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Environment Protection and Biodiversity Conservation Amendment (Mining,
Petroleum and Water Resources) Bill 2011
EXPLANATORY MEMORANDUM
Tony Windsor
Outline of the Bill
The purpose of the Bill is to amend the Environment Protection and Biodiversity
Conservation Act 1999 to empower the Commonwealth to be the consent authority for
mining and extractive industry actions that have, or are likely to have, a significant
impact on water resources.
Section 1 (short title)
The section provides for the Act to be cited as the Environment Protection and
Biodiversity Conservation Amendment (Mining, Petroleum and Water Resources) Act 2011.
The Bill amends the Environment Protection and Biodiversity Conservation Act 1999 (the
Act) to extend its operation in relation to the effect of mining (including petroleum and
gas extraction) on water resources.
Section 2 (commencement)
The amendments set out in Schedule 1 to the Bill commence on the day after the Bill is
introduced into the House of Representatives.
This will result in a retrospective commencement. This is necessary because proposed
section 43C allows for actions that were, or would have been, lawful immediately before
commencement, and that continue to be lawful after commencement (disregarding
proposed Subdivision FB), to be taken without approval under the Act. If the
amendments commenced until on or after Royal Assent, approvals for mining
operations could be fast-tracked during between introduction and Royal Assent in order
to gain the protection of section 43C.
Section 3 (schedule(s))
This section gives effect to the amendments set out in Schedule 1 to the Bill.
Schedule 1 (amendments)
Item 1
This amendment inserts a new Subdivision FB (protection of water resources from
mining operations) into Division 1 of Part 3 of the Act. Subdivision FB contains sections
24D to 24G.
Section 24D (requirement for approval of mining operations with a significant impact on
water resources)
In this core provision of the amendment, the action that requires approval is "an action
taken in the course of mining operations that has, will have or is likely to have a
significant impact on the water quality, structural integrity or hydraulic balance of a
water resource".
The term "action" is already defined in the Act to include a project, a development, an
undertaking and an activity or series of activities.
The first three subsections of section 24D impose civil penalties for these mining actions
in particular circumstances, each based on a particular ground of Commonwealth
constitutional power - over corporations, trade and commerce, and Territories.
The fourth subsection lists the exceptions to the prohibitions - circumstances in which
the action may be taken. These are:
· the Minister has given an approval under Part 9 of the Act;
· the action does not require an approval under Part 9 because it is covered by an
accredited management arrangement;
· the action does not require an approval under Part 9 because it is covered by an
accredited State or Territory mining authorisation process;
· the action does not require an approval under Part 9 because it has prior
approval;
· the Minister has declared that the action is not covered by this section;
· the action is covered by a section that relates to international aid programs
(which is not likely to apply).
Sections 24E and 24F (definitions of mining operations and water resource)
These sections define the terms mining operations and water resource, which are central
to the amendments. Both are very broadly defined.
Section 24G (offences relating to mining operations)
The actions that are liable to civil penalties under the new section 24D may also be
subject to criminal penalties under this section.
The first six subsections impose criminal penalties for the relevant mining actions in
particular circumstances, each based on a particular ground of Commonwealth
constitutional power - over Corporations, Trade and Commerce, and Territories. They
are also divided according to whether the prosecution must prove that the impact on the
water resource was certain or only likely.
Subsection (7) gives exceptions to the prohibitions. These are the same as for the civil
penalty provisions in section 24D.
Item 2
This amendment inserts new items 13H and 13I into the table in section 34 of the Act to
include water resources as a matter protected by a provision of Part 3 of the Act.
Item 3
This amendment inserts new Division 5A (mining operations covered by Ministerial
declarations and accredited mining authorisation processes) into Part 4 of the Act.
Division 5A contains sections 43AA to sections 43AF.
Section 43AA (actions declared by Minister not to need approval)
This section provides for the taking of an action covered by Subdivision FB (as inserted
by item 1) without approval under Part 9 of the Act. The action must be covered by a
declaration that is made by the Minister under section 43AB and that is in force at the
time the action is taken.
Section 43AB (making declaration that actions do not need approval under Part 9)
This section provides for the Minister to make the declarations referred to in section
43AA. For actions set out in the declaration to be taken without approval under Part 9,
they must be approved under a process that is set out in a law of a State or self-
governing Territory and that has been accredited by the Minister.
The Minister cannot accredit a process without giving the Parliament the opportunity to
oppose the accreditation. An accredited State or Territory process is called an
"accredited mining authorisation process".
Section 43AC (Minister may only make declaration if prescribed criteria are met)
This section requires a declaration made under section 43AB to accord with the objects
of the Act, and to meet any requirements set out in the regulations.
Section 43AD (revoking declarations)
This section provides for revocation of declarations made by the Minister under section
43AB. The section also saves the effect of a declaration in relation to actions taken in
reliance on the declaration but which have not been completed before it is revoked.
Section 43AE (other rules about declarations)
This section ensures that, in making declarations or accrediting processes, the Minister
does not give preference to a State, or a part of a State, in breach of section 99 of the
Constitution.
Section 43AF (minor amendments of accredited mining authorisation process)
This section allows for an accredited mining authorisation process to continue as such
following minor changes to the process.
Item 4
This amendment adds new section 43C at the end of Division 6 (actions with prior
authorisations) of Part 4 of the Act.
Section 43C (mining operations with prior authorizations)
Section 43C provides for actions that were, or would have been, lawful immediately
before commencement, and that continue to be lawful after commencement
(disregarding proposed Subdivision FB), to be taken without approval under the Act.
Items 5 to 13
These items make consequential amendments arising from the insertion of new
Subdivision FB (protection of water resources from mining operations) into Division 1
of Part 3 of the Act.