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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATURE REPAIR MARKET (CONSEQUENTIAL AMENDMENTS) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for the Environment and Water, the Hon. Tanya
Plibersek MP)
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AMENDMENTS TO THE NATURE REPAIR MARKET (CONSEQUENTIAL
AMENDMENTS) BILL 2023
GENERAL OUTLINE
The Nature Repair Market (Consequential Amendments) Bill 2023 (the Bill) would make
minor consequential amendments to the Clean Energy Regulator Act 2011 and the National
Greenhouse and Energy Reporting Act 2007 to support the commencement of the Nature
Repair Market Bill 2023 (NRM Bill).
The proposed amendments to the Bill would amend the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act).
The EPBC Act prohibits a constitutional corporation, the Commonwealth, or a
Commonwealth agency from taking an action if the action involves coal seam gas
development or large coal mining development and the action has, will have, or is likely to
have a significant impact on a water resource (sections 24D and 24E). This is known as the
water trigger. The EPBC Act also prohibits a person from taking an action in a
Commonwealth area or a Territory, or for the purpose of constitutional trade or commerce if
the action involves coal seam gas development or large coal mining development and the
action has, will have, or is likely to have a significant impact on a water resource.
The proposed amendments to the Bill would amend the EPBC Act to:
• expand the scope of the water trigger to apply to all forms of unconventional gas
development (rather than coal seam gas development) including activities involving
unconventional gas (unconventional gas production) (by drilling, hydraulic fracturing,
or other means), including from coal seams, shale rock, tight reservoirs, and any other
sources prescribed by regulation. The water trigger will continue to apply to large coal
mining development.
• expand the scope of the Independent Expert Scientific Committee to provide advice on
EPBC Act approvals involving unconventional gas developments, in addition to coal
seam gas and large coal mining developments.
• amend the name of the Independent Expert Scientific Committee on Coal Seam Gas
and Large Coal Mining Development (IESC) to reflect the broadened remit (to
Independent Expert Scientific Committee on Unconventional Gas Development and
Large Coal Mining Development).
• define what is meant by an unconventional gas development and unconventional gas
production and allow for further sources to be added in regulations if there are
emerging technologies that may need to be captured in future.
• provide clarity in relation to the application of the expanded water trigger giving
proponents greater certainty through explicitly excluding projects that are:
o currently in production as approved under a Commonwealth, state or territory
law or is a development that has permanently ceased extraction or production
or where post-production has permanently ceased,
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o have an existing approval under Part 9 of the EPBC Act or notice of a
proposed approval decision, or
o have previously been determined to not need an approval under the EPBC Act
(i.e. the action is not a controlled action, not a controlled action particular
manner)
o provide that relevant projects currently undergoing EPBC Act assessment (i.e.
have been determined to be controlled actions under the EPBC Act but have
not yet been approved) will need to be assessed for impacts on water
resources.
• In order to achieve this, transitional provisions will require new decisions to be made, at
different points of the assessment and approval process, taking into account the
proposed amendments.
• allow for the Minister to make rules prescribing additional transitional and application
matters, or modifying the transitional arrangements set out in the amendments.
In order to achieve this, transitional provisions will require new decisions to be made at
different points of the assessment and approval process (i.e. the controlled action decisions
and assessment approach), taking into account the proposed amendments.
The expansion of the water trigger will provide improved protection for water resources from
unconventional gas developments, and decisions will be supported by independent expert
advice, ensuring the impacts on water resources of these proposed developments are
managed.
These amendments are consistent with the objectives of the NRM Bill, namely the
enhancement and protection of biodiversity in native species, many of which are reliant on
water resources.
FINANCIAL IMPACT STATEMENT
The proposed amendments would have no financial impact on the Australian Government
Budget.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Nature Repair Market (Consequential Amendments) Bill 2023
The proposed amendments are 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 amendments
The proposed amendments to the Nature Repair Market (Consequential Amendments) Bill
2023 (the Bill) would amend the Environment Protection and Biodiversity Conservation Act
1999 (EPBC Act) to:
• expand the scope of the Independent Expert Scientific Committee to provide advice on
EPBC Act approvals involving unconventional gas developments, in addition to coal
seam gas and large coal mining developments.
• amend the name of the Independent Expert Scientific Committee on Coal Seam Gas and
Large Coal Mining Development (IESC) to reflect the broadened remit (to Independent
Expert Scientific Committee on Unconventional Gas Development and Large Coal
Mining Development).
• define what is meant by an unconventional gas development and unconventional gas
production and allow for further sources to be added in regulations if there are emerging
technologies that may need to be captured in future.
• provide clarity in relation to the application of the expanded water trigger giving
proponents greater certainty through explicitly excluding projects that are:
o currently in production as approved under a Commonwealth, state or territory law
or is a development that has permanently ceased extraction or production or where
post-production has permanently ceased,
o have an existing approval under Part 9 of the EPBC Act or notice of a proposed
approval decision, or
o have previously been determined to not need an approval under the EPBC Act (i.e.
the action is not a controlled action, not a controlled action particular manner)
o provide that relevant projects currently undergoing EPBC Act assessment (i.e.
have been determined to be controlled actions under the EPBC Act but have not
yet been approved) will need to be assessed for impacts on water resources.
• In order to achieve this, transitional provisions will require new decisions to be made, at
different points of the assessment and approval process, taking into account the
proposed amendments.
• allow for the Minister to make rules prescribing additional transitional and application
matters, or modifying the transitional arrangements set out in the amendments.
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Human rights implications
The proposed amendment does not alter the engagement of the human rights and freedoms
set out in the Statement of Compatibility with Human Rights of the Bill.
Conclusion
The proposed amendments are compatible with human rights as it does not raise any human
rights issues.
Circulated by authority of the Minister for the Environment and Water,
The Hon. Tanya Plibersek MP
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NOTES ON AMENDMENTS
1. These amendments propose to insert a new Schedule 2 to the Bill, which would make
various amendments to the Environment Protection and Biodiversity Conservation Act
1999 (the Act).
2. The amendments would expand the scope of sections 24D and 24E of the Act, which
prohibits an action involving coal seam gas development or large coal mining
development if the action has, will have, or is likely to have a significant impact on a
water resource. This mechanism is known as the water trigger.
3. These amendments would also provide for transitional and applications provisions, which
ensure that the amended water trigger is applied consistently and fairly with respect to
previous statutory decisions under the Act.
4. The water trigger would be expanded by replacing references to 'coal seam gas
development' with 'unconventional gas development'. This latter definition includes
other sources of gas extraction or recovery, such as from shale rock or tight gas
reservoirs.
Clause 2 - commencement information
5. This provision would provide that the amendments under Schedule 2 would commence
on the day after the Nature Repair Market (Consequential Amendments) Bill 2023
receives Royal Assent.
Schedule 2--Protecting water resources from additional kinds of unconventional gas
developments
Part 1
Amendment 1: Subdivision FB of Division 1 of Part 3 (heading)
6. This amendment would replace the words 'coal seam gas development' with
'unconventional gas development', in the heading of the subdivision.
Amendment 2: Subparagraphs 24D(1)(a)(i), (2)(a)(i) and (3)(a)(i)
7. This amendment would replace references to 'coal seam gas development' with
'unconventional gas development'.
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8. This amendment would allow for unconventional gas development to be captured by the
requirements of the water trigger. The amendments do not make any changes to the way
the water trigger applies to large coal mining development.
Amendment 3: Subparagraphs 24E(1)(a)(i), (2)(a)(i) and (3)(a)(i)
9. This amendment would replace references to 'coal seam gas development' with
'unconventional gas development'.
10. This would ensure that the penalties related to contravening the water trigger applies to
unconventional gas developments.
Amendment 4: Subsection 130(4A)
11. This amendment would update a reference to the 'Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining Development' to its new name, the
'Independent Expert Scientific Committee on Unconventional Gas Development and
Large Coal Mining Development'.
Amendment 5: Section 131AB (heading)
12. This amendment would update a reference in the section heading to the 'Independent
Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development' to
its new name, the 'Independent Expert Scientific Committee on Unconventional Gas
Development and Large Coal Mining Development'.
Amendment 6: Subparagraph 131AB(1)(a)(i)
13. This amendment would replace a reference to 'coal seam gas development' with
'unconventional gas development'.
14. This amendment provides that if the water trigger is enlivened by an action concerning
unconventional gas development, the Minister must obtain the advice of the Independent
Expert Scientific Committee before deciding whether or not to approve, for the purposes
of the controlling provision, the taking of the action.
Amendment 7: Subsection 131AB(2)
15. This amendment would update a reference to the 'Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining Development' to its new name, the
'Independent Expert Scientific Committee on Unconventional Gas Development and
Large Coal Mining Development'.
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16. This would ensure that the advisory responsibilities of the Independent Expert Scientific
Committee remain the same with respect to Unconventional Gas Development, as it did
with Coal Seam Gas.
Amendment 8: Paragraph 136(2)(fa)
17. This amendment would update a reference to the 'Independent Expert Scientific
Committee on Coal Seam Gas and Large Coal Mining Development' to its new name, the
'Independent Expert Scientific Committee on Unconventional Gas Development and
Large Coal Mining Development'.
Amendment 9: Subparagraph 304(1)(a)(viia)
18. This amendment would update the objects of this Part 14 of the Act, by replacing a
reference to 'coal seam gas development' with 'unconventional gas development'.
19. An object of this Part would be for conservation agreements to provide for the protection
and conservation of water resources in respect of the impact of an action involving
unconventional gas development.
Amendment 10: Paragraph 305(1)(ga)
20. This amendment would replace a reference to 'coal seam gas development' with
'unconventional gas development'.
21. This would allow the Minister on behalf of the Commonwealth, enter into a conservation
agreement for the protection and conservation of a water resource, in respect of the
impact of an action involving unconventional gas development.
Amendment 11: Subparagraphs 305(1A)(b)(via) and (c)(viia)
22. This amendment would update references to 'coal seam gas development' with
'unconventional gas development'. These references pertain to the scope of conservation
agreements that the Minister may enter.
Amendment 12: Paragraph 305(2)(ea)
23. This amendment would update a reference to 'coal seam gas development' with
'unconventional gas development'. This reference pertains to the scope of conservation
agreements that the Minister may not enter.
Amendment 13: Subparagraphs 306(1)(a)(viia) and (b)(viia) and (2)(a)(viia) and
(b)(viia)
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24. This amendment would update references to 'coal seam gas development' with
'unconventional gas development'. These references pertain to the content of
conservation agreements that the Minister may enter.
Amendment 14: Division 2B of Part 19 (heading)
25. This amendment would update a reference in the division heading by replacing 'coal
seam gas development' with 'unconventional gas development'.
Amendment 15: Subsection 505C(1)
26. This provision updates the name of the 'Independent Expert Scientific Committee on Coal
Seam Gas and Large Coal Mining Development' to the 'Independent Expert Scientific
Committee on Unconventional Gas Development and Large Coal Mining Development'.
27. This would ensure that the role of the Committee is updated to reflect the amended water
trigger obligations.
28. Section 25B of the Acts Interpretation Act 1901 applies when an Act alters the name of a
body. This has the effect that references in other instruments to the body under its former
name are to be read as references to the body under the new name.
Amendment 16: Paragraphs 505D(1)(a) and (b)
29. This amendment would replace references to 'coal seam gas development' with
'unconventional gas development'. This updates the functions of the Independent Expert
Scientific Committee to ensure that it can fulfil its statutory functions with respect to
proposed unconventional gas developments.
Amendment 17: Subparagraphs 505D(1)(c)(i), (d)(i) and (ii)
30. This amendment would update references to 'coal seam gas' with 'unconventional gas'.
This updates the functions of the Independent Expert Scientific Committee to ensure that
it can fulfil its statutory functions with respect to advice on proposed unconventional gas
developments.
Amendment 18: Paragraphs 505D(1)(e), (f) and (g)
31. This amendment would update references to 'coal seam gas' with 'unconventional gas'.
This also updates the functions of the Independent Expert Scientific Committee to ensure
that it can publish and deal with information on the impacts of unconventional gas
development on water resources.
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Amendment 19: Paragraph 506(d)
32. This amendment would update a reference to 'coal seam gas' with 'unconventional gas'.
This updates a reference to the name of the Independent Expert Scientific Committee.
Amendment 20: Section 528 (definition of bioregional assessment)
33. This amendment would update a reference to 'coal seam gas development' with
'unconventional gas development'. This updates the definition of bioregional
assessment, so that direct and indirect impacts of unconventional gas development can be
considered as part of the scientific analysis undertaken in a bioregional assessment.
Amendment 21: Section 528 (definition of coal seam gas development)
34. This amendment would repeal the existing definition of coal seam gas development.
Amendment 22: Section 528 (definition of Independent Expert Scientific Committee on
Coal Seam Gas and Large Coal Mining Development)
35. This amendment would repeal the existing definition for the Independent Expert
Scientific Committee on Coal Seam Gas and Large Coal Mining Development.
Amendment 23: Section 528
36. This amendment would insert a reference to the new Independent Expert Scientific
Committee on Unconventional Gas Development and Large Coal Mining Development in
the definitions of the Act.
37. It also inserts definitions for unconventional gas development and unconventional gas
production.
38. Unconventional gas development means any activity involving unconventional gas
production that has, or is likely to have, a significant impact on water resources, in its
own right, or when considered with other developments, whether past present or
reasonably foreseeable developments.
39. Unconventional gas production means extraction, recovery, or intentional release, by
whatever method, of gas from:
(a) coal seams or beds; or
(b) layers of shale rock; or
(c) tight gas reservoirs; or
(d) any other sources prescribed by the regulations.
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40. Intentional release has been included so as to be clear that it is not the intention to capture
natural leakage or a naturally occurring release of gas.
41. The definition of unconventional gas development ensures that even though the scope of
the water trigger is expanded, the application of the words 'gas development' in the
context of water resources remains similar to 'coal seam gas development'.
42. The definition of unconventional gas production will allow other sources of gas
production to be prescribed in the regulations. This ensures that the definition remains
relevant even if new extraction or recovery technologies are developed.
Part 2--Application and transitional provisions
Amendment 24: Definitions
43. This amendment would provide for the following definitions for words used in this Part:
(a) Commencement day means the day this Schedule commences.
(b) Main Act means the Environment Protection and Biodiversity Conservation Act 1999.
(c) Transitional period means the period of 90 business days (measured in Canberra),
beginning on the first such business day that is on or after the commencement day.
Amendment 25: Amendments apply to actions taken after commencement
44. This amendment would set out the scope of the application of the amended water trigger
to unconventional gas development. The general intent is for the amended water trigger to
apply to an action involving unconventional gas development whether it was taken before
or after the commencement date, unless an exception applies. The amended water trigger
would not apply to Amendments 26, 27 and 28. Details on these provisions are set out
below. Of note, the application of these provisions do not override authorisation in the
Act, such as an action with prior authorisation or an action which is a lawful continuation
of use of land.
45. If a referral of an action was made to the Minister under Division 1 of Part 7 of the Act
before the commencement day, and the Minister has not decided on whether the action is
a controlled action, and the Minister has given notice under section 74 of the Act - the
validity of the notice under section 74 is not affected by the amendments. The provision
would apply equally to a referral received by the Minister from a person, or a referral
received as a result of a request from the Minister for referral of the proposal, or a deemed
referral of a proposal.
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46. Despite the above paragraph, if the Minister receives comments in response to the section
74 notice that pertains to whether the amended water trigger applies to an action, the
Minister must still consider those comments pursuant to subsection 75(1A) of the Act.
47. A notice under section 74 concerns invitations for additional external information in
relation to a decision on a proposed action. This provision ensures that the legislative
amendments do not unnecessarily interrupt statutory decision-making processes that are
already underway. It clarifies that there is still an obligation on the Minister to consider
information provided in response to these invitations.
Amendment 26: Amendments do not apply--certain referred proposals
48. This amendment would create an application provision for how the amended water trigger
would apply to actions that have existing authorisations under the Act.
49. This provision would ensure that the amended water trigger does not retrospectively
apply to actions that already have lawful authorisation under the Act.
50. The existing authorisation under the Act is defined to include actions that have:
(a) An approval of the action under Part 9 of the Act; or
(b) An existing Ministerial decision under section 75 of the Act, that the action is not a
controlled action, if that decision does not rely on a belief that the action would be
done in a particular way.
51. The amended water trigger would also not apply to certain actions, in circumstances
where that action has a Ministerial decision under section 75 of the Act, that the action is
not a controlled action on the basis that the action is being taken in a particular way; and
that action is being taken in that way.
52. The amended water trigger does not apply to an action taken on or after the
commencement day if:
(a) A proposed action was referred to the Minister under Division 1 of Part 7 of
the Act before the commencement day; and
(b) Before the commencement day:
i. the Minister has not decided whether to approve the action; and
ii. the proponent has been notified under section 131AA of the Act of the
decision the Minister proposes to make; and
iii. the Minister has obtained advice from the Independent Scientific
Committee on Coal Seam Gas and Large Coal Mining Development in
accordance with subsection 131AB(2).
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Amendment 27: Amendments do not apply--development currently in production
53. This amendment would create an application provision for how the amended water trigger
would apply to actions involving unconventional gas development that are in production
of gas.
54. The amended water trigger would not apply to actions for unconventional gas
development that occur after the commencement of this Schedule, if that development:
(a) does not involve coal seam gas extraction; and
(b) was in production of gas before the commencement day; and
(c) the action was (prior to commencement) and continues to be authorised by a
petroleum production authorisation; and
(d) immediately prior to commencement, the action was not contravening a
provision of Part 3 of the Act.
55. This amendment provides definitions for the terms 'in production' and 'petroleum
production authorisation'.
Amendment 28: Amendments do not apply--development that has ceased operation
56. This amendment would provide that actions taken for unconventional gas
developments on or after the commencement day are not captured by the amended
water trigger, if that development meets the following criteria:
(a) does not involve the extraction of coal seam gas; and
(b) before the commencement day, the action was not contravening a provision of
Part 3 of the Act; and
(c) before the commencement day, either or both of the following apply:
i. extraction and production of gas by the development had permanently
ceased;
ii. post-production had permanently ceased.
57. This ensures that gas developments that have ceased operation do not have amended
water trigger obligations unnecessarily imposed on them.
Amendment 29: Transitional provision--Minister to decide whether amended
provisions are controlling provisions for certain controlled actions
58. This amendment creates a transitional provision that would allow the Minister to
decide whether the amended water trigger applies to certain controlled actions.
13
59. An action is only captured by this provision if it concerns an unconventional gas
development proposal that is referred to the Minister under the Act prior to the
commencement day. Furthermore, prior to the commencement day, the Minister must
have decided that the action is a controlled action for the purposes of section 75 of the
Act. However, the Minister has not decided whether or not to approve the taking of
the action under Part 9 of the Act.
60. Within the transitional period, the Minister may decide whether the amended water
trigger is a controlling provision for the purposes of a relevant action.
61. The amendment would also impose requirements on the Minister to notify the person
proposing to take the action of a decision under this provision, and invite the person to
give written comments on the decision. The Minister must also provide reasons for a
decision, if the person requests these reasons within 28 days of receiving notification
of the decision. This affords procedural fairness and transparency to persons
proposing to undertake unconventional gas development who may be impacted by
this decision.
62. Prior to making a decision, the Environment Minister may also:
(a) notify any other Minister whom the Environment Minister considers has
administrative responsibilities relating to the proposed decision; and
(b) invite the relevant Minister to give the Environment Minister written
comments on the proposed decision, within 10 business days.
This ensures that relevant States and Territories with an interest in the proposed
development may provide information to the Minister relating to making the decision.
63. Within the transitional period, the Minister may decide whether the amended water
trigger is a controlling provision for the purposes of a relevant action.
64. If the Minister believes that they do not have enough information to make a decision,
they may request that the person proposing to take the action furnish them with that
additional information. This would extend the operation of the transitional period until
that information is provided. This is appropriate for the Minister to make a fully
informed decision on an action.
65. If the Minister makes a new controlling provisions decision with respect to an action,
that new decision will supersede any old controlling provisions decision under section
75, as if it were a decision under section 75 and as if references to Part 3 of the Act
are references to the amended water trigger.
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66. However, the validity of any original decision under section 75, or under Parts 7, 8,
and 9 of the Act, is not affected by this amendment. This means that the validity of a
previous decision cannot be questioned because of the making of a new controlling
provisions decision. This clause cannot exclude constitutional judicial review of a
decision affected by jurisdictional error. Decisions, including the making of a new
controlling provision, will be undertaken after consultation occurs.
67. This is necessary because:
(a) This would ensure that any previous statutory decision under the Act is not
undermined by the operation of these amendments.
(b) This provision is appropriate because it is of a transitional nature, time critical
and its main intent to provide regulatory certainty to persons proposing to take
actions.
(c) This provision ensures that the application of legislative amendments do not
compromise the status of previous statutory decisions by enlivening external
review of that decision, on the basis of prospective changes to legislation.
(d) Legislation should enable retrospective invalidation of decisions, and it is not
the intent of these amendments to do so.
68. Anything done by the Minister under this item is not invalid merely because it was
not done within the period required by Amendment 29. It is limited to timeframes,
being, the decision as to whether any provisions of section 24D or 24E of the Act as
amended by Part 1 of this Schedule are controlling provisions for the action, by way
of a timeframe of end of the transitional period. This provision replicates a provision
in the Act (s518) which considers that non-compliance with time limits will not
invalid anything done under the Act.
Amendment 30: Transitional provision--Minister to consider whether assessment
approach should be changed
69. This amendment creates a transitional provision that would require the Minister, in
certain circumstances, to decide whether an assessment approach should be changed
for an unconventional gas development.
70. This provision applies if the Minister makes a decision under Amendment 29 that the
amended water trigger is a controlling provision for an action; and prior to the
commencement day, the Minister has made an assessment approach decision under
section 87 of the Act for that action.
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71. The Minister may decide whether, as a result of the new controlling provisions
decision, a different assessment approach should be used the action. This decision
must be made within the transitional period (including any changes to this period as a
result of requests for additional information).
72. If the Minister believes that they do not have enough information to make a decision,
they may request that the proponent furnish them with that additional information.
This would extend the operation of the transitional period until that information is
provided. The Minister must consider any further information provided in response to
this request. This is appropriate in order for the Minister to make a fully informed
decision on an action.
73. After making a new assessment approach decision, the Minister must:
(a) give written notice of the decision to the proponent of the action; and
(b) publish notice of the decision in accordance with any regulations that exist in
the Act concerning the publication of assessment approach decisions.
74. The Minister must also provide reasons for a decision, if the proponent requests these
reasons within 28 days of receiving notification of the decision. This affords
procedural fairness and transparency to proponents of unconventional gas
development who may be impacted by this decision.
75. Similar to Amendment 29, the validity of any original decision under section 87, or
under Parts 7, 8, and 9 of the Act, is not affected by this amendment. This means that
the validity of a previous decision cannot be questioned because of the making of a
new controlling provisions decision. This clause cannot exclude constitutional judicial
review of a decision affected by jurisdictional error. Decisions, including the making
of a new controlling provision, will be undertaken after consultation occurs.
76. This provision is considered necessary because:
(a) This would ensure that any previous statutory decision under the Act is not
undermined by the operation of these amendments.
(b) This provision is appropriate because it is of a transitional nature, time critical
and its main intent to provide regulatory certainty to persons proposing to take
actions.
(c) This provision ensures that the application of legislative amendments do not
compromise the status of previous statutory decisions by enlivening external
review of that decision, on the basis of prospective changes to legislation.
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(d) Legislation should not retrospectively invalidate decisions, and it is not the
intent of these amendments to do so.
77. Anything done by the Minister under this item is not invalid merely because it was not
done within the period required by Amendment 30. It is limited to timeframes, being,
the decision as to whether as a result of the new controlling provisions decision, a
different approach should be used for assessment, by way of a timeframe of end of the
transitional period. This provision replicates a provision in the Act (s518) which
considers that non-compliance with time limits will not invalid anything done under
the Act.
78. Amendments 29 and 30 ensure that new statutory decisions that pertain to the
amended water trigger are consistent with the previous processes for making such
decisions. It also provides that proponents will have the opportunity to obtain reasons
for a new decision consistent with the procedural safeguards in the existing Act.
Amendment 31: Transitional rules
79. This amendment creates a transitional provision that would allow the Minister to
create transitional rules that which modify the operation of the provisions in Part 1 of
these amendments (application and transitional provisions).
80. These rules are appropriate because they can only:
(a) Make modifications of a transitional, saving or application nature; and
(b) Have such modifications made before the end of the period 6 months from the
commencement date.
81. Modifications to the transitional provisions may be necessary because those
provisions may have unintended consequences that are not consistent with the
objectives of the legislation. They are appropriate for these complex transitional
arrangements that may require modifications not anticipated when introduced.
82. Additionally, these rules would allow for transitional measures concerning more
detailed and technical processes better suited to delegated legislation. The intent of
the rules would be to ease the transition for stakeholders into the new regulatory
requirements.
83. Any transitional rules made for the purposes of this provision would be subject to
Parliamentary scrutiny through the disallowance mechanism.
17
84. Consistent with existing constraints on matters that should not be in delegated
legislation, these rules may not do any of the following:
(a) create an offence or civil penalty;
(b) provide powers of:
i. arrest or detention; or
ii. entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under
an appropriation in this Schedule or the Act;
(e) directly amend the text of this Schedule or the Act.
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