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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Environment Protection and Biodiversity
Conservation Amendment (Climate
Trigger) Bill 2022
No. , 2022
(Senator Hanson-Young)
A Bill for an Act to amend the Environment
Protection and Biodiversity Conservation Act 1999,
and for related purposes
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
i
Contents
1
Short title .............................................................................. 1
2
Commencement .................................................................... 1
3
Schedules .............................................................................. 2
Schedule 1--Amendments
3
Environment Protection and Biodiversity Conservation Act 1999
3
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
1
A Bill for an Act to amend the Environment
1
Protection and Biodiversity Conservation Act 1999,
2
and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Environment Protection and Biodiversity
6
Conservation Amendment (Climate Trigger) Act 2022
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
2
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
No. , 2022
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Schedules
10
Legislation that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
concerned, and any other item in a Schedule to this Act has effect
13
according to its terms.
14
Amendments
Schedule 1
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
3
Schedule 1--Amendments
1
2
Environment Protection and Biodiversity Conservation Act
3
1999
4
1 After Subdivision FB of Division 1 of Part 3
5
Insert:
6
Subdivision FC--Protection of the environment from
7
significant emissions
8
24F Purpose of this Subdivision
9
The purpose of this Subdivision is to contribute to meeting
10
Australia's obligations under the Climate Change Conventions.
11
24G Requirement for approval of activities with significant
12
emissions
13
(1) A person must not take an action that has, will have or is likely to
14
have a significant impact on emissions.
15
Civil penalty:
16
(a) for an individual--5,000 penalty units;
17
(b) for a body corporate--50,000 penalty units.
18
(2) Subsection (1) does not apply to an action if:
19
(a) an approval of the taking of the action by the person is in
20
operation under Part 9 for the purposes of this section; or
21
(b) section 43A or 43B lets the person take the action without an
22
approval under Part 9 for the purposes of this section; or
23
(c) there is in force a decision of the Minister under Division 2
24
of Part 7 that this section is not a controlling provision for the
25
action and, if the decision was made because the Minister
26
believed the action would be taken in a manner specified in
27
the notice of the decision under section 77, the action is taken
28
in that manner; or
29
Schedule 1
Amendments
4
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
No. , 2022
(d) the action:
1
(i) is not an action that has, will have or is likely to have a
2
prohibited impact on emissions; and
3
(ii) is an action described in subsection 160(2) (which
4
describes actions whose authorisation is subject to a
5
special environmental assessment process).
6
Note:
If the Minister decides under Division 2 of Part 7 that this section is
7
not a controlling provision for the action, the Minister may revoke and
8
substitute the decision if satisfied that it is warranted by the
9
availability of substantial new information about the impacts of the
10
action, or by a substantial change in circumstances that relates to the
11
impacts of the action: see section 78. This may include, for example,
12
where the total amount of greenhouse gases emitted in relation to the
13
action is higher than was predicted at the time the proposal to take the
14
action was referred.
15
24H What is a significant impact on emissions?
16
For the purposes of this Act, an action has a
significant impact on
17
emissions
if the total amount of emissions of greenhouse gases in
18
relation to the action in any 12 month period has a carbon dioxide
19
equivalence of 25 kilotonnes or more.
20
24J Offences relating to significant emissions
21
(1) A person commits an offence if:
22
(a) the person takes an action; and
23
(b) the action has or will have a significant impact on emissions.
24
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of
25
criminal responsibility.
26
(2) A person commits an offence if:
27
(a) the person takes an action; and
28
(b) the action is likely to have a significant impact on emissions.
29
Note:
Chapter 2 of the
Criminal Code
sets out the general principles of
30
criminal responsibility.
31
(3) An offence against subsection (1) or (2) is punishable on
32
conviction by imprisonment for a term not more than 7 years, a
33
fine not more than 420 penalty units, or both.
34
Amendments
Schedule 1
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
5
Note 1:
Subsection 4B(3) of the
Crimes Act 1914
lets a court fine a body
1
corporate up to 5 times the maximum amount the court could fine a
2
person under this subsection.
3
Note 2:
An executive officer of a body corporate convicted of an offence
4
against this section may also commit an offence against section 495.
5
Note 3:
If a person takes an action on land that contravenes this section, a
6
landholder may commit an offence against section 496C.
7
(4) Subsections (1) and (2) do not apply to an action if:
8
(a) an approval of the taking of the action by the person is in
9
operation under Part 9 for the purposes of this section; or
10
(b) section 43A or 43B lets the person take the action without an
11
approval under Part 9 for the purposes of this section; or
12
(c) there is in force a decision of the Minister under Division 2
13
of Part 7 that this section is not a controlling provision for the
14
action and, if the decision was made because the Minister
15
believed the action would be taken in a manner specified in
16
the notice of the decision under section 77, the action is taken
17
in that manner; or
18
(d) the action:
19
(i) is not an action that has, will have or is likely to have a
20
prohibited impact on emissions; and
21
(ii) is an action described in subsection 160(2) (which
22
describes actions whose authorisation is subject to a
23
special environmental assessment process).
24
Note 1:
The defendant bears an evidential burden in relation to the matters in
25
this subsection: see subsection 13.3(3) of the
Criminal Code
.
26
Note 2:
If the Minister decides under Division 2 of Part 7 that this section is
27
not a controlling provision for the action, the Minister may revoke and
28
substitute the decision if satisfied that it is warranted by the
29
availability of substantial new information about the impacts of the
30
action, or by a substantial change in circumstances that relates to the
31
impacts of the action: see section 78. This may include, for example,
32
where the total amount of greenhouse gases emitted in relation to the
33
action is higher than was predicted at the time the proposal to take the
34
action was referred.
35
2 After paragraph 25AA(2)(i)
36
Insert:
37
; (j) subsections 24J(1) and (2).
38
Schedule 1
Amendments
6
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
No. , 2022
3 After paragraph 25AA(3)(gb)
1
Insert:
2
(gc) subsection 24G(1);
3
4 Subsection 29(1)
4
Omit "24D or 24E", substitute "24D, 24E, 24G or 24J".
5
5 Subsection 33(1)
6
After "Part 3", insert ", other than section 24G or 24J".
7
6 Section 34 (after table item 13J)
8
Insert:
9
13K
section 24G
the environment
13L
section 24J
the environment
7 Section 37
10
After "Part 3", insert ", other than section 24G or 24J,".
11
8 Section 37A
12
After "Part 3", insert ", other than section 24G or 24J".
13
9 Section 37M
14
After "Part 3", insert ", other than section 24G or 24J,".
15
10 After paragraph 42(b)
16
Insert:
17
(ba) actions that have, will have or are likely to have a significant
18
impact on emissions; or
19
11 Section 43
20
After "Part 3", insert ", other than section 24G or 24J,".
21
12 Subsections 46(1), (2) and (2A)
22
Omit "24D or 24E", substitute "24D, 24E, 24G or 24J".
23
Amendments
Schedule 1
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
7
13 At the end of Subdivision B of Division 1 of Part 9
1
Add:
2
141 Requirements for decisions about significant emissions
3
In deciding whether or not to approve for the purposes of
4
section 24G or 24J the taking of an action, and what conditions to
5
attach to such an approval, the Minister must consider whether, if
6
the approval were granted, the action would be consistent with:
7
(a) the national carbon budget, taking into account the most
8
recent assessment report (if any) given to the Minister under
9
subsection 517B(6); and
10
(b) the achievement of the greenhouse gas emissions reduction
11
targets included in Australia's nationally determined
12
contribution.
13
141A No approval for actions with prohibited impact on emissions
14
The Minister must not approve an action that has, will have or is
15
likely to have a prohibited impact on emissions.
16
14 At the end of Subdivision C of Division 1 of Part 10
17
Add:
18
146N Approvals relating to significant emissions
19
If the approval relates to section 24G or 24J, the Minister must
20
consider whether, if the approval were granted, the action or
21
actions in the class of actions would be consistent with:
22
(a) the national carbon budget, taking into account the most
23
recent assessment report (if any) given to the Minister under
24
subsection 517B(6); and
25
(b) the achievement of the greenhouse gas emissions reduction
26
targets included in Australia's nationally determined
27
contribution.
28
Schedule 1
Amendments
8
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
No. , 2022
146P No approvals relating to actions with prohibited impact on
1
emissions
2
The Minister must not approve the taking of an action or a class of
3
actions in accordance with an endorsed policy, plan or program if
4
the action, or an action in the class of actions, has, will have or is
5
likely to have a prohibited impact on emissions.
6
15 After subsection 163(1)
7
Insert:
8
(1A) If the Minister is satisfied that the action has, will have or is likely
9
to have a prohibited impact on emissions, the advice must state
10
that:
11
(a) the person who takes the action may commit an offence or be
12
liable to a civil penalty under this Act; and
13
(b) the agency or employee should not give the authorisation.
14
16 After paragraph 176(4)(d)
15
Insert:
16
(da) priorities and strategies to ensure that any action taken in
17
accordance with the plan is consistent with:
18
(i) the national carbon budget, taking into account the most
19
recent assessment report (if any) given to the Minister
20
under subsection 517B(6); and
21
(ii) the achievement of the greenhouse gas emissions
22
reduction targets included in Australia's nationally
23
determined contribution;
24
(db) mechanisms for monitoring the impacts of emissions of
25
greenhouse gases on biodiversity, heritage values and other
26
values;
27
17 After subsection 305(3A)
28
Insert:
29
(3B) In deciding whether to enter into a proposed conservation
30
agreement, the Minister must consider whether the agreement is
31
consistent with:
32
Amendments
Schedule 1
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
9
(a) the national carbon budget, taking into account the most
1
recent assessment report (if any) given to the Minister under
2
subsection 517B(6); and
3
(b) the achievement of the greenhouse gas emissions reduction
4
targets included in Australia's nationally determined
5
contribution.
6
18 Subsection 306A(1)
7
After "Part 3", insert ", other than section 24G or 24J".
8
19 After subparagraph 495(2)(a)(via)
9
Insert:
10
(vib) section 24J (Offences relating to significant emissions);
11
or
12
20 After subparagraph 496C(1)(a)(viia)
13
Insert:
14
(viib) section 24J (Offences relating to significant emissions);
15
or
16
21 After section 517A
17
Insert:
18
517B Setting of national carbon budget
19
Setting of national carbon budget
20
(1) The Climate Change Authority must, by legislative instrument,
21
determine a recommended budget for Australia in relation to
22
emissions of greenhouse gases for the period beginning on
23
1 January 2023 and ending on 31 December 2050, expressed as a
24
gross amount of carbon dioxide equivalence.
25
(2) For the purposes of this Act, the budget determined under
26
subsection (1) is the
national carbon budget
.
27
(3) In making a determination under subsection (1), the Climate
28
Change Authority must have regard to:
29
Schedule 1
Amendments
10
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
No. , 2022
(a) Australia's obligations under the Climate Change
1
Conventions; and
2
(b) the global goals of:
3
(i) holding the increase in the global average temperature
4
to well below 2°C above pre-industrial levels; and
5
(ii) pursuing efforts to limit the temperature increase to
6
1.5°C above pre-industrial levels.
7
(4) Subsection (3) does not limit the matters to which the Climate
8
Change Authority may have regard in making a determination
9
under subsection (1).
10
Note:
Section 12 of the
Climate Change Authority Act 2011
also sets out
11
principles to which the Climate Change Authority must have regard in
12
performing its functions.
13
(5) The Climate Change Authority must take all reasonable steps to
14
ensure that a determination comes into force under subsection (1)
15
as soon as practicable after the commencement of this section.
16
Annual assessments of remaining budget
17
(6) Within the last 6 months of each calendar year beginning on or
18
after 1 January 2023, the Climate Change Authority must:
19
(a) assess the amount of the national carbon budget that remains
20
unused; and
21
(b) prepare a report of that assessment; and
22
(c) give the report to the Minister.
23
(7) As soon as practicable after giving the report to the Minister, the
24
Authority must publish the report on the Authority's website.
25
(8) The Minister must cause copies of the report to be tabled in each
26
House of the Parliament within 15 sitting days of that House after
27
receiving the report.
28
22 At the end of Division 1 of Part 23
29
Add:
30
Amendments
Schedule 1
No. , 2022
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
11
Subdivision G--Emissions
1
527F Emissions
2
(1) For the purposes of this Act, an
emission
of greenhouse gas, in
3
relation to an action, means the release of greenhouse gas into the
4
atmosphere as a direct result of the action, including:
5
(a) any activities (such as land clearing) preparatory to the
6
action; and
7
(b) any activities ancillary to the action.
8
(2) The Minister may determine, by legislative instrument, methods, or
9
criteria for methods, by which the amounts of emissions of
10
greenhouse gases are to be measured for the purposes of this Act
11
and may specify:
12
(a) different methods or criteria for emissions from different
13
sources; and
14
(b) different methods or criteria depending on the circumstances
15
in which the emissions occurred; and
16
(c) conditions relating to the use of methods determined by the
17
Minister or of methods which meet criteria determined by the
18
Minister; and
19
(d) rating systems for those methods (including different rating
20
systems for different circumstances); and
21
(e) the particular rating given to each of those methods.
22
527G Prohibited impact on emissions
23
For the purposes of this Act, an action has a
prohibited impact on
24
emissions
if the total amount of emissions of greenhouse gases in
25
relation to the action in any 12 month period has a carbon dioxide
26
equivalence of 100 kilotonnes or more.
27
23 Section 528
28
Insert:
29
Australia's nationally determined contribution
means:
30
Schedule 1
Amendments
12
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2022
No. , 2022
(a) Australia's current nationally determined contribution
1
communicated in accordance with Article 4 of the Paris
2
Agreement; or
3
(b) if that nationally determined contribution has been adjusted
4
in accordance with paragraph 11 of Article 4 of the Paris
5
Agreement--that nationally determined contribution, as
6
adjusted and in force from time to time.
7
carbon dioxide equivalence
of an amount of greenhouse gas has
8
the same meaning as in the
National Greenhouse and Energy
9
Reporting Act 2007
.
10
Climate Change Conventions
has the same meaning as in the
11
Product Emissions Standards Act 2017
.
12
emission
of greenhouse gas, in relation to an action, has the
13
meaning given by subsection 527F(1).
14
greenhouse gas
has the same meaning as in the
National
15
Greenhouse and Energy Reporting Act 2007
.
16
national carbon budget
has the meaning given by
17
subsection 517B(2).
18
Paris Agreement
means the Paris Agreement, done at Paris on
19
12 December 2015, as amended and in force for Australia from
20
time to time.
21
Note:
The Agreement is in Australian Treaty Series 2016 No. 24 ([2016]
22
ATS 24) and could in 2022 be viewed in the Australian Treaties
23
Library on the AustLII website (http://www.austlii.edu.au).
24
prohibited impact on emissions
has the meaning given by
25
section 527G.
26
significant impact on emissions
has the meaning given by
27
section 24H.
28
24 Application provision
29
The amendments made by this Schedule apply in relation to an action
30
that begins on or after the day this item commences.
31