake, aquifer or other place where water occurs naturally on or below the surface of the ground, whether permanently, seasonally or during unusually wet seasons; or

                     (b)  any recharge zone or system for such a place.

24G  Offences relating to mining operations

             (1)  A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, commits an offence if:

                     (a)  the corporation or agency takes an action in the course of mining operations; and

                     (b)  the action results or will result in a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Penalty:  Imprisonment for 7 years or 420 penalty units, or both.

             (2)  A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, commits an offence if:

                     (a)  the corporation or agency takes an action in the course of mining operations; and

                     (b)  the action is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Penalty:  Imprisonment for 7 years or 420 penalty units, or both.

             (3)  A person commits an offence if:

                     (a)  the person takes an action in the course of mining operations; and

                     (b)  the action is taken for the purposes of trade or commerce:

                              (i)  between Australia and another country; or

                             (ii)  between 2 States; or

                            (iii)  between a State and Territory; or

                            (iv)  between 2 Territories; and

                     (c)  the action results or will result in a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Penalty:  Imprisonment for 7 years or 420 penalty units, or both.

             (4)  A person commits an offence if:

                     (a)  the person takes an action in the course of mining operations; and

                     (b)  the action is taken for the purposes of trade or commerce:

                              (i)  between Australia and another country; or

                             (ii)  between 2 States; or

                            (iii)  between a State and Territory; or

                            (iv)  between 2 Territories; and

                     (c)  the action is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Penalty:  Imprisonment for 7 years or 420 penalty units, or both.

             (5)  A person commits an offence if:

                     (a)  the person takes an action in the course of mining operations; and

                     (b)  the action is taken in:

                              (i)  a Commonwealth area; or

                             (ii)  a Territory; and

                     (c)  the action results or will result in a significant impact on the quality, structural integrity or hydraulic balance of a water resource.

Penalty:  Imprisonment for 7 years or 420 penalty units, or both.

             (6)  A person commits an offence if:

                     (a)  the person takes an action in the course of mining operations; and

                     (b)  the action is taken in:

                              (i)  a Commonwealth area; or

                             (ii)  a Territory; and

                     (c)  the action is likely to have a significant impact on the quality, structural integrity or hydraulic balance of a water resource,

Penalty:  Imprisonment for 7 years or 420 penalty units, or both.

Note 1:       An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.

Note 2:       If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.

             (7)  Subsections (1) to (6) (inclusive) do not apply to an action if:

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

                     (b)  Division 2, 5A or 6 of Part 4 lets the constitutional corporation, Commonwealth agency or 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.

2  Section 34 (after table item 13G)

Insert:

 

13H

section 24D

water resources

13I

section 24G

water resources

 

3  After Division 5 of Part 4

Insert:

Division 5AMining operations covered by Ministerial declarations and accredited mining authorisation processes

Subdivision AEffect of declarations

43AA  Actions declared by Minister not to need approval

                   A person may take an action described in a provision of Subdivision FB of Division 1 of Part 3 (Protection of water resources from mining operations) without an approval under Part 9 for the purposes of the provision if:

                     (a)  the action is one of a class of actions declared by the Minister under section 43AB not to require approval under Part 9 for the purposes of the provision (because the action is approved in accordance with an accredited mining authorisation process for the purposes of the declaration); and

                     (b)  the declaration is in operation when the action is taken; and

                     (c)  the action is taken in accordance with the accredited mining authorisation process.

Subdivision BMaking declarations

43AB  Making declaration that actions do not need approval under Part 9

Declaration of actions not needing approval

             (1)  The Minister may, by legislative instrument, declare that actions in a class of actions specified in the declaration wholly or partly by reference to the fact that their taking has been approved under a law of a State or self‑governing Territory, in accordance with an authorisation process that is an accredited mining authorisation process for the purposes of the declaration, do not require approval under Part 9 for the purposes of a provision of Subdivision FB of Division 1 of Part 3.

Note 1:       Subdivisions C and D set out rules about prerequisites for making a declaration and limits on making a declaration.

Note 2:       Section 43AD provides for revocation of a declaration.

What is an accredited mining authorisation process?

             (2)  An authorisation process is an accredited mining authorisation process for the purposes of a declaration that certain actions do not require approval under Part 9 for the purposes a provision of Subdivision FB of Division 1 of Part 3 if and only if:

                     (a)  the authorisation process is set out in a law of a State or self‑governing Territory, and the law and the authorisation process are identified in or under the declaration; and

                     (b)  the authorisation process has been accredited in writing by the Minister in accordance with this section for the purposes of the declaration.

Accrediting authorisation process

             (3)  For the purposes of subsection (2), the Minister may accredit by written instrument an authorisation process for the purposes of a declaration. However, the Minister may do so only if the Minister is satisfied that:

                     (a)  the authorisation process and the law under which it is in operation, or in which it is set out, meet the criteria prescribed by the regulations (if any); and

                     (b)  there has been or will be adequate assessment of the impacts that actions approved in accordance with the authorisation process:

                              (i)  have or will have; or

                             (ii)  are likely to have;

                            on water resources protected by Subdivision FB of Division 1 of Part 3; and

                     (c)  actions approved or taken in accordance with the authorisation process will not have unacceptable or unsustainable impacts on water resources protected by Subdivision FB of Division 1 of Part 3.

The Minister must publish in accordance with the regulations (if any) the instrument accrediting the authorisation process.

Tabling of authorisation process before accreditation

             (4)  The Minister must cause to be laid before each House of the Parliament:

                     (a)  a copy of the relevant part of the law in which the authorisation process is set out that the Minister is considering accrediting for the purposes of subsection (2); and

                     (b)  a notice that the Minister proposes to accredit the authorisation process for the purposes of a declaration under this section.

Limitations on accreditation during period for opposition

             (5)  The Minister must not accredit an authorisation process for the purposes of subsection (2):

                     (a)  before, or within 15 sitting days after, a copy of the authorisation process is laid before each House of the Parliament under this section; or

                     (b)  if, within those 15 sitting days of a House, notice of a motion to oppose accreditation of the authorisation process is given in that House—subject to subsection (6), within 15 sitting days of that House after the notice is given.

             (6)  If:

                     (a)  notice of a motion to oppose accreditation of the authorisation process is given in a House of the Parliament within 15 sitting days after the authorisation process is laid before the House under this section; and

                     (b)  the notice is withdrawn or otherwise disposed of within 15 sitting days of that House after the notice is given;

then, subject to paragraph (5)(a), the Minister may accredit the authorisation process after the motion is withdrawn or otherwise disposed of.

No accreditation after accreditation opposed

             (7)  The Minister must not accredit the authorisation process if either House of the Parliament passes a resolution opposing accreditation of the authorisation process following a motion of which notice has been given within 15 sitting days after the relevant part of the law has been laid before the House under this section.

No accreditation if motion not defeated in time

             (8)  The Minister must not accredit the authorisation process if, at the end of 15 sitting days after notice of a motion to oppose accreditation of the authorisation process that was given in a House of the Parliament within 15 sitting days after the relevant part of the law was laid before the House under this section:

                     (a)  the notice has not been withdrawn and the motion has not been called on; or

                     (b)  the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of.

Extended time after dissolution or prorogation

             (9)  If:

                     (a)  notice of a motion to oppose the accreditation of the authorisation process is given in a House of the Parliament (the opposing House); and

                     (b)  before the end of 15 sitting days of the opposing House after the notice is given:

                              (i)  the House of Representatives is dissolved or expires; or

                             (ii)  the Parliament is prorogued; and

                     (c)  at the time of the dissolution, expiry or prorogation (as appropriate):

                              (i)  the notice has not been withdrawn and the motion has not been called on; or

                             (ii)  the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;

the relevant part of the law is taken for the purposes of subsections (5), (6), (7) and (8) to have been laid before the opposing House on the first sitting day of that House after the dissolution, expiry or prorogation (as appropriate).

Subdivision CPrerequisites for making declarations

43AC  Minister may only make declaration if prescribed criteria are met

                   The Minister may make a declaration under section 43AB only if the Minister is satisfied that the declaration:

                     (a)  accords with the objects of this Act; and

                     (b)  meets the requirements (if any) prescribed by the regulations.

Subdivision DOther rules about declarations

43AD  Revoking declarations

Revoking declarations

             (1)  The Minister may, by legislative instrument, revoke a declaration made under section 43AB.

Revocation does not affect some actions

             (2)  If:

                     (a)  a declaration made under section 43AB is revoked; and

                     (b)  before the revocation, an action was being taken that could be taken without approval under Part 9 because its taking was covered by the declaration; and

                     (c)  the action had not been completed before the revocation;

this Act continues to operate in relation to the action as if the declaration had not been revoked.

43AE  Other rules about declarations

Minister must not give preference

                   In making a declaration or accrediting an authorisation process under section 43AB, or revoking a declaration under section 43AD, relating to an action taken:

                     (a)  by a person for the purposes of trade between Australia and another country or between 2 States; or

                     (b)  by a constitutional corporation;

the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.

43AF  Minor amendments of accredited mining authorisation process

                   If:

                     (a)  an authorisation process is an accredited mining authorisation process; and

                     (b)  the authorisation process is amended, or is proposed to be amended; and

                     (c)  the Minister is satisfied that the amendments are, or will be, minor; and

                     (d)  the Minister is satisfied that the authorisation process as amended meets, or will meet, the requirements of:

                              (i)  paragraphs 43AB(3)(a), (b) and (c); and

                             (ii)  section 43AC;

the Minister may, by legislative instrument, determine that the authorisation process as amended continues in effect, for the purposes of this Act, as the accredited mining authorisation process.

4  At the end of Division 6 of Part 4

Add:

43C  Mining operations with prior authorisation

                   A person may take an action described in a provision of Subdivision FB of Division 1 of Part 3 without an approval under Part 9 for the purposes of the provision if taking the action:

                     (a)  was, or would have been, lawful immediately before the commencement of Subdivision FB of Division 1 of Part 3; and

                     (b)  would be lawful at the time it is taken if Subdivision FB of Division 1 of Part 3 had not been enacted.

5  At the end of subsection 25AA(2)

Add:

                    ; (i)  subsections 24G(1) to (6).

6  At the end of subsection 25AA(3)

Add:

                    ; (i)  subsections 24D(1) to (3).

7  After subparagraph 495(2)(a)(vi)

Insert:

                          (vib)  section 24G (Offences relating to mining operations); or

8  After subparagraph 496C(1)(a)(vii)

Insert:

                         (viib)  section 24G (Offences relating to mining operations); or

9  At the end of subsection 355(1)

Add:

Note:          For mining operations, see section 24E.

10  Subsections 355(2) and (3)

Repeal the subsections.

11  Section 528 (definition of mineral)

Omit “355(3)”, substitute “24E(2)”.

12  Section 528 (definition of mining operations)

Omit “355(2)”, substitute “24E(1)”.

13  Section 528

Insert:

water resource has the meaning given by section 24F.