ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (MINING, PETROLEUM AND WATER RESOURCES) BILL 2011

i Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and

Water Resources) Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

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Schedule 1--Amendments

Environment Protection and Biodiversity Act 1999

Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and

Water Resources) Bill 2011 No. , 2011 1

A Bill for an Act to amend the Environment

Protection and Biodiversity Conservation Act 1999,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Environment Protection and

Biodiversity Conservation Amendment (Mining, Petroleum and

Water Resources) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum

and Water Resources) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after the Bill for this Act is

introduced into the House of

Representatives.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and

Water Resources) Bill 2011 No. , 2011 3

Schedule 1--Amendments

Environment Protection and Biodiversity Act 1999

1 After Subdivision FA of Division 1 of Part 3

Insert:

Subdivision FB--Protection of water resources from mining

operations

24D Requirement for approval of mining operations with a

significant impact on water resources

(1) A constitutional corporation, the Commonwealth or a

Commonwealth agency must not take an action in the course of

mining operations that has, will have or is likely to have a

significant impact on the quality, structural integrity or hydraulic

balance of a water resource.

Civil Penalty:

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

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

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

(a) between Australia and another country; or

(b) between 2 States; or

(d) between 2 Territories;

take an action in the course of mining operations that has, will have

or is likely to have a significant impact on the quality, structural

integrity or hydraulic balance of a water resource.

Civil Penalty:

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

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

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

operations in:

(a) a Commonwealth area; or

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4 Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum

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(b)

Territory;

that has, will have or is likely to have a significant impact on the

quality, structural integrity or hydraulic balance of a water

resource.

Civil Penalty:

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

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

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

(a) an approval of the taking of the action by the constitutional

corporation, Commonwealth agency, Commonwealth or

person is in operation under Part 9 for the purposes of this

section; or

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

corporation, Commonwealth agency, Commonwealth or

person take the action without an approval under Part 9 for

the purposes of this section; or

of Part 7 that this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; or

(d) the action is an action described in subsection 160(2) (which

describes actions whose authorisation is subject to a special

environmental assessment process).

24E What are mining operations?

(1) The following are mining operations:

(a) operations or activities connected with, or incidental to, the

mining or recovery of minerals (including petroleum or gas)

or the production of material from minerals, including:

(i) prospecting and exploration for minerals; and

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

and

(iii) storage and disposal of minerals and materials produced

from minerals;

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(b) the construction and use of towns, camps, dams, pipelines

power lines or other structures for the purposes of operations

or activities described in paragraph (a);

operations or activities described in paragraph (a).

(2)

mineral is any non-living substance that can be extracted from

the ground, whether naturally occurring or created by or during the

process of extraction:

(a) including, but not limited to, coal, ores, petroleum, natural

gas, coal seam gas, rock, sand and gravel; but

(b) not including water, except where water is extracted as a part

of the process of extracting another substance.

24F What is a water resource?

A water resource is:

(a) the whole or any part of a river, lake, aquifer or other place

where water occurs naturally on or below the surface of the

ground, whether permanently, seasonally or during unusually

wet seasons; or

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

24G Offences relating to mining operations

(1) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

(a) the corporation or agency takes an action in the course of

mining operations; and

(b) the action results or will result in a significant impact on the

quality, structural integrity or hydraulic balance of a water

resource.

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

(2) A constitutional corporation, or a Commonwealth agency that does

not enjoy the immunities of the Commonwealth, commits an

offence if:

(a) the corporation or agency takes an action in the course of

mining operations; and

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(b) the action is likely to have a significant impact on the quality,

structural integrity or hydraulic balance of a water resource.

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

(3) A person commits an offence if:

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

and

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

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

(iv) between 2 Territories; and

quality, structural integrity or hydraulic balance of a water

resource.

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

(4) A person commits an offence if:

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

and

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

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and Territory; or

(iv) between 2 Territories; and

structural integrity or hydraulic balance of a water resource.

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

(5) A person commits an offence if:

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

and

(b) the action is taken in:

(i) a Commonwealth area; or

(ii) a Territory; and

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Water Resources) Bill 2011 No. , 2011 7

quality, structural integrity or hydraulic balance of a water

resource.

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

(6) A person commits an offence if:

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

and

(b) the action is taken in:

(i) a Commonwealth area; or

(ii) a Territory; and

structural integrity or hydraulic balance of a water resource,

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

Note 1:

An executive officer of a body corporate convicted of an offence

against this section may also commit an offence against section 495.

Note 2:

If a person takes an action on land that contravenes this section, a

landholder may commit an offence against section 496C.

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

(a) an approval of the taking of the action by the constitutional

corporation, Commonwealth agency or person is in operation

under Part 9 for the purposes of this section; or

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

corporation, Commonwealth agency or person take the action

without an approval under Part 9 for the purposes of this

section; or

of Part 7 that this section is not a controlling provision for the

action and, if the decision was made because the Minister

believed the action would be taken in a manner specified in

the notice of the decision under section 77, the action is taken

in that manner; or

(d) the action is an action described in subsection 160(2) (which

describes actions whose authorisation is subject to a special

environmental assessment process).

Note:

The defendant bears an evidential burden in relation to the matters in

this subsection. See subsection 13.3(3) of the Criminal Code.

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and Water Resources) Bill 2011 No. , 2011

2 Section 34 (after table item 13G)

Insert:

13H

section 24D

water resources

13I

section 24G

water resources

3 After Division 5 of Part 4

Insert:

Division 5A--Mining operations covered by Ministerial

declarations and accredited mining authorisation

processes

Subdivision A--Effect of declarations

43AA Actions declared by Minister not to need approval

A person may take an action described in a provision of

Subdivision FB of Division 1 of Part 3 (Protection of water

resources from mining operations) without an approval under

Part 9 for the purposes of the provision if:

(a) the action is one of a class of actions declared by the Minister

under section 43AB not to require approval under Part 9 for

the purposes of the provision (because the action is approved

in accordance with an accredited mining authorisation

process for the purposes of the declaration); and

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

authorisation process.

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Subdivision B--Making declarations

43AB Making declaration that actions do not need approval under

Part 9

Declaration of actions not needing approval

(1) The Minister may, by legislative instrument, declare that actions in

a class of actions specified in the declaration wholly or partly by

reference to the fact that their taking has been approved under a

law of a State or self-governing Territory, in accordance with an

authorisation process that is an accredited mining authorisation

process for the purposes of the declaration, do not require approval

under Part 9 for the purposes of a provision of Subdivision FB of

Division 1 of Part 3.

Note 1:

Subdivisions C and D set out rules about prerequisites for making a

declaration and limits on making a declaration.

Note 2:

Section 43AD provides for revocation of a declaration.

What is an accredited mining authorisation process?

(2) An authorisation process is an accredited mining authorisation

process for the purposes of a declaration that certain actions do not

require approval under Part 9 for the purposes a provision of

Subdivision FB of Division 1 of Part 3 if and only if:

(a) the authorisation process is set out in a law of a State or

self-governing Territory, and the law and the authorisation

process are identified in or under the declaration; and

(b) the authorisation process has been accredited in writing by

the Minister in accordance with this section for the purposes

of the declaration.

Accrediting authorisation process

(3) For the purposes of subsection (2), the Minister may accredit by

written instrument an authorisation process for the purposes of a

declaration. However, the Minister may do so only if the Minister

is satisfied that:

(a) the authorisation process and the law under which it is in

operation, or in which it is set out, meet the criteria

prescribed by the regulations (if any); and

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(b) there has been or will be adequate assessment of the impacts

that actions approved in accordance with the authorisation

process:

(i) have or will have; or

(ii) are likely to have;

on water resources protected by Subdivision FB of Division 1

of Part 3; and

authorisation process will not have unacceptable or

unsustainable impacts on water resources protected by

Subdivision FB of Division 1 of Part 3.

The Minister must publish in accordance with the regulations (if

any) the instrument accrediting the authorisation process.

Tabling of authorisation process before accreditation

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

Parliament:

(a) a copy of the relevant part of the law in which the

authorisation process is set out that the Minister is

considering accrediting for the purposes of subsection (2);

and

(b) a notice that the Minister proposes to accredit the

authorisation process for the purposes of a declaration under

this section.

Limitations on accreditation during period for opposition

(5) The Minister must not accredit an authorisation process for the

purposes of subsection (2):

(a) before, or within 15 sitting days after, a copy of the

authorisation process is laid before each House of the

Parliament under this section; or

(b) if, within those 15 sitting days of a House, notice of a motion

to oppose accreditation of the authorisation process is given

in that House--subject to subsection (6), within 15 sitting

days of that House after the notice is given.

(6)

If:

(a) notice of a motion to oppose accreditation of the

authorisation process is given in a House of the Parliament

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Water Resources) Bill 2011 No. , 2011 11

within 15 sitting days after the authorisation process is laid

before the House under this section; and

(b) the notice is withdrawn or otherwise disposed of within 15

sitting days of that House after the notice is given;

then, subject to paragraph (5)(a), the Minister may accredit the

authorisation process after the motion is withdrawn or otherwise

disposed of.

No accreditation after accreditation opposed

(7) The Minister must not accredit the authorisation process if either

House of the Parliament passes a resolution opposing accreditation

of the authorisation process following a motion of which notice has

been given within 15 sitting days after the relevant part of the law

has been laid before the House under this section.

No accreditation if motion not defeated in time

(8) The Minister must not accredit the authorisation process if, at the

end of 15 sitting days after notice of a motion to oppose

accreditation of the authorisation process that was given in a House

of the Parliament within 15 sitting days after the relevant part of

the law was laid before the House under this section:

(a) the notice has not been withdrawn and the motion has not

been called on; or

(b) the motion has been called on, moved and seconded and has

not been withdrawn or otherwise disposed of.

Extended time after dissolution or prorogation

(9)

If:

(a) notice of a motion to oppose the accreditation of the

authorisation process is given in a House of the Parliament

(the opposing House); and

(b) before the end of 15 sitting days of the opposing House after

the notice is given:

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

(ii) the Parliament is prorogued; and

appropriate):

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(i) the notice has not been withdrawn and the motion has

not been called on; or

(ii) the motion has been called on, moved and seconded and

has not been withdrawn or otherwise disposed of;

the relevant part of the law is taken for the purposes of

subsections (5), (6), (7) and (8) to have been laid before the

opposing House on the first sitting day of that House after the

dissolution, expiry or prorogation (as appropriate).

Subdivision C--Prerequisites for making declarations

43AC Minister may only make declaration if prescribed criteria are

met

The Minister may make a declaration under section 43AB only if

the Minister is satisfied that the declaration:

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

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

Subdivision D--Other rules about declarations

43AD Revoking declarations

Revoking declarations

(1) The Minister may, by legislative instrument, revoke a declaration

made under section 43AB.

Revocation does not affect some actions

(2)

If:

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

(b) before the revocation, an action was being taken that could be

taken without approval under Part 9 because its taking was

covered by the declaration; and

this Act continues to operate in relation to the action as if the

declaration had not been revoked.

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43AE Other rules about declarations

Minister must not give preference

In making a declaration or accrediting an authorisation process

under section 43AB, or revoking a declaration under

section 43AD, relating to an action taken:

(a) by a person for the purposes of trade between Australia and

another country or between 2 States; or

(b) by a constitutional corporation;

the Minister must not give preference (within the meaning of

section 99 of the Constitution) to one State or part of a State over

another State or part of a State.

43AF Minor amendments of accredited mining authorisation

process

If:

(a) an authorisation process is an accredited mining authorisation

process; and

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

amended; and

minor; and

(d) the Minister is satisfied that the authorisation process as

amended meets, or will meet, the requirements of:

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

(ii)

section

43AC;

the Minister may, by legislative instrument, determine that the

authorisation process as amended continues in effect, for the

purposes of this Act, as the accredited mining authorisation

process.

4 At the end of Division 6 of Part 4

Add:

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14 Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum

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43C Mining operations with prior authorisation

A person may take an action described in a provision of

Subdivision FB of Division 1 of Part 3 without an approval under

Part 9 for the purposes of the provision if taking the action:

(a) was, or would have been, lawful immediately before the

commencement of Subdivision FB of Division 1 of Part 3;

and

(b) would be lawful at the time it is taken if Subdivision FB of

Division 1 of Part 3 had not been enacted.

5 At the end of subsection 25AA(2)

Add:

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

6 At the end of subsection 25AA(3)

Add:

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

7 After subparagraph 495(2)(a)(vi)

Insert:

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

8 After subparagraph 496C(1)(a)(vii)

Insert:

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

9 At the end of subsection 355(1)

Add:

Note: For

mining operations, see section 24E.

10 Subsections 355(2) and (3)

Repeal the subsections.

11 Section 528 (definition of mineral)

Omit "355(3)", substitute "24E(2)".

12 Section 528 (definition of mining operations)

Commonwealth of Australia Bills

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (MINING, PETROLEUM AND WATER RESOURCES) BILL 2011