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A Bill for an Act to protect the Great Australian Bight, and for related purposes
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Registered 26 Jul 2019
Introduced Senate 25 Jul 2019

2019

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Great Australian Bight Environment Protection Bill 2019

 

No.      , 2019

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to protect the Great Australian Bight, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

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

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

3............ Objects................................................................................................ 2

4............ Application of this Act........................................................................ 2

5............ Definitions.......................................................................................... 3

6............ Meaning of Commonwealth Great Australian Bight area.................. 4

Part 2—Prohibiting mining operations in the Commonwealth Great Australian Bight area     6

7............ Mining operations in the Commonwealth Great Australian Bight area—offence     6

8............ Mining operations in the Commonwealth Great Australian Bight area—civil penalty              7

9............ Aggravated offence or contravention—matters to have regard to in determining serious harm to the environment  8

Part 3—Enforcement                                                                                                           9

10.......... Appointment of inspectors.................................................................. 9

11.......... Monitoring powers............................................................................. 9

12.......... Investigation powers......................................................................... 10

13.......... Civil penalty provisions.................................................................... 11

14.......... Infringement notices.......................................................................... 12

15.......... Injunctions........................................................................................ 13

Part 4—Miscellaneous                                                                                                       14

16.......... Compensation for acquisition of property......................................... 14

17.......... Minister must nominate the Great Australian Bight to be listed as a World Heritage Site        14

 


A Bill for an Act to protect the Great Australian Bight, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act is the Great Australian Bight Environment Protection Act 2019.

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

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

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  Objects

             (1)  The object of this Act is to protect the Commonwealth Great Australian Bight area from mining operations.

             (2)  By protecting the Commonwealth Great Australian Bight area from mining operations, this Act:

                     (a)  furthers the protection of the environment in that area; and

                     (b)  protects the industries that rely on the environment in that area.

4  Application of this Act

             (1)  This Act applies in relation to the Commonwealth Great Australian Bight area and has effect despite any other Commonwealth law including any of the following Acts:

                     (a)  the Environment Protection and Biodiversity Conservation Act 1999;

                     (b)  the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

             (2)  To avoid doubt, an authorisation, permit, title or other instrument that permits conduct that is inconsistent with the operation of this Act is taken to have no effect to the extent of the inconsistency.

             (3)  A provision of this Act that has effect in relation to a place that is within the outer limits of the exclusive economic zone of Australia (whether the place is in the zone or in Australia), or that is on or in the continental shelf of Australia, applies in relation to all persons (including persons who are not Australian citizens).

5  Definitions

                   In this Act:

Commonwealth Great Australian Bight area: see section 6.

inspector means a person appointed as an inspector under section 10.

mining operations has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

Secretary means the Secretary of the Department.

World Heritage Committee means the Intergovernmental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value established by Article 8 of the World Heritage Convention.

World Heritage Convention means the Convention for the Protection of the World Cultural and Natural Heritage done at Paris on 23 November 1972, as amended and in force for Australia from time to time.

Note:          The World Heritage Convention is in Australian Treaty Series 1975 No. 47 ([1975] ATS 47) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

World Heritage List means the list kept under that title under Article 11 of the World Heritage Convention.

6  Meaning of Commonwealth Great Australian Bight area

                   The Commonwealth Great Australian Bight area is an area in the Southern Ocean bounded by the line commencing at the point described in item 1 of the following table and running progressively as described in the table.

 

Area of reserve

 

 

Item

Description

South latitude

East longitude

1

The intersection of the outer limit of the State waters of South Australia (three nautical miles) with the meridian of longitude 140° 34’ 8.13” East

38° 4’ 51.07”

140° 34’ 8.13”

2

South along that meridian to its intersection by the outer limit of the exclusive economic zone (200 nautical miles)

42° 37’ 30.68”

140° 34’ 8.13”

3

Generally north‑westerly along the outer limit of the exclusive economic zone to its intersection by the meridian of longitude 123° 19’ 60.00” East

37° 42’ 47.02”

123° 19’ 60.00”

4

North along that meridian to its intersection with the outer limit of State waters of Western Australia (Dome Island)

34° 13’ 2.64”

123° 19’ 60.00”

5

Generally easterly, then northerly, north‑westerly along the State waters of Western Australia (Dome Island) to its intersection by the meridian of longitude 123° 19’ 60.00” East

34° 6’ 16.92”

123° 19’ 60.00”

6

North along that meridian to its intersection with the outer limit of State waters of Western Australia

34° 3’ 39.69”

123° 19’ 60.00”

7

Generally easterly and north‑easterly along the easternmost point on the outer limit of State waters of Western Australia (excluding the State waters of the following islands: South East Islands, Round Island and Eastern Group) to the westernmost point on the outer limit of the State waters of South Australia

8

Generally easterly and south‑easterly along the outer limit of State waters of South Australia (and excluding the following State waters of South Australia: Flinders Island, Ward Island, Pearson Islands, Greenly Island, Rocky Island, Lipson Reef, Young and North Rocks) to the point of commencement

Part 2Prohibiting mining operations in the Commonwealth Great Australian Bight area

  

7  Mining operations in the Commonwealth Great Australian Bight area—offence

Ordinary offence

             (1)  A person commits an offence (an ordinary offence) if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct is mining operations; and

                     (c)  the conduct is engaged in the Commonwealth Great Australian Bight area; and

                     (d)  the conduct is not for the purpose of research or investigations relevant to the conservation or protection of the Commonwealth Great Australian Bight area.

Penalty:  Imprisonment for 2 years or 1,000 penalty units, or both.

Aggravated offence

             (2)  A person commits an offence (an aggravated offence) if:

                     (a)  the person commits an ordinary offence; and

                     (b)  the commission of the ordinary offence:

                              (i)  resulted in serious harm to the environment in the Commonwealth Great Australian Bight area; or

                             (ii)  had the potential to result in serious harm to the environment in the Commonwealth Great Australian Bight area; or

                            (iii)  was done for a commercial purpose.

Penalty:  Imprisonment for 3 years or 2,000 penalty units, or both.

             (3)  Recklessness applies to subparagraphs (2)(b)(i) and (ii).

Note:          For recklessness, see section 5.4 of the Criminal Code.

             (4)  Intention applies to subparagraph (2)(b)(iii).

Note:          For intention, see section 5.2 of the Criminal Code.

             (5)  If, on a trial for an aggravated offence, the trier of fact:

                     (a)  is not satisfied that the defendant is guilty of the aggravated offence; but

                     (b)  is satisfied beyond reasonable doubt that the defendant is guilty of an ordinary offence;

it may find the defendant not guilty of the aggravated offence but guilty of the ordinary offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

             (6)  This section applies despite any other law of the Commonwealth, a State or a Territory.

8  Mining operations in the Commonwealth Great Australian Bight area—civil penalty

Ordinary contravention

             (1)  A person contravenes (an ordinary contravention) this subsection if:

                     (a)  the person engages in conduct; and

                     (b)  the conduct is mining operations; and

                     (c)  the conduct is engaged in the Commonwealth Great Australian Bight area; and

                     (d)  the conduct is not for the purpose of research or investigations relevant to the conservation or protection of the Commonwealth Great Australian Bight area.

Civil penalty:

                     (a)  for an individual—2,000 penalty units; or

                     (b)  for a body corporate—20,000 penalty units.

Aggravated contravention

             (2)  A person contravenes this subsection if:

                     (a)  the person has committed an ordinary contravention; and

                     (b)  the ordinary contravention:

                              (i)  resulted in serious harm to the environment in the Commonwealth Great Australian Bight area; or

                             (ii)  had the potential to result in serious harm to the environment in the Commonwealth Great Australian Bight area; or

                            (iii)  was done for a commercial purpose.

Note:          A person may be found to have committed an ordinary contravention if a relevant court is not satisfied the person contravened subsection (2): see subsection 13(3).

Civil penalty:

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

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

             (3)  This section applies despite any other law of the Commonwealth, a State or a Territory.

9  Aggravated offence or contravention—matters to have regard to in determining serious harm to the environment

             (1)  In determining for the purposes of subparagraph 7(2)(b)(i) or 8(2)(b)(i) whether conduct has resulted in serious harm to the environment in the Commonwealth Great Australian Bight area, regard must be had to the following:

                     (a)  the harm;

                     (b)  the size of the affected environment;

                     (c)  the sensitivity of the affected environment;

                     (d)  the significance of the affected environment;

                     (e)  whether the harm is irreversible; and

                      (f)  the measures required to remedy the harm;

             (2)  In determining for the purposes of subparagraph 7(2)(b)(ii) or 8(2)(b)(ii) whether conduct had the potential to result in serious harm to the environment in the Commonwealth Great Australian Bight area, regard must be had to the potential for the conduct to result in serious harm for the purposes of subparagraph 7(2)(b)(i) or 8(2)(b)(i).

Part 3Enforcement

  

10  Appointment of inspectors

             (1)  The Secretary may, in writing, appoint an APS employee in the Department as an inspector.

             (2)  The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.

             (3)  An inspector must, in exercising powers as such, comply with any directions of the Secretary.

             (4)  If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

11  Monitoring powers

Provisions subject to monitoring

             (1)  A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:

                     (a)  a provision of this Act; or

                     (b)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.

Information subject to monitoring

             (2)  Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

             (3)  For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions of this Act:

                     (a)  there are no related provisions; and

                     (b)  the Secretary is the authorised applicant; and

                     (c)  an inspector is an authorised person; and

                     (d)  a magistrate is an issuing officer; and

                     (e)  the Secretary is the relevant chief executive; and

                      (f)  the Federal Circuit Court of Australia and the Federal Court of Australia are the relevant courts.

Persons assisting

             (4)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to a provision mentioned in subsection (1) and the information mentioned in subsection (2).

Extension to external Territories

             (5)  Part 2 of the Regulatory Powers Act, as it applies in relation to this Act, extends to every external Territory.

12  Investigation powers

Provisions subject to investigation

             (1)  A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

                     (a)  section 7 or 8 of this Act; or

                     (b)  an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Note:          Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

             (2)  For the purposes of Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  there are no related provisions; and

                     (b)  the Secretary is the authorised applicant; and

                     (c)  an inspector is an authorised person; and

                     (d)  a magistrate is an issuing officer; and

                     (e)  the Secretary is the relevant chief executive; and

                      (f)  the Federal Circuit Court of Australia and the Federal Court of Australia are the relevant courts.

Persons assisting

             (3)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Extension to external Territories

             (4)  Part 3 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

13  Civil penalty provisions

Enforceable civil penalty provisions

             (1)  Subsections 8(1) and (2) of this Act are enforceable under Part 4 of the Regulatory Powers Act.

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant and relevant courts

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1):

                     (a)  the Secretary is the authorised applicant; and

                     (b)  the Federal Circuit Court of Australia and the Federal Court of Australia are the relevant courts.

Modification

             (3)  If, in proceedings for a civil penalty order under Part 4 of the Regulatory Powers Act in relation to a contravention of subsection 8(2) by a person, the relevant court:

                     (a)  is not satisfied that the person has contravened subsection 8(2); but

                     (b)  is satisfied beyond reasonable doubt that the person contravened subsection 8(1);

the relevant court may make a civil penalty order against the person for the contravention of subsection 8(1).

Extension to external Territories

             (4)  Part 4 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

14  Infringement notices

Provisions subject to an infringement notice

             (1)  Subsection 8(1) of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note:          Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer and relevant chief executive

             (2)  For the purposes of Part 5 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1):

                     (a)  an inspector is an infringement officer; and

                     (b)  the Secretary is the relevant chief executive.

Extension to external Territories

             (3)  Part 5 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1), extends to every external Territory.

15  Injunctions

Enforceable provisions

             (1)  Sections 7 and 8 of this Act are enforceable under Part 7 of the Regulatory Powers Act.

Note:          Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person and relevant courts

             (2)  For the purposes of Part 7 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1):

                     (a)  the Secretary is the authorised person; and

                     (b)  the Federal Circuit Court of Australia and the Federal Court of Australia are the relevant courts.

Consent injunctions

             (3)  A relevant court may grant an injunction under Part 7 of the Regulatory Powers Act in relation to a provision mentioned in subsection (1) by consent of all the parties to proceedings brought under that Part, whether or not the court is satisfied that section 121 of that Act applies.

Extension to external Territories

             (4)  Part 7 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

Part 4Miscellaneous

  

16  Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

17  Minister must nominate the Great Australian Bight to be listed as a World Heritage Site

             (1)  As soon as reasonably practicable after this section commences, the Minister must cause the Commonwealth to make a submission to the World Heritage Committee that the Great Australian Bight be included on the World Heritage List.

             (2)  The submission must be in accordance with any requirements set out in the World Heritage Convention.

             (3)  To avoid doubt, the Great Australian Bight is not limited to the Commonwealth Great Australian Bight area.