1998 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION BILL EXPLANATORY MEMORANDUM
(Circulated by Authority of the Minister for the Environment and Heritage,
Senator the Hon Robert Hill)
ISBN: 0642 377294
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION BILL
1998
OUTLINE
The objects of this Bill are to:
_ provide for the protection of the environment, especially those aspects of
the environment which are matters of national environmental significance,
_ promote ecologically sustainable development through the conservation and
sustainable use of natural resources,
_ promote the conservation of biodiversity,
_ promote a co-operative approach to the protection and management of the
environment involving governments, the community, and landholders, and
_ assist in the co-operative implementation of Australia's international
environmental responsibilities.
The Bill has 8 Chapters.
Chapter 1 is a preliminary Chapter. Environmental assessments and approvals (Chapters 2 and 4)
The Bill applies to an action that has, will have, or is likely to have a
significant impact on a matter of national environmental significance.
The matters of national environmental significance are:
_ world heritage properties;
_ Ramsar wetlands of international importance;
_ nationally threatened species and communities,
_ migratory species protected under international agreements;
_ nuclear actions;
_ the Commonwealth marine environment (generally outside 3 nautical miles from
the coast); and
_ any additional matter specified by regulation (after consultation with the
States).
The Bill also applies to actions on Commonwealth land and actions by the
Commonwealth and Commonwealth agencies (`Commonwealth actions').
Actions which have, may have or are likely to have a significant impact on a
matter of national environmental significance may be taken:
_ in accordance with a bilateral agreement (including an accredited State
approval process) or a declaration (including an accredited Commonwealth
approval process); or
_ with the approval of the Minister under Part 9 of the Bill; or
_ in accordance with a conservation agreement.
In addition, actions taken in accordance with the Great Barrier Reef Marine
Park Act 1975, or instruments under that Act, and forestry operations
covered by the Regional Forest Agreements process do not need approval.
The Minister may also exempt specific actions on the basis of the national
interest.
If the Minister provides advice that an action does not require approval, a
person will not contravene the Bill if the action is taken in accordance with
that advice.
For actions requiring approval, the environmental assessment and approval
process is set out in Chapter 4.
If a person takes an action that requires approval without obtaining that
approval, the person is liable to pay a civil penalty. Bilateral agreements with States and Territories (Chapter 3)
The Minister may enter into bilateral agreements with States or Territories.
Bilateral agreements are an integral feature of the Bill. Through bilateral
agreements, the Commonwealth may accredit and rely upon State assessment and
approval processes for actions impacting upon matters of national environmental
significance.
A bilateral agreement may declare that actions in a specified class do not
require approval under the Bill if they are approved by the State in a
particular manner or if they are taken in a specified manner. Actions covered
by a bilateral agreement do not require approval under the Bill.
Bilateral agreements must be consistent with the objects of the Bill and must
meet any standards or criteria identified in regulations. In this way, the
Commonwealth can be satisfied that accredited State processes meet appropriate
standards.
The Commonwealth may cancel or suspend bilateral agreements in certain
circumstances.
Other Commonwealth processes may be similarly accredited under declarations.
Listed species and communities (Chapter 5, Part 16)
The Bill provides for the establishment of lists of:
_ nationally threatened native species (classified as extinct, extinct in the
wild, critically endangered, endangered, vulnerable, and conservation);
_ nationally threatened ecological communities (which may be classified as
critically endangered, endangered or vulnerable);
_ key threatening processes;
_ internationally protected migratory species; and
_ marine species (in Commonwealth waters).
The Bill:
_ creates the Australian Whale Sanctuary;
_ regulates certain activities in Commonwealth areas which affect whales and
dolphins, listed species and listed ecological communities
The Minister is required to:
_ prepare recovery plans for listed threatened species (except those listed as
extinct or conservation dependent) and listed threatened communities, and
_ prepare threat abatement plans for listed key threatening processes.
The Minister may make wildlife conservation plans for the protection,
conservation, and management of listed migratory species, listed marine
species, and cetaceans. Protected areas (Chapter 5, Part 20)
Protected areas are:
_ World Heritage Properties,
_ Wetlands of international importance,
_ Biosphere reserves, and
_ Commonwealth reserves.
The Bill sets out some steps to be followed before a property can be nominated
as a world heritage property or designated as a Ramsar wetland, including
consultation with relevant States and persons. The Bill promotes the
preparation of management plans for these areas by the Commonwealth and the
States.
The Bill sets out some requirements for creating and managing Commonwealth
reserves (only on land owned by the Commonwealth). These include requirements
for the preparation of management plans and the involvement of indigenous
people in reserves which include indigenous people's land. Conservation agreements with persons (Chapter 5, Part 17)
The Minister for the Environment may enter into Conservation agreements with
private landholders. Under conservation agreements, land is managed in an
agreed manner to enhance conservation, and the Commonwealth may provide
financial or other assistance. Conservation agreements must result in a net
benefit to the conservation of biodiversity in the place covered by the
agreement. A conservation agreement may specify actions that are exempt from
Commonwealth environmental assessment and approval. Access to biological resources (Chapter 5, Part 16, Division 6)
The Bill enables the Government to establish regulations about access to
biological resources on Commonwealth land and waters. Acts replaced
The Bill replaces the National Parks and Wildlife Conservation Act 1975,
the Whale Protection Act 1980, the World Heritage (Properties
Conservation) Act 1983, the Endangered Species Protection Act 1992,
and the Environment Protection (Impact of Proposals) Act 1974.
FINANCIAL IMPACT STATEMENT
The Environment Protection and Biodiversity Conservation Bill 1998 will not
cost the Commonwealth more than the existing legislative arrangements which it
will replace.
REGULATION IMPACT STATEMENT FOR THE ENVIRONMENT PROTECTION AND
BIODIVERSITY CONSERVATION BILL 1998.
PROBLEM Market failure
Many of the benefits provided by the environment are used free of charge, and
often access cannot be denied. Without government involvement, free access and
use can result in adverse effects on the environment.
Any use of environmental resources may involve some loss of environmental
quality. If the users of environmental resources do not pay for the use of
those resources, or are not otherwise made responsible, the resources will be
used excessively, and impose losses not only on those currently alive, but also
on those yet to be born. Governments can intervene to correct this failure.
In Australia, over the years, State and Commonwealth Governments have put in
place policies to encourage better use of environmental resources, and backed
these with legislation and regulation. This was often done in an ad hoc
fashion, as problems arose, without a clear understanding of which level of
Government was best placed to address damage to the environment. Consequently,
this proposal concerns improving government processes and environmental
outcomes. What is the problem being addressed?
On taking office the Howard Government was faced with a division of
responsibilities between the Commonwealth, States and Territories, together
with a series of governmental environmental processes which were in need of
reform. The reforms were necessary to remove unnecessary impediments to
business/industry and to improve the effectiveness of environmental protection
measures were not optimally effective. The Government also inherited an
environmental law regime which:
_ developed in an ad hoc and piecemeal fashion.
- Accordingly, the various Acts are not integrated within an appropriate
conceptual framework. This limits the ability of the existing legislation to
secure good environmental outcomes in an efficient manner.
_ does not reflect an appropriate role for the Commonwealth in environmental
matters.
- In some cases, the Commonwealth does not currently have adequate legislative
capacity to discharge its responsibilities for national environmental matters.
In other cases, Commonwealth environmental legislation is triggered by matters
which are more appropriately the responsibility of local or State governments.
_ was enacted at a time when most States did not have any significant
environmental legislation.
- However, most States have now enacted relatively comprehensive environmental
law regimes. In fact, some States have recently enacted their second or third
generation of environmental statutes. The evolution of State law has not been
adequately recognised in the Commonwealth's legislative framework, thus
hindering seamless and productive integration of Commonwealth and State laws.
_ largely fails to recognise and implement the principles of ecologically
sustainable development.
-The principles of ecologically sustainable development are now universally
accepted as the basis upon which environmental, economic and social goals
should be integrated in the development process. The failure to fully recognise
and implement the principles of ecologically sustainable development is
regarded as a fundamental deficiency in the Commonwealth's existing regime.
_ Does not adequately equip the Commonwealth to address current and emerging
environmental issues. It has not been amended to reflect best practice. Why is government action needed to correct the problem?
Government action was clearly the only way to address problems associated with
intergovernmental relations on the environment. It was through the 1992
Intergovernmental Agreement on the Environment (IGAE) that governments
established a framework for intergovernmental consultation, and provided
mechanisms to accommodate each other's interests on particular matters. The
IGAE also established the responsibilities and interests of governments for
environment matters.
It was also necessary for the Government to take action to reform its
environmental legislation. OBJECTIVES What are the objectives of the review processes?
The aim of the Government's action was to more effectively implement the IGAE,
put in place Commonwealth environmental law which operates more effectively and
efficiently, and, most importantly, deliver better environmental outcomes.
To address the problems the Government took action on two fronts.
Through the Council of Australian Governments (COAG) it instigated a Review of
Commonwealth/State Roles and Responsibilities for the Environment. The
objective of the review was
To develop a more effective framework for inter-governmental relations on the
environment which will provide greater certainty for participants in
environment issues, minimise duplication of effort to achieve common goals and
facilitate improved environmental outcomes.
Legislation reform was an essential part of the COAG Agreement. Therefore,
following on from the COAG Review, the Government embarked on a Review of
Commonwealth Environmental Legislation, with the objective of reforming the
legislation to
deliver better environmental outcomes in a manner that promotes certainty for
all stakeholders and minimises the potential for delay and inter-governmental
duplication.
Both the Reviews are an integral part of the Government's Commonwealth/State
reform agenda. A priority of the Review of Commonwealth Environmental
Legislation is to implement the outcomes of the COAG Review of
Commonwealth/State Roles and Responsibilities for the Environment. COAG Review process
The Review of Commonwealth/State Roles and Responsibilities for the Environment
was conducted by a senior level Working Group of the Intergovernmental
Committee for Ecologically Sustainable Development
In November 1996 the Government endorsed the objectives and approaches pursued
by the Commonwealth in the Review. In September 1997 the Government agreed its
position for both the final negotiations and the COAG meeting which considered
the reforms resulting from the Review. The Government also noted that
amendments to Commonwealth environment legislation will be required to
implement the outcomes of the COAG Review, to proceed immediately after the
Review had been concluded.
In November 1997 COAG gave in-principle endorsement to a Heads of Agreement on
Commonwealth/State Roles and Responsibilities for the Environment. Fundamental
changes to Commonwealth Environmental Legislation are required to give effect
to the Agreement. A majority of States and Territories have now signed the
agreement, and it is a Government priority to introduce legislation into
Parliament to implement to agreement. There is an expectation, particularly on
the part of business and industry, that the Government will introduce
legislation quickly to provide certainty of outcome for the review process and
deliver its benefits to the community. Objectives of the Bill flowing from the COAG review
In summary, the major outcomes of the Review process to be reflected in the
Environment Protection and Biodiversity Conservation Bill 1998 are:
- The Commonwealth focussing on matters of national environmental significance.
This will result in the Commonwealth not being involved in matters of only
State or local significance.
- That for activities or proposals involving both the Commonwealth and a State,
the Commonwealth environmental assessment and approval process will be
triggered only by those actions which may have a significant impact on matters
of national environmental significance. This will overcome the problem of
Commonwealth legislation being triggered in an indirect manner by Commonwealth
decisions that are not directly related to the environment, such as export
approval and foreign investment, and funding decisions.
- Improving the efficiency and timeliness of environmental and development
approvals processes;
- Greater transparency and certainty in decision making in relation to
development proposals;
- A reliance on State processes and management approaches which will, as
appropriate, accommodate Commonwealth interests;
- Recognition of the Commonwealth's role in international and national
environmental matters with strengthened Commonwealth/State partnership
arrangements for dealing with these matters; Is there a regulation/policy currently in place? Who administers it?
Pieces of legislation which the Bill is designed to replace are:
_ the Environment Protection (Impact of Proposals) Act 1974,
_ the National Parks and Wildlife Conservation Act 1975,
_ the Whale Protection Act 1980,
_ the World Heritage (Properties Conservation) Act 1983, and
_ the Endangered Species Protection Act 1992.
These Acts are administered by the Department of the Environment.
The Government committed itself to reform environmental legislation in the 1996
pre-election environment policy statement, Saving Our Natural Heritage,
and the 1996 Budget statement, Investing in Our Natural Heritage. OPTIONS
In light of the COAG Agreement, the only options available to the Government
were to continue with the existing Commonwealth/State regime and environmental
legislation, or to implement the Agreement through the reform of Commonwealth
environmental legislation. Option 1: Status quo
The current Commonwealth-State environmental arrangement and Commonwealth
regulatory regime involves:
_ Commonwealth environmental assessments and approvals being activated by ad
hoc triggers that are not directly related to the environment (eg: foreign
investment).
_ No clear timeframes for Commonwealth environmental assessments and
approvals.
_ Commonwealth environmental assessments and approval being triggered at any
stage of the development process.
_ Proponents (ie those taking or proposing to take an action which may require
assessment under the act) having no certainty about whether Commonwealth
processes will be triggered by their activities and/or proposals.
_ Procedures for accrediting State processes and decisions with no legislative
basis.
_ The Commonwealth's environmental statutes largely fail to recognise and
implement the principles of ecologically sustainable development.
_ Overall, the Commonwealth's environmental law regime has not been amended to
reflect best practice. For example, in the conservation field, it primarily
focuses on first generation issues, such as national park management, and has
not evolved to embrace contemporary approaches to biodiversity conservation. Option 2: Reform of Commonwealth environmental legislation
Reform of Commonwealth environmental legislation is to be achieved through the
Environment Protection and Biodiversity Conservation Bill 1998. A
particular focus of the Bill is to implement the outcomes of the COAG
Agreement. Consideration was given to enacting these provisions in two
separate Bills. However, incorporating the provisions in a single Bill has
advantages in terms of administrative convenience and because of the links
between Environment Protection and Biodiveristy Conservation. Using a single
Bill has no impact on the actual provisions contained in the Bil, except to
prevent repitition.
Features of the Bill are:
_ Commonwealth involvement in the environmental assessment and approval process
is focussed on matters of national environmental significance.
_ Promotion of ecologically sustainable development.
_ Proponents will be able to initiate the triggering process in the Act.
_ Decisions on Commonwealth involvement will be made early in the process and
will be binding.
_ A transparent legislative mechanism for accreditation of State assessment
processes and, in some cases, State decisions will be adopted. The goal will be
to maximise reliance on State processes which meet appropriate standards.
Bilateral agreements will provide for Commonwealth accreditation of State
processes and, in appropriate cases, State decisions (for example, decisions
under agreed management plans). Accordingly, bilateral agreements will allow
the Commonwealth to accredit State systems which meet specified criteria. The
Bill contains provisions to ensure that the level of protection afforded by
State processes must be at least equivalent to that provided by Commonwealth
processes.
_ The Environment Minister to decide whether to grant consent after full
consultation with other relevant Ministers. The decision will be made on the
basis of an ecologically sustainable development approach which includes
consideration of economic and social factors.
_ An improved, integrated framework for the conservation and use of Australia's
biodiversity so that conservation priorities can be determined in a more
systematic and strategic manner, and regional approaches to biodiversity
conservation promoted.
_ Promotion of the identification and monitoring of Australia's biodiversity
and bioregional planning;
_ Ensuring that the Commonwealth's protected area system covers the full range
of IUCN categories from strict nature conservation to multiple use;
_ Recognising that the matters of national environmental significance which
trigger the assessment and approval process in the Environment Protection Act
include World Heritage Properties, Ramsar wetlands, nationally endangered and
vulnerable species and endangered ecological communities, and migratory
species;
_ Providing for conservation agreements to protect biodiversity on private and
public land; and IMPACT ANALYSIS
The regulations will affect government, business, and the community to varying
degrees. The most significant regulatory impacts arise from changes to the
environmental assessment and approvals regime.
Following is a comparison between the two options, with respect to
environmental assessment and approvals.
Status
quo
Commonwealth legislation can be triggered by projects which have only local or
State significance.
Reform
of Commonwealth Environmental Legislation
Commonwealth legislation will be triggered only by projects which may have a
significant impact on matters of national environmental significance, and also
by projects on Commonwealth land, or by Commonwealth actions.
It
can be several months before a project is referred to the Commonwealth
Environment Minister, creating unnecessary delays.
The
proponent may trigger the process as early as convenient.
Indirect
triggers (eg foreign investment approval) may occur late in the project
development process. This creates additional delay and hinders seamless
integration of Commonwealth and State assessment and approval processes.
Reliance
on direct environmental triggers eliminates the potential for late triggers.
Proponents
may be uncertain about whether any trigger for Commonwealth involvement will
occur.
Proponents
will know up-front whether the Commonwealth is involved in the environmental
assessment and approval process.
Ad
hoc triggers mean that two projects can raise identical environmental
issues, with only one triggering Commonwealth involvement.
Environmentally-based
triggers mean that two projects raising identical environmental issues will
either both trigger or both fail to trigger Commonwealth processes.
Different
action Ministers may reach different decisions about whether a project trigger
Commonwealth processes.
There
is one, early, binding decision on whether Commonwealth processes are triggered.
Up-front
accreditation of State processes, assessments and decisions is not possible.
Up-front
accreditation of State processes, assessments and decisions is provided for.
Time-frames
for Commonwealth environmental assessment and approval processes are not
adequately set out.
Time-frames
for Commonwealth environmental assessment and approval processes are fully
specified, increasing clarity of the process for proponents.
The
Commonwealth assesses all environmental issues raised by a project.
Only
matters of national environmental significance will be assessed by the
Commonwealth for projects occurring outside Commonwealth land.
More focussed Commonwealth involvement in environmental issues based on matters
of national environmental significance will lead to better use of Commonwealth
resources and improved environmental outcomes. Who is affected by the problem, and who is likely to be affected by its
proposed solutions?
The main parties affected by the problem and its proposed solutions are the
Commonwealth, States and Territories, and industry.
The community will also be affected by changes in the management of the
environment to the extent that these are manifested in environmental
outcomes. Identify and categorise the expected impacts of the proposed options as
likely benefits, or likely costs Determine which groups are likely to experience these benefits and
costs. Option 1: Status quo Benefits
The only significant benefit to the Commonwealth, States and industry from
continuing with the status quo is that it will not be necessary to revise
current procedures, thus saving some minor one off costs.
The community will continue to benefit from the same level of environmental
protection and biodiversity conservation that they presently enjoy. Costs
The main costs to the Commonwealth are:
_ unnecessary duplication of State assessment and approval processes will
continue,
_ the Commonwealth will continue to assesses matters that are of State and
local significance only, and
_ some proposals affecting matters of genuine national environmental
significance will continue to escape Commonwealth assessment and approval.
The main costs to the States arise from:
_ continuing unnecessary duplication of Commonwealth assessment and approval
processes,
_ uncertainty about whether and when the Commonwealth will become involved in
environmental assessment and approval.
The main costs to industry are:
_ some proposals will continue to be unnecessarily subject to both Commonwealth
and State assessment and approvals,
_ uncertainty about whether Commonwealth assessment and approval processes are
triggered, and associated delays in assessment, will continue, and
_ delays because Commonwealth assessment and approval processes are triggered
late in the development process will continue. Option 2: Reform of Commonwealth environmental legislation Benefits
The main benefits to the Commonwealth are:
_ improved efficiency and transparency in decision making on environmental
matters involving the Commonwealth and the States,
_ more focussed Commonwealth involvement in environmental issues based on
matters of national environmental significance, which will lead to better use
of Commonwealth resources and improved environmental outcomes,
_ the removal of unnecessary duplication of environmental assessment and
approval processes through the framework for accreditation of State processes
and decisions,
_ Commonwealth level of involvement determined early in an assessment and
approvals process,
_ removal of action based triggers will remove the obligation (and costs) of
Commonwealth Ministers and Departments requiring environment impact assessment
for matters that are of State or local significance only,
_ opportunities for coordinating and streamlining Commonwealth decision making
on environmental matters involving the States,
_ clear Commonwealth role on environmental matters and clear arrangements for
determining whether matters of national environmental significance exist,
_ the total cost of assessments and approvals processes to the Government
sector will be reduced, because duplications and inefficiencies are being
eliminated, particularly through accreditation and bilateral agreements,
_ capacity that the Commonwealth and the States can agree on additional matters
of national environmental significance,
_ the use of bilateral agreements, conservation agreements and other
instruments will encourage a focus on long-term planning and monitoring, and
_ a simpler, more flexible legislative basis for promoting the conservation and
sustainable use of biodiversity.
The main benefits to States are:
_ recognition that environmental matters of State or local significance will be
dealt with by the States together with greater certainty of Commonwealth
responsibilities and involvement in environment issues based on matters of
national environmental significance,
_ Commonwealth will no longer be involved in matters that are of only state or
local significance,
_ improved efficiency and transparency in decision making on environmental
matters involving the Commonwealth and the States with mechanisms that involve
the States in decision making,
_ clear arrangements for determining whether matters of national environmental
significance exist,
_ capacity that the Commonwealth and the States can agree on additional matters
of national environmental significance, and
_ removal of unnecessary duplication of Commonwealth environmental assessment
and approval processes through streamlined accreditation arrangements.
The main benefits to industry are:
_ greater certainty of Commonwealth and State roles, responsibilities and
processes relating to the environment, particularly Commonwealth involvement in
environmental issues,
_ simplified and clearer framework in which industry can pursue proposals
requiring environmental and development approval,
_ a framework for improved accreditation arrangements whereby only one
government environmental assessment and approval process will be applied to an
activity or proposal - the government best placed to undertake an assessment
will do so with unnecessary duplication removed,
_ a framework for integrated Commonwealth and State processes and improved
public interfaces for dealing with activities and proposals involving matters
of national environmental significance,
_ environmental and development approvals that are not of national
environmental significance will be considered in accordance with State
environmental and planning processes,
_ the delay, uncertainty and inefficiency associated with indirect triggers for
Commonwealth assessments will be eliminated,
_ the legislation will require an early, binding decision by the Commonwealth
on whether its assessment process will apply,
_ there will be set timeframes within which decisions must be made,
_ the increased use of voluntary conservation agreements, which allow a
flexible approach to conserving biodiversity on private land, and
_ enforcement and compliance provisions which are consistent with the criminal
code, and thus offer greater certainty and internal consistency.
The main benefits to the community are:
_ enhanced protection of the environment, with potential benefits such as
better health outcomes,
_ enhanced conservation of biodiversity leading to more resilient ecosystems,
and greater environmental amenity, and
_ while the Bill retains current opportunities for community input to
environmental assessments and approvals, earlier triggering and more certain
process with explicit timelines will ensure that community comment is
considered earlier in the development process, and is therefore more effective.
Decisions will continue to be transparent, and information will continue to be
available to the public. Costs
There will be minor one-off costs to the Commonwealth, States, and industry
associated with revising procedures for environmental assessments and
approvals. Most of these costs will be borne by Government, and will arise
from the need to revise regulations and procedures, and negotiate and implement
bilateral agreements. Costs to industry will result from the need to become
familiar with the new procedures and train staff to comply with them While it
is not possible to quantify one-off costs, they should be small compared to the
ongoing benefits of more streamlines and efficient processes.
While total costs will be reduced, the savings for specific jurisdictions
cannot be predicted until such accreditation arrangements and agreements are
in place. CONSULTATION
The Review of Commonwealth-State Roles and Responsibilities for the Environment
involved extensive consultation between the Commonwealth, States, Territories,
and the Australian Local Government Association. The Review also involved
consultation with relevant Ministerial Councils and non-government
organisations. In December 1996 the views of key non-government organisations
on a consultation paper were sought. Submissions from these organisations were
considered by the senior level Working Group conducting the review, which also
held discussions with representatives of key community organisations.
Consultation on the reform of Commonwealth environment legislation was
primarily through 5000 copies of a consultation paper, which was distributed to
all interested government and non-government organisations. The consultation
paper was also made available electronically on the internet. Submissions on
the paper were invited, and considered in the development of the Bill. Both
the Minister and officials held discussion with key interests. Who are the main affected parties? What are the views of those parties?
The main affected parties and their views are: Government
All States and Territories endorsed in principle the COAG Heads of Agreement on
Commonwealth/State Roles and Responsibilities for the Environment. The
Agreement has now been signed by most States and Territories. Industry
Industry generally support the substance of the proposed reforms, particularly
the clarification of Commonwealth and State roles and responsibilities, the
efficiencies that will be gained through the streamlining of the environmental
assessment and approvals processes, and the simplification of the regulatory
regime. Industry notes that the precise benefits of the reforms will, to some
extent, depend upon implementation of accreditation arrangements and bilateral
agreements between the Commonwealth and individual States and Territories. Conservation organisations
Conservation groups are concerned that accreditation of State and Territory
processes may reduce the overall level of protection for the environment.
There is also concern that approaches such as the use of bilateral agreements
should be transparent, and provide scope for public involvement. A number of
conservation organisations believe that a wider range of national environmental
significance matters should be triggers for environmental assessment and
approvals (eg greenhouse, vegetation clearance). Conservation organisations
generally support the suggested reforms relating to an integrated approach to
the conservation of biodiversity. CONCLUSION AND RECOMMENDED OPTION
The package of measures contained in the Bill is the preferred option because
they:
_ implement the Heads of Agreement on Commonwealth/State Roles and
Responsibility for the Environment,
_ focus Commonwealth involvement in the environment on matters of national
environmental significance and eliminate the need for Commonwealth involvement
in matters which have only State or local significance,
_ will deliver significant ongoing benefits to the Commonwealth, States and
Territories, and industry, particularly in terms of more streamlined and
efficient environmental assessment and approvals processes,
_ will result in an effective and efficient environmental law regime, which
will deliver better environmental outcomes in a manner that promotes certainty
for all stakeholders, and
_ will result in enhanced protection for the environment, and enhanced
conservation of Australia's biodiversity. IMPLEMENTATION AND REVIEW How will the preferred option be implemented?
The option will be implemented through the operation of the legislation. This
will involve developing bilateral agreements and accreditation arrangements.
The Act established by this Bill will be administered by existing Commonwealth
Agencies. The Act would be administered by the Department of the
Environment.
Many of the regulatory instruments contained within the Bill will have a
limited life time, and be subject to regular evaluation and review of their
operation and effectiveness.
The following Acts will be repealed: National Parks and Wildlife
Conservation Act 1975, the Whale Protection Act 1980, the World
Heritage (Properties Conservation) Act 1983, the Endangered Species
Protection Act 1992, and the Environment Protection (Impact of
Proposals) Act 1974. Is the preferred option clear, consistent, comprehensible and accessible to
users?
Environment assessment and approval procedures will be simplified and
streamlined. Circumstances under which Commonwealth processes are triggered
will be much clearer than at present, and clear timelines will be set out.
Consultation with business/industry demonstrates a high level of support for,
and understanding of, the proposed changes. What is the impact on business, including small business, and how will
compliance and paper burden costs be minimised?
The Bill implements relevant commitments to streamline government processes
contained in the Government statement More Time for Business. In
particular, the mutual recognition and accreditation procedures established by
the IGAE are further developed and accelerated.
Continuing compliance costs will be negative (ie the changes are beneficial)
due to the increased certainty and efficiency of the environmental assessment
and approvals process, as outlined above.
There is likely to be some one-off compliance cost for business and
conservation non-government organisations in adjusting to the new regulatory
regime initiated by this Bill. It will be necessary for organisations to
familiarise themselves with the new provisions and their implication ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION BILL 1998 NOTES ON CLAUSES
Chapter 1 - Preliminary Part 1 - Preliminary Clause 1 - Short title
1 This clause provides for the Act to be cited as the Environment Protection
and Biodiversity Conservation Act 1998. Clause 2 - Commencement
2 This clause provides that the Act will commence on a day to be fixed by
proclamation, but not more than six months after receiving Royal Assent Clause 3 - Object
3 This clause sets out the object of the Act. Clause 4 - Act to bind Crown
4 This clause provides that the Act shall bind the Crown in each of its
capacities. The Crown is not liable to be prosecuted for an offence. Clause 5 - Application of the Act
5 Except where the contrary intention appears, the Act applies only to acts,
omissions, matters and things within the Australian jurisdiction (defined in
subclause 5(5)). In the Australian jurisdiction, the Act applies to everyone.
Where the Act applies outside the Australian jurisdiction, it applies only to
Australian citizens and certain other persons domiciled in Australia,
Australian corporations, Australian aircraft, Australian vessels, Commonwealth
agencies and the Commonwealth. Clause 6 - Act to have effect subject to Australia's international
obligations
6 This clause provides that the Act has effect subject to Australia's
international obligations. Clause 7 - Application of the criminal code
7 This clause provides that Chapter 2 of the Criminal Code applies to all
offences against the Act. Clause 8 - Native title rights not affected
8 This clause provides that the Act does not affect the operation of section
211 of the Native Title Act 1993, which provides that holders of native
title rights covering certain activities do not need authorisation required by
other laws (including this Act) to engage in those activities. Clause 9 - Relationship with other Acts
9 The Act does not affect the operation of the Airports Act 1996. In
particular, it is intended to operate concurrently with the scheme for
environmental regulation established under that Act and the regulations under
that Act.
10 To avoid doubt, subclause 9(2) preserves the operation of subsection 7(1) of
the Antarctic Treaty (Environment Protection Act) 1980. This is
intended to ensure that persons do not need approval or a permit under this Act
for actions authorised by a permit or authority granted by another party to the
Antarctic Treaty (except as provided for in regulations under the Antarctic
Treaty (Environment Protection Act) 1980).
11 Clause 9 also provides that making a decision or giving an approval under
this Act shall not trigger section 30 of the Australian Heritage Commission
Act 1975. Clause 10 - Relationship with State law
12 Except where a contrary intention appears, the Act is not intended to
exclude or limit the operation of any State or Territory law providing for the
protection of the environment. The scheme established by this Act is intended
to complement State and Territory environment laws and, through bilateral
agreements and other means, provide for the integration of Commonwealth and
State regimes. Chapter 2 - Protecting the environment Part 2 - Simplified outline of this Chapter Clause 11 Simplified outline of this Chapter
13 This clause gives a simplified outline of the chapter. Part 3 - Requirements for environmental approvals Division 1
14 This Division applies to an action that has, will have, or is likely to have
a significant impact on one or more of the matters of national environmental
significance. The matters of national environmental significance are:
_ world heritage properties;
_ Ramsar wetlands of international importance;
_ nationally threatened species and communities,
_ migratory species protected under international agreements;
_ nuclear actions;
_ the Commonwealth marine environment (generally outside 3 nautical miles from
the coast); and
_ any additional matters specified by regulation (any such matters can only be
added after consultation with the States).
15 Actions which have, may have or are likely to have a relevant impact on a
matter of national environmental significance may be taken only:
_ in accordance with a bilateral agreement (which may accredit a State approval
process) or a declaration (which may accredit another Commonwealth approval
process); or
_ with the approval of the Minister under Part 9 of the Act; or
_ in some cases, in accordance with a conservation agreement.
16 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and forestry
operations covered by the Regional Forest Agreements process do not need
approval.
17 The Minister may also exempt specific actions on the basis of the national
interest.
18 If the Minister provides advice that an action does not require approval, a
person will not contravene the Act if the action is taken in accordance with
that advice.
19 For actions requiring approval, the environmental assessment and approval
process is set out in Chapter 4.
20 If a person takes an action that requires approval without obtaining that
approval, the person is liable to pay a civil penalty. Subdivision A - World Heritage Clause 12 - Requirement for approval of activities with a significant impact
on a declared World Heritage property
21 This clause provides that a person must not take an action that has, will
have, or is likely to have a significant impact on the world heritage values of
a declared World Heritage property except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
22 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and certain forestry
operations covered by the Regional Forest Agreements process do not need
approval.
23 Not all actions impacting on a world heritage property will have, or are
likely to have, a significant impact on the world heritage values
of that property. This clause therefore does not regulate all actions
affecting a world heritage property. In order to discharge Australia's
responsibilities under the World Heritage Convention, this clause regulates
those activities that will, or are likely to, have a significant impact on the
values which give the property its world heritage status.
24 The Minister will issue administrative guidelines to provide guidance on
determining whether an action has, will have or is likely to have a significant
impact on the world heritage values of a world heritage property. These
guidelines will also identify relevant bilateral agreements (including
accredited State approval processes) and relevant declarations (including
accredited Commonwealth processes), compliance with which will obviate the need
for approval.
25 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para
12(2)(c)). The Minister must provide advice within twenty days of receiving
the referral (clause 75).
26 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate. Clause 13
27 This clause stipulates that a property is a declared World Heritage property
if:
_ it is included in the World Heritage List under the World Heritage
Convention; or
_ it is specified in a declaration made by the Minister under clause 14. Clause 14
28 The Minister may declare a specified property to be a declared world
heritage property if:
_ the Commonwealth has nominated the property for listing under the World
Heritage Convention; or
_ the Minister is satisfied that the property has, or is likely to have, world
heritage values and some or all of the values are under threat.
29 The appropriate Minister of the relevant State or Territory must be
consulted before a declaration is made, except where the threat to a property
is imminent.
30 The Minister must specify a period for which the decision is to be in force.
The period must not be longer than the Minister believes:
_ the World Heritage committee needs to decide whether to include a nominated
property in the List; or
_ the Commonwealth needs to decide whether the property has world heritage
values and whether to nominate the property.
31 The period of a declaration is limited in this way to ensure the Act does
not apply to properties which are not of world heritage value or which the
Commonwealth is not genuinely assessing for possible nomination. Prior to
nomination, declarations would only be used as a mechanism of last resort and
only then to deal with significant threats to some or all of the world heritage
values of a property.
32 In particular, the purpose of clauses 13 and 14 is to ensure the
Commonwealth can discharge Australia's obligations under the World Heritage
Convention by providing for the identification and protection of a property
which has world heritage values but which is not yet listed.
33 A property may be nominated for listing under the World Heritage Convention
only if the Commonwealth has sought to reach agreement with the owner or
occupier of an area that is part of the property and the relevant State or
Territory (clause 314). Clause 15 - Amending or revoking a declaration of a declared World Heritage
property
34 This clause specifies circumstances under which the Minister must revoke or
amend a declaration under clause 14. A declaration must be revoked or amended
so that it does not specify a property that is withdrawn from a nomination or,
in relation to properties that have not been nominated at the time of the
declaration, which the Commonwealth has decided not to nominate or which the
Minister believes either does not have world heritage values or those values
are not under threat. Clause 16 - Requirement for approval of activities with a significant impact
on a declared Ramsar wetland
35 This clause provides that a person must not take an action that has, will
have, or is likely to have a significant impact on the ecological character of
a declared Ramsar wetland except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
36 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and certain forestry
operations covered by the Regional Forest Agreements process do not need
approval.
37 Not all actions impacting on a Ramsar wetland will have, or are likely to
have, a significant impact on the ecological character of that
wetland. This clause therefore does not regulate all actions affecting a
Ramsar wetland. In order to discharge Australia's responsibilities under the
Ramsar Convention, this clause regulates those activities that will, or are
likely to, have a significant impact on the ecological character of a wetland -
that is, those values of the wetland that make it a wetland of international
importance.
38 The Minister will issue administrative guidelines to provide guidance on
determining whether an action has, will have or is likely to have a significant
impact on the ecological character of a Ramsar wetland. These guidelines will
also identify relevant bilateral agreements (including accredited State
approval processes) and relevant declarations (including accredited
Commonwealth processes), compliance with which will obviate the need for
approval.
39 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para
12(2)c). The Minister must provide advice within twenty days of receiving the
referral (clause 75).
40 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate. Clause 17 - What is a declared Ramsar wetland?
41 This clause stipulates that a wetland, or part of a wetland, is a declared
Ramsar wetland if it is either:
_ designated by the Commonwealth under Article 2 of the Ramsar Convention and
not excluded or delete in accordance with the Convention; or
_ declared by the Minister to be a declared Ramsar wetland.
42 A wetland may be declared to be a declared Ramsar wetland prior to
designation under the Convention only if the Minister is satisfied that the
wetland is, or is likely to be, of international significance and the
ecological character of the wetland is under threat.
43 The purpose of allowing the Minister to declare a wetland (or part of a
wetland) to be a declared Ramsar wetland is to ensure that the Commonwealth can
discharge Australia's obligations under the Convention in relation to wetlands
that are, or are likely to be, of international importance but which have not
yet been designated under Article 2 of the Ramsar Convention. The clause
provides that declarations must be for a specified period no longer than the
Minister believes will be required to evaluate the wetland's international
importance and, if appropriate, designate the wetland under Article 2 of the
Ramsar Convention.
44 The Minister must revoke a declaration if satisfied that the wetland is not
of international importance or if it is no longer under threat.
45 A wetland may be designated under the Ramsar Convention only if the
Commonwealth has sought to reach agreement with the owner or occupier of an
area that is part of the wetland and the relevant State or Territory (clause
326). Subdivision C - Listed threatened species and communities Clauses 18 and 19
46 This clause provides that a person must not take an action that has, will
have, or is likely to have a significant impact on a nationally threatened
species or ecological community except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
47 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and forestry
operations covered by the Regional Forest Agreements process do not need
approval.
48 For the purposes of these clauses a nationally threatened species or
nationally threatened ecological community is a species or community listed
under this Act in any of the following categories:
_ species that are extinct in the wild; or
_ critically endangered species; or
_ endangered species; or
_ vulnerable species; or
_ critically endangered ecological communities; or
_ endangered ecological communities.
49 Not all actions affecting a nationally threatened species or community will
have, or are likely to have, a significant impact on that species or
community. For example, approval will not be required for some actions which,
if carried out on Commonwealth land, would require a permit under Chapter 5 of
this Act - injury or death to one member of a species will, except in the case
of the most endangered species, not have a significant impact on the species.
This clause therefore does not regulate all actions affecting members of a
species or community. In order to discharge Australia's international
responsibilities, including obligations under the Convention on Biological
Diversity, this clause regulates those activities that will, or are likely to,
have a significant impact on nationally threatened species or
communities.
50 The Minister will issue administrative guidelines to provide guidance on
determining whether an action has, will have or is likely to have a significant
impact on a nationally threatened species or community. These guidelines will
reflect the fact that, in determining whether an action will have a significant
impact on a species or community, it is necessary to have regard to factors
such as: the extent to which the action damages or modifies habitat for the
species or community (particularly critical habitat identified in a recovery
plan), the extent to which the action will result in injury or death to members
of the species or community or will interfere with essential behavioural
characteristics (such as breeding and feeding), the effect on important
populations of the species or community, the impact on the geographic
distribution of the species or community, and so on. The guidelines will also
identify relevant bilateral agreements (including accredited State approval
processes) and relevant declarations (including accredited Commonwealth
processes), compliance with which will obviate the need for approval.
51 In determining whether an action will have a significant impact on a species
or community it is necessary to take into account the environment in which the
action is to be taken, including other threats or pressures on the species.
However, an action carried out by an individual which is not likely to have a
significant impact on a threatened species or community will not require
approval , even if the overall impact of a large number of individuals
independently carrying out actions of the same kind may have a significant
impact on the species or community. The cumulative impact of independent
actions by different persons, all of which are below the significant impact
threshold, are primarily to be addressed through State planning and land
management legislation, and recovery plans. Such actions will not require
approval under this Act (although they may be addressed in bilateral
agreements).
52 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para
12(2)c). The Minister must provide advice within twenty days of receiving the
referral (clause 75).
53 Clause 19 ensures that an action for which approval has been granted does
not require another approval if the species or community is subsequently listed
in a new category.
54 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate.
55 The procedures and requirements for listing native species and ecological
communities are set out in Chapter 5, Part 13, Division 1. Subdivision D - Migratory species Clause 20 -Requirement for approval of activities with a significant
impact on a listed migratory species
56 This clause provides that a person must not take an action that has, will
have, or is likely to have a significant impact on a listed migratory
except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
57 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and forestry
operations covered by the Regional Forest Agreements process do not need
approval.
58 A listed migratory species is a species listed under one of the following
Conventions:
_ the Bonn Convention; or
_ JAMBA; or
_ CAMBA; or
_ an international agreement dealing with the conservation of migratory species
approved by the Minister under Chapter 5.
59 Not all actions affecting a migratory species will have, or are likely to
have, a significant impact on that species. For example, approval will
not be required for some actions which, if carried out on Commonwealth land,
would require a permit under Chapter 5 of this Act - injury or death to one
member of a species is unlikely to have a significant impact on the species.
This clause therefore does not regulate all actions affecting members of a
species. In order to discharge Australia's international responsibilities in
relation to migratory species, this clause regulates those activities that
will, or are likely to, have a significant impact on a listed migratory
species.
60 The Minister will issue administrative guidelines to provide guidance on
determining whether an action has, will have or is likely to have a significant
impact on a listed migratory species. These guidelines will reflect the fact
that, in determining whether an action will have a significant impact on a
species, it is necessary to have regard to factors such as: the extent to which
the action damages or modifies habitat for the species or community, the extent
to which the action will result in injury or death to members of the species or
community or will interfere with essential behavioural characteristics (such as
breeding and feeding), the extent to which the action alters the migratory
route, the effect on important populations of the species or community, the
impact on the geographic distribution of the species or community.. The
guidelines will also identify relevant bilateral agreements (including
accredited State approval processes) and relevant declarations (including
accredited Commonwealth processes), compliance with which will obviate the need
for approval.
61 In determining whether an action will have a significant impact on a species
it is necessary to take into account the environment in which the action is to
be taken, including other threats or pressures on the species. However, an
action carried out by an individual which is not likely to have a significant
impact on a listed migratory species will not require approval, even if the
overall impact of a large number of individuals independently carrying out
actions of the same kind may have a significant impact on the species. The
cumulative impact of independent actions by different persons, all of which are
below the significant impact threshold, are primarily to be addressed through
State planning and land management legislation, and recovery plans. Such
actions will not require approval under this Act (although they may be
addressed in bilateral agreements).
62 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para
12(2)c). The Minister must provide advice within twenty days of receiving the
referral (clause 75).
63 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate.
64 The procedures and requirements for listing migratory species are set out in
Chapter 5, Part 13, Division 2, Subdivision A. Subdivision E - Protection of the environment from nuclear actions Clause 21 - Requirements for approval of nuclear actions
65 This clause provides that a constitutional corporation, the Commonwealth or
a Commonwealth agency must not take a nuclear action that has, will have, or is
likely to have a significant impact on the environment except:
_ where approval has been obtained from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process).
66 The clause also provides that a person must not take a nuclear action for
the purposes of interstate or overseas trade or commerce or in a Territory if
that action has, will have, or is likely to have a significant impact on the
environment except in the circumstances identified in the paragraph above.
66 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para
12(2)c). The Minister must provide advice within twenty days of receiving the
referral (clause 75).
67 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate. Clause 22 - What is a nuclear action?
68 This clause defines nuclear actions.
69 Nuclear actions include mining or milling uranium ore. To avoid any doubt,
this does not include operations for the recovery of mineral sands or rare
earths.
70 "Establishing or significantly modifying a large scale disposal facility for
radioactive waste" is also a nuclear action. It is intended that a judgement
about whether a disposal facility is large scale will be based on factors
including: the activity of radioisotopes to be disposed of, the half life of
the material, the form of the radioisotopes, and the quantity of isotopes
handled.
71 For example, a National Radioactive Waste Repository would be considered to
be a large scale disposal facility. Conversely, radioactive waste disposal
facilities operated by hospitals would not be large scale disposal
facilities.
72 Regulations can be made to define 'large scale disposal facility' for
radioactive wastes. Subdivision F - Marine environment Clause 23 - Requirement for approval of activities with a significant impact
on the Commonwealth marine environment
73 This clause provides that a person must not:
_ take an action in a Commonwealth marine area that has, will have, or is
likely to have a significant impact on the environment; or
_ take an action outside a Commonwealth marine area (including in the coastal
waters of a State or the Northern Territory) that has, will have, or is likely
to have a significant impact on the environment in a Commonwealth marine area;
or
_ take an action that is fishing in a fishery managed by the Commonwealth under
the Fisheries Management Act 1991 in the coastal waters of a State or
the Northern Territory that has, will have, or is likely to have a significant
impact on the environment in those coastal waters;
except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
74 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, do not need approval.
75 This clause does not apply to actions by the Commonwealth or a Commonwealth
agency - relevant actions by the Commonwealth or a Commonwealth agency will
require approval under clause 28.
76 Not all actions in the Commonwealth marine area will have, or are likely to
have, a significant impact on the environment. This clause therefore
does not regulate all actions in the Commonwealth marine area.
77 The Minister will issue administrative guidelines to provide guidance on
determining whether an action has, will have or is likely to have a significant
impact on the environment. Guidelines will also be issued to assist in
determining whether an action outside a Commonwealth marine area has, will have
or is likely to have a significant impact on the environment in a Commonwealth
marine area. These guidelines will also identify relevant bilateral agreements
(including accredited State approval processes) and relevant declarations
(including accredited Commonwealth processes such as fisheries management
plans), compliance with which will obviate the need for approval.
78 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para
12(2)c). The Minister must provide advice within twenty days of receiving the
referral (clause 75).
79 In determining whether an action will have a significant impact on the
marine environment it is necessary to take into account the environment in
which the action is to be taken, including other threats or pressures to that
aspect of the marine environment. However, an action carried out by an
individual which is not likely to have a significant impact on the environment
protected by this clause will not require approval, even if the overall impact
of a large number of individuals independently carrying out actions of the same
kind may have a significant impact on the relevant environment. The cumulative
impact of independent actions by different persons, all of which are below the
significant impact threshold, are not addressed by this clause (although they
may be addressed in bilateral agreements).
80 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate. Clause 24 - What is a Commonwealth marine area?
81 This clause defines the Commonwealth marine area. Subdivision G - Additional matters of national environmental
significance Clause 25 - Requirement for approval of prescribed actions
82 This clause provides that actions, representing additional matters of
national environmental significance, can be specified in regulations.
83 A person must not take an action that is specified in the regulations
except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
84 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and forestry
operations covered by the Regional Forest Agreements process will not need
approval under this clause.
85 If it is unclear whether an action requires approval under this clause, the
person proposing to take the action can refer the action to the Minister for a
decision on whether approval is required (clause 68). If the Minister provides
advice that an action does not require approval (clause 75), a person will not
contravene this clause if the action is taken in accordance with that advice
(para. 12(2)(c)). The Minister must provide advice within twenty days of
receiving the referral (clause 75).
86 This clause provides for a civil penalty of up to 5,000 penalty units for an
individual or up to 50,000 penalty units for a body corporate.
87 The clause recognises that regulations could be made for the purposes of
this clause only after close consultation with all States and Territories and
only after they have been given a reasonable opportunity to comment. The
regulations must not be inconsistent with Australia's international
obligations. Division 2 - Protection of the environment from proposals involving the
Commonwealth Subdivision A - Protection for environment of Commonwealth land Clause 26 - Requirement for approval of activities with a significant impact
on the environment on Commonwealth land
88 This clause provides that a person must not:
_ take an action on Commonwealth land that has, will have, or is likely to have
a significant impact on the environment; or
_ take an action outside Commonwealth land that has, will have, or is likely to
have a significant impact on the environment on Commonwealth land;
except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
89 This clause does not apply to actions by the Commonwealth or a Commonwealth
agency - relevant actions by the Commonwealth or a Commonwealth agency will
require approval under clause 28.
90 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and forestry
operations covered by the Regional Forest Agreements process do not need
approval.
91 The Minister may also exempt certain actions on the basis of Australia's
defence or security interests or in the case of a national emergency.
92 If it is unclear whether an action requires approval, the person proposing
to take the action can refer the action to the Minister for a decision on
whether approval is required (clause 68). If the Minister provides advice that
an action does not require approval (clause 75), a person will not contravene
this clause if the action is taken in accordance with that advice (para.
12(2)(c)). The Minister must provide advice within twenty days of receiving
the referral (clause 75).
93 This clause provides for a penalty of up to 1,000 penalty units for an
individual or up to 10,000 penalty units for a body corporate. Clause 27 - What is Commonwealth land?
94 This clause defines Commonwealth land. Subdivision B - Protection of the environment from Commonwealth activities
and decisions Clause 28 - Requirement for approval of activities of Commonwealth agencies
significantly affecting the environment
95 This clause provides that the Commonwealth or a Commonwealth agency must not
take an action that has, will have, or is likely to have a significant impact
on the environment (inside or outside the Australian jurisdiction) except:
_ where a person has obtained approval from the Minister for the taking of the
action for the purposes of this clause; or
_ where a bilateral agreement provides that the action does not require
approval (for example, because it is to be taken in accordance with an
accredited State approval process); or
_ where a declaration provides that the action does not require approval (for
example, because it is to be taken in accordance with an accredited
Commonwealth approval process); or
_ where a conservation agreement provides that the action does not require
approval.
96 The Minister may also exempt certain actions on the basis of Australia's
defence or security interests or in the case of a national emergency. An
exemption may also be given in relation to operations of a Commonwealth agency
when the agency is bound to comply with a corresponding State or Territory law
dealing with environment protection in undertaking those operations (for
example, relevant operations of Telstra).
97 In addition, actions taken in accordance with the Great Barrier Reef
Marine Park Act 1975, or instruments under that Act, and certain forestry
operations covered by the Regional Forest Agreements process do not need
approval.
98 The definition of 'action' ensures that this clause applies only in
circumstances where the Commonwealth is the proponent - for example, when the
Commonwealth or a Commonwealth agency is undertaking a project or a
development. It does not, for example, apply to Commonwealth decisions (such
as a decision to approve an action), the provision of funding by the
Commonwealth or the entering into an agreement by the Commonwealth. Part 4 - Cases in which environmental approvals are not needed Division 1 - Actions covered by bilateral agreements Clause 29 - Actions declared by agreement not to need approval
99 This clause provides that an action may be taken without approval under Part
9 for the purposes of one or more provisions in Part 3 if the action is one of
a class of actions declared by a bilateral agreement not to require approval
under that provision (or those provisions, as the case may be).
100 The bilateral agreements mechanism is an integral feature of the Act. It
is through bilateral agreements that the Commonwealth intends to accredit State
assessment processes and, in some cases, State approval decisions provided
appropriate standards and criteria are met.
101 Bilateral agreements are dealt with in Chapter 3. Clause 30 - Extended operation in State and Northern Territory waters
102 This clause extends the application of clause 29 to enable bilateral
agreements to cover actions taken in the coastal waters of the States and the
Northern Territory and, where relevant State or Territory laws apply, to
actions in the Commonwealth marine area. Clause 31 - Extended operation in non-self-governing Territories
103 This clause extends the application of 29 to enable bilateral agreements to
cover actions taken in Territories (which are not self-governing Territories),
where relevant State or Territory laws apply. For example, a bilateral
agreement may provide that approval is not required under a provision in Part 3
for an action on Christmas Island if approval is obtained in a specified manner
under a specified Western Australian law. Division 2 - Actions covered by Ministerial declarations Clause 32 - Actions declared by Minister not to need approval
104 This clause provides that an action may be taken without approval under
Part 9 for the purposes of one or more provisions in Part 3 if the action is
one of a class of actions declared by the Minister not to require approval
under that provision (or those provisions, as the case may be). Clause 33 - Making declarations
105 The Minister may declare that an action in a specified class of actions
does not require approval for the purposes of a provision, or provisions, in
Part 3 if it is approved in a specified manner by the Commonwealth or a
specified Commonwealth agency.
106 Before making a declaration, the Minister must be satisfied that the
Commonwealth or the Commonwealth agency, in deciding whether to approve an
action, will consider the impacts it has, will have or is likely to have on the
aspects of the environment protected by the relevant provision or provisions
(subclause 33(2)).
107 The clause lists a number of ways in which a declaration may specify a
manner of approving the taking of an action. This list is illustrative and is
not exhaustive. Clause 34 - What is matter protected by a provision of Part 3?
108 This clause lists the aspects of the environment protected by each
provision in Part 3 of the Act and defines them as the matter protected
by the relevant provision. This definition, combined with the definition of
'relevant aspects of the environment' is used throughout the Act to ensure that
any Commonwealth assessment is limited to examining impacts on these matters.
Commonwealth approval decisions are, in taking into account environmental
factors, similarly limited to these matters. Clause 35 - Revoking declarations
109 This clause empowers the Minister to revoke declarations made under clause
33. However, the Act will continue to apply to an action which has been
approved by the Commonwealth or a Commonwealth agency in accordance with a
declaration before the declaration was revoked as if the revocation had not
occurred. Clause 36 - Other rules for declarations
110 This clause provides that in revoking declarations the Minister must not
give preference in the sense of clause 99 of the Constitution. Division 3 - Actions covered by conservation agreements Clause 37 - Actions specified as not needing approval
111 This clause provides that an action which is specified in a conservation
agreement as not needing approval for the purposes of a provision, or
provisions, of Part 3 does not require approval for the purposes of that
provision or those provisions. Conservation agreements are described in Part
17. Division 4 - Forestry operations in certain regions Clause 38 - Approval not needed for forestry operations permitted by
regional forestry agreements
112 RFA forestry operations that are undertaken in accordance with a regional
forest agreement do not require approval for the purposes of any provision in
Part 3. Clause 39 - Object of this Subdivision
113 The object of this subdivision recognises that in each RFA region a
comprehensive assessment is being, or has been, undertaken to address the
environmental, economic and social impacts of forestry operations. In
particular, environmental assessments are being conducted in accordance with
the Environment Protection (Impact of Proposals) Act 1974. In each
region, interim arrangements for the protection and management of forests are
in place pending finalisation of an RFA. The objectives of the RFA scheme as a
whole include the establishment of a comprehensive, adequate and representative
reserve system and the implementation of ecologically sustainable forest
management. These objectives are being pursued in relation to each region.
The objects of this Act will be met through the RFA process for each region
and, accordingly, the Act does not apply to forestry operations in RFA regions.
Clause 40 - Forestry operations in regions not yet covered by regional
forestry agreements
114 Subclause 40(1) provides that forestry operations in an RFA region for
which there is no regional forestry agreement in force do not require approval
for the purposes of any provision in Part 3.
115 Subclause 40(1) does not apply in relation to a RFA region that is the
subject of a declaration made under subclause 40(4). Government policy is to
complete an RFA for each RFA region by 1 January 2000. Subclause 40(4)
provides the Government with the capacity to ensure the Act applies after 1
January 2000 to any region where the RFA process has not been completed in
accordance with government policy or where satisfactory progress is not being
made. It is not intended that a declaration will be made before 1 January
2000, unless (for example) the RFA process ceases to apply in relation to a
region and it is necessary to make a declaration to ensure no preference is
given to that region. Clause 41 - What is an RFA region?
116 This clause provides a definition for each RFA region. Regulations can
amend the definition of RFA regions. Subdivision C - Limits on application Clause 42 - This division does not apply to some forestry operations
117 This division does not apply to forestry operations:
* in a property included in the World Heritage List; or
* in a wetland designated under Article 2 of the Ramsar Convention.
118 In addition, the division does not apply to forestry operations that are
incidental to another action the primary purpose of which does not relate to
forestry. For example, the division does not obviate the need for approval for
clearing activity (even if such activity falls within the definition of a
'forestry operation') which is incidental to the construction of a residential
subdivision (the primary purpose of the subdivision does not relate to
forestry). Approval would only be required for the clearing activity if it was
likely to have a significant impact on a matter of national environmental
significance - see Part 3. Division 5 - Actions in the Great Barrier Reef Marine Park Clause 43 - Actions taken in accordance with permission
119 This clause provides that actions relevantly authorised under the Great
Barrier Marine Park Act 1975 do not require approval. Chapter 3 - Bilateral agreements Part 5 - Bilateral agreements Division 1 - Object of Part Clause 44 - Object of this Part
120 This clause sets out the object of this Part. Division 2 - Making bilateral agreements Subdivision A - Power to make bilateral agreements Clause 45 - Minister may make agreements
121 The Minister may enter into a bilateral agreement with a State or a
self-governing Territory about one or more of the matters identified in clause
45. Bilateral agreements may detail the Commonwealth accreditation of, for
example, State assessment processes, State decision-making processes and
management plans prepared under State legislation. A bilateral agreement may
also identify other measures that a State or the Commonwealth agrees to
implement to protect the environment and promote the conservation and
sustainable use of natural resources. Clause 46 - Agreement may declare actions do not need approval under Part
9
122 A bilateral agreement may declare that actions in a specified class of
actions do not require approval for the purposes of one or more provisions in
Part 3 if:
_ the taking of the action is approved by a State or Territory (or agency
thereof) in a specified manner - for example, after assessment in accordance
with specified State legislation and after applying certain criteria when
deciding whether to grant approval; or
_ the taking of the action is approved by the Commonwealth or a Commonwealth
agency in a specified manner- for example, after considering an assessment
conducted under specified State legislation and reaching agreement with the
State on whether approval should be granted; or
_ the action is taken in a specified manner - for example, in accordance with a
management plan agreed by the State and the Commonwealth.
123 If a bilateral agreement declares that actions in a class of actions do not
need approval under Part 9 for the purposes of one or more provisions in Part
3, then a person does not need approval under those provisions to take an
action in that class. The Commonwealth is, in effect, agreeing to rely upon an
accredited approval process.
124 A bilateral agreement may only declare that a class of actions does not
need approval if the Minister is satisfied that the person giving approval will
take relevant impacts into account in deciding whether to grant approval. The
impacts that must be taken into account relate to the matters protected by the
provisions for which approval will not be required.
125 A bilateral agreement may declare that actions taken in a specified manner
do not need approval by the Commonwealth or a State only if the Minister is
satisfied that taking the action in the specified manner will reduce to
acceptable levels the impacts on any matter protected by the provisions for
which approval will not be required. Clause 47 - Agreement may declare classes of action do not require
assessment
126 A bilateral agreement can declare that actions in a specified class do not
require assessment under Part 8 of this Act if they are assessed in a specified
manner. The Commonwealth may, accordingly, accredit and rely upon State
assessment processes instead of requiring assessment under this Act.
127 A specified manner of assessment can be accredited under a bilateral
agreement for a class of actions only if the Minister is satisfied that the
assessment will cover all impacts of the actions on each matter protected by a
provision in Part 3.
128 The bilateral agreement must provide for the Minister to receive an
assessment report if the action being assessed under the accredited process
will require approval by the Minister under Part 9. The report must contain
enough information to allow the Minister to make an informed decision. Clause 48 - Other provisions of bilateral agreements
129 This clause lists some matters for which provision may be made in bilateral
agreements. This list is not exhaustive. Clause 49 - Express provision needed to affect Commonwealth areas or
actions
130 A bilateral agreement will not apply to actions in Commonwealth areas or
actions by the Commonwealth or a Commonwealth agency unless an express
provision is included to that effect. Subdivision B Prerequisites for making bilateral agreements Clause 50 - Minister may only enter into agreement if prescribed criteria
are met
131 The Minister may enter into a bilateral agreement only if it accords with
the objects of the Act and if it accords with any requirements prescribed by
the regulations. The regulations may identify criteria and standards - either
generally or in relation to specific matters of national environmental
significance - that must be met before an assessment or an approval process can
be accredited under a bilateral agreement. Clauses 51 to 56
132 These clauses set out the matters on which the Minister must be satisfied
before entering into a bilateral agreement. The intention of these clauses is
to ensure that accreditation of State assessment and approval processes
promotes the objects of the Act, including the protection of world heritage
properties, Ramsar wetlands, nationally threatened species, migratory species
and the Commonwealth marine environment. The Minister may not enter into
bilateral agreements which will provide an inadequate level of protection for
these matters of national environmental significance. Division 3 Ending and suspending the effect of bilateral agreements Subdivision A Cancellation and suspension of effect Clauses 57 to 63
133 These clauses empower the Minister to cancel or suspend all or part of a
bilateral agreement either generally or in relation to actions in a specified
class.
134 The Minister may cancel or suspend all or part of a bilateral agreement if
he or she is satisfied that the relevant State or Territory:
_ has not complied or will not comply with the agreement, or
_ has not given or will not give effect to the agreement in a manner consistent
with the objects of the Act and that promotes the discharge of Australia's
relevant international obligations.
135 These clauses also provide for the emergency suspension of a bilateral
agreement, set out certain consultation and notice requirements and provide for
the revocation of a suspension or cancellation.
A person with standing to seek an injunction may refer an alleged contravention
of a bilateral agreement to the Minister. The Minister must decide whether the
bilateral agreement has been contravened and, if so, decide what action, if
any, is necessary.
136 The Minister may cancel or suspend a bilateral agreement if requested by
the other party to the bilateral agreement. Clause 64 - Cancellation or suspension of bilateral agreement does not
affect certain actions
137 If, at the time of the suspension or cancellation of a bilateral agreement,
an action did not require approval under Part 9 because:
_ it had been approved in accordance with the bilateral agreement; or
_ it was being taken in the manner specified in the bilateral agreement;
then the Act continues to operate in relation to that action as if the
suspension or cancellation had not occurred.
Subdivision B Expiry of bilateral agreements Clause 65 - Expiry and review of bilateral agreements
138 The term of a bilateral agreement may not exceed five years, and must be
subject to a review of their operation. Chapter4 - Environmental Assessment and Approvals Part 6 - Simplified outline of this Chapter Clause 66 - Simplified outline of this Chapter
139 This clause provides a simplified outline of Chapter 4 (environmental
assessments and approvals) Part 7 - Deciding whether approval of actions is needed Division 1 - Referral of proposals to take action Clause 67 What is a controlled action
140 Controlled actions are actions described in Part 3 which require the
Minister's approval under Part 9. Accordingly, an action which does not
require approval under Part 9 because of the operation of a bilateral agreement
is not a controlled action. Clause 68 - Person proposing to take action may refer proposal to
Minister
141 A person (including a Commonwealth agency, a State or an agency of a State)
who proposes to take an action which the person believes is a controlled action
must refer it to the Minister for decision on whether that action requires
approval. The person may also refer an action for a decision if the person
believes it is not a controlled action. Clause 69 State or Territory may refer proposal to Minister
142 This clause provides that if a State, a self-governing Territory or an
agency of either becomes aware of a proposed action for which it has
administrative responsibility, it may refer the proposed action to the
Environment Minister for a decision on whether the proposed action requires
approval. This is intended to facilitate arrangements whereby States can refer
actions on behalf of proponents. Clause 70 - Minister may request referral of proposal
143 The Minister may ask for a proposed action to be referred if he or she
believes approval is required. Clause 71 - Commonwealth agency may refer proposal to Minister
144 A Commonwealth agency may refer a proposed action to the Minister. Clause 72 - Form and content of referrals
145 Regulations must be made prescribing the form and content of referrals. Clause 73 - Notifying person proposing to take action of referral
146 If a proposal by a person to take an action is referred to the Minister by
a State or Territory (or an agency thereof) or a Commonwealth agency, the
Minister must inform the person of the referral. Clause 74 - Inviting provision of information on referred proposal
147 After receiving a referral, the Environment Minister must invite:
_ Commonwealth Ministers with administrative responsibilities relating to the
proposed action to provide relevant information; and
_ if the action relates to a matter of national environmental significance, the
appropriate State or Territory Minister to comment on whether the action
requires approval; and
_ the person proposing to take the action to provide relevant information (if
that person did not refer the action).
148 If the person referring the proposed action considers it to be a controlled
action, the Environment Minister need not invite information or comments from
State, Territory or other Commonwealth Ministers. The intent of this provision
is to allow the person proposing to take the action to streamline the process
by avoiding certain consultations. Division 2 - Ministerial decision whether action needs approval Clause 75 - Does the proposed action need approval?
149 The Environment Minister must decide whether an action that has been
referred is a controlled action and, if so, which provisions of Part 3 are
controlling provisions - that is, under which provisions is approval required.
150 A proponent must be designated in relation to a controlled action. A
proponent may be a person other than the person proposing to take the action
only if both persons agree.
151 If the person who proposes to take the action referred it and indicated
that he or she thought it was a controlled action, the Environment Minister
must decide whether it is a controlled action and designate a proponent within
ten business days. In other cases, the Environment Minister must decide
whether it is a controlled action and designate a proponent within twenty
business days.
152 The time for making the decision may be extended only:
_ with the agreement of the person proposing to take the action; or
_ if the Minister believes on reasonable grounds that the referral does not
contain enough information.
153 In deciding whether an action is a controlled action - whether it has a
significant impact on any of the matters protected by the provisions of Part 3
- the Minister must consider any adverse impacts but not beneficial impacts.
The intent of this provision is to ensure that an action which has only
beneficial impacts on a matter protected by any of the provisions of Part 3 is
not a controlled action. Clause 76 - Minister may request more information for making decision
154 If the Minister believes on reasonable grounds that a referral does not
contain enough information to make a decision under clause 75, he or she may
request additional specified information. Clause 77 - Notice and reasons for decision
155 The Minister must give written notice of a decision under clause 75 and, if
requested, a statement of reasons. Reasons are not required when the person
proposing to take the action referred it to the Minister and indicated he or
she believed it was a controlled action.
156 If the Minister decides that the action is not a controlled action in
relation to one or more provisions in Part 3 because it will be taken in a
particular manner, the notice must identify the manner of taking the action.
This applies even if the action is not being taken in accordance with a
bilateral agreement or a declaration. Clause 78 - Reconsideration of decision
157 The Environment Minister may reconsider his or her decision under clause 75
only in strictly limited circumstances.
158 The Environment Minister may remake a decision under clause 75 only if:
_ substantial new information has become available or there has been a
substantial change in circumstances not foreseen at the time of the original
decision (these grounds will be satisfied only in exceptional
circumstances);
_ the Minister originally decided that the action was not a controlled action
because it was to be taken in a particular manner specified in the notice under
clause 77 and the Minister is now satisfied that the action is not being, or
will not be, taken in the particular manner; or
_ the Minister originally decided that the action was not a controlled action
because of provisions in a bilateral agreement or a declaration under clause 33
and the relevant provisions are no longer in effect (but see clause 64 and
subclause 35(2)); or
_ a State or Territory Minister requests that the first decision be
reconsidered under clause 79;
159 A decision may not be reconsidered after the action has been taken or after
the Minister has granted or refused approval for the taking of the action. Clause 79 Reconsideration of decision on request of a State or
Territory
160 The relevant State or Territory Minister may request the Environment
Minister to reconsider his or her decision under clause 75. This does not
apply if the person proposing to take the action referred the action and
indicated he or she thought it was a controlled action.
161 The relevant State or Territory Minister may make such a request within
five business days of receiving notice of the decision.
162 The Environment Minister must either confirm the original decision or make
a new decision within twenty business days. Part 8 - Assessing impacts of controlled actions Division 1 - Simplified outline of this Part Clause 80 Simplified outline of this part
163 This clause provides a simplified outline of Part 8 (assessing impacts of
controlled actions) Division 2 - Application of this Part Clause 81 Application
164 This clause provides that the provisions of Part 8 (assessing impacts of
controlled actions) apply to the assessment of the 'relevant impacts' of a
controlled action. Clause 82 Relevant impacts of an action
165 The relevant impacts of an action are the impacts that the action has, will
have, or is likely to have on the matters protected by each provision of Part 3
that is a controlled provision (ie, the provisions for which a approval is
required). The intention of this clause is to define the environmental impacts
for which the Commonwealth is responsible for assessing and taking into account
when deciding whether to give approval. In this way, Commonwealth involvement
in environmental matters is focussed on matters of national environmental
significance. The Commonwealth does not assess all impacts of an action
(unless asked to do so by a State - see, for example, subclause 97(3)). Clause 83 This Part does not apply to impacts to be assessed under bilateral
agreement
166 Subclause 83(1) provides that an action is not assessed under Part 8 if a
bilateral agreement declares that actions in a class of actions that includes
the action need not be assessed. Clause 84 - This Part does not apply if action is covered by a
declaration
167 This clause provides that the Minister may declare that actions in a
specified class of actions assessed by the Commonwealth or a Commonwealth
agency in a specified manner does not require assessment under this Part.
168 The clause also sets out some prerequisites for making a declaration. Division 3 - Decision on assessment approach Subdivision A - Simplified outline of this division Clause 85 - Simplified outline of this division
169 This clause provides a simplified outline of Division 3 (decision on
assessment approach) Subdivision B - Deciding on approach for assessment Clause 86 - Designated proponent must provide preliminary information for
assessment
170 Before the Minister decides on an assessment approach, the proponent or
designated proponent must give information to the Minister, the form and
content of which is prescribed in the regulations. Clause 87 - Minister must decide on approach for assessment
171 This clause provides that the Environment Minister must decide on an
approach for assessing the relevant impacts of a controlled action (where the
action is not being assessed under a bilateral agreement or a declaration).
172 The Minister can chose one of the following assessment approaches:
_ assessment by a specially accredited process
_ assessment on preliminary documentation (see Chapter 4, Part 8, Division
4)
_ assessment by public environment report (see Chapter 4, Part 8, Division
5)
_ assessment by environmental impact statement (see Chapter 4, Part 8, Division
6)
_ assessment by inquiry (see Chapter 4, Part 8, Division 7)
173 This clause sets out the information that must be considered by the
Minister in making his or her decision, including when consultation is required
with State or Territory Ministers.
174 The option of assessment by a specially accredited process ensures there
can be up-front accreditation of a State or Territory process or of another
Commonwealth process. It therefore provides for case-by-case accreditation of
State or Commonwealth processes for actions not covered by a bilateral
agreement or a declaration. Subclause 87(4) provides that an assessment can
only be made by a specially accredited process if the Minister is satisfied
that the process meets standards prescribed by the regulations, will assess all
relevant impacts, and will provide a report containing enough information to
allow the Minister to make an informed decision about whether to approve the
action.
175 The Minister may decide that the appropriate assessment approach is
assessment on preliminary documentation only if satisfied that sufficient
information has been provided to allow an informed decision about whether to
approve the taking of the controlled action to be made. Clause 88 - Timing on decision on assessment approach
176 The Minister must decide which assessment approach to use within 20
business days of deciding the action is a controlled action or of receiving
information under clause 271. The time for making this decision can be
extended only if:
_ the Minister selects a different approach to that suggested by a relevant
State or Territory Minister (see subclause 87(2)), - in which case 30 business
days are allowed for a decision; or
_ the Minister and the proponent agree on an extended period; or
_ the Minister requests more information under clause 89. Clause 89 Minister may request more information for making decision
177 The Minister may request further specified information from the designated
proponent if he or she believes on reasonable grounds that it is required in
order to make an informed decision about which assessment process to use. Clause 90 Directing an inquiry after trying another approach
178 The Minister may decide that the appropriate assessment approach is an
inquiry after considering a draft EIS or a draft PER. The Minister should only
decide to direct an inquiry under this clause in exceptional circumstances,
where the draft EIS or PER identifies significant potential impacts that were
not originally anticipated or the Minister decides that the action cannot be
adequately assessed except by an inquiry. Clause 91 Notice of decision of assessment approach
179 Within ten business days of deciding on an assessment approach, the
Minister must give written notice of the decision.
180 If the assessment is to be by a specially accredited process, the notice
must specify the process (see also clause 87) Division 4 - Assessment on preliminary documentation Clause 92 - Application
181 Division 4 outlines the assessment process to be followed for an assessment
on preliminary information. Clause 93 - Public comment on information included in referral
182 Within ten business days of deciding that the relevant impacts should be
subject to an assessment on preliminary information, the Minister may direct
the proponent to publish certain information and invite public comment. Clause 94 - Revised documentation
183 The proponent must revise the information already provided to the Minister
after taking into account the public comments received and provide the Minister
with revised information. If no public comments are received the proponent
must inform the Minister in writing. If the proponent believes that the
comments received do not warrant any changes or additions, then a statement to
that effect may be made.
184 The Minister may reject the revised information if he or she believes on
reasonable grounds it is inadequate for the purpose of making an informed
decision whether to approve the taking of the controlled action. Clause 95 - Assessment report
185 The Secretary must prepare an assessment report for the Minister within
twenty days of the information on which the assessment is to be based becoming
available. The report must be made available to members of the public upon
request, with the exception of certain information. Division 5 - Public environment reports Clause 96 - Application
186 Division 5 outlines the assessment process to be followed for a Public
Environment Report. Clause 97 - Minister must prepare guidelines for draft public environment
report
187 The Environment Minister must prepare written guidelines for the content of
a draft Public Environment Report (PER).
188 The guidelines should address all matters specified by the regulations and
should ensure that the report will contain enough information to allow the
Minister to make an informed decision about whether to approve the action.
189 The guidelines may also require the report to contain information on
impacts other than the relevant impacts:
_ at the request of the appropriate State or Territory Minister; and
_ if the action is to be taken by a constitutional corporation or is to be
taken for the purposes of interstate or overseas trade or commerce.
190 The purpose of this clause is to ensure that, if a State or Territory
wishes to accredit and rely upon the Commonwealth PER process, the PER can
address all environmental impacts.
191 The Minister may invite and take account of comments from any person on the
guidelines. Clause 98 - Designated proponent must invite comment on draft public
environment report
192 The proponent must prepare a draft PER in accordance with the guidelines
prepared by the Minister and, if the Minister has approved publication of the
draft PER, publish it in accordance with the regulations.
193 The Minister should approve the draft PER only if it adequately addresses
the information required by the guidelines.
194 The period for public comment must be specified by the Minister, and must
be at least 20 business days.
195 The proponent must provide the Minister with a copy of any comments
received.
Clause 99 - Finalising public environment report
196 After the public comment period, the proponent must revise the draft PER,
taking into account the public comments.
197 The Minister may refuse to accept the finalised PER if he or she believes
on reasonable grounds that it is inadequate for the purpose of making an
informed decision whether to approve the taking of the controlled action. Clause 100 - Assessment report
198 The Secretary must prepare an assessment report for the Environment
Minister within 20 days of the Minister accepting the final PER. The report
must be made available to members of the public upon request, with the
exception of some information. Division 6 - Environment impact statements Clause 101 - Application
199 Division 6 outlines the assessment process to be followed for an
Environmental Impact Statement. Clause 102 - Minister must prepare guidelines for draft environmental impact
statement
200 The Environment Minister must prepare written guidelines for the content of
a draft Environmental Impact Statement (EIS).
201 The guidelines should address all matters specified by the regulations and
should ensure that the report will contain enough information to allow the
Minister to make an informed decision about whether to approve the action.
202 The guidelines may also require the report to contain information on
impacts other than the relevant impacts:
_ at the request of the appropriate State or Territory Minister; and
_ if the action is to be taken by a constitutional corporation or is to be
taken for the purposes of interstate or overseas trade or commerce.
203 The purpose of this clause is to ensure that, if a State or Territory
wishes to accredit and rely upon the Commonwealth EIS process, the EIS can
address all environmental impacts.
204 The Minister may invite and take account of comments from any person on the
guidelines. Clause 103 - Designated proponent must invite comment on draft environmental
impact statement
205 The proponent must prepare a draft EIS in accordance with the guidelines
prepared by the Minister and, if the Minister has approved publication of the
draft EIS, publish it in accordance with the regulations.
206 The Minister should approve the draft EIS only if it adequately addresses
the information required by the guidelines.
207 The period for public comment must be specified by the Minister, and must
be at least 20 business days.
208 The proponent must provide the Minister with a copy of any comments
received. Clause 104 - Finalising draft environmental impact statement
209 After the public comment period, the proponent must revise the draft EIS,
taking into account the public comments.
210 The Minister may refuse to accept the finalised EIS if he or she believes
on reasonable grounds that it is inadequate for the purpose of making an
informed decision whether to approve the taking of the controlled action. Clause 105 - Assessment report
211 The Secretary must prepare an assessment report for the Environment
Minister within 20 days of the Minister accepting the final EIS. The report
must be made available to members of the public upon request, with the
exception of some information. Division 7 Inquiries Subdivision A - preliminary Clause 106 - Simplified outline
212 This clause provides a simplified outline of Division 7 (inquiries) Subdivision B - Establishment of inquiries Clause 107 - Appointing commissioners and setting terms of reference
213 This clause provides that, having decided that an inquiry is the
appropriate means of assessment, the Minister must appoint one or more
commissioners, and provide them with written terms of reference.
214 The inquiry may address impacts other than the relevant impacts:
_ at the request of the appropriate State or Territory Minister; and
_ if the action is to be taken by a constitutional corporation or is to be
taken for the purposes of interstate or overseas trade or commerce.
215 The purpose of this clause is to ensure that, if a State or Territory
wishes to accredit and rely upon the Commonwealth inquiry process, the inquiry
can address all environmental impacts. Clause 108 - Publicising inquiry
216 Subclause 108(1) provides that the commission must publish its terms of
reference and any information provided to the Minister for the purpose of
making a decision that an inquiry was the appropriate form of assessment. Subdivision C - Conduct of inquiries Clauses 109 - 120
217 These clauses deal with the conduct of inquiries. Subdivision D - Inquiry reports Clause 121 - Timing of report
218 The commission's time to report will be specified in the terms of reference
by the Minister. Clause 122 - Publication of report
219 With the restrictions listed under paragraph 110(3)(b), the commission must
publish a report in accordance with the regulations. Subdivision E - Commissioners' terms and conditions Clauses 123 -129
220 These clauses deal with terms and conditions. Part 9 - Approval of actions Division 1 - Decisions on approval and conditions Subdivision A - General Clause 130 - Timing of decision on approval
221 The Environment Minister must decide whether or not to approve the taking
of a controlled action within:
_ thirty business days from the receipt of an assessment report; or
_ forty business days from the receipt of a report from a commission that has
conducted an inquiry relating to the action.
222 The Minister may extend this period only if:
_ it is not practicable to adequately consider comments from another
Commonwealth Minister within the time period; or
_ the Minister has requested additional information under clause 132. Clause 131- Inviting comments from other Ministers before decision
223 Before deciding whether to approve the taking of an action and what (if
any) conditions to attach to an approval, the Environment Minister must inform
other Commonwealth Ministers with administrative responsibilities relating to
the action about the decision that he or she proposes to make (including any
conditions that are proposed to be attached to an approval) and invite their
comment.
224 The purpose of this clause is to ensure that the approval decision is taken
after proper consideration of all relevant factors, including economic and
social matters considered consistently with the principles of ecologically
sustainable development. If Ministers do not agree on the proposed approval
decision, this clause is intended to enable the Environment Minister to seek
and consider advice from the Prime Minister or Cabinet on the relevant issues.
Clause 132 - Requesting further information for approval decision
225 The Environment Minister may request further specified information if he or
she believes on reasonable grounds that not enough information is available to
make an informed decision to approve, or not approve, the controlled action.
Clause 133 - Grant of approval
226 The Environment Minister may approve the taking of an action subject to any
necessary conditions. Clause 134 - Attaching conditions to an approval
227 This clause provides that the Minister can attach conditions to an approval
only if she or he is satisfied that the condition is necessary or convenient
for:
* protecting a matter protected by a relevant provision of Part 3, or
* repairing or mitigating damage to that matter (or those matters).
228 This clause is intended to allow the Minister to impose a broad range of
conditions. For example, an approval to establish and maintain a road in a
world heritage area could be subject to a condition that the person
rehabilitate an existing road in the area.
229 The clause identifies some classes of conditions that can be imposed. The
list is not intended to be exhaustive. The ability to impose a condition
requiring compliance with conditions identified in another instrument is
intended to facilitate the 'accreditation' of agreed conditions implemented
primarily through approvals granted under State legislation. The requirement
to consider any relevant conditions imposed by State or Territory laws or other
Commonwealth laws is also intended to facilitate reliance on other regulatory
regimes, where this is appropriate to avoid duplication.
230 Finally, there is a requirement to consider the desirability of ensuring,
to the extent practicable, that a condition is a cost-effective means for the
person taking the action and the Commonwealth to achieve the object of the
condition. Clause 135 - Certain approvals and conditions must not give
preference
231 Relevant approvals and conditions must not give preference. Subdivision B - Considerations for approvals and conditions Clause 136 - General considerations
232 This clause identifies the considerations to be taken into account when
deciding whether to approve an action and what conditions (if any) to attach.
The considerations include relevant advice from other Ministers with
administrative responsibilities relating to the action (including where this
advice is provided through Cabinet or the Prime Minister). Clauses 137 - 141
233 In deciding whether to approve an action and what conditions to impose, the
Minister must not act inconsistently with Australia's obligations under
relevant Conventions. One of the objects of the Act is to assist in the
discharge of Australia's obligations under international environmental law.
Division 2 - Requirement to comply with conditions Clause 142 - Compliance with conditions on approval
234 A person must not do or fail to do an act or thing where the doing or
failure contravenes a condition.
Division 3 - Variation of conditions and suspension and revocation of
approvals Clause 143 - Variation of conditions attached to approval
235 This clause identifies the circumstances in which the Minister may revoke,
vary or add to any conditions attached to an approval. Clause 144 - Suspension of approval
236 This clause identifies the circumstances in which the Minister may suspend
the approval of an action. Clause 145 - Revocation of approval
237 This clause identifies the circumstances in which the Minister may revoke
the approval of an action. Part 10 - Strategic assessment Clause 146 - Minister may agree on strategic assessment
238 This clause provides for the conduct of strategic assessments. A strategic
assessment is an assessment of actions that may be carried out under a proposed
policy, program or plan. A strategic assessment of a policy, program or plan
allows for the early assessment of the cumulative impacts of relevant
individual actions under that policy, program or plan.
239 This clause sets out the minimum requirements for a strategic assessment
under the Act, allowing flexibility as to how these requirements can be
implemented.
240 The outcomes of a strategic assessment may be taken into account in
deciding what the appropriate assessment approach is for each individual action
under the policy, program or plan (under clause 87).
241 In addition, if the strategic assessment assesses all of the relevant
impacts of the actions under the policy, plan or program, the Minister may
declare under clause 33 that specified actions approved by the Commonwealth or
a Commonwealth agency in accordance with the policy, plan or program do not
need approval for the purposes of specified sections of Part 3.
242 A bilateral agreement may also specify that actions approved or taken in
accordance with a policy, plan or program do not need approval for the purposes
of specified sections of Part 3. Division 2 Assessment of Commonwealth-managed fisheries Clause 147 - Simplified outline of this Division
243 This clause provides a simplified outline of the Division.
244 It is the intention of the Minister to make a declaration under clause 33
'accrediting' the existing plans or policies for managing fisheries covered by
this Division pending the conduct of strategic assessments - that is, declaring
that approval is not required for actions approved (eg, licensed) in accordance
with existing plans or policies. Clause 148 - Assessment before management plan is determined
245 An agreement must be made under clause 147 to conduct a strategic
assessment which assesses the relevant impacts of actions taken under a
management plan for a fishery;
_ before AFMA determines a management plan (under the Fisheries Management
Act 1991); and
_ before the Minister administering the Torres Strait Fisheries Act 1984
determines a management plan under that Act.
246 Any recommendations made by the Minister as a result of the strategic
assessment must be considered. Clause 149 - Assessment before determination that no plan required
247 An agreement must be made under clause 146 to conduct a strategic
assessment which assesses the relevant impacts of actions taken under the
policy for managing a fishery before AFMA determines that a management plan is
not warranted for a fishery under the Fisheries Management Act 1991.
248 Any recommendations made by the Minister as a result of the strategic
assessment must be considered. Clause 150 - Assessment of all fisheries without plans must be started
within 5 years
249 Before the end of three years after this Act commences, AFMA must make
agreements with the Minister under clause 146 for the strategic assessment of
two-thirds of the fisheries managed by AFMA under the Fisheries Management
Act 1991. All fisheries managed by AFMA under the