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Environment, Sport and Territories Legislation Amendment Bill 1996
Date Introduced: 12 December 1996
House: Senate
Portfolio: Environment, Sport and Territories
Commencement: Upon Royal Assent except:
The Bill is an omnibus Bill amending a number of pieces of legislation in the Environment, Sport and Territories portfolio.
As there is no central theme to the Bill, the background to each major piece of legislation will be discussed in the relevant sections below.
The National Capital Planning Authority (NCPA) was established in 1989, at the same time that self-government was introduced into the Australian Capital Territory. Prior to 1989, the National Capital Development Commission existed and performed similar tasks to the NCPA.The NCPA Annual Report indicates (at p v) that by arrangement with the Minister the new name, the National Capital Authority,was 'to take effect for administrative purposes from 1 July 1996.'
Items 1-4 amend the Australian Capital Territory (Planning and Land management) Act 1988 so as to change the name of the National Capital Planning Authority to the National Capital Authority.
Section 25B of the Acts Interpretation Act 1901 provides that where an Act changes the name of a body, unless the contrary intention is shown, the body's existence and it's identity are not affected.
Item 5 amends subsection 10(2) so as to allow the Australian Sports Drug Agency (ASDA) to charge fees for its services, advice or information.The fee set by the ASDA must not amount to a taxation, which means that it must be proportionate to the service provided.The Explanatory Memorandum (at p5) notes that this amendment will enable the ASDA to charge a fee which includes a profit to persons seeking to use the drug testing facilities on a commercial basis (ie who are not compelled to under the legislation).
Section 11 of the Christmas Island Act 1958 establishes a Supreme Court of Christmas Island Territory and Part IVA confers jurisdiction on the Western Australian courts and court officers as if the Christmas Island Territory were part of Western Australia.
The Western Australian Supreme Court Act 1935 provides the powers and duties of the Registrar of the court and of the sheriff(and certain officers who act with the power of the sheriff).
Items 7-11 extend the conferring of jurisdiction to the District Court of Western Australia and to people empowered by the Western Australian legislation to exercise the powers of a Registrar of the Supreme Court (WA), a judge of the District Court (WA) or a sheriff (of either the District Court or the Supreme Court).
Item 13 deletes an obsolete provision that enabled people to obtain Australian citizenship under Part V of the Act.The amendment will ensure that all persons who previously acquired citizenship under this provision retain their citizenship.
As with the above amendments to the Christmas Island Act 1958, Items 14-15 delete the now obsolete citizenship provisions, whilst preserving the legality of any Australian citizenship obtained under the previous provisions.
Similarly again, jurisdiction is conferred on the Western Australia District Court and court officers (a Registrar of the Supreme Court, a Judge of the District Court or a Sheriff or a person lawfully exercising the powers and functions of a Sheriff of either the Supreme Court or the District Court.)
The proposed amendments to the Preamble of this act will extend its application to the Middleton and Elizabeth reefs which are situated approximately 150km north of Lord Howe Island.Those reefs are currently situated within Australia's Exclusive Economic Zone and Australia exercises sovereignty over them.
Middleton Reef was discovered by Lieutenant John Shortland in 1788, during his return voyage from the First Fleet.It was named after Admiral Sir Charles Theodore Middleton.
Elizabeth Reef was not discovered for about a further 30 years, although the Britannia wrecked there in 1806.Elizabeth Reef was named after the Elizabeth which was wrecked on the reef in 1831.
Middleton and Elizabeth Reefs are notable for being the most southerly coral atolls in the world and home to many rare and endangered species (eg the Black Cod). In 1994, a Management Plan was introduced for the Elizabeth and Middleton Reefs Marine National Nature Reserve.The reserve is protected by the National Parks and Wildlife Conservation Act 1975.
Items 20 and 21 amend the Coral Sea Islands Act 1969 so as to include Middleton and Elizabeth Reefs in the Coral Sea Island Territory.
Item 22 merely inserts a provision which enables regulations to be made that will extend the application of the Customs Act 1901 to the Territory of Ashmore and Cartier Islands.
Item 25 extends from 30 days to 90 days the time within which the Minister must gazette any decision to add or to delete a species from a list.The Explanatory Memorandum pp7-8 refers to the 'new inclusion of Endangered Species or Vulnerable Species or other amendments to the Schedules to the Act' but not only inclusions but deletions are specified in section 24 and are therefore affected.
The Scientific Subcommittee remains prevented from publicising anything regarding its advice to the Minister until either the decision to list or de-list is gazetted or until 30 days (about to be changed to 90 days for advices received after the commencement of the Bill) have elapsed.
The International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter ('the London Convention') was negotiated in 1972 and entered into force for Australia on 20 September 1985. The London Convention has been amended a number of times since its inception and the latest set of three amendments were completed on 12 November 1993. Australia and Russia were the two countries which did not agree outright to the phase-out date for industrial waste dumping at sea of 1 January 1996.Australia accepted the amendments by declaration deposited on 15 February 1994, except the provisions relating to the dumping at sea of jarosite waste.Australia retained the option of dumping jarosite waste at sea after the deadline of 1 January 1996 but not beyond 31 December 1997.
Jarosite waste, a by-product of the zinc smelting process, is 'a fine-grained, high-moisture-content material which consists largely of ammonium jarosite (containing iron, ammonium and sulfate), gypsum and calcine residue which together form a complex mixture.'(1)
The company Pasminco Metals-EZ has been producing jarosite waste at its Hobart smelter and disposing of it at sea since 1973.The rate of disposal authorised was up to 240,000 tonnes (dry weight) per twelve month period.In 1991, the then Department of Arts, Sport, the Environment, Tourism and Territories commissioned the CSIRO Marine Laboratories to prepare a report, including biological sampling, of the effects of jarosite waste dumping at sea.
The CSIRO report considered the oceanographic effects, conducted sediment studies and biological sampling to determine the effect of jarosite dumping at sea.For the biological sampling, some 48 commercially or ecologically significant taxa of the water column (rather than the seabed) were studied.Some species were found to have concentrations of heavy metals (primarily selenium, mercury and cadmium) above the recommended health standards.The study concluded that whilst heavy metal contamination could not be linked to the jarosite dumping (p12),proof that jarosite dumping had no effect on contamination of the foodchain could also not be proven.(2)
Item 29 inserts subsection 19(4A) which extends the time in which the Minister must give a decision to either 30 days after all processes required under the Environmental Protection (Impact of Proposals) Act 1974 or90 days after the application is made, whichever is the later.As the Explanatory Memorandum states (at p 8) this amendment will allow the Minister time after a Public Environment Report is completed, to make a decision in relation to an application for a permit.
The latest amendments to the London Convention will be inserted into Schedule 1 of the Environment Protection (Sea Dumping) Act 1981 by item 35.Schedule 3A inserts those amendments to the London Convention which deal with the phasing out of disposing of industrial waste at sea.
This item corrects a drafting error inserted in the 1995 amendment to the Australian Sports Commission Act 1989.
The existing provisions of the Great Barrier Reef Marine Park Act 1975 contain an anomaly in that Defence Force vessels or aircraft are guilty of an offence under the act if they discharge waste in emergency circumstances.Civilian ships or planes, in cases of the emergency discharging of waste, are exempted from the criminal provisions. This is due to the fact that existing section 38J(1) makes it an offence for 'a person' to 'intentionally or negligently discharge waste in the Marine Park'.Existing subsections 38J(4) and (5) allow certain vessels and aircraft to discharge waste in certain circumstances, including emergency situations. Since 'vessel' and 'aircraft' are defined in subsection 38J(7) to exclude Defence Force vessels and aircraft (whether Australian or Foreign Military)these vessels and aircraft remain guilty of an offence if they discharge waste in any emergency situation (whereas in the same circumstances a civilian vessel would be exempt).
Item 40 attempts to overcome the above anomaly.However, the effect of item 40 is to exempt all Defence Force vessels and aircraft from the whole of existing section 38J.This will result in it no longer being an offence for a Defence Force vessel or aircraft (whether Australian or foreign) to intentionally or negligently discharge waste in the Great Barrier Reef Marine Park.
For Operation Tandem Thrust, conducted in March 1997, the Department of Defence marine headquarters applied to the Minister for the Environment for permits for a number of small vessels to discharge sewage within the Great Barrier Reef Marine Park.The permits were granted on 18 February 1997.(3)
Items 44 and 46 respectively remove the definitions of aircraft and vessel (each of which included foreign military aircraft and vessels).
Section 7 of the Act extends its application to the Coral Seas, Christmas Island and Coco Keeling Territories.The amendment will include the Territory of Ashmore and Cartier Islands in this list.
Item 50corrects a reference to section 48 of the Endangered Species Protection Act 1992.Section 48 has nothing to do with the annual reporting requirements and the reference should be to 'section 49'.
Background
Ozone, a three-atom form of oxygen, is produced by the reaction of ordinary oxygen to the sun's ultra-violet radiation in the upper atmosphere.Ozone forms a protective layer in the upper atmosphere and shields the earth from the majority of the sun's ultra-violet radiation. Scientific studies have demonstrated that ozone is destroyed by certain chemicals, primarily halons and chlorofluorocarbons (CFC's).These chemicals are found in such everyday things such as aerosol sprays, dry-cleaning fluids, cooling systems (refrigeration and air-conditioning), some fire extinguishers and polystyrene.
Since the 1970's the scientific community began documenting the appearance and expansion of the hole in the ozone layer.The hole initially appeared over Antarctica but grew to cover an area larger than Europe at certain times of the year.When concern in the general scientific community became apparent, it was quickly recognised that the thinning of the ozone layer was a global problem, requiring an international solution.The first international agreement addressing the problem was the Vienna Convention for the Protection of the Ozone Layer 1985.However, the Vienna Convention did not set targets for countries to meet for reducing their output of ozone-depleting chemicals.As a result, the Montreal Protocol on Substances that Deplete the Ozone Layer 1987 was negotiated, followed by a number of additional protocols with progressively stronger reduction targets.
The Ozone Protection Act 1989 was Australia's response to the Montreal Protocol.There are also a number of pieces of State legislation that address the issue of reducing the output of ozone depleting chemicals.For a comprehensive discussion of the background to the Ozone Protection Act 1989 and the 1995 amendments see Bills Digest No. 11 of 1995/96.(4)
Australia has implemented the Montreal Protocol by imposing controls on methyl bromide and HCFCs (hydrochlorofluorocarbons) as from 1 January 1996.A licence is now required for the manufacture, import or export of these substances.
Not all ozone depleting chemicals (generally bromine and chlorine compounds) have the same effect on the ozone layer.Generally speaking, bromine is much worse as it breaks up ozone at around 50 times the rate that chlorine does.However, bromine only remains active in the stratosphere for a couple of years, whereas chlorine can remain active in the ozone layer for around 100 years.
Methyl bromide is odourless, colourless, tasteless and highly toxic gas that is a broad spectrum fumigant.Its uses include the control of pests and diseases in horticultural soils, stored grains, quarantine and for many other types of fumigation.(5) Methyl bromide is currently scheduled to be phased out by 2010.
HCFCs, scheduled to be phased out by 2020, are ozone depleting but do comparatively less damage to the ozone layer than CFCs and are considered a transitional chemical to aid the phase outof CFC's.HCFC's are commonly used as refrigerants, solvents and blowing agents for plastic foam manufacture.One of the HCFC's, which goes by the common name of HCFC-22, was described in the current legislation by the wrong chemical formula.Items 57-58 amend the formula to CHF2CL.
Amendments to the Ozone Protection Act 1989 in 1995 sought to ban the export and import of HBFC's (hydrobromofluorocarbons).This implemented a decision of a further meeting of the parties to the Convention (Copenhagen 1992).However, the 1992 agreement provided for the Parties to specify agreed 'essential uses' for HBFC's which would then be exempted from the absolute ban that came in on 1 January 1996.Item 51 amends the definition of an 'essential uses licence' to include the importation of specified HBFC's.
Quarantine Act 1908
Item 60 inserts new section 6AB into the Quarantine Act 1908 which provides that regulations may be made under the act which extend its application to the Territory of Ashmore and Cartier Islands.
Item 61 merely amends the objects of the Act to ensure that any amendments to the 1990 agreement between the Commonwealth and Queensland, relating to the management of the World Heritage Listed Wet Tropics area, are incorporated.
Susan Downing
12 June 1997
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library, 1997.
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Last updated: 12 June 1997