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1998-9
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
ENVIRONMENT
PROTECTION AND BIODIVERSITY CONSERVATION BILL 1998
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments and New
Clauses to be Moved on Behalf of
the
Government
(Circulated by
authority of the Minister for the Environment and Heritage,
Senator the Hon. Robert
Hill)
ISBN: 0642 40514X
NOTES ON AMENDMENTS AND NEW CLAUSES
TO BE
MOVED ON BEHALF OF THE
GOVERNMENT
1. This amendment extends the maximum period between
Royal Assent and commencement of the Environment Protection and Biodiversity
Conservation Bill 1998 (EPBC Bill) from 6 to 12 months.
2. These amendments explicitly recognise the role and
interests of indigenous people in protecting the environment and conserving
biodiversity.
3. This amendment gives greater prominence to
principles of ecologically sustainable development.
4. This amendment removes a subclause providing that
the Crown is not liable to prosecution. Such a provision appears in many Acts
simply for the sake of clarity. There is a long tradition of Crown immunity
from criminal liability and a relevant case law supports that immunity and would
require clear displacement of a strong presumption against any intention to
render the Crown criminally liable. The subclause is removed to avoid any
appearance that this immunity is extended to Commonwealth employees, servants
and agents who breach offence provisions of the EPBC
Bill.
5. In removing subclause 4(2) it is
not the intention to reverse the long-held policy that the Crown itself, as
opposed to its emanations in the form of officials, servants and agents, and
corporate entities, should not be subject to criminal
prosecution.
6. This amendment deletes clause 6 of the EPBC Bill.
The EPBC Bill makes specific reference, in appropriate clauses, to
Australia’s international obligations where they are
relevant.
7. This amendment inserts a new subclause into the EPBC
Bill which provides that the Aboriginal Land Rights (Northern Territory) Act
1976 and the Native Title Act 1993 will not be affected by the EPBC
Bill.
8. This amendment provides that the Aboriginal Land
Rights (Northern Territory) Act 1976 does not prevent a person exercising
powers of performing functions and duties under the EPBC Bill.
9. These amendments remove the capacity for
conservation agreements to provide that specified actions do not require
approval from the Minister under Part 9. See also clause 317.
10. Clause 75 of the EPBC Bill requires the Minister to
decide whether an action requires approval for the purposes of Part 3. These
amendments clarify that if the Minister decides that approval for the purposes
of the relevant section is not required because the action will be taken in a
specified manner, then the action is exempt from approval only if it is taken in
the specified manner.
11. These amendments remove the words “or the
giving of an authorisation (however described) of such an action”, which
are not needed because it is clear from subclause 524(2) of the EPBC Bill that
such an authorisation is not an action.
12. This amendment inserts a new subclause into the
EPBC Bill which provides that a Ministerial declaration that a property is a
World Heritage property pending nomination for inclusion in the World Heritage
list cannot be in force for longer than 12 months.
13. These amendments insert new subclauses into the
EPBC Bill which strengthen protection of matters of national environmental
significance and Commonwealth areas. The insertion of these clauses will ensure
that the Commonwealth has the option of pursuing criminal prosecution or seeking
a civil penalty in the event of non-compliance. Under certain conditions it is
an offence to take an action that has, will have, or is likely to have a
significant impact on a matter of national environmental significance (other
than a matter prescribed by regulations made under clause 25 of the EPBC Bill),
or on the environment on Commonwealth land, or to take an action on Commonwealth
land which has a significant impact on the environment.
14. Maximum penalties are seven years
imprisonment or a fine of 420 penalty units or both, except for action on
Commonwealth land or affecting the environment on Commonwealth land, in which
case the maximum penalty is two years imprisonment, or a fine of 120 penalty
units, or both.
15. Under clause 495 of the
EPBC Bill an executive officer of a body corporate convicted of an offence under
these provisions may also be guilty of an offence.
16. These amendments modify the procedures for the
Minister to declare that a wetland is a Ramsar wetland by: requiring the
Minister to consult relevant States and Territories before making a declaration
(unless there is an imminent threat to the wetland), and providing that a
declaration cannot be in force for longer than 12 months.
17. These amendments make the definition of nuclear
installation consistent with the definition used in the Australian Radiation
Protection and Nuclear Safety Act 1998.
18. This amendment inserts a new subclause into the
EPBC Bill which provides that fishing in a State managed fishery outside the
Commonwealth marine area does not require approval from the Minister for the
purposes of clause 23(2) of the EPBC Bill.
19. This amendment strengthens the requirements for the
Commonwealth to consult with States and Territories, and seek to reach agreement
before introducing new matters of national environmental significance by
regulation.
20. This amendment inserts a new subclause into the
EPBC Bill which provides that when a regulation prescribing an action or class
or actions is made in order to give effect to an international obligation, the
relevant obligation must be specified in the regulation.
21. This amendment removes the Minister’s power
to specify that an action on Commonwealth land does not require approval under
Part 9. This clause is redundant, given the provisions of Division 3 of Part 7
of the EPBC Bill.
22. This amendment removes subclause 26(4) of the EPBC
Bill, which is not necessary because clause 158 of the EPBC Bill covers
exemptions in the national interest.
23. This amendment changes the heading of Subdivision
B. “Actions” is a more accurate description than “activities
and decisions”.
24. This amendment inserts a new division into the EPBC
Bill which provides that a review must be carried out every five years to
determine whether additional matters of national environmental significance
should be protected by Part 3 of the EPBC Bill. Such additional matters of
national environmental significance would trigger the Commonwealth’s
environment assessment and approval
powers.
25. The amendment sets out the
matters which must be considered in the review, and outlines a process for
public consultation.
26. These amendments provide that bilateral agreements
may declare that actions do not require approval under Part 9 only if the
actions are approved by a State or Territory under an accredited management
plan. Management plans must be in force under a law of the State or Territory.
In order for an action not to require approval, it must be both approved and
taken in accordance with the accredited management
plan.
27. The Minister may accredit a
management plan only if satisfied that there has been an adequate assessment of
the certain and likely impacts of the action approved under the plan on matters
of national environmental significance covered by the agreement. The Minister
must also be satisfied that any actions approved under the plan will not have an
unacceptable or unsustainable impact on matters of national environmental
significance.
28. Accredited management
plans will be disallowable instruments. The management plan and the State or
Territory law must meet criteria prescribed in regulations.
29. The Minister may make a declaration that actions do
not require approval under Part 9 only if the actions are approved by the
Commonwealth or a specified Commonwealth agency under an accredited management
plan. Management plans must be in force under a law of the
Commonwealth.
30. The Minister may accredit
a management plan only if satisfied that there has been an adequate assessment
of the certain and likely impacts of the action approved under the plan on
matters of national environmental significance covered by the agreement. The
Minister must also be satisfied that any actions approved under the plan will
not have an unacceptable or unsustainable impact on matters of national
environmental significance.
31. Accredited
management plans will be disallowable instruments. The management plan and the
Commonwealth law must meet criteria prescribed in regulations.
32. This amendment inserts a new subdivision into the
EPBC Bill which provides pre-requisites for making declarations. These
pre-requisites are equivalent to the pre-requisites for entering into bilateral
agreements (see clauses 50-56 of the EPBC Bill).
33. This amendment provides a clearer definition of RFA
boundaries.
34. These amendments correct minor typographical
errors, make technical adjustments, or make expression consistent across the
EPBC Bill.
35. These amendments set out requirements for the
Minister to publish notice of an intention to develop a draft bilateral
agreement, and to publish a draft bilateral agreement for public comment, before
entering into a bilateral agreement. The Minister must take account of public
comments, and must also consider the role and interests of indigenous
people.
36. Bilateral agreements, together
with the Minister’s reasons for entering into them, must be published as
soon as practicable after they are entered into.
37. This amendment provides that a bilateral agreement
that accredits State or Territory assessments or approvals under clauses 46 or
47 of the EPBC Bill must contain a clause under which the State or Territory
undertakes to ensure that impacts of the action on environmental matters that
are not of national significance will be assessed. This clause guarantees that
all environmental impacts are assessed before an action is approved.
38. Bilateral agreements must recognise
that the Auditor General can carry out a performance audit of the operations of
the Commonwealth public sector in relation to the agreement.
39. This amendment inserts a new subclause into the
EPBC Bill which provides that bilateral agreements will have no effect in
relation to an action in Booderee National Park, Uluru-Kata Tjuta National Park,
or Kakadu National Park.
40. These amendments will make it mandatory rather than
optional to prepare Australian World Heritage Management Principles and
Australian Ramsar Management Principles.
41. Under the revised scheme established by clauses 52,
53, 54, 55, 76, 92, 93, State and Territory approvals can be accredited through
bilaterally accredited management plans. Accordingly, the preconditions for
entering into a bilateral agreement are amended so that they also apply to
accrediting a management plan.
42. This amendment removes a broad requirement that the
Minister be satisfied that the provisions of a bilateral agreement are not
inconsistent with Australia’s obligations under an international
agreement. The EPBC Bill makes specific reference, where appropriate, to
Australia’s relevant international obligations.
43. This amendment ensures that an emergency suspension
of a bilateral agreement can have effect for no longer than three months, and
the Minister must consult with the appropriate State and Territory Minister(s)
as soon as possible after the emergency suspension of a bilateral
agreement.
44. This amendment provides that the Minister must,
rather than may, revoke the suspension or cancellation of a bilateral agreement
if he or she is satisfied that the reason(s) for the suspension or cancellation
are no longer valid.
45. This amendment provides that the Minister must,
rather than may, cancel or suspend a bilateral agreement if the other party asks
him or her to do so under the agreement.
46. This amendment inserts a new clause into the EPBC
Bill which provides that if, at the time that a bilateral agreement ceases to
have effect, an action did not require approval under Part 9 of the EPBC Bill
because it had been approved in accordance with an accredited management plan
under the agreement, then the Act continues to operate in relation to that
action as if the suspension or cancellation had not occurred.
47. This amendment is consequential to the amendments
contained in clauses 112, 113, and 115, which change the title of
“specially accredited assessment process” to “accredited
assessment process” and provide more details about the nature of such
processes.
48. This amendment inserts a new subclause into the
EPBC Bill which provides that a person need not refer an action that he or she
thinks may be a controlled action to the Minister if the person receives a
notice under section 73 that the action has already been referred by a State,
Territory, or a Commonwealth agency. This amendment will avoid duplicated
referrals.
49. This amendment will allow an extension of time
where the Minister requests that a proposal be referred, but only if the person
referring the action agrees. An extension may be necessary in order for the
person to gather the information that must accompany a referral.
50. This amendment will allow a Commonwealth agency to
refer a proposed action to the Minister whether or not the agency thinks the
action may be a controlled action. This will enable a Commonwealth agency to
clarify that a proposed action is not a controlled action in the same way as a
person under subclause 68(2) of the EPBC Bill.
51. This amendment provides that the Minister must
inform a person as soon as practicable that the referral received from a State,
Territory, or Commonwealth agency has been received. The Minister must also
invite the person to provide relevant information on whether the action is
controlled.
52. These amendments require the Minister to publish
referrals on the Internet and invite public comments within a period of 10
business days on whether the action is a controlled action. The Minister must
consider any comments received.
53. This amendment deletes a subclause which is
redundant because of the new scheme established by clauses 52, 53, 54, 55, 76,
92, 93 and clauses 56, 57, 58, 59, 60, 69 and 70. Under the new scheme,
bilateral agreements and declarations can not declare that an action does not
require approval by reference to the fact that it was taken in a specified
manner.
54. This amendment provides that the substantial new
information or change in circumstances on the basis of which the Minister
changes a decision about whether an action requires approval must relate to the
impacts of the action on a matter protected by Part 3 of the EPBC
Bill.
55. This amendment is consequential to the new scheme
created by amendments effected by clauses 52, 53, 54, 55, 76, 92,
93.
56. This amendment provides that if the Minister
reconsiders a decision under clause 75 of the EPBC Bill and decides that a
particular provision of Part 3 is a controlling provision, an earlier decision
that the provision is not a controlling provision does not allow the action to
be taken.
57. These amendments replace references to
“specially accredited processes” with references to
“accredited assessment processes” and stipulate that assessment
processes can only be accredited under this clause if the Minister is satisfied
that: the assessments are carried out under Commonwealth, State or Territory
law; both the law and the assessment process meet the standards set out in any
regulations; the impacts of the action will be adequately assessed; and a
report which contains enough information for the Minister to make an informed
decision about whether to approve the action will be provided.
58. These amendments insert explanatory
notes.
59. This amendment provides prerequisites for making a
declaration relating to environmental assessment; the new prerequisites are
consistent with the prerequisites for entering into a bilateral agreement
relating to environmental assessment.
60. The Minister may publish guidelines setting out
criteria for deciding which approach must be used to assess the relevant impacts
of an action.
61. This amendment replaces the title for clause 90
with a more accurate title.
62. This amendment makes it mandatory (rather than at
the Minister’s discretion) that where the Minister decides that a
controlled action must be assessed on the basis of preliminary documentation,
the proponent must invite public comments on the proposal and the documentation.
The information that must be published is to be specified in the direction from
the Minister.
63. These amendments clarify the circumstances under
which the Secretary may decide not to provide all or part of an assessment
report to a person who asks for it. The grounds for such a decision are the
security of the Commonwealth, providing advice to the Minister, or commercial in
confidence. The Secretary can only decide that information is commercial in
confidence if a person can demonstrate this fact in accordance with specified
criteria.
64. These amendments set a time limit of 20 days for
the Minister to prepare written guidelines for a public environment report or an
environmental impact statement.
65. These amendments expand the range of actions for
which an assessment by public environment report, environmental impact
statement, or inquiry may include additional matters at the request of a State
or Territory to include actions whose regulation is appropriate and adapted to
give effect to Australia’s obligations under an agreement with one or more
other countries.
66. This amendment provides that in cases where the
Commonwealth does not assess all of an action’s impacts on the
environment, the Minister must not approve the taking of an action unless he or
she has received a notice certifying that the relevant State or Territory has
assessed the action’s impacts on environmental matters that were not
assessed by the Commonwealth.
67. When such
information is required, the period within which the Minister must decide
whether to approve the taking of the action does not begin until the information
from the relevant State or Territory has been received.
68. This amendment ensures that the Minister may only
approve the taking of an action if he or she has received an assessment report
relating to the action. This will prevent an action being approved without
being properly assessed.
69. This amendment inserts a new subclause which
provides that the Minister must not approve the taking of an action unless he or
she receives notice that the environmental impacts of the action on
environmental matters that are not of national environmental significance have
been assessed by the State or Territory in which it is proposed the action be
taken. The notice must also specify how the impacts were
assessed.
70. The purpose of this provision
is to ensure that all of the certain and likely environmental impacts of a
proposed action are assessed by either the Commonwealth or the relevant State or
Territory. Accordingly, the requirement for notice does not apply where the
action is a nuclear action, taken in a Commonwealth marine area, taken on
Commonwealth land, or taken by the Commonwealth or a Commonwealth corporation.
In these cases assessment by the Commonwealth under the EPBC Bill will include
all environmental impacts.
71. If the
Minister decides not to approve the taking of an action, he or she must inform
the proponent of that decision.
72. This amendment makes it clear that a plan for
conserving habitat of a threatened or migratory species or threatened ecological
community is a specific example of a plan for managing the impacts of an
approved action.
73. This amendment provides that in deciding whether to
attach a condition to an approval, the Minister must consider information
provided by the proponent. However, failure to consider the relevant
information does not invalidate the Minister’s decision. The purpose of
this amendment is to ensure that the proponent has an opportunity to comment on
what conditions would be appropriate and effective.
74. These amendments are consequential to other
amendments.
75. This amendment removes a broad requirement for the
Minister to be satisfied that decisions about actions prescribed by regulations
made under clause 25 of the EPBC Bill are not inconsistent with
Australia’s international obligations. The EPBC Bill makes specific
reference, where appropriate, to Australia’s relevant international
obligations.
76. This amendment inserts a new clause which provides
that under certain circumstances it is an offence to breach conditions of an
approval. The maximum penalty is 2 years imprisonment, or a fine of 120 penalty
units, or both.
77. Under some circumstances
the Crown may have the option of civil or criminal proceedings against a person
who breaches the conditions of an approval. Clause 466 inserts provisions into
the EPBC Bill containing rules that must be followed in such
circumstance.
78. Clause 474 inserts
provisions into the EPBC Bill which allow an executive officer of a corporation
to be convicted of an offence under that clause.
79. This amendment inserts an explanatory
note.
80. This amendment provides an additional basis upon
which the Minister may decide to revoke an approval. The approval may be
revoked if the impact that the action has had, will have or is likely to have on
a matter protected by Part 3 of the EPBC Bill was not properly identified as a
result of a negligent or deliberate act or omission by the designated proponent
of the action.
81. This amendment inserts a new clause which creates a
process for the possible reinstatement of a suspended or revoked
approval.
82. This amendment inserts a new clause which provides
that a person with an approval to take an action may transfer that approval to
another person, but only with the Minister’s consent. In deciding whether
to consent to the transfer, the Minister may consider the transferee’s
history in relation to environmental matters and the transferee’s capacity
to comply with any conditions attached to the approval.
83. This amendment inserts a new subclause which
provides that if a policy, plan or program which will be implemented outside a
Commonwealth area is subject to strategic assessment, impacts on matters which
are not of national environmental significance may be assessed, but only at the
request of the relevant State or Territory.
84. This amendment provides that an agreement to
conduct a strategic assessment of a policy, plan or program must include public
consultation on draft terms of reference and finalisation of terms of reference
taking comments into account.
85. These amendments are consequential to the amendment
made by clause 154.
86. This amendment provides that an agreement for a
strategic assessment must provide for a period of at least 28 days for the
public to comment on a draft report on the assessed impacts.
87. This amendment inserts an explanatory
note.
88. This amendment inserts a new subclause which
provides that the Minister must inform relevant State or Territory Ministers
that an agreement to carry out a strategic assessment has been reached, and
generally what actions are to be assessed.
89. This amendment is consequential to those made by
clause38, which introduce offence provisions relating to actions which have,
will have or are likely to have a significant impact on the Commonwealth marine
environment.
90. This amendment clarifies what the Minister must do
if he or she endorses a plan or policy as a result of an agreement under
Division 2 of Part 10 of the EPBC Bill which deals with assessment of
Commonwealth managed fisheries.
91. This amendment inserts an explanatory
note.
92. This amendment clarifies that the Environment
Minister’s advice must be sought before the Commonwealth enters into a
contract, agreement or arrangement to implement a foreign aid project.
93. This amendment inserts a new subclause which
provides that the regulations may specify when the Environment Minister’s
advice about a decision must be sought by reference to the possible
environmental impacts of the actions which flow from the
decision.
94. This amendment makes it mandatory to assess under
Part 8 of the EPBC Bill an application for a permit relating to a cetacean. The
rules for applying the provisions of Part 8 to such an application are amended
to be consistent with those where the Minister’s advice must be sought
under clause 160 of the EPBC Bill.
95. This amendment is consequential to the amendments
effected by clauses 120, 121, 122, and 124.
96. This amendment inserts a new division which
provides that the Secretary must publish a notice on the Internet each week
containing specified information about assessments under Parts 7 and 8 of the
EPBC Bill, and about bilateral agreements.
97. This amendment requires the Minister to consult
with the public when preparing a bioregional plan for a bioregion that is within
a Commonwealth area.
98. This amendment stipulates that the Minister must
(rather than may) have regard to bioregional plans in making ane decision under
the Act to which a plan is relevant.
99. This amendment recognises that there are ecological
communities contained in Schedule 2 of the Endangered Species Protection Act
1992.
100. This amendment inserts a new subclause which
provides that if a State or Territory or the Australian and New Zealand
Environment and Conservation Council lists an ecological community as critically
endangered, endangered or vulnerable under a list identified in the regulations,
then the Minister must decide whether that ecological community should be listed
under clause 181 of the EPBC Bill.
101. These amendments remove the requirement that key
threatening processes can be listed only if preparing and implementing a threat
abatement plan is a feasible, effective and efficient way to abate the process.
Under the amended Bill, a key threatening process is listed if it satisfies the
relevant scientific test. A plan is prepared only if it is a feasible,
effective and efficient way to abate the process. Clause 284 inserts into the
EPBC Bill provisions requiring the Minister to decide whether to prepare a
threat abatement plan for a listed key threatening process.
102. This amendment requires the Scientific Committee
to provide, within 12 months, advice to the Minister on whether to list a key
threatening process.
103. This amendment requires the Minister to forward to
the Scientific Committee, within ten days, nominations for inclusion on the list
of threatened species, threatened ecological communities or key threatening
processes.
104. This amendment specifies the only circumstances
under which the Minister may reject nominations for listing without referring
them to the Scientific Committee.
Clauses
185, 186, 187, 188, 189, 190, 191, 192, and
198
105. These amendments provide for the
offences relating to killing, injuring, taking etc listed threatened species
(except conservation dependent species) and listed ecological communities
including through the application of strict liability
.
106. Where the offence is one of strict
liability, the offence carries a maximum penalty of a fine of 500 penalty
points. In the case of a corporation, the maximum fine is 2500 penalty points
(see subsection 4B(3) of the Crimes Act
1914).
107. Where the offence is not one
of strict liability (although strict liability applies to some elements of the
offence). The maximum penalty is 2 years imprisonment, a fine of 1000 penalty
points, or both. In the case of a corporation, the maximum fine is 5000 penalty
points (see subsection 4B(3) of the Crimes Act 1914).
108. This amendment clarifies that the permits referred
to are those issued under section 201.
109. This amendment is consequential to the amendment
effected by clause 280.
110. This amendment is consequential to the amendment
effected by clause 20.
111. This amendment is consequential to the amendments
effected by clauses 20 and 60.
112. This amendment is consequential to the amendment
effected by clause 20.
113. This amendment is consequential to the amendment
effected by clause 20.
114. These amendments are consequential to the
amendments effected by clauses 185, 186, 187, and 189.
115. These amendments create a process for public
consultation on the issue of permits in relation to listed threatened species
and ecological communities. The Minister must create and maintain a register of
interested parties (see clause 278), and give written notice inviting these
parties to comment on each permit application.
116. This amendment is consequential to the amendments
effected by clauses 185, 186, 188, 189, and 210.
117. This amendment inserts a new clause which provides
that applications may be made to the Administrative Appeals Tribunal seeking a
review of decisions about permits.
118. This amendment inserts a new subdivision which
provides that the Minister must create a register which may include critical
habitat for listed threatened species and listed threatened ecological
communities. The regulations will set out the process for identifying critical
habitat and the factors to be taken into account in deciding whether to list
critical habitat.
119. Under certain
circumstances, it is an offence to damage critical habitat. It is important to
note that this clause does not limit the operation of Divisions 2,3, or 4 of
Part 13 of the EPBC Bill. That is, damage to habitat (whether critical or not)
may constitute a “take” of a species or result in injury to the
species for the purposes of other provisions of Divisions 2, 3 or
4.
120. If a Commonwealth agency sells or
leases land that contains critical habitat, it must ensure that the contract
includes a covenant the effect of which is to protect the critical
habitat.
121. These amendments provide for the offences relating
to killing, injuring, taking etc listed migratory species including through the
application of strict liability.
122. Where
the offence is one of strict liability, the offence carries a maximum penalty of
a fine of 500 penalty points. In the case of a corporation, the maximum fine is
2500 penalty points (see subsection 4B(3) of the Crimes Act
1914).
123. Where the offence is not one
of strict liability (although strict liability applies to some elements of the
offence). The maximum penalty is 2 years imprisonment, a fine of 1000 penalty
points, or both. In the case of a corporation, the maximum fine is 5000 penalty
points (see subsection 4B(3) of the Crimes Act
1914).
124. This amendment replaces the heading with a more
accurate heading.
125. This amendment is consequential to amendments
effected by clauses 211, 212, 213, 214 and 215.
126. This amendment clarifies that the permits referred
to are those issued under section 216.
127. These amendments are consequential to amendments
effected by clause 26.
128. This amendment is consequential to amendments
effected by clauses 26 and 60.
129. This amendment is consequential to amendments
effected by clauses 211, 212, 213, 214 and 215.
130. These amendments are consequential to the
amendments effected by clauses 211, 212, 213, 214 and 215.
131. These amendments create a process for public
consultation on the issue of permits in relation to listed migratory species.
The Minister must create and maintain a register of interested parties (see
clause 278), and give written notice inviting these parties to comment on each
permit application.
132. This amendment is consequential to the amendments
effected by clauses 211, 212, 213, 214 and 215.
133. This amendment inserts a new clause which provides
that applications may be made to the Administrative Appeals Tribunal seeking a
review of decisions about permits.
134. These amendments provide for the offences relating
to killing, injuring, taking etc cetaceans, including through the application of
strict liability .
135. Where the offence is
one of strict liability, the offence carries a maximum penalty of a fine of 500
penalty points. In the case of a corporation, the maximum fine is 2500 penalty
points (see subsection 4B(3) of the Crimes Act
1914).
136. Where the offence is not one
of strict liability (although strict liability applies to some elements of the
offence). The maximum penalty is 2 years imprisonment, a fine of 1000 penalty
points, or both. In the case of a corporation, the maximum fine is 5000 penalty
points (see subsection 4B(3) of the Crimes Act
1914).
137. This amendment is consequential to the amendments
effected by clauses 234, 235 and 236.
138. This amendment replaces the heading with a more
accurate heading.
139. This amendment is consequential to amendments
effected by clauses 234, 235, 236, and 237.
140. These amendments clarify that the permits referred
to are those issued under section 238.
141. These amendments are consequential to the
amendments effected by clauses 234, 235, 236, and 237.
142. These amendments insert explanatory
notes.
143. These amendments create a process for public consultation on the issue of permits in relation to cetaceans. The Minister must create and maintain a register of interested parties (see clause 278), and give written notice inviting these parties to comment on each permit application.
144. This amendment is consequential to the amendments
effected by clauses 234, 235, 236, and 237.
145. This amendment inserts a new clause which allows
applications to be made to the Administrative Appeals Tribunal seeking review of
decisions about permits.
146. This amendment appends the common names of listed
marine species, and updates the taxonomy.
147. These amendments provide for the offences relating
to killing, injuring, taking etc listed marine species, including through the
application of strict liability.
148. Where
the offence is one of strict liability, the offence carries a maximum penalty of
a fine of 500 penalty points. In the case of a corporation, the maximum fine is
2500 penalty points (see subsection 4B(3) of the Crimes Act
1914).
149. Where the offence is not one
of strict liability (although strict liability applies to some elements of the
offence). The maximum penalty is 2 years imprisonment, a fine of 1000 penalty
points, or both. In the case of a corporation, the maximum fine is 5000 penalty
points (see subsection 4B(3) of the Crimes Act
1914).
150. This amendment replaces the heading with a more
accurate heading.
151. This amendment is consequential to amendments
effected by clauses 256, 257, 258, 259 and 260.
152. This amendment clarifies that the permits referred
to are those issued under section 258.
153. This amendment is consequential to amendments
effected by clauses 38 and 47.
154. This amendment is consequential to amendments
effected by clauses 38 and 60.
155. This amendment replaces a heading with a more
accurate heading.
156. These amendments are consequential to the
amendments effected by clauses 256, 257, 258, 259 and 260.
157. These amendments create a process for public
consultation on the issue of permits in relation to listed marine species. The
Minister must create and maintain a register of interested parties (see clause
278), and give written notice inviting these parties to comment on each permit
application.
158. This amendment is consequential to the amendment
effected by clauses 256, 257, 258, 259, and 260.
159. This amendment inserts a new clause which provides
that applications may be made to the Administrative Appeals Tribunal seeking
decisions about permits.
160. This amendment inserts a new division which provides that a register for consultation about permit applications in relation to listed threatened species, listed threatened ecological communities, listed migratory species, listed marine species and cetaceans must be kept. This register will be used to invite comment on permit applications, as set out in clauses 202, 227, 247, and 271.
161. This amendment replaces clause 267 of the EPBC
Bill with a simplified outline of the Division. Clause 267 of the EPBC Bill is
replaced by new provisions. See clauses 280 and 282.
162. The Minister must use his or her powers to ensure
that a recovery plan is always in force for a listed threatened species (other
than extinct or conservation dependent species) and a listed threatened
ecological community once the initial recovery plan for that species or
community has come into force. Clause 273 of the EPBC Bill sets out the
timetable for establishing the initial
plans.
163. The Minister is empowered to
make a recovery plan for any listed threatened species or community, or to adopt
a State or Territory plan.
164. Where a
listed threatened species or ecological community occurs wholly or partly
outside a Commonwealth area, the Minister must seek to make a recovery plan for
that species or community jointly with the relevant States(s) and/or
Territory(ies). If this is not reasonably practical, the Commonwealth may make
a recovery plan without State or Territory cooperation.
165. This amendment augments the list of matters that a
recovery plan must address.
166. This amendment deletes a provision which is
redundant (because wildlife conservation plans cannot be made for listed
migratory species, listed marine species, or cetaceans which are also listed
threatened species).
167. This amendment requires the Minister, when making
a recovery plan, to have regard to the role and interests of indigenous people
in conserving Australia’s biodiversity.
168. This amendment inserts a new clause providing that
the Minister must decide to have a threat abatement plan for a listed key
threatening process if he or she believes that such a course of action is a
feasible, effective and efficient way to abate the threatening process. If the
Minister decides to have a plan, the amendment effected by clause 291 requires
that the plan be made and in force within 3 years.
169. The Minister must consider whether to
have a threat abatement plan within 90 days of the key threatening process being
listed. If the Minister decides not the have a plan for that threatening
process, the decision must be reviewed at least every five years. When making a
decision, the Minister must request and consider advice from the Scientific
Committee and provide reasonable opportunity for any affected Commonwealth
agency, State or Territory, or State or Territory agency to comment. Decisions
and reasons must be published.
170. The
Minister may also decide that a plan is no longer feasible, effective and
efficient. This decision will lead to a plan being revoked (see clause 296) or
in a new plan not being made when a plan expires.
171. This amendment sets out the process for preparing
a threat abatement plan if the Minister decides to have
one.
172. The Minister is empowered to make
a threat abatement plan for any listed key threatening process, or to adopt a
State or Territory plan.
173. Where a listed
key threatening process occurs wholly or partly outside a Commonwealth area, the
Minister must seek to make a recovery plan for that species or community jointly
with the relevant States(s) and/or Territory(ies). If this is not reasonably
practical, the Commonwealth may make a threat abatement plan without State or
Territory cooperation.
174. This amendment requires that when making a threat
abatement plan the Minister must have regard to the role and interests of
indigenous people in conserving Australia’s biodiversity.
175. This amendment puts a more accurate heading in
place.
176. This amendment inserts a new subclause providing
that a recovery plan or a threat abatement plan comes into force on the day on
which it is made or adopted, or on a later day specified by the
Minister.
177. This amendment provides that the timelines for
preparing initial recovery plans also apply to those plans coming into
force.
178. This amendment inserts a
sub-heading.
179. This amendment provides that a recovery plan for a
listed threatened species or ecological community that occurs only in a
Commonwealth area must be made as soon as practicable after the species or
community is listed.
180. This amendment
also provides that once the Minister decides to have a threat abatement plan for
a listed key threatening process, the plan must be made within 3 years, and the
Minister must ensure that a plan is in place for as long as he or she considers
the plan a feasible, effective and efficient way to abate the threatening
process.
181. These amendments are consequential to amendments
effected by clauses 279 and 280.
182. This amendment inserts a new subclause empowering
the Minister to revoke a threat abatement plan if he or she considers that it is
no longer a feasible effective and efficient way to abate the threatening
process.
183. These amendments provide that the Minister may
prepare a wildlife conservation plan for a conservation dependent species. Note
that a recovery plan may not be prepared for a conservation dependent
species.
184. This amendment deletes a subclause rendered
redundant by the amendment effected by clause 311.
185. These amendments are consequential to the
amendments effected by clauses 298, 299 and 300
186. This amendment requires that, when making a
wildlife conservation plan, the Minister must have regard to the role and
interests of indigenous people in conserving Australia’s
biodiversity.
187. This amendment clarifies that the Scientific
Committee may advise the Minister on its own initiative to make a wildlife
conservation plan.
188. These amendments are consequential to the
amendments effected by clauses 298, 299 and 300.
189. This amendment clarifies that recovery plans,
threat abatement plans and wildlife conservation plans do not exclude or limit
the concurrent operation of a law of a State or Territory.
190. This amendment provides that regulations may be
made in relation to non-native species (invasive species) that may pose a threat
to biodiversity.
191. This amendment clarifies that regulations may
prohibit or regulate actions affecting a member of a native species in a
Commonwealth area.
193. This amendment inserts an explanatory
note.
194. This amendment provides that a conservation
agreement must not cover all or part of a Commonwealth reserve. In addition,
the Minister may enter into a conservation agreement with indigenous people or
bodies acting on their behalf. In doing so the Minister must take account of
specified articles of the Biodiversity Convention and objective 1.8.2 of the
National Strategy for the Conservation of Australia’s
Biodiversity.
195. Conservation agreement may not specify that
certain actions do not require the Minister’s approval under Part 9 of the
EPBC Bill.
196. This amendment clarifies the circumstances under
which the Minister may decide not to publish all or part of a conservation
agreement. The grounds for such a decision are that disclosure of the
information may result in harm being done to components of biodiversity, or
commercial in confidence. The Minister can only decide that information is
commercial in confidence if a person can demonstrate certain things, which are
set out in sub-clause 309(5) of the amended EPBC
Bill.
Clauses 321, 322, 323, 324, 325,
326, 327, 328, 329, 331, 332, 333, 334, 335, 336, 344, 345, 363, and
400.
197. These amendments will make it
mandatory rather than optional to prepare Australian World Heritage Management
Principles, Australian Ramsar Management Principles, Australian Biosphere
Reserve Management Principles, and Australian IUCN Management Principles. These
amendments either effect these changes or are consequential to
them.
Clauses 337, 338, 339, 340, 341,
342, 343, 346, 348, 349, 350, 351, 352, 353, 355, 357, 358, 359, 362, 364, 365,
366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 381, 382, 386, 387, 388, 389,
390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 401, 402, 403, 404, 405, 406,
407, 408, 409, 410, 411, 412, 413, 414, 415, 418, 419, 420, 421, 422, 423, 424,
425, 426, 431, 432, 433, 434, 435, 436, 437, 438, 440, 441, 442, and 443, 447
and 448
198. Clause 481 inserts provisions
to create the statutory office of Director of National Parks. These clauses
make consequential changes, which recognise the fact that the responsibility for
managing Commonwealth reserves will lie with the Director rather than the
Secretary.
199. This amendment makes clause 349 of the EPBC Bill
consistent with the amended clause 354 of the EPBC (see notes on clause
356).
200. This amendment requires the Minister to consider a
report prepared by the Secretary under clause 351 of the EPBC before the
Governor General makes a proclamation which changes the purpose for which a
reserve in the Kakadu region is declared.
201. This amendment expands the range of activities
which may not be carried out in a Commonwealth reserve except in accordance with
a management plan. It also provides for a civil penalty of 500 penalty units
for an individual and 5000 penalty units for a body corporate. This amendment is
a better reflection of the needs of contemporary Park management.
202. These amendments provide that clauses in the EPBC
Bill dealing with activities in Commonwealth reserves are subject to the
Antarctic Treaty (Environment Protection) Act 1980. The words deleted by
these items are redundant.
203. This amendment provides that the Director may set
charges for the use of services or facilities provided in, or in connection
with, a conservation zone.
204. These amendment provide that usage rights in
relation to land and seabed will not be affected by the provisions of Division 4
of Part 15 of the Bill.
205. Provisions of Division 4 of Part 15 of the EPBC
Bill, and regulations made under them, do not prevent indigenous people from
continuing lawful use of a Commonwealth reserve for hunting, foodgathering, or
ceremonial and religious purposes, except where regulations are made to conserve
biodiversity and explicitly state that traditional uses are
affected.
206. These amendments make clause 360 of the EPBC Bill
consistent with the amended clause 354 of the EPBC (see notes on clause
356).
207. These amendment set a time limit of 60 days for
the Minister to consider a plan of management for a Commonwealth reserve and
provide that he or she must (rather than may) either approve the plan or return
it to the Director with suggestions. (See notes on clauses 324A etc on the
re-establishment of the statutory office of the Director.)
208. This amendment inserts an explanatory
note.
209. This amendment inserts a new clause confirming
that a person may be reappointed to a Board for a Commonwealth
Reserve.
210. The Minister may terminate a person’s
appointment to the Board for a Commonwealth reserve for conduct that is against
the interests of the Board as a whole, but not if that person is a nominee of
the traditional owners.
211. This amendment confirms that a meeting of a Board
for a Commonwealth reserve consisting wholly of indigenous people’s land
can only begin and continue while a majority of members present are nominees of
the traditional owners.
212. Subclause 377(5) of the EPBC Bill provides that
the Minister must appoint to the Board of a Commonwealth reserve in a State or
Territory a person nominated by that State or Territory. This amendment
provides that, in the case of a person nominated by the Northern Territory, the
members of the Board nominated by the traditional owners must consent to the
appointment. However, the appointment may be made if the Commonwealth Ombudsman
is satisfied that consent is unreasonably withheld.
213. This amendment inserts a new division providing
that the Governor General may proclaim a Commonwealth area outside a
Commonwealth reserve to be a conservation zone. The intention of this provision
is to protect biodiversity, other natural features and heritage in Commonwealth
areas while the area is assessed for inclusion in a Commonwealth
reserve.
214. Activities in conservation
zones may be controlled by regulation. Regulation making powers for
conservation zones are set out in proposed new sections 390E and
390G.
215. Prior usage rights in
conservation zones continue to have effect but may be renewed or extended only
with the Minister’s consent and subject to any conditions determined by
the Minister.
216. This amendment is consequential to the amendments
effected by clauses 180, 181, and 301.
217. This amendment provides that a person who is
appointed as an authorised person under clause 393(3) of the EPBC Bill may not
exercise powers and functions under the Act or regulations in a Commonwealth
reserve of conservation zone. This amendment prevents the Secretary from
delegating powers that properly belong to the Director. Note that clauses 448
and 482 allow the Director to delegate powers to employees of a Commonwealth
department.
218. These amendments will allow employees of a Commonwealth Department or authority to exercise the functions and powers of wardens and rangers.
219. These amendments augment the enforcement powers of
authorised persons under the EPBC Bill.
220. This amendment extends the circumstances under
which the Minister may require an environmental audit to include cases where he
or she believes or suspects on reasonable grounds that the impacts of an
authorised action are greater than anticipated when the action was
assessed.
221. This amendment makes subclause 466(3) of the EPBC
Bill consistent with subclause 466(4) of the EPBC Bill by referring to listed
threatened species and ecological communities.
222. This amendment inserts a heading.
223. This amendment sets out rules that must be
observed in cases where the same action is potentially a breach of both civil
and offence (criminal) provisions of the EPBC Bill.
224. These amendments are consequential the amendment
effected by clause 473, which removes a defence for providing false or
misleading information.
225. This amendment will make it an offence, punishable
by a fine of up to 30 penalty units, to negligently provide false or misleading
information in response to a requirement or request under Part 7,8,9 or 13 of
the EPBC Bill.
226. This amendment provides that under certain
circumstances the executive officer of a body corporate may be guilty of an
offence if the body corporate commits and offence against Part 3 or clause 142
of the EPBC Bill.
227. This amendment is consequential to amendments
effected by clause 148.
228. This amendment inserts a new division providing
immunity from prosecution to authorised officers performing their duties, and
persons requested to assist in the exercise or purported exercise of the
authorised officer’s duties, provided they act in good
faith.
229. This amendment clarifies that the Scientific
Committee may advise the Minister at its own initiative.
230. This amendment requires that the Biological
Diversity Advisory Committee include a member appointed to represent indigenous
peoples.
231. This amendment inserts a new division establishing
and setting out the functions of an Indigenous Advisory
Committee.
232. This amendment continues the statutory office of
the Director of National Parks and Wildlife, that existed under the National
Parks and Wildlife Conservation Act 1975, under the EPBC Bill as the
Director of National Parks.
233. This
amendment also sets out the functions and powers of the Director, and
requirements as to how they must be
exercised.
234. This amendment also sets out
the constitution of the Director, how the director is to be appointed, and the
terms and conditions of
appointment.
235. The Australian National
Parks and Wildlife Fund also continues in existence under the EPBC, under the
name of the Australian National Parks Fund, and continues to be vested in the
Director. The amendment sets out rules for the use and administration of the
Fund.
236. This amendment provides that the Director may
delegate any or all of his or her powers or functions under the EPBC Bill to
another person.
237. This amendment inserts a heading.
238. This amendment provides that the Secretary is not
required to cover the operation of Divisions 4 and 5 of Part 15 of the EPBC Bill
(which deal with managing Commonwealth reserves) in his or her annual report on
the operation of the Act).
239. This amendment inserts a new clause providing that
Commonwealth bodies will be required to report annually on how their activities
accord with the principles of ecologically sustainable development. The Auditor
General may conduct a performance audit on compliance with these
requirements.
Clause 486
240. This amendment inserts a new division
requiring the Minister to produce a State of the Environment Report every five
years, with the first report due by 31 December 2001.
241. This amendment allows regulations to be made under
the EPBC Bill to give effect to the Framework Convention on Climate
Change.
242. This amendment inserts a new clause requiring that
the operation of the Act be independently reviewed at least every ten years to
ensure that its objectives are being met.
243. This amendment inserts a new clause providing that
an action that has been specifically authorised by an approval under a law of
the Commonwealth, a State or a Territory before the commencement of the EPBC
Bill does not require approval under the EPBC Bill, provided no further
approvals are necessary in order for the action to be taken lawfully. This
amendment allows for actions which have obtained approval under relevant laws
before commencement of the EPBC Bill, but are not covered by the transitional
provisions of the Environment Reform (Consequential Provisions) Bill
1998.
244. This amendment clarified that providing funding is
not an action. However, an action for which funding is provided will require
approval if it triggers a provision of Part 3 of the EPBC Bill.
245. This amendment inserts a new clause providing that
regulations may set out matters to be considered in determining whether the
impact an action has, will have, or is likely to have, on a matter protected by
Part 3 is significant.
Clauses 492, 494,
498, 499, 500, 501, 502, 504, 505, 507, 508, 509, and
510
246. These amendments make amendments to
definitions which are consequential to amendments affected by this
Bill.