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2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Landholders' Right to Refuse (Gas and Coal) Bill 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Waters)
Landholders' Right to Refuse (Gas and Coal) Bill 2013
Outline
The Landholders' Right to Refuse (Gas and Coal) Bill 2013 provides
Australian landholders the right to refuse the undertaking of gas and coal
mining activities on their land.
NOTES ON CLAUSES
Part 1 - Preliminary
Clauses 1
This is a formal provision specifying the short title.
Clause 2
The bill's provisions are to commence the day after the bill receives Royal
Assent.
Clause 3 and 4 - Definitions
These clauses provide definitions of key terms used in the Act, including
the meaning of ownership interests in food producing land.
Clause 5 - 6 Act bind the Crown, extension to external Territories
These clauses provide that the Crown is bound by the Act, and that the Act
will extend to Australia's external territories.
Clause 7 - Relationship to State and Territory laws
This clause clarifies that, to the extent possible, the Act is not intended
to exclude or limit the operation of any state or territory laws that are
capable of operating concurrently.
Part 2 -Gas or coal mining on food producing land without prior written
authorisation is unlawful
Clause 8 - Application
This clause requires that corporations need to secure written authorisation
prior to commencing any exploration or production of gas or coal. The
intention is that prior written authorisation must be secured prior to any
new activities commencing. The provisions are not intended to apply to
activities already being undertaken before the commencement of the Act. For
example, if a corporation has already started exploring for gas or coal on
particular land before the Act commences, authorisation to continue that
activity after commencement will not be required. Authorisation will be
required, however, if the corporation wishes to engage in activities for
the purpose of producing gas or coal on that land after commencement.
Clause 9 - Gas or coal mining on food producing land without prior written
authorisation is unlawful
This provision provides that it is an offence for constitutional
corporations to enter or remain on food producing land for the purpose of
engaging in gas or coal mining activity, or to actually engage in such
activity if the corporation does not own that land. The penalty is high,
reflecting the seriousness of the offence. There is an exception for
corporations; that is, if they have a prior written authorisation from
every person with an ownership interest in the land to engage in the
otherwise-prohibited activity. The corporation bears an evidential burden
in relation to this matter, which is appropriate given that it is a
straightforward matter for the corporation to produce a written
authorisation if they do indeed have one.
Clause 10 - Action for gas or coal mining on food producing land without
prior written authorisation.
This clause provides that a land owner can bring a civil action against a
corporation that has contravened provisions of the Act in relation to that
land owner's land, within 6 years of the contravention.
Part 3 - Prior written authorisations for gas or coal mining on food
producing land
Clause 11 - Obtaining prior written authorisation
This clause provides for the steps that corporations need to follow in
order to comply with the Act when conducting gas or coal mining activities
on food producing land. The clause sets out the process that needs to be
followed in acquiring prior written authorisation from relevant land
owners, and also what must be contained in a prior written authorisation. A
prior written authorisation is invalid if it does not comply with the
requirements of this clause.
Part 4 - Remedies
Clause 12 - Remedies in actions for gas or coal mining on food producing
land without prior written authorisation
This clause sets out the relief that a court may grant to a land owner
bringing an action in accordance with section 10, and specifically that:
- A court may grant, vary or discharge a permanent or interim
injunction;
- The court must order that all costs incurred by a land owner in an
action under this Act are to be paid by the respondent corporation,
except where the action is vexatious or unreasonable.
Part 5 - Other matters
Clause 13 - Application of this Act to joint ventures and partnership
This clause provides for the application of the Act to joint ventures and
partnerships. The Act is intended to apply to any corporation that engages
in gas or coal activities, even when the activities are undertaken within a
partnership or joint venture arrangement. The clause sets out how
corporations within such arrangements are able to discharge their
obligations under the Act.
Clause 14 - Regulations
This clause provides for the Governor-General to make regulations under
this Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Landholders' Right to Refuse (Gas and Coal) Bill 2013
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/Legislative Instrument
The Bill provides Australian landholders the right to refuse the
undertaking of gas and coal mining activities on their land.
Human rights implications
This Bill has no negative human rights implications.
Conclusion
This Bill has no negative human rights implications.