Law and policy developments
In the legislature
Carbon Farming Initiative Amendment Bill 2014 passed
On 31 October 2014, legislation to give effect to the Federal Government’s Direct Action plan passed the Senate with the support of crossbench Senators from the Palmer United Party. The legislation will establish the $2.55 billion emissions reduction fund, with companies opting into the scheme by competing for government money.
Significant amendments were made to the legislation in the Senate, including increasing the standard contract duration to seven years, creating options to extend crediting periods and increasing crediting periods for savanna burning projects. As a result of these changes, the Bill will need to be tabled again in the House of Representatives. It is expected to be introduced during the next sitting period starting on 24 November.
To secure the support of the Palmer United Party, the government agreed to scrap plans to abolish the Climate Change Authority and to direct the Authority to undertake an 18-month investigation into a potential future emissions trading scheme. However, Environment Minister, Greg Hunt MP, has confirmed that the government has no intention of introducing an ETS.
For more information, click here.
Australian Capital Territory
Environmental Protection Amendment Act 2014
The Environmental Protection Amendment Act 2014 was passed on 30 October 2014, aimed at implementing recommendations of the 2012-13 review of the Environmental Protection Act 1997 (ACT).
The Act, which has yet to commence, will strengthen the powers and regulatory tools available to the Environment Protection Authority when dealing with pollution incidents. Significant changes include provision for action to be taken in respect of potential environmental harm, rather than having to wait for environmental harm to occur, and the introduction of "enforceable undertakings" as an alternative to prosecution.
Planning and Development (Bilateral Agreement) Amendment Act 2014
The Planning and Development (Bilateral Agreement) Amendment Act 2014 was notified on 2 October 2014. The Act makes a number of amendments to the Planning and Development Act 2007 (ACT) to streamline environmental approvals and facilitate the ‘one stop shop’. The Act requires applications affecting matters of national environmental significance to be referred to the Federal Environment Minister for comment, and approval decisions to be consistent with any comments received.
New South Wales
Environmental Planning and Assessment Amendment Bill 2014
This Bill will amend the Environmental Planning and Assessment Act 1979 to increase the maximum penalties for offences, create additional offences and expand the investigative powers of local councils and the Department of Planning and Environment.
Read more here.
Aboriginal Land Rights Amendment Bill 2014
This Bill will amend the Aboriginal Land Rights Act 1983 to provide for Aboriginal Land Agreements, including establishing a process for the Crown Lands Minister and Aboriginal Land Council to enter into an agreement for the transfer or lease of land. The Bill includes amendments to administrative aspects of Aboriginal Land Councils.
Biosecurity Bill 2014
This Bill provides for the prevention, elimination, minimisation and management of biosecurity risks.
Crown Lands Amendment (Public Ownership of Beaches and Coastal Lands) Bill 2014
This Bill makes provision for the lease of Crown beach and coastal land, but prevents its sale. It also seeks to prevent any land claim under the Aboriginal Land Rights Act 1983 (NSW) to or in respect of Crown beach and coastal land.
Pesticides Amendment Bill 2014
This Bill will amend the Pesticides Act 1999 to make further provision with respect to the licensing of activities involving pesticides, to implement nationally agreed reforms, and to improve the administration and enforceability of the Act.
Responsible Mining (Protecting Land, Water and Communities) Bill 2014
This Private Member's Bill has been re-introduced by Jeremy Buckingham MP, following an earlier Bill of the same name which did not proceed in 2012. The Bill seeks to prohibit exploration and mining activities on certain land, and to ensure that local councils and communities are involved in decisions to prohibit exploration and mining on other land.
New waste levy guidelines gazetted
New levy guidelines for waste facilities have been released, setting out obligations on facility operators under the Protection of the Environment Operations (Waste) Regulation. The guidelines, which address record-keeping requirements, procedures for calculating weight and guidance on deductions for trackable liquid waste, road works and construction works, are available here.
Recreation Areas Management and Another Act Amendment Bill 2014
This Bill was introduced before the Queensland Parliament on 14 October 2014. One of the main purposes of the Bill is to streamline the permitting system for commercial and tourism activities in recreational areas including the Great Barrier Reef World Heritage Area, in order to reduce ‘red tape’ (see the Explanatory Notes). The Bill will replace existing Federal and State permits for commercial activities and marine park activities with a single permit.
Environmental Protection and Other Legislation Amendment Act 2014
The Queensland Parliament has passed a bill amending key environmental legislation, including the Environmental Protection Act, the Waste Reduction and Recycling Act, the Environmental Offsets Act and the Nature Conservation Act. Significant changes include increased penalties for environmental offences, introduction of enforceable undertakings and a range of new procedures in relation to contaminated sites.
Amendments to the Bill were introduced following a parliamentary inquiry and comments from the Property Council in relation to offset rules. The amendments will allow local governments to impose lower offset contributions for developers of locally significant projects.
Queensland Plan Act 2014
The Queensland Plan Act 2014 requires the Premier to “facilitate the development of a plan to provide a long-term vision for key areas affecting the future growth and prosperity of Queensland.” The Plan is to address education, community, economic issues, health, environment, infrastructure and governance.
The Plan is to be developed following community consultation and must be endorsed by the Queensland Parliament prior to its implementation.
Parliament rejects request for inquiry into unconventional gas
Members of the South Australian Parliamentary Environment, Resources and Development Committee have voted against holding an inquiry into unconventional gas exploration and production. The inquiry, proposed by the Greens, would have explored the hydraulic fracking of oil and gas reserves as well as examining the potential impact of exploration in the State’s southeast.
The decision was contrary to the Liberal Party’s pre-election promise. However, Liberal Party members argued that the terms of the proposed inquiry were too broad and noted the importance of unconventional gas for the State’s economy.
Assessment Bilateral Agreement released
The Agreement between the Commonwealth of Australia and Tasmania relating to environmental assessment was finalised on 22 October 2014. The agreement, made under the s.45 of EPBC Act, accredits assessments under the State Policies and Projects Act 1993, Land Use Planning and Approvals Act 1993 and Environmental Management and Pollution Control Act 1994.
Protest laws revised to remove mandatory sentencing
The Legislative Council haspassed a range of amendments to the Tasmanian government’s controversial Workplace (Protection from Protesters) Bill 2014. The amendments, proposed both by the Government and independent Legislative Councillors, were made in response to concerns voiced by opponents, including members of the Legislative Council, the Law Society, Human Rights Law Centre, a UN Special Rapporteur and a former judge, regarding the breadth of the Bill and mandatory sentencing provisions.
The amendments restrict the operation of the legislation to protest activity affecting key industries (forestry, agriculture, mining and manufacturing) or government business enterprises, and excludes footpaths and public places from the definition of “business premises”. Significantly, amendments adopted by the Legislative Council have also removed mandatory sentences, in favour of retaining judicial discretion.
The amended legislation will now be reconsidered by the House of Assembly.
Land Use Planning and Approvals (Streamlining of Process) Amendment Bill 2014
The Land Use Planning and Approvals (Streamlining of Process) Amendment Bill 2014 proposes a number of amendments to reduce approval timeframes for strategic planning and development assessment decisions. The Bill also allows interim planning schemes to be introduced without full public hearings in many circumstances.
The consultation draft of the legislation proposed to remove any opportunities for public hearings in relation to interim planning schemes and increase the cost of third party appeals, however those proposals were modified in the Bill introduced to parliament.
The Bill has been passed by the House of Assembly and will be debated in the Legislative Council in late November 2014.
Assessment Bilateral Agreement signed
The Victorian and Commonwealth governments have finalised a revised bilateral agreement for environmental assessments under s 45 of the EPBC Act. You can read the Bilateral Agreement here.
Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014
The Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 has received Royal Assent. Read Dariel de Sousa’s analysis of the legislation, which requires infrastructure providers to report on the impacts of climate change, in the Australian Environmental Law Digest.
Assessment bilateral agreement signed
The Western Australian and Commonwealth governments have signed a bilateral agreement in relation to environmental assessments under s 45 of the EPBC Act. The bilateral agreement forms part of the Coalition’s ‘one-stop-shop’ reforms and accredits certain Western Australian environmental assessment procedures as satisfying Commonwealth requirements under the EPBC Act. Specifically, the agreement accredits the State to conduct assessments on behalf of the Commonwealth in relation to permit assessment processes under Part V Division 2 of the Environment Protection Act.
The bilateral agreement is due to commence on 1 January 2015. Read the agreement here.
In the courts
New South Wales
Davis v Gosford City Council  NSWCA 343
The appellant applied for development consent under the Environmental Planning and Assessment Act 1979 (NSW) for an integrated resource recovery facility on their land at Somersby. The proposed development involved clearing native vegetation that provided habitat for the threatened Eastern Pygmy Possum. The development application was not accompanied by a species impact statement (SIS) and was refused by the Council on this basis.
On application by the appellant, the Land and Environment Court (LEC) held that while an SIS was not required, the likely impact of the development on the Eastern Pygmy Possum warranted refusal of the appellant’s development application. The appellant appealed on grounds relating to two issues:
whether the LEC erred in its assessment of the degree of effect on threatened species required for refusal of development application; and
whether the decision makers failed to consider any concurrence of the Director-General.
On the first point, the NSW Court of Appeal held the matters to be considered were not limited to an effect on threatened species that is likely to be a significant effect. The Court also held that there was no actual or assumed concurrence of the Director-General to be considered.
The appeal was dismissed with costs.
Environmentalists Challenge Water Entitlement Decisions
The Environment Centre NT (ECNT), represented by the Northern Territory Environmental Defenders Office, has applied for judicial review of a decision of the Territories Land Resource Management Minister to grant 18 water extraction licences. ECNT argues that this decision was made contrary to law as the licenses will significantly exceed the previously established maximum caps on extraction.
For more information, click here.
Policy developments and other news
Chinese backflip on coal tariffs
Just weeks after announcing increased tariffs on coal imports, the Chinese Ministry of Finance looks likely to repeal the higher levy following the release of guidelines stipulating that any country with which China has a Free-Trade Agreement would not be subject to such taxes. The tariffs were predicted to be a major blow to the Australian coal mining industry as a result of the estimated $4 / tonne increase in price. 25% of the 90 million tonnes of coking coal China is expected to import this year will come from Australia.
Australia last in environmental leadership: Green Economy Index
The results of the Global Green Economy Index 2014, prepared by consultant, Dual Citizen, are particularly damning for the Australian government. Already subject to criticism for being overly passive in relation to key environmental issues, Australia ranked 37th for overall environmental performance, behind developing nations such as Kenya and Brazil. More alarmingly, Australia was ranked 60th out of a possible 60 countries in relation to leadership on climate change.
Trans-Pacific Partnership Agreement (TPP)
A further round of TPP trade negotiations were held in Sydney on 25 October 2014. The TPP, negotiated between 12 countries with the aim of freeing up and regulating trade between signatories, is set to have an extensive impact on environmental regulations.
Read more regarding the progress of negotiations and the TPP’s implications here and here.
20 year Australian Antarctic Strategic Plan Report
On 10 October 2014, the Commonwealth Environment Minister released the independent report on the 20 Year Australian Antarctic Strategic Plan. The report provides an assessment of the current status of the Australian Antarctic Programme and the challenges to maintaining and expanding Australia’s status in Antarctic science, operations, diplomacy and effective administration of the Australian Antarctic Territory.
Read more here.
Senate inquiry into Southern Ocean makes strong recommendations
On 29 October 2014, the Senate Committee into Foreign Affairs and Trade released the report of its inquiry into Australia's future activities and responsibilities in the Southern Ocean and Antarctic waters. The consensus report makes a number of recommendations to strengthen Australia’s governance and diplomacy in the Antarctic region, increase monitoring of illegal fishing and increase research funding.
Read the report here.
Senator Ian Macfarlane has announced that the Federal government intends to support scaling back the renewable energy target to a “real” 20% (from 41,000 gigawatt hours per year by 2020 to 26,000 gigawatt hours) and introducing exemptions for emissions intensive industries such as aluminium, copper, zinc and cement. The government is continuing its negotiation with the Labor party regarding amendments to the RET scheme.
The independent review of the RET, headed by Dick Warburton, earlier in the year recommended the abolition or significant scaling back of the target. The renewable energy industry maintains that reducing the target as proposed would devastate the industry, costing jobs and jeopardising the achievement of emissions reduction targets.
The Climate Change Authority is also expected to complete its legislated biannual review of the RET by the end of 2014. It is not clear whether the Federal government intends to wait for this review before proposing legislation to effect its preferred position.
Read more here. Read Finalysons’ excellent article regarding Australia’s energy regulations in the Australian Environmental Law Digest.
Improving Great Barrier Reef Water Quality in the Wet Tropics
The Federal Government has tenders for a $5 million project to improve water quality in the Wet Tropics. It is one of the first projects to be funded from the $40M Reef Trust and targets nitrogen discharge from the Wet Tropics, which poses a risk to the water quality of the Great Barrier Reef.
Expressions of Interest for the Reef Trust project are now open. Read more here.
Koonalda Cave, South Australia listed on National Heritage List
On 15 October 2014, Nullarbor Plain’s Koonalda Cave was placed on the National Heritage List in recognition of its rare Aboriginal archaeology and heritage.
Read more here.
Australian Capital Territory
Compensation for Mr Fluffy asbestos
The Commonwealth government has agreed to provide a $1 billion concessional loan to the ACT government to fund the recommendations of the Asbestos Response Taskforce on the Long Term Management of Loose Fill Asbestos Insulation in Canberra Homes. Taskforce recommendations include the acquisition and demolition of over 1,000 homes affected by Mr Fluffy asbestos.
New South Wales
In response to concerns raised by the Maules Creek Community Council, the Department of Planning and Environment has imposed restrictions on vegetation clearing associated with Whitehaven Coal's Maules Creek coal mine. The approved environmental plan restricts clearing in Leard State Forest during wildlife hibernation and nesting months.
For more information, click here.
Glencore - McArthur River Zinc Mine
The NT EPA has issued McArthur River Mine (MRM) with a Notice to carry out an Environmental Audit program to monitor, evaluate and report on airborne pollutant issues from a waste rock dump. This Notice follows a series of public complaints received by the EPA concerning ‘smoke and fumes emitting from the waste rock dump’.
The Independent Monitor’s report on the MRM’s operations was released on 23 October 2014.
Ranger Uranium Mine Investigation
The findings and recommendations of the final independent expert report into the leach tank failure resulting in a slurry spill at Ranger uranium mine in December 2013 has been released by the Commonwealth and Northern Territory Governments Western Desert Resources Mine.
The NT EPA issued a direction under section 72 of the Waste Management and Pollution Control Act on the 26 September 2014 to:
take all reasonable measure(s) to divert stormwater away from and prevent flooding of mining activities;
install and rectify appropriate sedimentation ponds and associated drainage systems to service mining activity areas; and
take all reasonable measures to prevent erosion and sediment runoff at bridge approaches along the haul road.
These measures are to be completed by 1 December 2014.
Proposal to amend Coastal Management Districts
In early October, the State government released a proposal to amend existing coastal management districts (coastal areas that require special development assessment processes). Importantly, this proposal will reduce the footprint of these districts, and also remove sea-level rise projections from the mapping.
The proposal closed for comment on 27 October 2014.
King Island Wind Farm proposal abandoned
Hydro Tasmania announced on 27 October 2014 that it would not proceed with a 600MW wind farm project on King Island after early feasibility work concluded that the project was not financially viable, even if the Renewable Energy Target was retained at current levels.
Hydro Tasmania will continue to investigate the viability of a second interconnector cable across the Bass Strait.
Forestry Tasmania posts $43M loss
Government business entity, Forestry Tasmania, has released its 2013-2014 Stewardship report, detailing an operating loss in excess of $43 million. The Liberal Government has blamed restricted access to forests as a result of the Tasmanian Forests Agreement established under the former government for the loss. However, Forestry Tasmania notes restricted port access and a reduced value of its forest estate due to the rising Australian dollar as key contributing factors.
The Liberal government 2014-2015 budget allocated a further $6 million in "community service" funding to assist Forestry Tasmania to maintain forestry infrastructure.
WA Draft Mine Closure Plan Guidelines released
The WA Department of Mines and Petroleum has released draft Guidelines updating proponent requirements in relation to Mine Closure Plans. The Guidelines propose new requirements that risk assessments be undertaken at each phase of the mining project and that these assessments be included as appendices to a closure plan. Proponents would also be required to progressively develop their closure plan in response to these changing risk assessments throughout the mines life. Other additional requirements include the preparation of a stakeholder engagement register, which is to be included in the closure plan.
To read the draft Guidelines, click here.
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