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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 05 Sep 2022
Introduced HR 05 Sep 2022
Table of contents.

2022

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022

 

No.      , 2022

 

(Mr Bandt)

 

 

 

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............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Environment Protection and Biodiversity Conservation 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 is the Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Act 2022.

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Note:          This table relates only to the provisions of this Act as originally enacted.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  Schedules

                   Legislation 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 Conservation Act 1999

1  After Subdivision FB of Division 1 of Part 3

Insert:

Subdivision FCProtection of the environment from significant emissions

24F  Purpose of this Subdivision

                   The purpose of this Subdivision is to contribute to meeting Australia’s obligations under the Climate Change Conventions.

24G  Requirement for approval of activities with significant emissions

             (1)  A person must not take an action that has, will have or is likely to have a significant impact on emissions.

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)  section 43A or 43B 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:

                              (i)  is not an action that has, will have or is likely to have a prohibited impact on emissions; and

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

Note:          If the Minister decides under Division 2 of Part 7 that this section is not a controlling provision for the action, the Minister may revoke and substitute the decision if satisfied that it is warranted by the availability of substantial new information about the impacts of the action, or by a substantial change in circumstances that relates to the impacts of the action: see section 78. This may include, for example, where the total amount of greenhouse gases emitted in relation to the action is higher than was predicted at the time the proposal to take the action was referred.

24H  What is a significant impact on emissions?

                   For the purposes of this Act, an action has a significant impact on emissions if the total amount of emissions of greenhouse gases in relation to the action in any 12 month period has a carbon dioxide equivalence of 25 kilotonnes or more.

24J  Offences relating to significant emissions

             (1)  A person commits an offence if:

                     (a)  the person takes an action; and

                     (b)  the action has or will have a significant impact on emissions.

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

             (2)  A person commits an offence if:

                     (a)  the person takes an action; and

                     (b)  the action is likely to have a significant impact on emissions.

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

             (3)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term 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 commit an offence against section 495.

Note 3:       If a person takes an action on land that contravenes this section, a landholder may commit 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)  section 43A or 43B 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:

                              (i)  is not an action that has, will have or is likely to have a prohibited impact on emissions; and

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

Note 1:       The defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code.

Note 2:       If the Minister decides under Division 2 of Part 7 that this section is not a controlling provision for the action, the Minister may revoke and substitute the decision if satisfied that it is warranted by the availability of substantial new information about the impacts of the action, or by a substantial change in circumstances that relates to the impacts of the action: see section 78. This may include, for example, where the total amount of greenhouse gases emitted in relation to the action is higher than was predicted at the time the proposal to take the action was referred.

2  After paragraph 25AA(2)(i)

Insert:

                    ; (j)  subsections 24J(1) and (2).

3  After paragraph 25AA(3)(gb)

Insert:

                    (gc)  subsection 24G(1);

4  Subsection 29(1)

Omit “24D or 24E”, substitute “24D, 24E, 24G or 24J”.

5  Subsection 33(1)

After “Part 3”, insert “, other than section 24G or 24J”.

6  Section 34 (after table item 13J)

Insert:

13K

section 24G

the environment

13L

section 24J

the environment

7  Section 37

After “Part 3”, insert “, other than section 24G or 24J,”.

8  Section 37A

After “Part 3”, insert “, other than section 24G or 24J”.

9  Section 37M

After “Part 3”, insert “, other than section 24G or 24J,”.

10  After paragraph 42(b)

Insert:

                   (ba)  actions that have, will have or are likely to have a significant impact on emissions; or

11  Section 43

After “Part 3”, insert “, other than section 24G or 24J,”.

12  Subsections 46(1), (2) and (2A)

Omit “24D or 24E”, substitute “24D, 24E, 24G or 24J”.

13  At the end of Subdivision B of Division 1 of Part 9

Add:

141  Requirements for decisions about significant emissions

                   In deciding whether or not to approve for the purposes of section 24G or 24J the taking of an action, and what conditions to attach to such an approval, the Minister must consider whether, if the approval were granted, the action would be consistent with:

                     (a)  the national carbon budget, taking into account the most recent assessment report (if any) given to the Minister under subsection 517B(6); and

                     (b)  the achievement of the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution.

141A  No approval for actions with prohibited impact on emissions

                   The Minister must not approve an action that has, will have or is likely to have a prohibited impact on emissions.

14  At the end of Subdivision C of Division 1 of Part 10

Add:

146N  Approvals relating to significant emissions

                   If the approval relates to section 24G or 24J, the Minister must consider whether, if the approval were granted, the action or actions in the class of actions would be consistent with:

                     (a)  the national carbon budget, taking into account the most recent assessment report (if any) given to the Minister under subsection 517B(6); and

                     (b)  the achievement of the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution.

146P  No approvals relating to actions with prohibited impact on emissions

                   The Minister must not approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program if the action, or an action in the class of actions, has, will have or is likely to have a prohibited impact on emissions.

15  After subsection 163(1)

Insert:

          (1A)  If the Minister is satisfied that the action has, will have or is likely to have a prohibited impact on emissions, the advice must state that:

                     (a)  the person who takes the action may commit an offence or be liable to a civil penalty under this Act; and

                     (b)  the agency or employee should not give the authorisation.

16  After paragraph 176(4)(d)

Insert:

                   (da)  priorities and strategies to ensure that any action taken in accordance with the plan is consistent with:

                              (i)  the national carbon budget, taking into account the most recent assessment report (if any) given to the Minister under subsection 517B(6); and

                             (ii)  the achievement of the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution;

                   (db)  mechanisms for monitoring the impacts of emissions of greenhouse gases on biodiversity, heritage values and other values;

17  After subsection 305(3A)

Insert:

          (3B)  In deciding whether to enter into a proposed conservation agreement, the Minister must consider whether the agreement is consistent with:

                     (a)  the national carbon budget, taking into account the most recent assessment report (if any) given to the Minister under subsection 517B(6); and

                     (b)  the achievement of the greenhouse gas emissions reduction targets included in Australia’s nationally determined contribution.

18  Subsection 306A(1)

After “Part 3”, insert “, other than section 24G or 24J”.

19  After subparagraph 495(2)(a)(via)

Insert:

                          (vib)  section 24J (Offences relating to significant emissions); or

20  After subparagraph 496C(1)(a)(viia)

Insert:

                         (viib)  section 24J (Offences relating to significant emissions); or

21  After section 517A

Insert:

517B  Setting of national carbon budget

Setting of national carbon budget

             (1)  The Climate Change Authority must, by legislative instrument, determine a recommended budget for Australia in relation to emissions of greenhouse gases for the period beginning on 1 January 2023 and ending on 31 December 2050, expressed as a gross amount of carbon dioxide equivalence.

             (2)  For the purposes of this Act, the budget determined under subsection (1) is the national carbon budget.

             (3)  In making a determination under subsection (1), the Climate Change Authority must have regard to:

                     (a)  Australia’s obligations under the Climate Change Conventions; and

                     (b)  the global goals of:

                              (i)  holding the increase in the global average temperature to well below 2°C above pre‑industrial levels; and

                             (ii)  pursuing efforts to limit the temperature increase to 1.5°C above pre‑industrial levels.

             (4)  Subsection (3) does not limit the matters to which the Climate Change Authority may have regard in making a determination under subsection (1).

Note:          Section 12 of the Climate Change Authority Act 2011 also sets out principles to which the Climate Change Authority must have regard in performing its functions.

             (5)  The Climate Change Authority must take all reasonable steps to ensure that a determination comes into force under subsection (1) as soon as practicable after the commencement of this section.

Annual assessments of remaining budget

             (6)  Within the last 6 months of each calendar year beginning on or after 1 January 2023, the Climate Change Authority must:

                     (a)  assess the amount of the national carbon budget that remains unused; and

                     (b)  prepare a report of that assessment; and

                     (c)  give the report to the Minister.

             (7)  As soon as practicable after giving the report to the Minister, the Authority must publish the report on the Authority’s website.

             (8)  The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.

22  At the end of Division 1 of Part 23

Add:

Subdivision GEmissions

527F  Emissions

             (1)  For the purposes of this Act, an emission of greenhouse gas, in relation to an action, means the release of greenhouse gas into the atmosphere as a direct result of the action, including:

                     (a)  any activities (such as land clearing) preparatory to the action; and

                     (b)  any activities ancillary to the action.

             (2)  The Minister may determine, by legislative instrument, methods, or criteria for methods, by which the amounts of emissions of greenhouse gases are to be measured for the purposes of this Act and may specify:

                     (a)  different methods or criteria for emissions from different sources; and

                     (b)  different methods or criteria depending on the circumstances in which the emissions occurred; and

                     (c)  conditions relating to the use of methods determined by the Minister or of methods which meet criteria determined by the Minister; and

                     (d)  rating systems for those methods (including different rating systems for different circumstances); and

                     (e)  the particular rating given to each of those methods.

527G  Prohibited impact on emissions

                   For the purposes of this Act, an action has a prohibited impact on emissions if the total amount of emissions of greenhouse gases in relation to the action in any 12 month period has a carbon dioxide equivalence of 100 kilotonnes or more.

23  Section 528

Insert:

Australia’s nationally determined contribution means:

                     (a)  Australia’s current nationally determined contribution communicated in accordance with Article 4 of the Paris Agreement; or

                     (b)  if that nationally determined contribution has been adjusted in accordance with paragraph 11 of Article 4 of the Paris Agreement—that nationally determined contribution, as adjusted and in force from time to time.

carbon dioxide equivalence of an amount of greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

Climate Change Conventions has the same meaning as in the Product Emissions Standards Act 2017.

emission of greenhouse gas, in relation to an action, has the meaning given by subsection 527F(1).

greenhouse gas has the same meaning as in the National Greenhouse and Energy Reporting Act 2007.

national carbon budget has the meaning given by subsection 517B(2).

Paris Agreement means the Paris Agreement, done at Paris on 12 December 2015, as amended and in force for Australia from time to time.

Note:          The Agreement is in Australian Treaty Series 2016 No. 24 ([2016] ATS 24) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

prohibited impact on emissions has the meaning given by section 527G.

significant impact on emissions has the meaning given by section 24H.

24  Application provision

The amendments made by this Schedule apply in relation to an action that begins on or after the day this item commences.