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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (CLIMATE TRIGGER) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (CLIMATE TRIGGER) BILL 2020
OUTLINE
The Environment Protection and Biodiversity Conservation Amendment (Climate Trigger)
Bill 2020 seeks to amend parts of the Environment Protection and Biodiversity Conservation
Act 1999 (EPBC Act) to introduce a climate trigger to ensure Australia fulfils its obligations
under the Climate Change Conventions through thorough environmental assessment of
emissions-intensive activities.
There are nine matters of national environmental significance under the EPBC Act, including,
but not limited to, world heritage properties, national heritages places, Commonwealth
marine areas and water resources in relation to coal seam gas development and large coal
mining development. There is a clear policy gap in that emissions-producing activities are
currently not considered a matter of national environmental significance under the EPBC Act.
This Bill seeks to address this deficiency.
This Bill establishes penalties for a person undertaking emissions-intensive actions if the
action has, will have or is likely to have a significant impact on the environment. An
emissions-intensive action is an action that involves mining operations, drilling exploration,
land clearing or is specified in the regulations for the purposes of proposed section 24J.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. This clause provides for the whole of this Act to commence the day after it receives
Royal Assent.
Clause 3: Schedules
3. This clause gives effect to the schedules. It provides that legislation that is specified in
a schedule to this Act is amended or repealed as set out in the applicable items in the schedule
concerned, and any other item in a schedule to this Act has effect according to its terms.
Schedule 1--Emissions-intensive actions
Environment Protection and Biodiversity Conservation Act 1999
Item 1 - After Subdivision FB of Division 1 of Part 3
This item inserts a new Subdivision FC--Emissions-intensive actions into the EPBC
Act.
Section 24F Purpose of this Subdivision
The purpose of this new subdivision is to fulfil Australia's obligations under the Climate
Change Conventions.
Section 24G Requirement for approval of emissions-intensive actions
Section 24G introduces civil penalties for an individual or body corporate if an emissions-
intensive action is taken, if the action has, will have or is likely to have significant impact on
the environment.
Subsection 24G(2) lists the exceptions to the civil penalty provisions, that is, the
circumstances in which an emissions-intensive action may be taken. These include where 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 or the
Minister has decided under Division 2 of Part 7 that this section is not a controlling provision.
A person who wishes to rely on subsection 24G(2) in proceedings for a contravention of a
civil penalty provision bears an evidential burden in relation to the matters in that subsection.
That is, the person must prove, for example, that they have approval for the action, or that the
Minister has made a decision that the action does not need approval provided it is taken in a
particular manner. Given that the relevant decisions and notices under subsection 24G(2) are
readily available, this does not place an undue burden on that person.
Section 24H Offence relating to emissions-intensive actions
The actions that are liable to civil penalties under the new section 24G may also be subject to
criminal penalties under this section. This section introduces an offence punishable by
imprisonment of 7 years or 420 penalty units, or both, if a person commits an offence under
24H.
Section 24J What is an emissions-intensive action?
This proposed section defines emissions-intensive action as an action that involves mining
operations, drilling exploration, land clearing or is specified in the regulations for the
purposes of this section.
Items 2 to 17
Items 2 to 17 make consequential amendments to the EPBC Act consistent with proposed
new sections 24G, 24H and 24J.
Item 18 Application provision
This provision applies in relation to an applicable action that begins on or after the day of
commencement of this item.
Item 19 Transitional regulations
Amendments made by this schedule may be subject to the Governor-General making
regulations prescribing matters of a transitional nature, including any saving or application
provisions.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Environment Protection and Biodiversity Conservation Amendment
(Climate Trigger) Bill 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
There are nine matters of national environmental significance under EPBC Act, including,
but not limited to, world heritage properties, national heritages places, Commonwealth
marine areas and water resources in relation to coal seam gas development and large coal
mining development. There is a clear policy gap in that emissions-producing activities are
currently not considered a matter of national environmental significance under the EPBC Act.
This Bill seeks to address this deficiency.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator Sarah Hanson-Young