Support for the bill
The committee received many submissions supporting the bill, mostly from
individuals with addresses in New South Wales, who expressed concerns about the
possible impact of CSG or coal mining on the availability or quality of water
obtained from aquifers. Some of those submissions, although they did not
directly address the provisions of the bill, were nevertheless accepted by the
committee because they addressed the underlying issues.
Individual submissions addressed many different issues in addition to
those mentioned above, including: the value of clean water for consumption and
the environment; health concerns; and availability of water for agriculture.
Submitters also expressed concerns related to the ability of farmers to prevent
exploration and development activities on their properties; lack of thorough
scientific studies; and a perception that the state authorities are more interested
in approving developments rather than in thoroughly assessing their likely
Submissions from a number of peak environmental bodies made many of the
same observations as those set down above. These witnesses, who also addressed
the provisions of the bill, supported the intent of the proposed amendments,
but most were concerned about what they described as its limited coverage.
A submission from the Australian Network of Environmental Defender's
Offices (ANEDO), for example, made a number of recommendations for additional
matters that it considered should be included in the bill, as follows:
(a) Broadening the "water trigger" to cover other forms of mining ...
in addition to CSG developments and large coal mining developments, the Bill
should also apply to all large mines that excavate beneath the water table and
to unconventional gas exploration and production activities.
(b) Limiting the categories of mining development exempted from the “water
trigger” to: (a) controlled actions that have been approved under the EPBC Act
prior to the Bill’s commencement and for which work has already commenced; and (b)
mining projects (that were not controlled actions prior to the Bill’s commencement)
that fulfil the criteria outlined in Item 22 (3) and for which work has not yet
(c) Including “water trigger” specific assessment criteria ... in Part 9 of
the EPBC Act. Specifically, the criteria should include a requirement to “not
act inconsistently with” the Convention on Biological Diversity.
(d) Providing for existing bilateral assessment agreements relating to
controlled activities that are likely to have (or have already had) a
significant impact on water resources to be varied in light of the “water
ANEDO also submitted that:
... the “significant impact guidelines” for the “water trigger”
[should] take into account the notion of “environment sustainability” outlined
in the Water Act 2007. Specifically, the guidelines should define “significant
impact” as any relevant mining development that individually, or in combination
with other developments, would compromise:
(i) key environmental assets of the water resource; or
(ii) key ecosystem functions of the water resource; or
(iii) the productive base of the water resource; or
key environmental outcomes for the water resource.
ANEDO supported the amendments made to the bill in the House of
Representatives on the motion of the Member for New England. The witness stated
that the amendments would preclude activities declared “controlled actions” for
the purposes of the “water trigger” being subject to a bilateral approval
agreement under the EPBC Act.
Opposition to the bill
Opposition to the bill was largely confined to companies involved in CSG
and coal mining activities and their industry associations. The concerns of
these witnesses included: that the bill is unnecessary because there is no
failure of the current processes; that regulation will be duplicated by the
involvement of another level of regulation, with associated delays and costs,
for no additional environmental benefit; that the bill discriminates against
particular industries; that the bill contradicts the Government's commitment to
less regulation; that the bill is inconsistent with previous advice and
government decisions: that important matters are not defined: and that there
had been no prior consultation with the affected industries.
The Minerals Council of Australia (MCA) was opposed to the bill for some
of the above reasons, but it also made the following suggestions for amendments
that it stated 'would seek to improve the workability of this amending bill
and, in so doing, minimise the adverse consequences which we trust are
Firstly, revise the definition of a water resource to ensure
that consideration is given to the materiality and context of the resource,
including factors such as water quality, the connection of the water resource
to environmental values, the size and variability of the water resource and
whether there are any other competing users.
Secondly, properly define 'significant impact' to ensure that
it is related to environmental values being protected, the scale of the impact
of the proposed coalmine development within the context of other existing water
uses and the time frame of the proposed impact.
Thirdly, revise the definition of 'large coalmining
development' to ensure that there is differentiation of coal projects depending
on the size of their ecological footprint and throughput and to exclude
ancillary activities undertaken by a coalmine.
Fourthly, reverse the onus of proof for contraventions as
drafted. This one really does not sit well in the context of Australia's
adherence to the notion of innocent until proven guilty. The idea that a
project proponent is required to defend themselves from claims of breaches of
the act without that being supported by evidence has all the hallmarks of the
absolute liability provisions that formerly existed under the New South Wales
Occupational Health and Safety Act.
Fifthly, remove the retrospective application, the trigger
for projects not undergoing EPBC Act referral. This is not a good point of law,
to have retrospectivity applying in a situation where it creates great
uncertainty for projects which may be currently undertaking activities,
including ancillary activities. The legislation should clarify the
grandfathering exemptions provided in 22(3) and 22(4) to expressly acknowledge
that changes to grandfathered projects do not impact on the status of prior
environmental authorisations of unchanged components or where changes are
immaterial to the significance of or impact on a water resource.
Finally, removal of the so-called Windsor amendment, which
removes the ability for the government to enter into an approval bilateral
agreement for the new matters of national environmental significance to ensure
consistency with any MNES detailed in the act'. 
The above matters and other issues raised in the evidence are discussed
in this chapter of the report.
Is the bill needed?
A submission from the National Farmers Federation (NFF) argued that the
bill is premature because there is nothing to suggest that the arrangements
made through COAG's National Partnership Agreement, which was established to
respond to community concerns, have failed. The NFF stated that the
arrangements were given very little time to commence 'before the drastic action
was taken by the Federal Government to introduce this Bill'.
General Electric (GE), a major technology and services provider to the CSG
industry in Queensland, submitted that governments are continuing to work with
the CSG and coal mining industries to harmonise regulation in the different
The [COAG] Standing Council on Energy and Resources (SCER) is
preparing the Draft National Harmonised Regulatory Framework for Coal Seam Gas,
which has been focussing on issues impacting on investment in resources exploration
and development, including land access, community, infrastructure and labour.
In GE’s view this co-operative approach to harmonise and fill any “gaps” in the
existing regulatory framework is preferable to developing new regulation in an
ad hoc basis either by the Australian Government or State/Territory Governments.
The NFF informed the committee that the Council is close to finalising
the publication and submitted that:
The intergovernmental framework does not support or suggest
that the introduction of legislation is required. This is relevant considering
the framework was developed during the water trigger debate over the last year.
GE also submitted that the Australian Government has established the
IESC to provide advice for all levels of government on water-related aspects of
CSG and coal mining developments; that state governments have recently updated
policies pertaining to management of CSG-produced water; and that the
Australian Government has referred a Major Project Development Assessment Processes
inquiry to the Productivity Commission 'in a bid to redress “inefficient and
duplicative regulatory arrangements are imposing unnecessary costs” associated
with development assessment and approval processes'.
The Association of Mining and Exploration Companies (AEMC) submitted
... the existing regulatory frameworks, skills and local
knowledge and experience currently reside in the states and territories
regulatory agencies and therefore there is no need for Commonwealth regulatory
The Australian Coal Association (ACA) listed the major state government
acts that regulate the industry. In Queensland for example the industries are
regulated the Water Act 2000 and the Environmental Protection Act
1994 and a further 16 pieces of legislation that cover specific aspects of
The Australian Petroleum Production and Exploration Associated Limited
(APPEA), informed the committee that while it is obvious that some sectors of
the community find coal seam gas development a major problem, in the areas in
Queensland where it has it major activity it also has its strongest support.
The ANEDO submitted that states and territories do not adequately
regulate the impacts of mining on water resources:
... drawing on our extensive experience as environmental
lawyers, we developed 10 best practice standards for planning and environmental
regulation in response to COAG's proposal to streamline environmental
assessment. We then evaluated relevant laws in each State and Territory against
these standards. Based on our analysis, no State or Territory currently has a
regulatory regime that reflects ANEDO's 'best practice metric'.
As stated earlier in this chapter many submissions from individuals,
including many farmers and conservation bodies, referred to a perceived failure
of the state regulators adequately to protect water resources. Dr Chris
McGrath, a senior lecturer in environmental regulation at the University of
Queensland, who appeared in a private capacity quoted from a report of the
Queensland Coordinator-General on the approval of the Santos GLNG project that,
he submitted, reflected poor decision making and demonstrated a need for
Commonwealth oversight for water resources affected by CSG development.
Dr McGrath and many others supported the Commonwealth Government's intention to
include the 'water trigger' in the Act.
The committee acknowledges that the state governments have established
legislation to regulate the CSG and coal mining industries and that, in
relation to matters of national environmental significance, the EPBC Act is
also relevant. The committee also acknowledges that the CSG and coal mining industries
support the current legislative arrangements.
Nevertheless, the committee considers that the bill is necessary. The
committee is persuaded not only by the evidence submitted by peak environmental
bodies such as ANEDO but also by the large number of submissions received that
were critical of the current arrangements. These submissions demonstrate a lack
of confidence in the community that the current regulatory arrangements for the
protection of water resources are adequate.
The committee considers that, if the CSG and coal mining industries are
to have a 'social licence' to operate, this bill is needed and, to the extent
that the bill alleviates widespread public concern, both the community and the
industries would benefit if it were to be passed.
Industry specific provisions
Some witnesses suggested that targeting specific industries would lead
to inclusion of other industries within the ambit of the EPBC Act. The NFF
The precedent of targeting an industry rather than an
environmental matter of environmental significance opens the door to application
in other areas, e.g. land clearing or the use of agricultural chemicals and
The NFF further submitted that although it recognised the concerns of
farmers within areas affected by CSG it considered that the 'water trigger'
presents an unreasonable future risk to all farmers.
NSW Farmers does not share this concern. The organisation submitted that:
NSW Farmers is aware of concerns that this level of oversight
on mining and CSG marks the potential for that level of regulation to extend to
agricultural uses of water. However NSW Farmers is confident that the rigorous
and well-established frameworks already in place for agricultural water use
would leave no impetus for future governments to expand these provisions.
The ACA commented on the targeting of specific industries, as follows:
The Australian Government has also committed to a more
proactive, strategic approach to environmental protection, rather than a focus
on project-by-project assessments. Yet the broad terms of the new trigger
require the Commonwealth to provide approval for virtually every activity associated
with coal mining.
The committee noted earlier in this chapter that many submitters
requested that the bill should cover not only CSG and coal mining developments
but other mining development proposals. ANEDO's recommendation that the water
trigger should be broadened to apply to mines that excavate below the water
table and to unconventional gas exploration and production activities is but
one of many such recommendations. (See paragraph 3.4 above.)
SEWPAC informed the committee that the scope of the bill is limited to
the impact on water resources of the industries and that this is also the scope
of the NPA and the IESC.
The committee has noted submitters' concerns that the 'water trigger'
has only limited application. However, the rapid and extensive development of
coal mining and CSG mining in particular and the great community concern that
these activities have raised require that concerns about these activities
should now be addressed.
Consistent with the EPBC Act?
Some witnesses argued that the targeting of specific activities is not
consistent with the objectives of the EPBC Act. APPEA submitted that:
Matters of NES must be on the protected matter, rather than a
specific industry or activity. By no standard are coal seam gas developments
and large coal mines the largest users of water resources nor do these
industries have the most significant impact on water resources. The unilateral
creation of an industry specific trigger is inconsistent with the EPBC Act
matters of NES that focus on impacts to protected matters. The management of a
water resource is more appropriately managed through regional assessments
undertaken by the relevant States with oversight and input from the Commonwealth
through the National Partnership Agreement.
The Business Council of Australia submitted that 'The creation of a
water trigger runs counter to the philosophy of the EPBC Act in that this
amendment addresses an industry sector and not a matter of environmental
significance as specified under any international treaty or obligation'. 
The ACA submitted that the proposals go well beyond the intended reach
of the EPBC Act, and quoted the Hawke Review as follows:
It is important to remember that the Australian Government’s
role is to act in Australia’s ‘national’ interest. The focus of the Act must
therefore continue to be on matters of national environmental significance and
nationally important biodiversity and heritage, leaving other environmental
matters of importance at a State, Territory or local level to those State,
Territory and Local Governments as the more appropriate managers.
The MCA submitted that:
At the core of the EPBC Act is the fulfilment of Australia’s
international obligations. Indeed all the current mNES have linkages with
International Treaties or Conventions...
Unlike existing mNES, the proposed inclusion of a new mNES
for “...large coal mining developments” on water resources has no obvious
connection with any of Australia’s Global environmental commitments. This puts
the amendment at odds with both the intended role of the EPBC Act and its
principal relationship to the External Affairs provisions of the Australian
SEWPAC informed the committee that a number of the objects of the EPBC
Act do not specifically refer to international treaties and that:
... in relying on the corporations power and the interstate
trade and commerce powers under the Constitution we are doing something that is
already done in the EPBC Act for the nuclear trigger and for the national
The Government has not relied on the external affairs powers to
legislate in this area. As noted above, the bill relies on the corporations and
interstate trade and commerce powers (see proposed ss24D and 24E), and this is
not new. Concerns about the validity of the bill therefore seem to be misplaced.
Duplication of regulations
As discussed in Chapter 2, the CSG and Coal mining industries are
regulated at the state and federal government levels, most recently through a National
Partnership Agreement on Coal Seam and Large Coal Mining Development (NPA). The
NPA, which was signed by the Commonwealth, Queensland, New South Wales and
South Australian Governments, requires the states to refer any CSG or coal
mining development to the IESC and to take account of the Committee's advice in
their decision making in a transparent manner.
Witnesses involved in the mining of coal informed the committee that, given
this and other regulations imposed by state governments, additional regulation
was unnecessary. They expressed concern that the bill would add another level
of regulation in the approval processes for these activities for no apparent
advance in environmental protection. ACA, for example, submitted that:
The introduction of a targeted water trigger in the EPBC Act
adds yet another layer of regulation over and above an already complex and
onerous environmental approvals process. More regulation does not equate to
better environmental protection outcomes. The fact that the water trigger
duplicates existing State assessment and approvals processes, as well as the
newly established IESC process, makes it impossible to identify what additional
environmental protection the Commonwealth will actually deliver.
QGC estimates that, based on its experience of the Water Monitoring and
Management Plan approvals and implementation, the new water trigger could add
two or more years to the EIS process.
GE submitted that the bill will add to the regulated timeframes for
assessing projects, even those well through the approval processes and closest
to achieving approval ... and commencing job-generating construction and operation.
The company quoted from a report of the Productivity Commission:
In 2009, the Productivity Commission released its final
Review of Regulatory Burden on the Upstream Petroleum (Oil & Gas) Sector [that]
"Significant regulatory costs are associated with
approval delays that potentially lead to increased project expenditures,
reduced flexibility for responding to market conditions, inflated capital
costs, increased difficulty of financing projects, and reduced present value
from resource development. Expediting the average approval process by one year
could increase the net present value of projects by 10–20 per cent simply by
bringing forward income streams. Given the sector contributes 2 per cent to
GDP, the potential income gains for Australian residents could be in the
billions of dollars each year".
APPEA stated that there are significant administrative costs in
complying with regulation and that delays result in the greatest costs.
APPEA submitted that, due to fundamental differences between the assessment processes
of the states and the Commonwealth, the introduction of the 'water trigger'
will require two different approval processes.
In relation to coal mining developments, ACA stated that one of its
members had incurred costs of more than half a million dollars a day due to
delays in obtaining EPBC approval.
The Association submitted that:
Unfortunately, the additional costs and uncertainty presented
by the water trigger could not come at a worse time for the Australian coal
industry. The industry is already grappling with an increasingly challenging
operating environment. Coal prices have plummeted and capital and operating
costs are nearly double those of competitor countries. Growth in exports from
our major competitors, including Indonesia, Canada, United States, South Africa
and Colombia, is now having a real impact on Australia’s market share. In 2011,
Australia lost its position as the world’s largest coal exporter by volume – a
title we’ve held consistently for almost three decades to Indonesia.
ACA informed the committee that delays may also affect the taxes
collected by government. It stated that a recent report had indicated that the cost
to government taxation revenue of a two year delay in a CSG to LNG project
would be between $360 and $730 million.
Mr Knowles, Director, Economists at Large Pty Ltd, commenting on the cost in
lost revenue to governments informed the committee that most analyses include
the entire tax revenue that is deferred as a cost, when it is really only the
opportunity cost of that deferred revenue. 'And, if you take an
intergenerational perspective, future generations will still derive that
Dr McGrath stated that the new trigger is unlikely to cause significant
additional costs or delays for industry. He argued that state and local
government approvals are far more numerous, and their requirements are far more
extensive, costly and time consuming than those imposed by the EPBC Act. Dr
McGrath referred to the Wandoan coal mine development which began its approval
process with the Queensland State Government in 2007 and has still not
completed it, and contrasted that with the Commonwealth EPBC Act approval
process which began in 2008 and was completed in 2011.
Mr Tristan Knowles in response to a question concerning the costs of
regulation to proponents of mining developments stated that:
... there are two costs you need to consider. One is the
compliance cost and one is a delay cost. I think the bigger picture here in
terms of the industry is that the profitability of the industry is a factor of
capital costs, or capex, and operational costs, or opex. Potential
environmental concerns and processes under, say, an EPBC Act trigger do not
impact capex and opex enough; it is market prices, cost of capital, cost of
technology and cost of labour. These are where the big impacts are felt. So I
think you firstly have to put it into that perspective and say the marginality
of projects is driven by internal costs and market prices; it is not driven by
what the industry has recently been referring to as 'green tape'.
In his second reading speech on the bill the minister stated that 'the
sort of information that would be needed for the new matter of national
environmental significance already gets collected in different ways for state
approvals, and for the work of the Independent Expert Scientific Committee'.
The committee acknowledges the concerns of the industry that relate to
increased compliance costs and possible delays in obtaining approvals. It
considers, however, that any additional costs or delays should be viewed in the
context of the need for the industries to allay community concerns about their
operations. The committee also considers that any additional costs would be
relatively small compared with the total cost of viable projects, and would be unlikely
to dissuade any but the most marginal developers.
The 'Windsor amendments'
As stated earlier in this chapter MCA requested the removal of the
'so-called Windsor amendments' from the bill.
SEWPAC explained the likely effects of these amendments as follows:
The proposed amendments would prevent the accreditation of
state and territory frameworks under a bilateral agreement, so that a state or
territory could not undertake approval of proposed actions that are likely to
have a significant impact on the new water resource matter of national
environmental significance. This item would mean that the Australian Government
would have an ongoing requirement to assess, and make decisions on, coal seam
gas and large coal mining proposals that are likely to have a significant
impact on water resources.
The MCA was not the only industry body to express concern about the
amendments. ACA submitted that:
The last-minute amendment by Tony Windsor MP to prevent the
use of bilateral approval agreements in relation to the new matter of NES is
particularly concerning as it removes an important mechanism to avoid
duplication with State governments.
BHP Billiton submitted that:
We are also concerned with the lack of due process in the
development of the amendments, in particular those provisions which remove the
ability of the Government to enter into Approval Bilateral Agreements. The
manner and timing in which they were introduced, and the acceptance of the
amendments without consideration, explanation or the opportunity for
consultation with affected stakeholders, could lead to public policy outcomes
that diminish the competiveness of the Australian resources sector and without
any benefits in improved environmental standards.
Many submitters supported the amendments on the grounds that the state
governments lack the resources properly to assess proposals or, more commonly,
on the grounds that the relevant state government authority has an interest in
approving projects, rather than thoroughly assessing them. For example, Mrs
Loan from the Nature Conservation Council of New South Wales stated:
... it is important to recognise that the states do not
necessarily have the national interest at heart when they are assessing these
types of proposals. States can often directly benefit from projects that they
are assessing, whether it is through royalties on mining and gas resources or
through direct income to state-owned agencies that are carrying out projects
within their own state.
In a previous report the committee has commented on the ability of the
states' approvals processes and has found that:
... there is a high degree of concern that state and territory
governments simply do not have the ability to exercise the standards of
decision making required.
The committee considers that there is sufficient concern and evidence
about the inadequacy of state approval processes to warrant the involvement of
the Commonwealth Government. It is cognisant of the fact that some witnesses
have suggested that if the problem lies with the states then it should be
addressed by the states. However, given concerns about conflict of interest
where states desire the investment and taxation provided by mining developments
and also approve those developments, it seems reasonable that the assessment of
proposed CSG and coal mining developments should be undertaken by the
A broad trigger?
Witnesses involved in the industry suggested that all development proposals
were likely to be caught by the water trigger. ACA, for example, taking into
account the legislative definitions of 'large coal mining development', 'water
resource' and 'significant impact' submitted that:
... virtually all current and future coal developments,
regardless of size, will now be subject to the costs, delays and uncertainty
associated with seeking Commonwealth EPBC approval.
If in fact the 'water trigger' does apply to virtually all developments
this will have resource implications for the Commonwealth. However, ACA quoted
a statement made by the minister in an address to the National Press Club:
In terms of water resources, I want to make sure that we
don’t end up in a situation where for no significant environmental benefit we
are suddenly putting the Federal Government in charge of absolutely every
application...It’s hard to find a mining application of any sort that doesn’t
have some sort of impact on water resources.
It is important therefore that the definitions of 'significant impact',
'water resource' and 'large coal mining development' be well understood and
accepted. These definitions are discussed below.
Definition of 'significant impact'
The MCA submitted that 'significant impact' should be defined to ensure
that it is related to environmental values being protected, the scale of the
impact of the proposed coalmine development within the context of other
existing water uses and the time frame of the proposed impact.
The New South Wales Irrigators' Council also referred to this matter in
its evidence to the committee. The Council's Chief Executive Officer stated
The fact that there is no clear and objective definition of
what a significant impact is after that act has been in place for so long—and
indeed since the Federal Court gave a virtually indefinable interpretation of
it—is a massive weakness of the act and as a result is going to be visited upon
the water trigger as well.
The term is defined in the NPA as follows:
Significant impact on water resources is caused by a single
action or the cumulative impact of multiple actions which would directly or
(a) Result in a substantial change in the quantity, quality of availability
of surface or ground water;
(b) Substantially alter ground water pressure and /or water table levels;
(c) Alter the ecological character of a wetland that is State significant or
a Ramsar wetland;
(d) Divert or impound rivers or creeks or substantially alter drainage
(e) Reduce biological diversity or change species composition;
(f) Alter coastal processes, including sediment movement or accretion, or
water circulation patterns;
(g) result in persistent organic chemicals, heavy metals, or other
potentially harmful chemicals accumulating in the environment such that
biodiversity, ecological integrity, human health or other community and
economic use may be adversely affected; or
(h) substantially increase demand for, or reduce the availability of water
for human consumption.
The Nature Conservation Council of NSW observed that the EPBC Bill 2013
does not seek to include the above definition in the Act. The Council submitted
... under Part 9 of the EPBC Act, requirements are provided for
the Minister to consider when making his decision about an activity for each of
the existing controlling provisions. However, the EPBC Bill 2013 does not seek
to introduce any requirements under Part 9 in relation to water resources. The
ability to protect water resources in the future will depend on the provision
of a strong definition or requirements under Part 9 for water resources.
Also, as the committee noted earlier in this Chapter, ANEDO made
suggestions for the definition of 'significant impact'.
SEWPAC informed the committee that it would be consulting industry and
environmental stakeholders groups on the significant impact guidelines.
Definition of a water resource
A water resource is defined in the Commonwealth Water Act 2007 as
water resource means:
surface water or ground water; or
a watercourse, lake, wetland or aquifer (whether or not it
currently has water in it);
and includes all aspects of the water resource (including
water, organisms and other components and ecosystems that contribute to the
physical state and environmental value of the water resource).
Mr James Cameron, Chief Executive Officer, National Water Commission,
... there are a myriad of distinct water resources across the
country that are managed having regard to the economic, social and
environmental relevance of those individual resources. Some of them—many of
them—are certainly of national significance, but not every single water
resource across the country.
The MCA proposed that the definition of a water resource should be
revised to ensure that consideration is given to the materiality and context of
the resource, including factors such as water quality, the connection of the
water resource to environmental values, the size and variability of the water
resource and whether there are any other competing users.
Ms Tracey Winters, Vice-President, Environment, QGC Pty Ltd, stated
... the effect of this bill is to extend water resources—for
example, a dry gully, every dry gully in the country, because a watercourse is
defined as every watercourse, whether it is flowing or not. So this bill would
make every dry gully in the country a matter of national environmental
Although a water resource could include a dry gully, it should be noted
that the provisions of the bill will only apply if a CSG or coal mining
development is likely to have a significant impact on that water resource. It
is most unlikely that all dry gullies would be included.
The committee notes that the minister in his second reading speech on
the bill stated that the bill 'does not seek to invoke the Commonwealth in all
water decisions and that the trigger would not capture small projects such as
Definition of a Large Coal Mining Development
'Large coal mining development' is defined in the s 528 of the EPBC Act
... any coal mining activity that has, or is likely to have, a
significant impact on water resources (including any impacts of associated salt
production and/or salinity):
in its own right; or
when considered with other developments, whether past,
present or reasonably foreseeable developments.
The MCA recommended that the definition should be revised to ensure that
there is differentiation of coal projects depending on the size of their
ecological footprint and throughput and to exclude ancillary activities
undertaken by a coalmine.
Dr Mudd, in response to a question from the committee, stated:
... how do you define large-scale coalmining? At what point
does something become large versus small? And, just because it is small, it
does not mean it has no impact on water resources. All of those issues are very
real, and the problem is that all of these things are site-specific and
An issue raised by a number of companies was that the bill might apply
to exploration activities as well as to development. Santos, for example,
Most concerning to Santos is a seemingly unintended
consequence of the amendments that "exploration" and "appraisal"
activities will be captured ...Traditionally the Act has been interpreted to
regard "development" as referring to a defined project already
committed to by the proponent.
The company submitted that development can only follow after the
proponent has a 'sound understanding of the resource it is targeting ...'
The Australian Petroleum Production and Exploration Association (APPEA)
The proposed amendment bill utilises the definition of coal
seam gas development activity used by the existing Independent Expert
Scientific Committee gateway. Coal seam gas development means any activity
involving coal seam gas extraction that has, or is likely to have, a
significant impact on water resources (including any impacts of associated salt
production and/or salinity).
This is a broad definition that is likely to extend to
petroleum exploration activities, which involve small amounts of coal seam gas
extraction. The inclusion of exploration activities in the scope of activities
covered by the amendment will result in situations where exploration cannot
proceed. This is despite the fact that it is the act of exploration that
informs the assessment of a water resource. This paradox is particularly
concerning in remote areas where little or no information already exists.
APPEA submitted that the bill should expressly exclude exploration
activities from the definition of coal seam gas development.
The committee was informed that the bill will cover exploration and
appraisal activities. Dr Kimberley Dripps, Deputy Secretary, SEWPAC, informed
that committee that:
The way the EPBC Act operates is that it is based on a
'significant impact' on one of the listed matters. So the stage of the activity,
whether it is an early exploratory stage or an actual production stage, is not
relevant in considering whether or not there is a significant impact.
Reverse onus of proof
As stated earlier in this chapter of the report, the MCA
requested that the reverse onus of proof for contraventions should be removed
from the bill. Mr Hooke argued that:
This one really does not sit well in the context of
Australia's adherence to the notion of innocent until proven guilty. The idea
that a project proponent is required to defend themselves from claims of
breaches of the act without that being supported by evidence has all the
hallmarks of the absolute liability provisions that formerly existed under the
New South Wales Occupational Health and Safety Act.
In relation to this matter in a response to a question taken on notice SEWPAC
provided the following information:
Proposed section 24D(4) sets out a number of circumstances in
which the civil penalty provisions in proposed section 24D will not apply to an
action even where a person has taken an action as described in section 24D that
has had, will have or is likely to have a significant impact on a water
resource. Proposed section 24D(5) places an evidentiary burden on the person
seeking to show that one of the matters in section 24D(4) exists.
Proposed section 24D(4) therefore operates as an exemption
from liability for a civil penalty. It is not specified in the EPBC Act who
bears the evidential burden of showing that an exemption from the civil penalty
provisions relating to other matters of national environmental significance. It
is current drafting practice, where a civil penalty provision contains an
exception, to specify whether relying on the exception is something for the
prosecution or the defendant needs to prove.
The proposed provision places the evidentiary onus on the
person seeking to show that an exception exists. This is because the matters
which a person would have to show to rely on proposed section 24D are easily
adduced by the person wishing to rely on those matters and the effort required
for discovery would not place an onerous burden upon that person. 
Role of the IESC
There was much discussion during the hearings about the role of the
IESC. The critical role played by the IESC under the NPA has been described
earlier in this report. Generally, although the industries had not seen the
need for the establishment of the IESC they were able to work with it.
Some witnesses considered that the role of the IESC should be strengthen
to give it more power. The Lock the Gate Alliance submitted that:
The Committee still has only a weak, advisory role under the
new scheme. The IESC should be required to advise on whether a project should
be approved, and that advice should be binding on the Minister. Failing that,
the IESC should be given a decision making role. IESC advice should be required
to be made public prior to a final decision being made on a project.
If the bill is passed the IESC expects that it will continue to provide
advice on water related impacts of coal seam gas and large coal mining projects
that are referred to it by the governments that are signatories to the NPA but
similar projects in other States may also be referred to it.
As stated in Chapter 2, the advices provided to the minister by the IESC
that relate to proposed CSG and coal mining developments are published on that
committee's website once the decision has been made on them. The advices
include relevant data and information, whether appropriate methodologies have
been used and applied correctly and reasonable values and parameters have been
used in calculations.
The committee supports the practice of publishing IESC advices in full,
but considers that there is scope to additionally publish a simplified summary
of the reports in all cases so as to make them more accessible for interested
lay people. The committee will recommend that the Commonwealth Government
should consider the merits of this proposal.
The committee recommends that the Commonwealth Government consider
whether simplified IESC advices in all cases should be published for the
information of interested persons.
A number of industry witnesses submitted that the government had not
followed normal practice in introducing the bill. This complaint was made in
relation to lack of consultation with the industry and in relation to the
government's decision not to produce a Regulatory Impact Statement.
APPEA stated that:
We believe that the bill requires far greater consideration
than what has been able to be given to date. The process that has led to the
bill entering parliament has not provided satisfactory consultation with the
industry. It is important for detailed consultation to be the centrepiece where
significant regulatory changes are envisaged, such as the one contained in this
bill. Key policy-making processes designed to test the full impacts and
implication of the bill have been deficient in the process to date. APPEA notes
that the House Standing Committee on Climate Change, Environment and the Arts
has not provided a report on the bill and that no regulatory impact statement
has been prepared, despite government commitments in the past that this should
rarely occur and only in urgent and unforeseeable events, and no meaningful
consultation with industry or other affected stakeholders was undertaken prior
to its introduction.
SEWPAC informed the committee during the public hearings that
consultation had taken place in relation to the bill. In answer to a question
on notice the department provided details of attendees at consultations on the
EPBC Bill that took place on 18 and 20 March 2013 and 1 May 2013.
Certain activities that are at different stages of the current
assessment and approval processes have been exempted from the provisions of the
bill. These exemptions were summarised by Mr Barker, SEWPAC, as follows:
There are a number of exclusions in the bill as to what the
trigger will not apply to. It includes projects that have already had approval
under the EPBC Act. It includes projects that have already been determined in
the past not to be a controlled action under the EPBC Act. It also similarly
includes proposals that were determined not to be a controlled action because
they were undertaken in a particular way and for which there was a Commonwealth
decision that that project did not at that time trigger the EPBC Act. There is
also an exclusion in relation to projects that have had advice from the
independent expert scientific committee and for which there is a proposed
decision on whether to approve the project under part 9 of the EPBC Act or if
the proposal has already got what is called a prior authorisation. That is
essentially the projects that have received an approval, including prior state
approval. In that respect the exclusion is based on pre-existing conditions of
the EPBC Act that were put in place when the act first commenced— 
The minister stated in his second reading speech that the new trigger
will apply to projects already being assessed under national environmental law
if the IESC has not given him its final advice.
The exemptions in the bill do not cover all CSG and coal mining
activities that are in the process of assessment and approval and this is of
concern to the industries. Mr Hooke stated:
Remove the retrospective application, the trigger for
projects not undergoing EPBC Act referral. This is not a good point of law, to
have retrospectivity applying in a situation where it creates great uncertainty
for projects which may be currently undertaking activities, including ancillary
activities. The legislation should clarify the grandfathering exemptions
provided in 22(3) and 22(4) to expressly acknowledge that changes to
grandfathered projects do not impact on the status of prior environmental
authorisations of unchanged components or where changes are immaterial to the
significance of or impact on a water resource.
ACA had similar concerns as to whether projects which are well advanced would
be affected and was also concerned that the bill would apply to established
Industry is also concerned with the retrospective application
of the new trigger to projects that are already well advanced in the approvals
process. These projects now face further uncertainty and potential delays.
There is also the potential for the water trigger to capture established coal
developments even where there are no significant changes to their operations.
The exemptions should clarify that new provisions apply only to existing
projects where there is a major new development proposal.
A number of witnesses considered that the bill contained too many
exemptions. The ACF submitted:
The current proposal includes a number of exemptions to the
application of the water trigger. While it is understandable that some
exemptions may need to be made in the interests of stakeholder certainty and
due process, the current proposal goes too far. Too many exemptions necessarily
reduce the actual protection of water resources, create an unwarranted
advantage for selected projects over others, and will fail to restore community
confidence in the management of local water resources. ACF recommends that the
Bill be reconsidered and the range of exemptions to the water trigger be
reduced to the greatest extent possible.
Some other submitters were concerned about specific developments that
they considered would affect them. Lock the Gate Alliance submitted:
We want to ensure that the exemptions contained in the Bill
are minimised, and that key projects for which applications have already been
submitted and referred to the IESC, such as the Arrow Coal Seam Gas project in
Qld and the Camden Gas Project in Sydney, are not exempt from it. Therefore, we
would still like to see minor amendments to remove s22 2 b) and d).
The IESC has provided advice to the minister in relation to the Arrow
development but the minister has not issued a proposed decision. Mr Barker
... the minister needs to make an active decision as to whether
to apply the trigger to projects that are currently going through the process
of EPBC Act assessment. The Arrow project would be one of those projects. So
this is the 60-day period that Mr Knudson referred to. There is a transitional
period. If the bill were to commence in its current form, the minister would be
required to make a decision within 60 business days as to whether the new water
trigger did or did not apply ...
The Nature Conservation Council of New South Wales submitted that:
There are exemptions currently contained within the Bill that
would allow several major projects to proceed without full and proper
consideration of their impact on water resources. Exclusions include any
project that has been deemed not a controlled action for other provisions and
any development for which the IESC has already given advice to the Minister. Furthermore,
the meaning of Section 22 (2e) remains unclear, but it has the potential to exempt
most existing applications from the water resource trigger. The changes should
apply to all current applications that are likely to have a significant impact
on water resources.
The committee received much evidence which demonstrated that there is a
high level of concern in the community, especially in rural areas, about the
possible adverse effects of CSG and coal mining on the availability and quality
of water resources. There is also a strong feeling that the assessment and
approval processes for these developments are inadequate.
Given that water is the most important of the nation's natural resources
it is both necessary and appropriate that the assessment and approval of these
activities should be at the national level. The committee will recommend that
the EPBC Bill 2013 be passed by the Senate.
The committee recommends that the bill as amended by the House of
Representatives be passed by the Senate.
Senator Doug Cameron
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