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ENVIRONMENTAL LEGISLATION AMENDMENT BILL (NO.1) 2000

Bills Digest No. 165  1999-2000
Environmental Legislation Amendment Bill (No.1) 2000

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Passage History

Date Introduced: 12 April 2000

House: Senate

Portfolio: Environment and Heritage

Commencement: On 16 July 2000,⁽¹⁾ or on Royal assent, whichever is the later.

Purpose

To amend the Environment Protection and Biodiversity Conservation Act 1999 and the Environmental Reform (Consequential Provisions) Act 1999 to rectify a number of operational issues and ambiguities.

Background

The Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act) was passed by the Parliament on 30 June 1999 and will come into force on 16 July 2000. It consolidates five existing major Commonwealth environment-related acts into the one piece of legislation. The Acts to be replaced by the EPBC Act are:

• Environment Protection (Impact of Proposals) Act 1974
• Endangered Species Protection Act 1992
• National Parks and Wildlife Conservation Act 1975
• Whale Protection Act 1980
• World Heritage Properties Conservation Act 1983

The Environmental Reform (Consequential Provisions) Act 1999 (the ERCP Act) establishes transitional arrangements regarding the above acts as they are replaced by the EPBC Act. It also amends Commonwealth government legislation that is affected either by the repeal of these acts or by the provisions of the EPBC Act itself.

Given the complexity of the EPBC Act and the large number of amendments made in the latter stages of Parliamentary debate, it is perhaps inevitable that some drafting oversights and ambiguities have come to light before it is due to come into force. The main amendments proposed by the Environmental Legislation Amendment Bill (No.1) 2000 (the Bill) relate to:

• definitions concerning forestry activities and the Regional Forestry Agreement (RFA) process. At the time the EPBC Act was passed, the Government presumably envisaged that the Regional Forestry Agreement Bill 1999 (the RFA Bill) would be in force by the time the EPBC itself commenced and so certain forestry terms within the EPBC were defined in reference to the RFA Bill. Given that the RFA Bill has yet to pass through Parliament, the amendments delete any reference to the RFA Bill.
• clarifying the circumstances under which been previously authorised or continuing activities are exempt from having to gain new approvals under the EPBC Act.
• increasing the range of impacts that can be considered by strategic environment impact assessments under Part 10 of the EPBC Act.
• introducing a defence against the offences of killing, injuring, trade etc of listed threatened, migratory and other species, where that act is provided for, and taken in accordance with, an accredited fishery management plan or fisheries regime.
• setting out the circumstances under which an action undertaken for commercial purposes can be carried out in a Commonwealth Reserve where no management plan is in operation.
• ensuring that Commonwealth Reserve management plans do not lapse if they have been accepted (ie approved) by the Commonwealth Environment Minister but not yet entered into force on the date the EPBC Act commences.

Analysis of these amendments is contained in the following main provisions section.

Main Provisions

Schedule 1 (Amendment of the Environment Protection and Biodiversity Act)

Item 1 substitutes a new subsection 38(2) into the EPBC Act. The new subsection contains various definitions concerning forestry activities and the Regional Forestry Agreement process. These definitions are taken from the RFA Bill as it was introduced in 1998. ⁽²⁾The most significant definition in new subsection 38(2) is what constitutes a RFA. The RFA Bill (and thus the Environmental Legislation Amendment Bill (No.1) 2000) defines it as:

This varies from an amended definition adopted by the Senate in debating the RFA Bill.⁽³⁾ The Senate amendment adds the following to the above definition:

The proposed Senate amendment was subsequently rejected by the House of Representatives.⁽⁵⁾

Obviously if subsection 38(2) is passed in its present form, this would set a precedent for the RFA definition in the RFA Bill, if that Bill ever becomes law.

Item 2 repeals existing subsection 40(2). Subsection 40(2) defines forestry operations and since this definition is now proposed to be included in the new section 38(2) above, the existing subsection becomes redundant.

Item 3 inserts new sections 43A and 43B. These effectively replace existing section 522B and subsection 523(2)⁽⁶⁾ with some wording changes to clarify their effect. Section 522B and subsection 523(2) essentially provide that activities that have already been authorised under relevant Commonwealth, State or Territory legislation or are continuations of lawful activities do not require new approvals under the EPBC Act once the EPBC Act comes into effect.

There are three changes made by 43A and 43B. Two are relatively minor clarifications and are not discussed here.

The third change is more significant. This provides that the existing exemption from requiring new approvals or permits regarding previously authorised or continuing actions will now only apply to the environmental impact assessment and approvals provisions of the EPBC Act (ie actions under Part 3 and approvals under Part 9) rather than all aspects of the Act. According to the Explanatory Memorandum for the Bill, the rationale for the change is that:

However, the actual text from the November 1998 supplementary Explanatory Memorandum says⁽⁸⁾

Thus on the face of it the supplementary Explanatory Memorandum does not make an obvious distinction between environment impact assessment approval and other aspects of the EPBC Act where a Commonwealth authorisation may be required. The answer to this discrepancy between the two Explanatory Memorandums apparently lies in the fact that authorisations for activities under the non-environment assessment aspects of the EPBC Act (notably chapter 5) are generally called 'permits' rather than 'approvals'.

Whatever the explanation, the net effect of this proposed amendment is to potentially reduce the number of activities that may escape the need for new Commonwealth authorisations in order to go ahead once the EPBC Act is in force.

Items 4-11 amend various areas of Part 10 of the EPBC Act which deal with strategic assessments.⁽⁹⁾ A strategic assessment is an assessment of actions that may be carried out under a proposed policy, program or plan. As stated in the EPBC Act Explanatory Memorandum⁽¹⁰⁾, this allows for the early assessment of the cumulative impacts of relevant individual actions under that policy, program or plan⁽¹¹⁾ (emphasis added by author).

The changes proposed by items 4-11 essentially substitutes the phrase 'impacts of actions on ...a matter protected under by a provision under Part 3 [of the EPBC Act]'⁽¹²⁾ for the existing 'relevant impacts of actions that are controlled actions or would be apart from Division 1 or 2 of Part 4'.⁽¹³⁾ In broad terms, a controlled action is action that would have a significant environmental impact on 'matters of national environmental significance' (eg World Heritage), or on Commonwealth lands etc and thus generally require a Commonwealth approval under Part 9 of the EPBC Act.

The problem with the existing wording of the EPBC Act in relation to strategic assessments is that, because of the meaning of controlled actions, it restricts the assessment to significant impacts only. Given that the intent of strategic assessments as highlighted above is to examine the effect of cumulative impacts, it is important that all impacts are examined to provide a true picture of the overall effect that a proposed policy, program or plan would have on matters protected by Part 3 of the EPBC Act. The proposed amendment eliminates the significant impacts restriction by deleting the reference to 'controlled actions'.

Items 12-19 relate to defences against the killing, injuring, trade etc of listed threatened and migratory species, whales and cetaceans, and 'listed marine species'. Under the EPBC Act, it is an offence to the kill, injure, trade etc in such species unless such an action falls under list of prescribed defences. Existing defences include actions taken under wildlife conservation plans, permits issued under the Great Barrier Reef Marine Park Act 1975, emergency situations involving serious risk to human life or property, unavoidable accidents, and various other circumstances.

The proposed amendments under items 12-19 introduce a new type of defence and /or broaden an existing defence. The new defence applies where the action resulting in the killing, injuring, trade etc of the relevant species is provided for, and taken in accordance with a fishery management plan or fisheries regime that has been accredited by the Commonwealth Environment Minister. It is not clear from the explanatory memorandum why these provisions were not included in the original EPBC Act.

Consistent with the existing defences contained in Part 13 of the EPBC Act, the onus of proof lies with the person seeking to rely on such a defence.

Items 12-13 introduces the new defence in relation to listed threatened species.

Item 12 inserts a new paragraph 197(k) which provides that an action provided for by, and taken in accordance with, a plan or regime that is accredited under section 208A is not an offence.

Item 13 inserts a new section 208A.⁽¹⁴⁾ Under this section, the Minister may accredit three types of fisheries plans / regimes:

• new paragraph 208A(a) - management plans made by the Australian Fisheries Management Authority (AFMA) under section 17 of the Fisheries Management Act.
• new paragraph 208A(b) - management plans made by a State or self-governing Territory, providing the plan in question is in force at the time of the accreditation.
• new paragraph 208A(c) - regimes determined by AFMA under circumstances where a management plan is not in force (most commonly this is where AFMA has decided a formal management plan is not warranted or where a plan is being developed).

New paragraphs 208A(d) and (e) provide that, before accrediting any plan or regime, the Commonwealth Environment Minister must be 'satisfied' that

These requirements are broadly similar to the language of existing paragraphs 201(3)(b)(i)-(iii), which covers the Minister's power to issue permits to take an action in relation to a listed threatened species where that action may result in the killing, injuring, trading etc of the relevant species. However, there are two obvious differences. Unlike paragraphs 201(3)(b)(ii), proposed section 208A makes no reference to the fisheries plan or regime as having to be not inconsistent with any recovery plan in force for the relevant species. The second difference is that proposed paragraph 208A(e) includes the words 'is not likely to', which are not found in paragraph 201(3)(b)(i). There may well be justifiable reasons for these differences,⁽¹⁵⁾ but no details are provided in the Explanatory Memorandum to the Bill.

Items 14-15 essentially replicate items 12-13, but apply to listed migratory species. The only substantive difference is to substitute 'conservation status' for 'survival or recovery' in new paragraph 222A(e).

Items 16-17 broaden existing defences in relation the killing, injuring, taking and possession of a cetacean (including whales). The amendment allows the Minister to accredit an AFMA regime (ie as mentioned under section 208A(c) above). The EPBC Act already allows the Minister to accredit AFMA and State/Territory plans of management.

Items 18-19 essentially replicate items 16-17, but apply to specified marine species, eg dugongs, crocodiles, and certain turtles, sea-snakes, seals, seahorses etc.

Items 20-22 insert new provisions to govern the circumstances under which an action undertaken for commercial purposes can be carried out in a Commonwealth Reserve where no management plan is in operation. This may occur in the case of a newly proclaimed reserve, or where the term of a plan has expired before a new plan can be brought into operation.

The existing subsection 354(1) of the EPBC Act provides that a person cannot do certain things - including 'an action for a commercial purpose' - in a Commonwealth Reserve except in accordance with the reserve's management plan. Where such a plan is not in operation, subsection 354(2) allows the Commonwealth Director of National Parks (the Director) to do a limited range of things (generally relating to conservation), but no mention is made of commercial purpose actions.

Management plans for Commonwealth reserves may be disallowed by either House of Parliament.⁽¹⁶⁾ In theory, this gives the Senate with the leverage to request the insertion of specific provisions in the plan as a condition for not disallowing it. This could include a provision effectively banning a particular type of commercial act, even if this act was basically consistent with the IUCN reserve management principles attaching to the particular reserve.⁽¹⁷⁾ The proposed amendments under items 20-22 potentially restrict the likelihood of the Senate taking this cause of action if the Director has already approved a commercial act of a type opposed by the Senate. This is because it would possibly expose the Commonwealth to a legal action by the developer should the subsequent management plan 'passed'⁽¹⁸⁾ by the Senate ban the act in question. However, it is difficult to say whether this set of circumstances could realistically occur and thus be a significant issue in considering the proposed amendments.

Item 21 inserts new subsections 354(3A) and (3B). The way parts of these sections have been drafted leaves their exact operation and meaning unclear.

In relation to new subsection 354(3A), it is understood its intended meaning is that that a commercial purpose action could be carried under the proposed amendment if it is either an individual act specifically approved by the Director (paragraph 354(3A)(b)(i)) or part of a class of actions specifically approved by the Director (paragraph 354(3A)(b)(ii)). It is however arguable that proposed paragraph 354(3A)(b)(ii) could be interpreted to include an act of a type that has previously been approved by the Director.

The second ambiguity relates to the making of a subsection 354(3B) determination. Given the wording of paragraph 354(3A)(b)(i), it is unclear whether, in approving regarding a specific individual action, the Director must necessarily certify that 'the doing of an act in a Commonwealth Reserve is consistent with the proclamation of the reserve under subdivision B' as outlined in 354(3B)(b). Of course, it could be argued that the fact that the word 'and' is placed between 354(3B)(a) and 354(3B)(a) means that 354(3B)(b) must always be included in a determination. However, the use of the word 'may' in the subsection 354(3B) preface casts doubt on whether this is the only valid interpretation. In any case, the drafting should ideally provide a plain meaning without having to resort to a technical interpretation.

Item 23 amends subsections 515(1) and 515(2). These sections deal with the delegation of the powers and functions of the Commonwealth Environment Minister and Secretary of that Department. As subsections 515(1) and 515(2) currently stand, delegation may only be made to the 'officers and employees of the Department'. The Director is a statutory position, appointed by the Governor General, and thus may not be an officer or employee. The amendments simply adds the Director to 'officers and employees of the Department' as a person eligible for delegation.

Schedule 2 (Amendment of the Environmental Reform (Consequential Provisions) Act)

Item 1 inserts a new item 4A into schedule 4 of the ERCP Act. Schedule 4 of the ERCP Act deals with transitional arrangements for the National Parks and Wildlife Conservation Act 1975.

Item 4A(1) ensures that Commonwealth Reserve management plans do not lapse if they have been accepted (ie approved) by the Commonwealth Environment Minister but not yet entered into force under the National Parks and Wildlife Conservation Act 1975 on the date that Act is replaced by the EPBC Act.

Item 4A(2) provides that such plans are considered to have been approved under section 370 of the EPBC Act.

Item 4A(3) provides that such plans cease on the earlier of either the date the plan would originally ceased under the National Parks and Wildlife Conservation Act 1975 or seven years after the commencement of the EPBC Act.

The effect of item 4A(4) is that plans coming into force under item 4A are not required to include the contents specified by section 367 of the EPBC Act.

Endnotes

1. This is the commencement date of the Environment Protection and Biodiversity Conservation Act 1999.
2. With a minor exception that the definition of a Regional Forestry Agreement in the Environmental Legislation Amendment (No.1) Bill 2000 includes an agreement between the Commonwealth and ACT or Northern Territory. The RFA Bill defined an RFA only in terms of an agreement between the Commonwealth and a State.
3. These amendments and others relating to the RFA Bill are reproduced in House of Representatives Debates 13 October 1999 p. 8584.
4. This parliamentary scrutiny amendment would mean the Commonwealth Forestry Minister could not enter into a RFA unless it had been tabled in both Houses of Parliament and not been disallowed - ie the Senate would effectively have power of veto over the Governments ability to enter into a RFA.
5. House of Representatives, Debates, 13 October 1999 p. 8643.
6. Section 522B is repealed by item 26 and subsection 523(2) is repealed by item 27.
7. Explanatory Memorandum, paragraph 5, p. 3.
8. What is now section 522B was not included in the Bill as in was first introduced in July 1998. It seems to have first appeared as clause 489 as part of package of proposed amendments introduced on 12 November 1998 and described in the supplementary memorandum of that date.
9. Part 10 strategic assessments may done carried out on a wide range of matters (see section 146 of the EPBC Act) but have particular application to fisheries (see sections 147-153).
10. Also released on 12 November 1998.
11. Ibid, paragraph 239. Note that the word cumulative does not appear anywhere in the EPBC Act. Subject to the proposed amendments under items 4-11, it could therefore be inferred that it is at the discretion of the Commonwealth Environment Minister as to the precise range of impacts that are considered by a strategic assessment.
12. For example, see the last two lines of the text for item 4, which proposes to amend existing subsection 146(1).
13. See existing subsection 146(1).
14. Note that the Bill specifies that item 13 (ie section 208A) be inserted before the existing section 208. This would seem to be an error.
15. An obvious distinction between a section 201 permit and a section 208 fisheries plan or regime is that the former is more likely to address a specific activity or group of activities over a limited time frame rather a broad range of activities over a period of several years in the case of a commercial fishery management plan.
16. See section 371 of the EPBC Act.
17. See sections 346-348 of the EPBC Act.
18. That is, not disallowed.

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ISSN 1328-8091
© Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000.

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