Law and policy developments
In the legislature
Two offshore petroleum and greenhouse gas storage amendment Bills pass
On 19 March 2015, both the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment (Miscellaneous Matters) Bill 2015 and the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Matters) Bill 2015 passed both Houses after being introduced on 26 Feb 2015.
The first Bill amends the Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Act 2003 to enable the National Offshore Petroleum Titles Administrator to collect an annual titles administration levy in relation to boundary-change petroleum exploration permits.
The second Bill amends the Offshore Petroleum and Greenhouse Gas Storage Act 2006 to automatically grant or extend the coverage of offshore petroleum titles where a change of boundaries transfers blocks from State or Territory coastal waters into Commonwealth jurisdiction. It also sets out arrangements for the renewal of Commonwealth titles over blocks moved into state or Northern Territory coastal waters as a result of a boundary change.
The Bill makes a number of further amendments to:
confer petroleum and greenhouse gas functions on the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA); and
enable the recovery of costs for regulatory operations undertaken by NOPSEMA in waters landward of the territorial sea baseline
Ban on capital dredging in the Great Barrier Reef
The Commonwealth Government is amending the Great Barrier Reef Marine Park
Regulations 1983 to prevent disposal of material from capital dredging projects in the Great Barrier Reef Marine Park. The ban will apply to all existing permits for uncontained disposal of capital dredge material. The regulation will also prevent the Great Barrier Marine Park Authority from granting any further permits authorising dumping of capital dredge material in the Marine Park.
For more information, click here.
Bill to ban fracking introduced
On 19 March 2015, Tasmanian Greens Leader, Kim Booth MP, introduced a private members bill, the Mineral Resources Development (Hydraulic Fracturing) Amendment Bill 2015.
The Bill seeks to amend the Mineral Resources Development Act 1995 to establish a permanent ban on hydraulic fracturing (“fracking”) for all mineral exploration, resource development or production processes in Tasmania.
Move-on laws amended
The Summary Offences Amendment (Move-on Laws) Act 2015 has been passed. The Act effectively repeals the 'move-on' laws introduced by the Napthine government that provided police with stronger powers to prevent environmental and work-related protests.
Bill to ban cattle grazing introduced
The National Parks Amendment (Prohibiting Cattle Grazing) Bill 2015 was introduced on 18 March 2015, with debate adjourned until 1 April 2015.
Water Resources Law reforms
The Western Australian Government has given approval to start drafting a new Water Resources Management Bill, aimed at providing simplified, modern water legislation for Western Australia.
The Bill is intended to replace a number of pieces of legislation, including the century old Rights in Water and Irrigation Act 1914 (WA).
See Events below for details of upcoming Water Resources Law workshops in Perth.
Directors' Liability Reform Bill
WA Attorney-General, Michael Mischin, has introduced a Bill to limit and standardise provisions which impose personal criminal liability on directors for corporate offending. The Bill is intended to fulfil WA’s COAG commitment to undertake directors’ liability reform.
The Bill would weaken corporate liability under the Environmental Protection Act 1986 (WA) by repealing the provisions in section 118, which create a presumption of liability for directors and senior managers where a corporation commits an offence.
Instead, section 44E of the Criminal Code (which provides for the criminal liability of officers of a body corporate) would apply only to Tier 1 and Tier 2 offences under the Act.
Anti-protest laws proposed
The Western Australian Government has proposed new laws targeting protesting, introducing penalties of up to two years imprisonment for new protest offences.
The Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 creates offences associated with physically preventing a lawful activity, such as using locking-on devices to prevent the use of machinery. Under the Bill, companies could also seek reimbursement from protestors for the costs incurred when removing them from premises or machinery.
While designed to target dangerous activities and the use of lock-on devices at forestry and mining sites, the Bill has been criticised by journalists and Human Rights organisations for capturing a very broad range of activities. Critics have also raised concerns regarding the Bill’s proposal to reverse the onus of proof.
Aquatic Resources Management Bill
This Bill seeks to regulate the State's aquatic resources and the development and management of aquaculture. If passed, the Bill will replace the existing Fish Resources Management Act 1994 (WA) and the Pearling Act 1990 (WA).
In the courts
Carmichael Coal Mine Objection
Proceedings in the Queensland Land Court relating to objections to the Adani Carmichael mine, which, if approved, will be Australia’s largest coal mine, commenced on 31 March 2015. Hearings are expected to run for five weeks.
For more information regarding the objections, click here.
Policy developments and other news
Young Environmental Lawyer of the year
NELA congratulates Mr Rupert Watters for being awarded the 2014–15 Mahla Pearlman Award for the Australian Young Environmental Lawyer of the Year. The Award is presented annually by the Law Council to a young practising barrister or solicitor who has made a significant contribution to environmental law.
Mr Watters has participated in several landmark cases that have significantly developed aspects of environmental law, on many occasions appearing pro bono.
2015 Intergenerational Report
On 5 March 2015, Treasury released the fourth Intergenerational Report. The report is designed to assess the long-term sustainability of current Government policies and how changes to Australia’s population size and age profile may impact on economic growth, workforce and public finances over the next 40 years. The report includes analysis of the key drivers of economic growth – population, participation and productivity – and examines what projected changes in these areas mean for our standard of living and public policy settings.
The report highlights the complementary objectives of economic growth and strong environmental outcomes, noting that there is a role for the Commonwealth Government to continue leading and coordinating domestic environmental policies to drive better environmental management and economic growth for the generations to come. The report also outlines potential environmental pressures and challenges in the next 40 years, however the report has been criticised for under-emphasising the challenge of climate change.
For more information, or a copy of the report, click here.
Regulation and Deregulation reports
The Commonwealth Government has published the following reports:
The Deregulation report outlines the Commonwealth Government’s progress and outcomes relating to deregulation in 2014, including the “One Stop Shop” deregulation policy for environmental approvals. The report presents the estimated savings and costs associated with deregulation in 2014.
The Interim Environmental Regulation report was released on behalf of the Environment Ministers. The report outlines the current environmental regulatory reform effort across jurisdictions and lists issues for further investigation.
CLCs receive funding relief, but EDOs miss out
On 26 March 2015, Attorney-General, Hon Senator George Brandis, announced that the Commonwealth Government would reinstate funding for Legal Aid, Aboriginal Legal Services and Community Legal Centres, but noted that the decision would not apply to Environmental Defenders Offices.
On 17 December 2013, the Attorney-General announced that funding to EDOs would be terminated immediately. Cuts to other community legal services were also announced but, unlike the EDO cuts, would not take effect until 1 July 2015. The cuts to other legal services have now been deferred until 2017, but funding to EDOs will not be restored.
To read the Attorney-General’s media release, click here.
Emissions Reduction Fund auctions
The first auction for the Emissions Reduction Fund, which aims to provide $2.55 billion to projects designed to abate carbon emissions, will take place on 15 and 16 April 2015.
As part of the auction, the Clean Energy Regulator will purchase carbon credit units through a Carbon Abatement Contract, at a price determined by reverse auction. No guidance has been provided regarding benchmark prices for bids, and bidders are not advised what bids are made by other participants.
For more information, click here.
For more information about proposed safeguard mechanisms for the Emissions Reduction Fund, see “Open for Comment” below.
State actions urged on emissions reduction
The Climate Institute has released a discussion paper outlining practical strategies that State governments can implement to reduce carbon emissions and set themselves up to compete in a low (or no!) carbon economies. Strategies include:
Setting binding emission limits on industrial emitters
Incorporating carbon cost benefit analysis into planning decisions
Using government procurement policies to help build markets for clean energy goods and services
Implementing energy efficiency policies across all sectors
Providing financial, technical, educational and regulatory assistance to support a move towards clean energy options.
Download the discussion paper, Getting to Zero, from the Climate Institute website.
New South Wales
The Coalition, led by Mike Baird, has been returned to power in NSW after the election on 28 March 2015. The Coalition’s majority was decreased, but remains comfortable. The Greens now hold five seats, picking up two traditionally National seats in northern NSW.
Environmental commitments made by the Coalition include: an expanded suite of energy efficiency measures, the development of recovery plans for all threatened species and reverse vending machines to reduce used drinks container waste.
New environmental guidelines
Environment Minister Gary Higgins has announced that the NT EPA is developing the following documents:
Guidelines to assist project proponents in the preparation of an Environmental Management Plan;
Guidelines for pollution avoidance on commercial and industrial building sites;
Draft storm water strategy for the Darwin Harbour.
The first Guideline is now available for public comment (see “Open for Comment” below).
NT EPA releases Compliance Plan
The NT EPA has released its Compliance Activity Plan for Jan 2015 to June 2016, outlining its strategic projects for the year.
Planning and environmental laws to be reinstated
Minister for Environment and Heritage Protection, Steven Miles, has announced the Labor government intends to reinstate several major environmental laws removed by the previous administration, including coastal planning laws and vegetation clearing laws. Further updates will be provided as this legislation and policy is introduced.
For more information, click here.
Abbot Point Capital Dredging Approval
Premier Palaszczuk has announced that a new approvals process will be undertaken in relation to the application for capital dredging and disposal of dredge spoil at Abbot Point by Adani and GVK. A previous approval was given to dispose of the spoil in the Great Barrier Reef Marine Park. Following public outcry, a revised application was made, involving a proposal to dispose of the spoil on the Caley Valley Wetlands.
Premier Palaszczuk has outlined an alternative approach, involving disposal on the unused Terminal 2 at the Port site.
For more information, click here.
Concerns regarding forestry impacts on Swift Parrot
The Swift Parrot (Lathamus discolor) is listed as endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Threatened Species Protection Act 1995 (Tas). The bird’s breeding range is largely restricted to the East Coast of Tasmania.
Recent research by a team from ANU has concluded that the conservation status of the swift parrot is significantly worse than previously understood, and recommended that breeding areas be protected from logging. The research finds that, without significant efforts to reverse its population decline, the species is “on a trajectory to extinction”.
A nomination has been submitted to the Commonwealth Threatened Species Scientific Committee for the parrot to be listed as critically endangered.
The release of this research followed a new Environment Tasmania report, ‘Pulling a Swiftie’, which outlined evidence that logging had been approved in swift parrot breeding habitat, despite expert scientific advice that the logging could interfere with the recovery objectives for the species.
Read the full Report and related Right to Information documents here.
New planning laws lift wind farm barriers
Victoria’s Labor Premier, Daniel Andrews, has announced changes to wind farm planning laws. The changes include reducing the area in which landowners have the right of veto turbine developments from 2km to 1km and transferring decisions back to the Planning Minister, rather than local councils.
The new laws, which have been welcomed by the renewable energy sector, take effect on 2 April 2015.
New Draft EPA Position Statement on Contaminated Soils
The Victorian EPA has released a draft position statement on the treatment and disposal of contaminated soils in anticipation of contaminated soil treatment facilities operating in Victoria.
The statement advises generators of waste contaminated soils to consider obligations under r.9 of the Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic), which requires waste producers to use landfill only where treatment is not ‘practicably accessible’. The statement warns that, as treatment centres commence operation, landfilling won’t be justifiable on cost alone and alternatives should be explored.
Proposed WA national park assisted by Alcoa and Rio Tinto
A historic State Agreement to facilitate a bauxite mine and alumina refinery in the Kimberley's Mitchell Plateau region is set to be terminated, allowing more than 175,000 hectares of land to be included in a proposed national park over more than two million hectares.
Rio Tinto and Alcoa will also jointly provide $750,000 for the remediation of impacts from exploration activities. Senior members of the companies have expressed their support for the conservation of the area.
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