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Environmental Legislation Amendment Bill (No.1)
Date Introduced: 12 April 2000
Portfolio: Environment and Heritage
Commencement: On 16 July 2000,(1) or on Royal assent,
whichever is the later.
To amend the Environment Protection and
Biodiversity Conservation Act 1999 and the Environmental
Reform (Consequential Provisions) Act 1999 to rectify a number
of operational issues and ambiguities.
The Environmental Protection and
Biodiversity Conservation Act 1999 (EPBC Act) was passed by
the Parliament on 30 June 1999 and will come into force on 16 July
2000. It consolidates five existing major Commonwealth
environment-related acts into the one piece of legislation. The
Acts to be replaced by the EPBC Act are:
- Environment Protection (Impact of Proposals) Act
- Endangered Species Protection Act 1992
- National Parks and Wildlife Conservation Act 1975
- Whale Protection Act 1980
- World Heritage Properties Conservation Act 1983
The Environmental Reform (Consequential
Provisions) Act 1999 (the ERCP Act) establishes transitional
arrangements regarding the above acts as they are replaced by the
EPBC Act. It also amends Commonwealth government legislation that
is affected either by the repeal of these acts or by the provisions
of the EPBC Act itself.
Given the complexity of the EPBC Act and the
large number of amendments made in the latter stages of
Parliamentary debate, it is perhaps inevitable that some drafting
oversights and ambiguities have come to light before it is due to
come into force. The main amendments proposed by the Environmental
Legislation Amendment Bill (No.1) 2000 (the Bill) relate to:
- definitions concerning forestry activities and the Regional
Forestry Agreement (RFA) process. At the time the EPBC Act was
passed, the Government presumably envisaged that the Regional
Forestry Agreement Bill 1999 (the RFA Bill) would be in force by
the time the EPBC itself commenced and so certain forestry terms
within the EPBC were defined in reference to the RFA Bill. Given
that the RFA Bill has yet to pass through Parliament, the
amendments delete any reference to the RFA Bill.
- clarifying the circumstances under which been previously
authorised or continuing activities are exempt from having to gain
new approvals under the EPBC Act.
- increasing the range of impacts that can be considered by
strategic environment impact assessments under Part 10 of the EPBC
- introducing a defence against the offences of killing,
injuring, trade etc of listed threatened, migratory and other
species, where that act is provided for, and taken in accordance
with, an accredited fishery management plan or fisheries
- setting out the circumstances under which an action undertaken
for commercial purposes can be carried out in a Commonwealth
Reserve where no management plan is in operation.
- ensuring that Commonwealth Reserve management plans do not
lapse if they have been accepted (ie approved) by the Commonwealth
Environment Minister but not yet entered into force on the date the
EPBC Act commences.
Analysis of these amendments is contained in the
following main provisions section.
Schedule 1 (Amendment of the Environment
Protection and Biodiversity Act)
Item 1 substitutes a new
subsection 38(2) into the EPBC Act. The new
subsection contains various definitions concerning forestry
activities and the Regional Forestry Agreement process. These
definitions are taken from the RFA Bill as it was introduced in
1998. (2)The most significant definition in new
subsection 38(2) is what constitutes a RFA. The RFA Bill (and thus
the Environmental Legislation Amendment Bill (No.1) 2000) defines
an agreement that is in force between the
Commonwealth and a State, the Australian Capital Territory or the
Northern Territory in respect of a region or regions, being an
agreement that satisfies all the following conditions:
(a) the agreement was entered into having regard
to assessments of the following matters that are relevant to the
region or regions:
(i) environmental values, including old growth,
wilderness, endangered species, national estate values and world
(ii) indigenous heritage values;
(iii) economic values of forested areas and
(iv) social values (including community
(v) principles of ecologically sustainable
(b) the agreement provides for a comprehensive,
adequate and representative reserve system;
(c) the agreement provides for the ecologically
sustainable management and use of forested areas in the region or
(d) the agreement is expressed to be for the
purpose of providing long-term stability of forests and forest
(e) the agreement is expressed to be a regional
This varies from an amended definition adopted
by the Senate in debating the RFA Bill.(3) The Senate
amendment adds the following to the above definition:
(aa) the agreement has regard to the objects of
(ca) if the agreement is made after 1 March
1999, it was made in accordance with the public and parliamentary
scrutiny(4) provisions of this Act;
(da) the agreement provides for structural
adjustment packages, including relocation and retraining for
affected workers and their families
The proposed Senate amendment was subsequently
rejected by the House of Representatives.(5)
Obviously if subsection 38(2) is passed in its
present form, this would set a precedent for the RFA definition in
the RFA Bill, if that Bill ever becomes law.
Item 2 repeals existing
subsection 40(2). Subsection 40(2) defines
forestry operations and since this definition is now proposed to be
included in the new section 38(2) above, the
existing subsection becomes redundant.
Item 3 inserts new
sections 43A and 43B. These
effectively replace existing section 522B and subsection
523(2)(6) with some wording changes to clarify their
effect. Section 522B and subsection 523(2) essentially provide that
activities that have already been authorised under relevant
Commonwealth, State or Territory legislation or are continuations
of lawful activities do not require new approvals under the EPBC
Act once the EPBC Act comes into effect.
There are three changes made by 43A and 43B. Two
are relatively minor clarifications and are not discussed here.
The third change is more significant. This
provides that the existing exemption from requiring new approvals
or permits regarding previously authorised or continuing actions
will now only apply to the environmental impact assessment and
approvals provisions of the EPBC Act (ie actions under Part 3 and
approvals under Part 9) rather than all aspects of the Act.
According to the Explanatory Memorandum for the Bill, the rationale
for the change is that:
as described in the explanatory memorandum to
the EPBC Act, the intention of sections 522B and 523(2) is to
exempt certain actions from the assessment and approvals
process in the EPBC Act. However as currently drafted, these
sections exempt certain actions from all parts of the EPBC
Act....Item 3 will give effect to the intended policy position by
ensuring that these exemptions [only] apply to the
environmental assessment and approval requirements of the EPBC
Act.(7) (Italics added by author)
However, the actual text from the November 1998
supplementary Explanatory Memorandum says(8)
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. (Italics added by
Thus on the face of it the supplementary
Explanatory Memorandum does not make an obvious distinction between
environment impact assessment approval and other aspects of the
EPBC Act where a Commonwealth authorisation may be required. The
answer to this discrepancy between the two Explanatory Memorandums
apparently lies in the fact that authorisations for activities
under the non-environment assessment aspects of the EPBC Act
(notably chapter 5) are generally called 'permits' rather than
Whatever the explanation, the net effect of this
proposed amendment is to potentially reduce the number of
activities that may escape the need for new Commonwealth
authorisations in order to go ahead once the EPBC Act is in
Items 4-11 amend various areas
of Part 10 of the EPBC Act which deal with strategic
assessments.(9) A strategic assessment is an assessment
of actions that may be carried out under a proposed policy, program
or plan. As stated in the EPBC Act Explanatory
Memorandum(10), this allows for the early assessment of
the cumulative impacts of relevant individual actions
under that policy, program or plan(11) (emphasis added
The changes proposed by items 4-11 essentially
substitutes the phrase 'impacts of actions on ...a matter protected
under by a provision under Part 3 [of the EPBC Act]'(12)
for the existing 'relevant impacts of actions that are controlled
actions or would be apart from Division 1 or 2 of Part
4'.(13) In broad terms, a controlled action is action
that would have a significant environmental impact on 'matters of
national environmental significance' (eg World Heritage), or on
Commonwealth lands etc and thus generally require a Commonwealth
approval under Part 9 of the EPBC Act.
The problem with the existing wording of the
EPBC Act in relation to strategic assessments is that, because of
the meaning of controlled actions, it restricts the assessment to
significant impacts only. Given that the intent of
strategic assessments as highlighted above is to examine the effect
of cumulative impacts, it is important that all
impacts are examined to provide a true picture of the overall
effect that a proposed policy, program or plan would have on
matters protected by Part 3 of the EPBC Act. The proposed amendment
eliminates the significant impacts restriction by deleting the
reference to 'controlled actions'.
Items 12-19 relate to defences
against the killing, injuring, trade etc of listed threatened and
migratory species, whales and cetaceans, and 'listed marine
species'. Under the EPBC Act, it is an offence to the kill, injure,
trade etc in such species unless such an action falls under list of
prescribed defences. Existing defences include actions taken under
wildlife conservation plans, permits issued under the Great
Barrier Reef Marine Park Act 1975, emergency situations
involving serious risk to human life or property, unavoidable
accidents, and various other circumstances.
The proposed amendments under items
12-19 introduce a new type of defence and /or broaden an
existing defence. The new defence applies where the action
resulting in the killing, injuring, trade etc of the relevant
species is provided for, and taken in accordance with a fishery
management plan or fisheries regime that has been accredited by the
Commonwealth Environment Minister. It is not clear from the
explanatory memorandum why these provisions were not included in
the original EPBC Act.
Consistent with the existing defences contained
in Part 13 of the EPBC Act, the onus of proof lies with the person
seeking to rely on such a defence.
Items 12-13 introduces the new
defence in relation to listed threatened species.
Item 12 inserts a new
paragraph 197(k) which provides that an action
provided for by, and taken in accordance with, a plan or regime
that is accredited under section 208A is not an offence.
Item 13 inserts a new
section 208A.(14) Under this section,
the Minister may accredit three types of fisheries plans /
- new paragraph 208A(a) - management plans made
by the Australian Fisheries Management Authority (AFMA) under
section 17 of the Fisheries Management Act.
- new paragraph 208A(b) - management plans made
by a State or self-governing Territory, providing the plan in
question is in force at the time of the accreditation.
- new paragraph 208A(c) - regimes determined by
AFMA under circumstances where a management plan is not in force
(most commonly this is where AFMA has decided a formal management
plan is not warranted or where a plan is being developed).
New paragraphs 208A(d) and
(e) provide that, before accrediting any plan or
regime, the Commonwealth Environment Minister must be 'satisfied'
the plan or regime requires persons engaged in
fishing under the plan or regime to take all reasonable steps to
ensure that members of listed threatened species are not killed or
injured as a result of the fishing; and
the fishery to which the plan or regime relates
does not, or is not likely to, adversely affect the survival or
recovery in nature of the species.
These requirements are broadly similar to the
language of existing paragraphs 201(3)(b)(i)-(iii), which covers
the Minister's power to issue permits to take an action in relation
to a listed threatened species where that action may result in the
killing, injuring, trading etc of the relevant species. However,
there are two obvious differences. Unlike paragraphs 201(3)(b)(ii),
proposed section 208A makes no reference to the fisheries plan or
regime as having to be not inconsistent with any recovery plan in
force for the relevant species. The second difference is that
proposed paragraph 208A(e) includes the words 'is not likely to',
which are not found in paragraph 201(3)(b)(i). There may well be
justifiable reasons for these differences,(15) but no
details are provided in the Explanatory Memorandum to the Bill.
Items 14-15 essentially
replicate items 12-13, but apply to listed
migratory species. The only substantive difference is to substitute
'conservation status' for 'survival or recovery' in new
Items 16-17 broaden existing
defences in relation the killing, injuring, taking and possession
of a cetacean (including whales). The amendment allows the Minister
to accredit an AFMA regime (ie as mentioned under section 208A(c)
above). The EPBC Act already allows the Minister to accredit AFMA
and State/Territory plans of management.
Items 18-19 essentially
replicate items 16-17, but apply
to specified marine species, eg dugongs, crocodiles, and certain
turtles, sea-snakes, seals, seahorses etc.
Items 20-22 insert new
provisions to govern the circumstances under which an action
undertaken for commercial purposes can be carried out in a
Commonwealth Reserve where no management plan is in operation. This
may occur in the case of a newly proclaimed reserve, or where the
term of a plan has expired before a new plan can be brought into
The existing subsection 354(1) of the EPBC Act
provides that a person cannot do certain things - including 'an
action for a commercial purpose' - in a Commonwealth Reserve except
in accordance with the reserve's management plan. Where such a plan
is not in operation, subsection 354(2) allows the Commonwealth
Director of National Parks (the Director) to do a limited range of
things (generally relating to conservation), but no mention is made
of commercial purpose actions.
Management plans for Commonwealth reserves may
be disallowed by either House of Parliament.(16) In
theory, this gives the Senate with the leverage to request the
insertion of specific provisions in the plan as a condition for not
disallowing it. This could include a provision effectively banning
a particular type of commercial act, even if this act was basically
consistent with the IUCN reserve management principles attaching to
the particular reserve.(17) The proposed amendments
under items 20-22 potentially restrict the likelihood of the Senate
taking this cause of action if the Director has already approved a
commercial act of a type opposed by the Senate. This is because it
would possibly expose the Commonwealth to a legal action by the
developer should the subsequent management plan
'passed'(18) by the Senate ban the act in question.
However, it is difficult to say whether this set of circumstances
could realistically occur and thus be a significant issue in
considering the proposed amendments.
Item 21 inserts new
subsections 354(3A) and (3B). The way parts of these
sections have been drafted leaves their exact operation and meaning
In relation to new subsection 354(3A), it is
understood its intended meaning is that that a commercial purpose
action could be carried under the proposed amendment if it is
either an individual act specifically approved by the Director
(paragraph 354(3A)(b)(i)) or part of a class of actions
specifically approved by the Director (paragraph 354(3A)(b)(ii)).
It is however arguable that proposed paragraph 354(3A)(b)(ii) could
be interpreted to include an act of a type that has previously been
approved by the Director.
The second ambiguity relates to the making of a
subsection 354(3B) determination. Given the wording of paragraph
354(3A)(b)(i), it is unclear whether, in approving regarding a
specific individual action, the Director must necessarily certify
that 'the doing of an act in a Commonwealth Reserve is consistent
with the proclamation of the reserve under subdivision B' as
outlined in 354(3B)(b). Of course, it could be argued that the fact
that the word 'and' is placed between 354(3B)(a) and 354(3B)(a)
means that 354(3B)(b) must always be included in a determination.
However, the use of the word 'may' in the subsection 354(3B)
preface casts doubt on whether this is the only valid
interpretation. In any case, the drafting should ideally provide a
plain meaning without having to resort to a technical
Item 23 amends
subsections 515(1) and 515(2). These sections deal
with the delegation of the powers and functions of the Commonwealth
Environment Minister and Secretary of that Department. As
subsections 515(1) and 515(2) currently stand, delegation may only
be made to the 'officers and employees of the Department'. The
Director is a statutory position, appointed by the Governor
General, and thus may not be an officer or employee. The amendments
simply adds the Director to 'officers and employees of the
Department' as a person eligible for delegation.
Schedule 2 (Amendment of the
Environmental Reform (Consequential Provisions) Act)
Item 1 inserts a new
item 4A into schedule 4 of the ERCP Act. Schedule 4 of the
ERCP Act deals with transitional arrangements for the National
Parks and Wildlife Conservation Act 1975.
Item 4A(1) ensures that
Commonwealth Reserve management plans do not lapse if they have
been accepted (ie approved) by the Commonwealth Environment
Minister but not yet entered into force under the National
Parks and Wildlife Conservation Act 1975 on the date that Act
is replaced by the EPBC Act.
Item 4A(2) provides that such
plans are considered to have been approved under section 370 of the
Item 4A(3) provides that such
plans cease on the earlier of either the date the plan would
originally ceased under the National Parks and Wildlife
Conservation Act 1975 or seven years after the commencement of
the EPBC Act.
The effect of item 4A(4) is
that plans coming into force under item 4A are not required to
include the contents specified by section 367 of the EPBC Act.
- This is the commencement date of the Environment Protection
and Biodiversity Conservation Act 1999.
- With a minor exception that the definition of a Regional
Forestry Agreement in the Environmental Legislation Amendment
(No.1) Bill 2000 includes an agreement between the Commonwealth and
ACT or Northern Territory. The RFA Bill defined an RFA only in
terms of an agreement between the Commonwealth and a State.
- These amendments and others relating to the RFA Bill are
reproduced in House of Representatives Debates 13 October
1999 p. 8584.
- This parliamentary scrutiny amendment would mean the
Commonwealth Forestry Minister could not enter into a RFA unless it
had been tabled in both Houses of Parliament and not been
disallowed - ie the Senate would effectively have power of veto
over the Governments ability to enter into a RFA.
- House of Representatives, Debates, 13 October 1999 p.
- Section 522B is repealed by item 26 and subsection 523(2) is
repealed by item 27.
- Explanatory Memorandum, paragraph 5, p. 3.
- What is now section 522B was not included in the Bill as in was
first introduced in July 1998. It seems to have first appeared as
clause 489 as part of package of proposed amendments introduced on
12 November 1998 and described in the supplementary memorandum of
- Part 10 strategic assessments may done carried out on a wide
range of matters (see section 146 of the EPBC Act) but have
particular application to fisheries (see sections 147-153).
- Also released on 12 November 1998.
- Ibid, paragraph 239. Note that the word cumulative does not
appear anywhere in the EPBC Act. Subject to the proposed amendments
under items 4-11, it could therefore be inferred that it is at the
discretion of the Commonwealth Environment Minister as to the
precise range of impacts that are considered by a strategic
- For example, see the last two lines of the text for item 4,
which proposes to amend existing subsection 146(1).
- See existing subsection 146(1).
- Note that the Bill specifies that item 13 (ie section 208A) be
inserted before the existing section 208. This would seem
to be an error.
- An obvious distinction between a section 201 permit and a
section 208 fisheries plan or regime is that the former is more
likely to address a specific activity or group of activities over a
limited time frame rather a broad range of activities over a period
of several years in the case of a commercial fishery management
- See section 371 of the EPBC Act.
- See sections 346-348 of the EPBC Act.
- That is, not disallowed.
24 May 2000
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