Commonwealth Numbered Regulations - Explanatory Statements

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ANTARCTIC TREATY (ENVIRONMENT PROTECTION) (ENVIRONMENTAL IMPACT ASSESSMENT) REGULATIONS 1993 NO. 115

ISSUED BY THE AUTHORITY OF THE MINISTER FOR THE ENVIRONMENT, SPORT AND TERRITORIES

ANTARCTIC TREATY (ENVIRONMENT PROTECTION) (ENVIRONMENTAL IMPACT ASSESSMENT) REGULATIONS

Paragraph 29(1)(a) of the Antarctic Treaty (Environment Protection) Act 1980 empowers the Governor-General to make regulations not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary and convenient to be prescribed for carrying out or giving effect to the Act. In addition, paragraph 29(1)(c) of the Act, inserted by the Antarctic (Environment Protection) Legislation Amendment Act 1992 (the Amendment Act), specifically empowers the Governor-General to make regulations providing for the procedures to be followed in dealing with a comprehensive environmental evaluation received from a party to the Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol) in relation to an activity proposed to be carried on by the party in the Antarctic. Paragraphs 12G(2)(a) and 12K(2)(a), subsections 12K(3), 12L(4), 12N(1), (2) and (3), and section 12P, also inserted by the Amendment Act, provide other specific regulation making powers.

The regulation making provisions inserted by the the Amendment Act, commence on 11 June 1993. Subsection 4(1) of the Acts Interpretation Act 1901 allows regulations to be made prior to the regulation making powers commencing, thus enabling supporting regulations to be in place on commencement of new provisions in an Act.

New Part 3 of the Act provides for prior environmental impact assessment (EIA) of activities in the Antarctic as required by the Protocol. Part 3 of the Act meets the requirements of Articles 3.2 and 8 of the Protocol and Annex I to the Protocol (which deal with environmental impact assessment of Antarctic activities) and provides the Minister with certain powers in relation to the assessment process. The Regulations detail the EIA procedures.

The arrangements require that activities proposed to be conducted in the Antarctic are subject to prior assessment of their likely impacts on the Antarctic environment and dependent and associated ecosystems. In accordance with Annex I to the Protocol, the assessment process has the following three levels:

•       determination as to whether a proposed activity is likely to have no more than a negligible impact on the environment, in which case the activity may proceed or, alternatively, requires a higher level of assessment;

•       an initial environmental evaluation (IEE) which is to be carried out in all cases unless it has been determined that the proposed activity is likely to have no more than a negligible impact on the environment or unless a comprehensive environmental evaluation is being carried out. The aim of the IEE is to enable a determination of whether a proposed activity is likely to have no more than a minor or transitory impact on the environment, and to enable identification of possible alternatives and of measures for assessing and verifying the impacts of the activity;

•       a comprehensive environmental evaluation (CEE) which is to be prepared where it has been determined that a proposed activity is likely to have more than a minor or transitory impact. The CEE is a detailed examination of the proposal, its potential impacts and possible alternatives, and measures to minimise, mitigate, verify and assess the impacts.

Broadly, the Regulations provide for:

•       matters which must be included in initial and comprehensive environmental evaluations; and

•       procedures for dealing with environmental evaluations, including distribution and notification of availability.

Details of the proposed provisions are as follows:

PART I - PRELIMINARY

Regulation 1 - Citation

This regulation provides for the Regulations to be cited as the Antarctic Treaty (Environment Protection) (Environmental Impact Assessment) Regulations.

Regulation 2 - Commencement

The Regulations commence on 11 June 1993 when section 15 of the Antarctic (Environment Protection) Legislation Amendment Act 1992 commences. Section 15 provides for insertion of the environmental impact assessment provisions into the Antarctic Treaty (Environment Protection) Act 1980.

Regulation 3 - Interpretation

This regulation inserts the following definitions:

'Act' is defined to facilitate reference to the Antarctic Treaty (Environment Protection) Act 1980.

'authorised person' is defined to mean a person authorised by the Minister by notice in the Gazette for the purpose of the provision in which the expression occurs. This enables the Minister to authorise another person to, for example, receive reports on her or his behalf, in order to facilitate the efficient administration of the Regulations.

'Committee' means the Committee for Environmental Protection which is provided for under Article 11 of the Protocol. The functions of the Committee (under Article 12) are to provide advice and formulate recommendations for consideration at Treaty meetings, regarding the implementation of the Protocol, and other functions assigned to it by such meetings.

'dispatch day' is defined as the day, or the first day, on which the Minister sends, under regulation 9, a copy of a draft CEE to a signatory to the Protocol, or to the Committee when established. This day needs to be defined to enable calculation of the time limits as required by the Protocol for completion of a number of processing requirements for draft and final CEEs.

'evaluated activity' means an activity for which an IEE, or a draft or final CEE, is prepared. Under the Regulations, a number of procedures must be followed in' relation to activities that are subject to such evaluation.

'proponent' in relation to an activity means the person or organisation proposing to carry on the activity in the Antarctic.

PART 2 - APPLICATION OF PROCEDURES FOR DEALING WITH

ENVIRONMENTAL EVALUATIONS

Regulation 4 - Compliance with Parts 3 and 4

Regulation 4 provides that a person preparing or dealing with an IEE or a draft or final CEE must comply with the requirements of Parts 3 and 4 of the Regulations unless specifically exempted. The exemptions specified in subregulation 4(3) a ply, if the activity is required: p

(i)       to save a person from death or serious injury (paragraph (a));

(ii)       to secure the safety of a ship or aircraft or the safety of equipment or facilities of high value (paragraph (b)); or

(iii) to protect the environment (paragraph (c)).

This provision is consistent with Article 7 of the Annex 1 to the Protocol which states that the Annex does not apply in such emergency circumstances.

Regulation 5 - Notification of emergency contravention of procedures

Subregulation 5(1) provides that a notice must be provided to the Minister on an activity undertaken in an emergency if that activity was in contravention of a p requirement of Parts 3 and 4 of the Regulations. The person or organisation carrying on the activity is required to provide the notification within 30 days from when the contravening activity began.

Subregulation 5(2) provides that within 30 days of giving the notice, the person must provide a written report to the Minister describing the activity and explaining the reasons for the contravention. The intention of this regulation is, amongst other things, to enable compliance with Article 7 of Annex I to the Protocol which requires that information on activities undertaken in emergencies and that would have otherwise required a CEE is circulated quickly to all signatories to the Protocol and to the Committee (once formed) and that a full explanation is provided within 90 days of those activities.

Regulation 6 - Contents of an initial environmental evaluation

Where it has been determined under section 12G of the Act that an IEE must be prepared, specified information must be included in the IEE. Paragraphs (a) to (q) of regulation 6 describe in detail the information to be included. The intention is to ensure that sufficient detail is included in an IEE to enable assessment of the likely level of environmental impact of the activity. The information required is consistent with the Protocol and with guidelines that have been developed by the international Council of Managers of National Antarctic Programs in order to achieve consistency in the EIA procedures used by all national Antarctic programs and nongovernmental expeditions.

Regulation 7 - Notice of completion of an initial environmental evaluation

Regulation 7 ensures that after making a determination under section 12H of the Act the Minister publishes a notice in the Gazette advising that copies of the IEE are available (paragraph 1(a)), and summarising the determination (paragraph IN). Subregulation (1) ensures that the Minister publishes the notice whether or not he or she has authorised the proponent to carry on the activity. It is possible that the activity will not be authorised, in which case the activity will have to be assessed at the CEE level if the proponent wishes to proceed.

Subregulation (2) requires that, if the Minister has determined that the activity can proceed, the Minister cannot publish a notice under subregulation 7(1) until after authorising the proponent in writing as required by subsection 12J(1) of the Act.

An address must be specified (subregulation (1)) at which the relevant IEE will be available. By subregulation (3) the address must be that of the proponent or that of the person who, or organisation that, prepared the evaluation on behalf of the proponent.

Regulation 8 - Contents of a draft comprehensive environmental evaluation

Regulation 8 requires that a draft CEE of an activity proposed to be conducted in the Antarctic includes specified information. The information required is consistent with that specified in Article 3 of Annex I to the Protocol and with guidelines elaborated by the international Council of Managers of National Antarctic Programs. It is intended that CEEs address the same type of issues as IEEs but in greater detail. Paragraphs 8(a) to (q) specify those matters that will need to be included in draft comprehensive environmental evaluations.

Regulation 9 - Overseas distribution of an Australian draft comprehensive environmental evaluation

Regulation 9 requires that, as soon as practicable after receiving a draft CEE from an Australian proponent under subsection 12K(1) of the Act, the Minister ensures that copies of such evaluations are provided to each signatory to the Protocol (through diplomatic channels), and, if the Committee has been established, to the Committee. This regulation reflects the obligation arising under Articles 3.3 and 3.4 of Annex I to the Protocol that all draft CEEs are provided to the Committee and other signatories for examination and possible comment.

Regulation 10 - Notification of availability in Australia of a draft comprehensive environmental evaluation

Regulation 10 provides that, as soon as practicable after receiving an Australian or foreign draft CEE, the Minister must publicise the availability of the evaluation for comment, as required by Article 3.3 of Annex I to the Protocol. The notice in the Gazette must specify that the draft has been received, the jurisdiction where it was prepared and an Australian address where a copy can be obtained (subregulation 10(1)).

In the case of Australian evaluations, subregulation 10(2) provides that the address from which copies of the evaluation may be obtained must be the address of the proponent, or of the person who prepared the draft evaluation. Subregulation 10(3) then provides that at least 28 days will be allowed for receipt of comments on Australian draft evaluations, from within Australia.

Subregulation 10(4) provides that a notice relating to a draft evaluation received from a foreign party must specify the day by which comments must be provided; subregulation 10(5) then provides that this must be earlier than 90 days after the day on which the foreign party sent the draft evaluation to Australia. The purpose of this provision is to ensure that Australia is able to provide comments on a draft foreign evaluation within 90 days of receiving the evaluation as provided for under Article 3.3 of Annex I to the Protocol. The time specified in the notice will depend on the date on which the draft evaluation was received, and the estimated time it will take to receive and forward comments to the party that prepared the evaluation, bearing in mind the time Emit of 90 days.

Regulation 11 - Forwarding comments on a draft comprehensive environmental evaluation

This regulation requires that the Minister forward to a proponent copies of all comments received on an Australian draft CEE. Comments received as a result of making the draft evaluation publicly available in Australia must be forwarded as soon as practicable after the date specified in the Gazette notice (subregulation 11(2)). Those received from an Antarctic Treaty Consultative Party or the Committee (once formed) must also be forwarded as soon as practicable after this date (subregulation 11(2)). Comments received from foreign signatories within 90 days of the dispatch day must also be forwarded as soon as practicable (subregulation 11(3)). Subregulation (3) does not preclude the Minister from forwarding comments to the proponent after 90 days. The intention of Regulation 11 is to ensure that proponents are in a position to meet the requirement in Article 3.6 of Annex I to the Protocol that final CEEs address and include or summarise all comments received on draft evaluations.

Regulation 12 - Contents of a final comprehensive environmental evaluation

Regulation 12 requires that a final CEE not only include all matters required to be included in a draft CEE, but that it must also include the text of, or a summary of, all comments received on the draft evaluation and material addressing the comments. The intention is to ensure that, in making a decision under section 12L of the Act, the Minister is able to take into account all relevant considerations.

Regulation 13 - Notice of availability of an Australian final comprehensive environmental evaluation

Subregulation 13(1) provides that the Minister must publish a notice in the Gazette;

(i)       after he or she has made a decision under section 12L of the Act whether or not to authorise the carrying on of an activity; and

(ii)       in the case where the activity is authorised, other signatories to the Protocol have been notified of the decision.

The notice must state that the Minister has received a final CEE and made a decision on authorisation of the proposed activity, provide the address from which a person may obtain a copy of the evaluation and, if the activity has been authorised, the notice of authorisation (subregulation 13(2)). The note to the regulation clarifies that the Minister is required, under subsection 12L(2) of the Act, to notify the proponent that the activity has been authorised by notice in the Gazette. It is not therefore necessary to state in the notice required by regulation 13 whether the Minister has authorised the activity. Subregulation 13(3) then provides that the address notified in subregulation 13(2) must be the address of the proponent or the person that prepared the evaluation.

The intention of this regulation is to ensure that persons or organisations with an interest in the activity are able to obtain all relevant information prior to the activity commencing. (Regulation 15 provides that evaluated activities may not commence earlier than 60 days after publication of a notice under regulation 13 as required by Article 3.6 of Annex I to the Protocol.)

Regulation 14 - Notice of availability of a foreign final comprehensive environmental evaluation

Regulation 14 requires the Minister to publish, as soon as practicable after receiving the relevant documents, a notice in the Gazette stating the address in Australia from which copies may be obtained of any final foreign CEE received and any decision relating to the evaluation. The intention of this regulation, which implements a requirement of Article 3.6 of Annex I to the Protocol, is to ensure that persons or organisations with an interest in the activity are able to obtain copies of the documents referred to, prior to the activity commencing.

Regulation 15 - Starting an authorised activity

Regulation 15 prescribes a condition which automatically attaches to an authorisation of an activity pursuant to subsection 12L(4) of the Act. The condition is that an activity is not begun earlier than 60 days after publication of a notice in the Gazette under regulation 13 in relation to the activity. Under subregulation 13(1), the notice may not be published until foreign signatories to the Protocol have been advised of the decision; this ensures that the 60 days within which an activity may not be commenced does not start until at least the date that foreign signatories are advised, as required by Article 3.6 of Annex I to the Protocol. Making the 60 day requirement a condition of an authorisation means that the greater level of penalty under the Act applies in the case of a contravention.

Regulation 16 - How must a notice varying an authorisation be given?

Subsections 12N(1), (2) and (3), and section 12P of the Act provide for variation, suspension and revocation of an authorisation or of conditions specified in the authorisation. These provisions require that notice of a variation must be given as provided in the regulations. The authorisations referred to in these provisions are authorisations by the Minister to carry out an activity which has been the subject of a preliminary assessment, an initial environmental evaluation, or a comprehensive environmental evaluation.

Regulation 16 provides that notice may be given in writing to the person authorised to carry out the activity (paragraph 16(a)), by message transmitted by radio, telephone or other electronic means to the person authorised (paragraph 16(b)), or by publishing a notice in the Gazette (paragraph 16(c)). The requirement for electronic communication is essential to allow communication of the variation to a person who is, for example, at a station or in the field in the Antarctic.