Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to establish a Commission of Inquiry into the coal seam gas industry in Australia, and for related purposes
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Registered 04 Sep 2017
Introduced HR 04 Sep 2017

2016-2017

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Commission of Inquiry (Coal Seam Gas) Bill 2017

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Hon Bob Katter MP


 Commission of Inquiry (Coal Seam Gas) Bill 2017

 

OUTLINE

The Commission of Inquiry (Coal Seam Gas) Bill 2017 (the Bill) provides for the establishment of a Commission of Inquiry. The Bill invests the Coal Seam Gas Commission of Inquiry with the full powers of a Royal Commission as laid out in the Royal Commissions Act 1902. The Commission of Inquiry will report to the Parliament, as opposed to a Royal Commission, which reports to the Executive arm of Government.

 

The Commission of Inquiry will inquire into the Coal Seam Gas industry including the negotiating powers of parties involved; impacts on land, water and communities; agreement making and payment for damages and compliance.

 

Particular concern has been raised in relation to the conduct of Coal Seam Gas companies and their negotiations with landowners, along with inadequacies in the Government compliance processes. 

 

FINANCIAL IMPACT

The Bill will have no financial impact. An appropriation will need to be separately made to fund the Commission.

 

NOTES ON CLAUSES

 

PART 1 – PRELIMINARY

 

Clause 1 – Short title

This clause provides that the short title of the Act be the Commission of Inquiry (Coal Seam Gas) Act 2017.

 

Clause 2 – Commencement

This clause provides for sections 1 and 2 of the Act to commence on the day after it receives Royal Assent.

 


 

Clause 3 — Simplified outline of this Act

This clause contains a simplified outline of the proposed Act, intended as a guide to the general scheme and effect of the Act.

 

Clause 4 – Definitions

This section defines key terms to ensure they have a consistent meaning across the Act

 

PART 2 – ESTABLISHING THE COMMISSION OF INQUIRY (COAL SEAM GAS)

 

Clause 5 –Commission of Inquiry (Coal Seam Gas) is established

This clause 5 establishes a Commission of Inquiry, to be known as the Commission of Inquiry (Coal Seam Gas). The Commission is to be constituted of 6 Commissioners, consisting of 3 current or former Judges and 3 representatives of the Australian community. The appointment of the Commissioners, including the Presiding Member of the Commission, is to be made by a committee of the House of Representatives.

 

The committee is to consist of a member of the House of Representatives nominated by:

·         The Prime Minister; and

·         The Leader of the Opposition; and

·         A member of the Australian Greens Party; and

·         A member of the Nick Xenophon Team; and

·         A member of Katter’s Australian Party.

 

The nominated person must be a member of the House of Representatives, however if the relevant political party does not have a member in the House of Representatives, then a Senator of that party may be nominated.

 

This clause also establishes that a decision of the committee can only be made by the agreement of a majority of its members.


 

 

Clause 6 - Terms of Reference

The terms of reference set the scope of the Commission’s Inquiry. The matters that the Commission must inquire into are:

                     (a)  the impacts of fracking and unconventional gas on land, water and communities; and

                     (b)  the power imbalance between family farming operations and coal seam gas companies who have professional legal and expert technical teams; and

                     (c)  whether that power imbalance should be addressed by better enforcement of legal costs being borne by the coal seam gas companies, without this being used as a leverage on agreements; and

                     (d)  that the onus of proof should be on the coal seam gas company not the landholder when proving damage caused or alleged to have been caused by the coal seam gas company; and

                     (e)  whether the regulator have greater requirement to lodge breach of condition notices within fixed time frames; and

                      (f)  the movement of staff between government agencies and coal seam gas companies; and

                     (g)  any payment of monies by coal seam gas companies to government bodies or personnel, and the nature and consequence of this; and

                     (h)  the need to extend the period of time open for lodgement of damages claims against coal seam gas companies to allow long run impacts damages to be claimed by farmers; and

                      (i)  the previous recommendation that a land access ombudsman be appointed, and the terms of reference, appointment and reporting standards for this role.

 

Clause 7 – Report to the Parliament

This clause requires the Commission to submit a report containing the Commission’s findings of fact and its recommendations to the Speaker of the House of Representatives. If the Commission is of the opinion that its findings or conclusions could result in an unfair trial, prejudice an investigation, reveal the identity of a confidential source of information (or allow a person to ascertain the existence or identity of that source), or prejudice the safety or reputation of a person, then the Commission may submit those findings or conclusions in a separate report. The report is to be submitted within 2 years of the commencement of the section unless this period is extended.

 

After the report is submitted, the Speaker of the House of Representatives must cause copies of the report (other than the separate report) to be laid before both houses of parliament as soon as practicable.

 

The Minister must table the Government’s response to the report within 6 months after copies of the report are laid before the House of Representatives. This is designed to encourage discussion of the Committee’s recommendations and legislative reform.

 

Clause 8 – Extending the period within which the Commission may report

The Commission may request an extension to the period within which it is to report by giving written notice to the Speaker of the House of Representatives. The Speaker must convene a committee of members, which is to consist of persons nominated by the persons/entities listed in the clause. The Committee may extend the reporting period by agreement of a majority of its members.

 

PART 3 – POWERS OF THE COMMISSION OF INQUIRY (COAL SEAM GAS)

 

Clause 9 – Hearings

This clause enables the Commission to determine its own procedures and to hold hearings.

 

Clause 10 – Commission not bound by the rules of evidence

This clause provides that the Commission is not bound by the rules of evidence.

 

Clause 11 – Application of the Royal Commissions Act 1902

This clause provides that the Royal Commissions Act 1902 and the Royal Commissions Regulations apply to the Commission as if it were a Royal Commission. They also apply to the Commissioners as if they were members of a Royal Commission.

 

By incorporating the Royal Commissions Act 1902 and the Royal Commissions Regulations into this Act, the Commission of Inquiry is given the same powers as a Royal Commission. This includes, amongst other things, the power to summon witnesses, take evidence, inspect and retain documents, and the power to authorise a person to apply for a search warrant.

 

If a body corporate is convicted of an offence against the Royal Commissions Act 1902, a court may impose a pecuniary penalty not exceeding 10 times the amount of the maximum pecuniary penalty that could be imposed by a court on an individual convicted of the same offence.

 

This clause also provides for the Governor-General to make regulations amending the Royal Commissions Regulations. This is necessary as the Royal Commissions Regulations apply to this Act.

 

Clause 12 – Application of Commonwealth Laws

This clause clarifies that the law of the Commonwealth applies to the Commission in the same way as it would apply in relation to a Royal Commission.

 

PART 4 – OTHER MATTERS

 

Clause 13 – Staff

This clause enables the Commission to employ such persons as it considers necessary for the performance of its functions and the exercise of its powers. The Commission may determine the terms and conditions upon which an employee is to be employed.

 

Clause 14 - Legal and financial assistance

This clause allows a person who appears before the Commission to apply for legal or financial assistance. The Commission may authorise the provision to that person of such legal or financial assistance in respect of that person’s appearance as the Commission determines. Such assistance can be provided if the Commission is satisfied that it would cause substantial hardship to the person if their application for assistance was refused or if the circumstances of the case are of such a nature that the application should be granted.

 

The Commission can authorise that assistance be granted on a conditional or unconditional basis. The Minister must ensure that any legal or financial assistance that is authorised by the Commission is provided. Any legal or financial assistance authorised by the Commission is to be paid for out of monies appropriated by the Parliament for the purposes of the Commission.

 

Clause 15 - Regulations

This clause permits the Governor-General to make regulations with respect to this Act.

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Commission of Inquiry (Coal Seam Gas) Bill 2017

The 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/Disallowable Legislative Instrument

The Bill seeks to establish a Commission of Inquiry into the Coal Seam Gas industry. That inquiry will report to Parliament on particular matters within its terms of reference.

 

The intent of the Bill is to respond to misconduct that has recently been exposed in Coal Seam Gas Industry. 

 

Human rights implications

The Bill does not contravene any of the applicable rights or freedoms.

 

The Bill deals with the legal rights of witnesses who are summonsed to appear as witnesses or surrender documents or information to the Commission. In applying the provisions of the Royal Commissions Act 1902, this Bill imports the same rights and protections that are given to witnesses in Commonwealth Royal Commissions and judicial trials generally, which have been found to be compatible with human rights and freedoms. 

 

The Commission of Inquiry (Coal Seam Gas) will be presided over by six individuals including three Judges. The presiding Judges will ensure that procedural fairness is accorded at all times to witnesses before the Commission, further ensuring that human rights and freedoms are upheld.

 

Additionally, the establishment of the Commission of Inquiry (Coal Seam Gas) ensures that those who have undergone financial hardship due to another’s unlawful misconduct will have access to justice and a platform from which to pursue their rights.

Conclusion

The Bill is compatible with human rights.  This Bill seeks to establish a Commission of Inquiry (Coal Seam Gas), with protections for rights comparable to those of a Royal Commission, which have a long history of compatibility with human rights.

 

Hon Bob Katter MP