Bills Digest 149 1996-97
Environment, Sport and Territories Legislation Amendment Bill 1996
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have any
official legal status. Other sources should be consulted to determine the
subsequent official status of the Bill.
CONTENTS
Environment, Sport and Territories Legislation Amendment Bill 1996
Date Introduced: 12 December 1996
House: Senate
Portfolio: Environment, Sport and Territories
Commencement: Upon Royal Assent except:
- The amendments to the Environment, Sport and Territories Legislation
Amendment Act 1995 which are taken to have commenced when that act
received the Royal Assent;
- The amendments to the National Parks and Wildlife Conservation
Act 1975 which concern the annual reporting requirements. They commence
on Royal Assent only if Schedule 2 to the Audit (Transitional and
Miscellaneous) Amendment Act 1996 has not commenced; and
- The amendments to the Wet Tropics of Queensland World Heritage
Area Conservation Act 1994 which incorporate any amendments to the
agreement between the Commonwealth and Queensland governments, are taken
to have commenced at the time of enactment of that act.
The Bill is an omnibus Bill amending a number of pieces of legislation
in the Environment, Sport and Territories portfolio.
As there is no central theme to the Bill, the background to each major
piece of legislation will be discussed in the relevant sections below.
Schedule 1996-97
Australian Capital Territory (Planning and Land Management) Act
1988
Background
The National Capital Planning Authority (NCPA) was established in 1989,
at the same time that self-government was introduced into the Australian
Capital Territory. Prior to 1989, the National Capital Development Commission
existed and performed similar tasks to the NCPA.The NCPA Annual Report
indicates (at p v) that by arrangement with the Minister the new name,
the National Capital Authority,was 'to take effect for administrative
purposes from 1 July 1996.'
Items 1-4 amend the Australian Capital Territory (Planning
and Land management) Act 1988 so as to change the name of the National
Capital Planning Authority to the National Capital Authority.
Section 25B of the Acts Interpretation Act 1901 provides that
where an Act changes the name of a body, unless the contrary intention
is shown, the body's existence and it's identity are not affected.
Australian Sports Drug Agency Act 1990
Item 5 amends subsection 10(2) so as to allow the Australian
Sports Drug Agency (ASDA) to charge fees for its services, advice or information.The
fee set by the ASDA must not amount to a taxation, which means that it
must be proportionate to the service provided.The Explanatory Memorandum
(at p5) notes that this amendment will enable the ASDA to charge a fee
which includes a profit to persons seeking to use the drug testing facilities
on a commercial basis (ie who are not compelled to under the legislation).
Christmas Island Act 1958
Section 11 of the Christmas Island Act 1958 establishes
a Supreme Court of Christmas Island Territory and Part IVA confers jurisdiction
on the Western Australian courts and court officers as if the Christmas
Island Territory were part of Western Australia.
The Western Australian Supreme Court Act 1935 provides the powers
and duties of the Registrar of the court and of the sheriff(and certain
officers who act with the power of the sheriff).
Items 7-11 extend the conferring of jurisdiction to the District
Court of Western Australia and to people empowered by the Western Australian
legislation to exercise the powers of a Registrar of the Supreme Court
(WA), a judge of the District Court (WA) or a sheriff (of either the District
Court or the Supreme Court).
Item 13 deletes an obsolete provision that enabled people to
obtain Australian citizenship under Part V of the Act.The amendment will
ensure that all persons who previously acquired citizenship under this
provision retain their citizenship.
Cocos (Keeling) Islands Act 1955
As with the above amendments to the Christmas Island Act 1958,
Items 14-15 delete the now obsolete citizenship provisions, whilst
preserving the legality of any Australian citizenship obtained under the
previous provisions.
Similarly again, jurisdiction is conferred on the Western Australia
District Court and court officers (a Registrar of the Supreme Court, a
Judge of the District Court or a Sheriff or a person lawfully exercising
the powers and functions of a Sheriff of either the Supreme Court or the
District Court.)
Coral Sea Islands Act 1969
Background
The proposed amendments to the Preamble of this act will extend its
application to the Middleton and Elizabeth reefs which are situated approximately
150km north of Lord Howe Island.Those reefs are currently situated within
Australia's Exclusive Economic Zone and Australia exercises sovereignty
over them.
Middleton Reef was discovered by Lieutenant John Shortland in 1788,
during his return voyage from the First Fleet.It was named after Admiral
Sir Charles Theodore Middleton.
Elizabeth Reef was not discovered for about a further 30 years, although
the Britannia wrecked there in 1806.Elizabeth Reef was named after
the Elizabeth which was wrecked on the reef in 1831.
Middleton and Elizabeth Reefs are notable for being the most southerly
coral atolls in the world and home to many rare and endangered species
(eg the Black Cod). In 1994, a Management Plan was introduced for the
Elizabeth and Middleton Reefs Marine National Nature Reserve.The reserve
is protected by the National Parks and Wildlife Conservation Act 1975.
Main Provisions
Items 20 and 21 amend the Coral Sea Islands Act 1969 so
as to include Middleton and Elizabeth Reefs in the Coral Sea Island Territory.
Customs Act 1901
Item 22 merely inserts a provision which enables
regulations to be made that will extend the application of the Customs
Act 1901 to the Territory of Ashmore and Cartier Islands.
Endangered Species Protection Act 1992
Item 25 extends from 30 days to 90 days the time
within which the Minister must gazette any decision to add or to delete
a species from a list.The Explanatory Memorandum pp7-8 refers to the 'new
inclusion of Endangered Species or Vulnerable Species or other amendments
to the Schedules to the Act' but not only inclusions but deletions are
specified in section 24 and are therefore affected.
The Scientific Subcommittee remains prevented from publicising anything
regarding its advice to the Minister until either the decision to list
or de-list is gazetted or until 30 days (about to be changed to 90 days
for advices received after the commencement of the Bill) have elapsed.
Environment Protection (Sea Dumping) Act 1981
Background
The International Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter ('the London Convention') was negotiated
in 1972 and entered into force for Australia on 20 September 1985. The
London Convention has been amended a number of times since its inception
and the latest set of three amendments were completed on 12 November 1993.
Australia and Russia were the two countries which did not agree outright
to the phase-out date for industrial waste dumping at sea of 1 January
1996.Australia accepted the amendments by declaration deposited on 15
February 1994, except the provisions relating to the dumping at sea of
jarosite waste.Australia retained the option of dumping jarosite waste
at sea after the deadline of 1 January 1996 but not beyond 31 December
1997.
Jarosite waste, a by-product of the zinc smelting process, is 'a fine-grained,
high-moisture-content material which consists largely of ammonium jarosite
(containing iron, ammonium and sulfate), gypsum and calcine residue which
together form a complex mixture.'(1)
The company Pasminco Metals-EZ has been producing jarosite waste at
its Hobart smelter and disposing of it at sea since 1973.The rate of disposal
authorised was up to 240,000 tonnes (dry weight) per twelve month period.In
1991, the then Department of Arts, Sport, the Environment, Tourism and
Territories commissioned the CSIRO Marine Laboratories to prepare a report,
including biological sampling, of the effects of jarosite waste dumping
at sea.
The CSIRO report considered the oceanographic effects, conducted sediment
studies and biological sampling to determine the effect of jarosite dumping
at sea.For the biological sampling, some 48 commercially or ecologically
significant taxa of the water column (rather than the seabed) were studied.Some
species were found to have concentrations of heavy metals (primarily selenium,
mercury and cadmium) above the recommended health standards.The study
concluded that whilst heavy metal contamination could not be linked to
the jarosite dumping (p12),proof that jarosite dumping had no effect on
contamination of the foodchain could also not be proven.(2)
Provisions
Item 29 inserts subsection 19(4A) which extends the time in which
the Minister must give a decision to either 30 days after all processes
required under the Environmental Protection (Impact of Proposals) Act
1974 or90 days after the application is made, whichever is the later.As
the Explanatory Memorandum states (at p 8) this amendment will allow the
Minister time after a Public Environment Report is completed, to make
a decision in relation to an application for a permit.
The latest amendments to the London Convention will be inserted into
Schedule 1 of the Environment Protection (Sea Dumping) Act 1981
by item 35.Schedule 3A inserts those amendments to the London Convention
which deal with the phasing out of disposing of industrial waste at sea.
Environment, Sport and Territories Legislation Amendment Act 1995
This item corrects a drafting error inserted in the 1995 amendment
to the Australian Sports Commission Act 1989.
Great Barrier Reef Marine Park Act 1975
The existing provisions of the Great Barrier Reef Marine
Park Act 1975 contain an anomaly in that Defence Force vessels or
aircraft are guilty of an offence under the act if they discharge waste
in emergency circumstances.Civilian ships or planes, in cases of the emergency
discharging of waste, are exempted from the criminal provisions. This
is due to the fact that existing section 38J(1) makes it an offence for
'a person' to 'intentionally or negligently discharge waste in the Marine
Park'.Existing subsections 38J(4) and (5) allow certain vessels and aircraft
to discharge waste in certain circumstances, including emergency situations.
Since 'vessel' and 'aircraft' are defined in subsection 38J(7) to exclude
Defence Force vessels and aircraft (whether Australian or Foreign Military)these
vessels and aircraft remain guilty of an offence if they discharge waste
in any emergency situation (whereas in the same circumstances a civilian
vessel would be exempt).
Item 40 attempts to overcome the above anomaly.However, the effect
of item 40 is to exempt all Defence Force vessels and aircraft from the
whole of existing section 38J.This will result in it no longer being an
offence for a Defence Force vessel or aircraft (whether Australian or
foreign) to intentionally or negligently discharge waste in the Great
Barrier Reef Marine Park.
For Operation Tandem Thrust, conducted in March 1997, the Department
of Defence marine headquarters applied to the Minister for the Environment
for permits for a number of small vessels to discharge sewage within the
Great Barrier Reef Marine Park.The permits were granted on 18 February
1997.(3)
Items 44 and 46 respectively remove the definitions of aircraft
and vessel (each of which included foreign military aircraft and vessels).
Migration Act 1958
Section 7 of the Act extends its application to the Coral Seas,
Christmas Island and Coco Keeling Territories.The amendment will include
the Territory of Ashmore and Cartier Islands in this list.
National Parks and Wildlife Conservation Act 1975
Item 50corrects a reference to section 48 of the
Endangered Species Protection Act 1992.Section 48 has nothing to
do with the annual reporting requirements and the reference should be
to 'section 49'.
The Ozone Protection Act 1989
Background
Ozone, a three-atom form of oxygen, is produced by the reaction
of ordinary oxygen to the sun's ultra-violet radiation in the upper atmosphere.Ozone
forms a protective layer in the upper atmosphere and shields the earth
from the majority of the sun's ultra-violet radiation. Scientific studies
have demonstrated that ozone is destroyed by certain chemicals, primarily
halons and chlorofluorocarbons (CFC's).These chemicals are found in such
everyday things such as aerosol sprays, dry-cleaning fluids, cooling systems
(refrigeration and air-conditioning), some fire extinguishers and polystyrene.
Since the 1970's the scientific community began documenting the appearance
and expansion of the hole in the ozone layer.The hole initially appeared
over Antarctica but grew to cover an area larger than Europe at certain
times of the year.When concern in the general scientific community became
apparent, it was quickly recognised that the thinning of the ozone layer
was a global problem, requiring an international solution.The first international
agreement addressing the problem was the Vienna Convention for the
Protection of the Ozone Layer 1985.However, the Vienna Convention
did not set targets for countries to meet for reducing their output of
ozone-depleting chemicals.As a result, the Montreal Protocol on Substances
that Deplete the Ozone Layer 1987 was negotiated, followed by a number
of additional protocols with progressively stronger reduction targets.
The Ozone Protection Act 1989 was Australia's response to the
Montreal Protocol.There are also a number of pieces of State legislation
that address the issue of reducing the output of ozone depleting chemicals.For
a comprehensive discussion of the background to the Ozone Protection
Act 1989 and the 1995 amendments see Bills Digest No. 11 of 1995/96.(4)
Australia has implemented the Montreal Protocol by imposing controls
on methyl bromide and HCFCs (hydrochlorofluorocarbons) as from 1 January
1996.A licence is now required for the manufacture, import or export of
these substances.
Not all ozone depleting chemicals (generally bromine and chlorine compounds)
have the same effect on the ozone layer.Generally speaking, bromine is
much worse as it breaks up ozone at around 50 times the rate that chlorine
does.However, bromine only remains active in the stratosphere for a couple
of years, whereas chlorine can remain active in the ozone layer for around
100 years.
Methyl bromide is odourless, colourless, tasteless and highly toxic
gas that is a broad spectrum fumigant.Its uses include the control of
pests and diseases in horticultural soils, stored grains, quarantine and
for many other types of fumigation.(5) Methyl bromide is currently scheduled
to be phased out by 2010.
HCFCs, scheduled to be phased out by 2020, are ozone depleting but do
comparatively less damage to the ozone layer than CFCs and are considered
a transitional chemical to aid the phase outof CFC's.HCFC's are commonly
used as refrigerants, solvents and blowing agents for plastic foam manufacture.One
of the HCFC's, which goes by the common name of HCFC-22, was described
in the current legislation by the wrong chemical formula.Items 57-58
amend the formula to CHF2CL.
Amendments to the Ozone Protection Act 1989 in 1995 sought to
ban the export and import of HBFC's (hydrobromofluorocarbons).This implemented
a decision of a further meeting of the parties to the Convention (Copenhagen
1992).However, the 1992 agreement provided for the Parties to specify
agreed 'essential uses' for HBFC's which would then be exempted from the
absolute ban that came in on 1 January 1996.Item 51 amends the
definition of an 'essential uses licence' to include the importation of
specified HBFC's.
Quarantine Act 1908
Item 60 inserts new section 6AB into the Quarantine
Act 1908 which provides that regulations may be made under the act
which extend its application to the Territory of Ashmore and Cartier Islands.
Wet Tropics of Queensland World Heritage Area Conservation Act 1994
Item 61 merely amends the objects of the Act to ensure that any amendments
to the 1990 agreement between the Commonwealth and Queensland, relating
to the management of the World Heritage Listed Wet Tropics area, are incorporated.
- Research on Jarosite Dumping at Sea (December 1994), Report of CSIRO
Australia, Executive Summary Volume 1 of 5: 1.
- Ibid.: 12
- Senate Hansard, p1450, 6 March 1997, Senator The Honourable Robert
Hill
- O'Brien, S, Ozone Protection Amendment Bill 1995, Parliamentary
Library, Bills Digest No. 11 of 1995–96.
- For a discussion of the issue of methyl bromide compounds and similar
halons, see for example: Litfin, K Ozone Discourses: Science and
Politics in Global Environmental Cooperation (1994) , Columbia University
Press: 169–176.
Susan Downing
12 June 1997
Bills Digest Service
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This Digest does not have any official legal status. Other sources should
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library, 1997.
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Last updated: 12 June 1997
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