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1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE
OF
REPRESENTATIVES
NATIONAL
ENVIRONMENT PROTECTION MEASURES (IMPLEMENTATION) BILL
1998
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for the Environment and Heritage,
Senator the Hon Robert
Hill)
THIS
MEMORAMDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS
INTRODUCED
ISBN: 0642 387761
NATIONAL ENVIRONMENT PROTECTION
MEASURES (IMPLEMENTATION) BILL
1998
OUTLINE
The purpose of this Bill is to provide for the
implementation of national environment protection measures (NEPMs) in respect of
certain activities by or on behalf of the Commonwealth and Commonwealth
authorities, and for related
purposes.
Pursuant to the Intergovernmental
Agreement on the Environment the Commonwealth and the State and Territory
governments agreed to the establishment of the National Environment Protection
Council (NEPC) to make NEPMs which could include standards, guidelines, goals
and protocols. The Intergovernmental Agreement on the Environment requires that
the NEPMs are implemented by separate legislation in each jurisdiction in
Australia to guarantee effective implementation. The National
Environment Protection Council Act 1994 established the
NEPC.
The major features of the Bill include
provisions for the implementation of
NEPMs:
i) in Commonwealth places by
extending the application of certain applied State Laws to Commonwealth
activities;
or
ii) by
extending the application of certain State and Territory laws to Commonwealth
activities; or
iii) by the making of
appropriate regulations; or
iv) by
environmental audits and environment management plans;
or
v) by another law of the Commonwealth
that the Environment Minister is satisfied will achieve appropriate
environmental outcomes in relation to implementation of the NEPM.
FINANCIAL
IMPACT STATEMENT
The management of the Commonwealth’s compliance
with NEPMs may entail costs in the first few years of the Act as management
systems become established. The Government has decided that these costs should
be managed by Departments within their budgetary
allocations.
It is possible that early costs
incurred will in time be off-set by the general thrust of the NEPC legislation,
and the Commonwealth’s interest in particular, to achieve more harmony and
uniformity in environmental outcomes across
Australia.
NOTES ON
CLAUSES
PART 1 -
PRELIMINARY
CLAUSE 1 - SHORT
TITLE
1. This clause provides that the
short title of the Bill, when enacted, shall be the National Environment
Protection Measures (Implementation) Act
1998.
CLAUSE 2 -
COMMENCEMENT
2. This clause provides
that the Bill will come into effect on the date it receives the Royal
Assent.
CLAUSE 3 - OBJECT OF
ACT
3. This clause sets out the object
of the Bill namely to make provision for the implementation of national
environment protection measures in respect of certain activities carried on by
or on behalf of the Commonwealth and Commonwealth authorities; to protect,
restore and enhance the quality of the environment in Australia, and to ensure
that the community has access to relevant and meaningful information about
pollution.
CLAUSE 4 - SIMPLIFIED OUTLINE
OF ACT
4. The clause provides a
simplified outline of the operation of the
Bill:
State and Territory laws implementing
NEPMs do not apply to the activities of the Commonwealth or Commonwealth
authorities, either of their own force or because of the Commonwealth Places
(Application of Laws) Act 1970 (see clause
9).
Under this Bill, the Environment
Minister may, in consultation with the relevant
Minister(s):
• apply those State laws
to the activities of the Commonwealth or Commonwealth authorities in
Commonwealth places (Part 2); or
• apply
those State or Territory laws to the activities of the Commonwealth or
Commonwealth authorities in other places (Part 3);
or
If NEPMs are not implemented in relation
to the activities of the Commonwealth or Commonwealth authorities under Part 2
or Part 3, they can be
implemented
• by regulations (Part 4).
Part 4 may be used where a State decides not to implement a NEPM or where a
State is not adequately implementing a NEPM. Part 4 could also be used where no
declaration has been made under Parts 2 or 3 and no existing mechanism exists
whereby a Commonwealth agency can implement a NEPM;
or
if there are no regulations under Part
4, through environmental audits and environmental management plans (Part 5).
The implementation of NEPMs through State and Territory laws in relation to the
activities of the Commonwealth or Commonwealth authorities may be restricted by
the Environment Minister in the national
interest.
The Environment Minister has a
discretion, in consultation with the relevant Minister(s), as to which Part of
the Bill will apply to a particular Commonwealth place or activity.
These places or activities will benefit
from being regulated under another law of the Commonwealth which will achieve
appropriate environmental outcomes. Such outcomes will be at least equivalent
to State and Territory law. The definition of ‘matter of national
interest’ is provided under clause
5.
It is intended that Parts 4 and 5 will be
used to implement NEPMs only after the Environment Minister, in consultation
with the relevant Minister(s), considers that it is not ‘necessary’
and/or ‘desirable’ to make declarations to apply State and Territory
law under Parts 2 or 3.
In considering
whether the application of provisions of State and Territory law to Commonwealth
activities under Parts 2 or 3 is ‘desirable’, regard will be had to
whether:
(1) (i) the activities would
benefit from being regulated under a law of the Commonwealth which will achieve
appropriate environmental outcomes ie at least the equivalent requirements of
State legislation; and
(ii) the activities
would be hindered significantly by differing State and Territory requirements;
or
(2) there are any practical
alternatives.
In the consideration of the
existence of such alternatives, regard may be given to
whether:
- the application of provisions of
State and Territory law represents the most effective and efficient regulation
or non-regulatory means for the Commonwealth to comply with the requirements of
the NEPM; or
- such application would hinder
significantly an activity for which there is no technically and economically
feasible alternative or substitute available that is acceptable from the
standpoint of environment and health and is suitable for the particular
circumstances.
CLAUSE 5 -
INTERPRETATION
5. The definitions in
this clause are largely self explanatory with the following
exceptions:
• ‘activity’
means a physical activity that has a direct effect on, or represents a
substantial risk of damage to, an aspect of the environment to which a NEPM
applies. The decision as to whether or not a risk is ‘substantial’
for the purpose of this definition will be made by the Environment Minister in
consultation with the relevant
Minister(s).
It does not include the formulation of a policy or
the making of a decision either by a Minister or a person to whom the power has
been delegated to make the decision.
• ‘make a decision’
includes: make, suspend, revoke or make an order, award or determination; give,
suspend, revoke or refuse to give a certificate, direction, approval, consent or
permission; issue, suspend, revoke or refuse to issue a licence, authority or
other instrument; impose a condition or restriction; make a declaration, demand
or requirement; retain, or refuse to deliver up, an article; and do or refuse to
do anything else.
• ‘matter of
national interest’ means:
(a) a matter
concerning:
(i) Australia’s relations with another country or Australia’s
international obligations; or
(ii) national
security; or
(iii) national defence;
or
(iv) a national emergency;
or
(b) a prescribed matter relating
to:
(i) a telecommunications activity
authorised by Division 2, 3 or 4 of Schedule 3 to the Telecommunications Act
1997; or
(ii) the management of
aviation airspace or airports, including aircraft emissions, aircraft noise and
on-ground airport management, but not including matters specified in
subregulation 1.04 (2) of the Airports (Environment Protection) Regulations;
or
(c) any other matter agreed between the
Commonwealth, the States and the
Territories.
• regulations will be
required to prescribe certain matters relating to telecommunications activity or
the management of aviation airspace or airports, including aircraft emissions,
aircraft noise and on-ground airport management, as matters of national
interest.
• ‘premises’
includes, in particular, a building, aircraft, vehicle or vessel, any structure
and a part of premises.
CLAUSE 6 -
EXTENSION TO CERTAIN EXTERNAL
TERRITORIES
6. This clause provides that
the Act extends to the external Territories other than Norfolk
Island.
CLAUSE 7 - ACTIVITIES CARRIED ON
BY CONTRACTORS
7. This clause provides
that a reference in the Act to the carrying on of an activity by the
Commonwealth or a Commonwealth authority includes activities carried on for or
on behalf of the Commonwealth or a Commonwealth authority by
contractors.
CLAUSE 8 - LAWS MADE BY
LOCAL GOVERNING AUTHORITIES
8. This
clause provides that for the purposes of this Act, no Act passed by the
Legislative Assemblies of the Australian Capital Territory or the Northern
Territory shall be considered to be a law made by a local governing
authority.
CLAUSE 9 - OPERATION OF STATE
AND TERRITORY LAWS IMPLEMENTING
NEPMs
9. Under sub-clause (1) a
provision of a State law implementing a NEPM that applies in a Commonwealth
place in a State because of the operation of the Commonwealth Places
(Application of Laws) Act 1970 does not extend to activities carried on in
that place by or on behalf of the Commonwealth or a Commonwealth authority,
except to the extent that it so applies under this
Bill.
Sub-clause (2) states that a
provision of a State or Territory law implementing a NEPM does not extend to
activities carried on by or on behalf of the Commonwealth or a Commonwealth
authority anywhere other than in a Commonwealth place in a State, except to the
extent that it so applies under this
Bill.
CLAUSE 10 - OPERATION OF ACT IN
RELATION TO COMMONWEALTH OR A COMMONWEALTH
AUTHORITY
10. This clause contains a
number of sub-clauses providing as
follows:
• Sub-clause (1) provides
that the Bill binds the Crown in right of the Commonwealth.
• Sub-clauses (2) and (3) provide that if
the chief executive of a State or Territory environment department considers
that the Commonwealth or a Commonwealth authority or officer or employee of the
Commonwealth has contravened an applied provision of an applied State law of the
State or an applied provision of the law of the State or Territory law and,
after informing the Secretary of the relevant Commonwealth Department or the
chief executive officer of the authority, decides that appropriate action has
not been taken, the chief executive may report the circumstances in writing to
the Environment Secretary of the Commonwealth Environment
Department.
• Sub-clause (4) provides that
if a report is made under sub-clauses (2) or (3) the Commonwealth Environment
Secretary must, within a period of 60 days, investigate the circumstances and if
he or she thinks it appropriate, prepare draft recommendations for action to be
taken by the relevant Department or authority and give written notice of those
recommendations to the Secretary of the Department or the chief executive
officer of the authority with a request for comments.
• After consideration of the comments,
the Environment Secretary must in each case give a written report to the
Environment Minister setting out any comments received from the Secretary of the
relevant Department or chief executive officer of the authority and putting
forward the action the Environment Secretary recommends should be taken.
Sub-clauses (5) and (6) provide that The
Environment Minister must, within a period of 60 days , if he or she administers
the relevant Department or is responsible for the relevant authority, take such
action he or she thinks fit or make any recommendations to the relevant
Minister. That Minister is to provide the Environment Minister with his or her
comments on the recommendation and a report on any action that may have been
taken.
PART 2 - IMPLEMENTATION OF
NEPMs BY EXTENDING THE APPLICATION OF CERTAIN PROVISIONS OF APPLIED STATE LAWS
TO COMMONWEALTH ACTIVITIES IN COMMONWEALTH PLACES
CLAUSE 11 - PART DOES NOT APPLY TO CERTAIN NEPMs
AFFECTING NATIONAL INTEREST ETC.
11. Sub-clause (1) provides that Part 2
does not apply in relation to an applied State law providing for the
implementation of a NEPM that is relevant to the carrying on of a particular
activity by the Commonwealth or a Commonwealth authority if there is in force a
declaration by the Environment Minister
stating:
- that an alternative Commonwealth
regime for the implementation of the NEPM in relation to that activity will
achieve the environmental outcomes specified in the NEPM;
and
- that the application of that alternative
Commonwealth regime is more appropriate than taking any action under this
Part:
- because the activity involves a
specified matter of national interest; or
- for
reasons of administrative efficiency, having regard to the objects of the Act,
the National Environment Protection Council Act 1994 and the principles
of ecologically sustainable
development.
Sub-clause (2) provides that
the Environment Minister may, by writing, make declarations for the purposes of
subsection (1). A copy of a declaration is to be published in the
Gazette.
Sub-clause (3) provides that within
15 sitting days after making a declaration for the purposes of subsection (1),
the Minister must table a copy of that declaration in each House of the
Parliament.
CLAUSE 12 - APPLIED STATE
LAWS IMPLEMENTING NEPMs TO APPLY TO COMMONWEALTH AND ITS
AUTHORITIES
12. This clause relates to the application of applied
State law, that is, law which already applies to Commonwealth places under the
Commonwealth Places (Application of Laws) Act 1970.
• Sub-clause (1) provides that if the
Environment Minister makes a declaration that a provision of an applied State
law that is applicable in a Commonwealth place is necessary for the
implementation of a NEPM and there is in force a declaration by the Environment
Minister that it is desirable for the provision to apply to the carrying on of
an activity by the Commonwealth or by a particular Commonwealth authority in the
Commonwealth place, the provision applies to the carrying on of an activity by
the Commonwealth or by a particular Commonwealth authority in the Commonwealth
place.
• Sub-clause (2) provides that the
Environment Minister may
make declarations for the purposes of sub-clause
(1) which are to be published in the
Gazette.
• Sub-clause (3) provides
that within 15 sitting days after making a declaration for the purposes of
paragraph (1)(a) or (1)(b), the Minister must table a copy of that declaration
in each House of the Parliament.
• Sub-clause (4) provides that to ensure
that a provision of an applied State law which applies to a Commonwealth
activity can operate effectively, regulations may provide that the provision
applies subject to modifications. In the preparation of these regulations, the
Environment Minister is to ensure that the appropriate State officers are
consulted.
• The decision whether a
declaration or a regulation is to be made under this clause will be made by the
Environment Minister in consultation with the relevant
Minister(s).
• The clause is subject to
clause 13.
CLAUSE 13 - CERTAIN PROVISIONS
OF APPLIED STATE LAWS NOT TO APPLY TO COMMONWEALTH AND ITS
AUTHORITIES
13. This clause qualifies
the application of applied State laws. The clause provides that Clause 12 does
not have effect so as to:
(a) alter the
purpose for which land may be used if the land had been used for that purpose at
any time before the commencement of this Bill;
or
(b) require a licence, permit or other
authorisation for the construction, alteration or demolition of a building or
structure or require installation, alteration or removal of plant or equipment,
except where the requirement is made for the purpose of implementing a NEPM; or
(c) apply a provision to regulate the
making of decisions about the use of land except where such regulation is for
the purpose of implementing a NEPM;
or
(d) require the preparation of an
environmental impact statement before commencing or continuing an activity;
or
(e) provide for the judicial or
administrative review, under a State law,
of a
decision; or
(f) require the payment of a
fee or charge, although this provision does not affect the operation of Clause
38 which enables the Commonwealth or a Commonwealth authority to pay fees and
charges to States and Territories for activities in Commonwealth places and
States and Territories.
• Sub-clause
(3) provides that regulations may exclude the application of a provision of an
applied State law either indefinitely or for a particular period.
• Sub-clause (4) provides that
regulations may also exclude any provision of an applied State law from applying
in relation to a particular Commonwealth activity or activities in all
Commonwealth places, a particular Commonwealth place or a particular part of a
Commonwealth place in the State either indefinitely or for a particular period.
• Sub-clause (5) provides that
regulations may only be made under this clause if the Environment Minister is
satisfied that they are desirable because of considerations relating to a matter
of national interest.
• The decision
whether a regulation is to be made under this clause will be made by the
Environment Minister in consultation with the relevant
Minister(s).
CLAUSE 14 - FUNCTIONS AND
POWERS OF AUTHORITIES OR OFFICERS UNDER APPLIED PROVISIONS OF APPLIED STATE
LAWS
14. This clause provides that if a
provision of an applied State law confers functions or powers on an authority or
officer of the State, the authority or officer shall have corresponding
functions or powers under the provision as applied under clause 12 (subject to
clause 13). These functions or powers must be exercised as closely as
practicable to how the authority or officer would act under the corresponding
provision of the applied State
law.
Sub-clause (3) provides that the State
laws relating to the investigation of offences against an applied State law
apply so far as they are applicable to the relevant investigation undertaken by
an authority or officer of the State under sub-clause (1) of offences against
the applied law. Therefore, the State laws about the investigation of offences
against an applied State law apply to the exclusion of Commonwealth laws which
would have otherwise applied to the investigation of an offence against a
Commonwealth
law.
Sub-clause
(4) provides that, to avoid doubt, subclause (3) does not affect the operation
of any of the following laws in relation to offences against an applied State
law:
(a) the Director of Public Prosecutions
Act 1983;
(b) section 21B of the
Crimes Act 1914 ;
(c) Part 1 B of the
Crimes Act 1914; and
(d) the Proceeds of
Crime Act 1987.
CLAUSE 15 - APPLIED
PROVISIONS OF APPLIED STATE LAWS TO BE INTERPRETED BY REFERENCE TO THE RELEVANT
STATE INTERPRETATION STATUTE.
15. This clause provides that if a provision of an
applied State law is applied as mentioned in clause 12, any provisions of the
applied State laws about interpretation of the provision have effect for the
purposes of that provision as it is applied. The Acts Interpretation Act
1901 does not therefore apply in relation to the applied
provision.
Part 3 - IMPLEMENTATION OF
NEPMs BY EXTENDING THE APPLICATION OF CERTAIN PROVISIONS OF STATE OR TERRITORY
LAWS TO COMMONWEALTH
ACTIVITIES
CLAUSE 16 - PART DOES
NOT APPLY TO CERTAIN NEPMs AFFECTING NATIONAL INTEREST
ETC
16 Sub-clause (1) provides that Part
3 does not apply in relation to a State or Territory law providing for the
implementation of a NEPM that is relevant to the carrying on of a particular
activity by the Commonwealth or a Commonwealth authority if there is in force a
declaration by the Environment Minister
stating:
- that an alternative Commonwealth
regime for the implementation of the NEPM in relation to that activity will
achieve appropriate environmental outcomes;
and
- that the application of that alternative
Commonwealth regime is more appropriate than taking any action under this Part
either:
- because the activity involves a
specified matter of national interest; or
- for
reasons of administrative
efficiency.
Sub-clause (2) provides that the
Environment Minister may, by writing, make declarations for the purposes of
subsection (1). A copy of a declaration is to be published in the
Gazette.
Sub-clause (3) provides that within
15 sitting days after making a declaration for the purposes of subsection (1),
the Minister must table a copy of that declaration in each House of the
Parliament.
CLAUSE 17 - STATE OR
TERRITORY LAWS IMPLEMENTING NEPMs TO APPLY TO COMMONWEALTH AND ITS
AUTHORITIES
17. This clause relates to
the implementation of NEPMs by the application of provisions of State laws which
do not already apply through the operation of the Commonwealth Places
(Application of Laws) Act 1970, and by the application of provisions of
Territory laws to Commonwealth
activities.
• Sub-clause (1) provides
that if the Environment Minister makes a declaration that a provision of a State
or Territory law is necessary for the implementation of a NEPM and there is in
force a declaration by the Environment Minister that it is desirable for the
provision to apply to the carrying on of an activity by the Commonwealth or by a
Commonwealth authority, then the provision applies to the carrying on of the
activity by the Commonwealth or the authority in the State or Territory or in
the coastal waters of the State or Territory.
• If the provision is in force in an
external Territory to which the Act applies, the provision will apply to the
carrying on of the activity by the Commonwealth or the Commonwealth authority in
the external Territory and its coastal waters.
• Sub-clause (2) provides that the
Environment Minister may, by writing, make declarations for the purposes of the
clause which are to be published in the
Gazette.
• To ensure that a
provision of a State or Territory law which applies to a Commonwealth activity
can operate effectively, Sub-clause (3) provides that regulations may provide
that the provision applies subject to modifications. Under Sub-clause (4), the
Environment Minister is to ensure that the appropriate State or Territory
officers are consulted in the preparation of
regulations.
• The decision whether a
declaration or a regulation is to be made under this clause will be made by the
Environment Minister in consultation with the relevant
Minister(s).
• This clause is subject to
clause 18.
CLAUSE 18 - CERTAIN PROVISIONS
OF STATE OR TERRITORY LAWS NOT TO APPLY TO COMMONWEALTH AND ITS
AUTHORITIES
18. This clause qualifies
the application of State or Territory laws. The clause provides that clause 17
does not have effect so as to:
(a) alter the
purpose for which land may be used if the land had been used for that purpose at
any time before the commencement of this Bill;
or
(b) require a licence, permit or other
authorisation for the construction, alteration or demolition of a building or
structure or require installation, alteration or removal of plant or equipment,
except where the requirement is made for the purpose of implementing a NEPM; or
(c) apply a provision to regulate the
making of decisions about the use of land except where such regulation is for
the purpose of implementing a NEPM;
or
(d) require the preparation of an
environmental impact statement before commencing or continuing an activity;
or
(e) confer any judicial power;
or
(f) provide for the judicial or
administrative review, under a State law, of a decision;
or
(g) impose a tax;
or
(h) require the payment of a fee or
charge, although this provision does not affect the operation of Clause 38 which
enables the Commonwealth or a Commonwealth authority to pay fees and charges to
States and Territories for activities in Commonwealth places and States and
Territories.
• Sub-clause (3) provides
that regulations may exclude the application of a provision of a State or
Territory law either indefinitely or for a particular period.
• Sub-clause (4) provides that
regulations may also exclude any provision of a State or Territory law from
applying in relation to a particular Commonwealth activity in all Commonwealth
places or a particular Commonwealth place in the State or Territory either
indefinitely or for a particular
period.
• Sub-clause (5) provides that
Regulations may only be made under this clause if the Environment Minister is
satisfied they are desirable because of considerations relating to a matter of
national interest.
• The decision whether
a declaration or a regulation is to be made under this clause will be made by
the Environment Minister in consultation with the relevant
Minister(s).
CLAUSE 19 - FUNCTIONS AND
POWERS OF AUTHORITIES OR OFFICERS UNDER APPLIED PROVISIONS OF STATE OR
TERRITORY LAWS
19. Sub-clause (1)
provides that if a provision of a State or Territory law confers functions or
powers on an authority or officer of the State or Territory, the authority or
officer shall have corresponding functions or powers under the provision as
applied under clause 17 (subject to clause 18). Under sub-clause (2) these
functions or powers must be exercised as closely as practicable to how the
authority or officer would act under the corresponding provision of the State or
Territory law.
Sub-clause (3) provides that
the State or Territory laws relating to the investigation of offences against an
applied State law apply so far as they are applicable to the relevant
investigation undertaken by an authority or officer of the State or Territory
under sub-clause (1) of offences against the applied law. Therefore, the State
or Territory laws about the investigation of offences against an applied State
or Territory law apply to the exclusion of Commonwealth laws which would have
otherwise applied to the investigation of an offence against a Commonwealth
law.
Sub-clause
(4) provides that, to avoid doubt, sub-clause (3) does not affect the operation
of any of the following laws in relation to offences against an applied State or
Territory law:
(a) the Director of Public
Prosecutions Act 1983;
(b) section
21B of the Crimes Act 1914 ;
(c) Part 1
B of the Crimes Act 1914; and
(d) the
Proceeds of Crime Act 1987.
CLAUSE 20 - APPLIED PROVISIONS OF STATE OR
TERRITORY LAWS TO BE INTERPRETED BY REFERENCE TO THE RELEVANT STATE OR
TERRITORY INTERPRETATION STATUTE
20. This clause provides that if a provision of a State or Territory law is applied as mentioned in clause 17, any provisions of the State or Territory laws about interpretation of the provision have effect for the purposes of that provision as it is applied. The Acts Interpretation Act 1901 does not therefore apply in relation to the applied provision.
PART 4 - IMPLEMENTATION OF
NEPMs BY THE MAKING OF APPROPRIATE REGULATIONS
CLAUSE 21 - NEPMs MAY BE IMPLEMENTED BY
REGULATIONS
21. Sub- clause (1) provides
that this Part applies for the purposes of the implementation of a NEPM in
relation to an activity carried on by the Commonwealth or a Commonwealth
authority if the Environment Minister is satisfied
that:
- a NEPM is relevant to the carrying
on of the activities of the Commonwealth or a Commonwealth authority;
and
- the activities are carried on
in:
(i) a Commonwealth place in which, in
the Environment Minister’s opinion, the NEPM is not being implemented, or
satisfactorily implemented under an applied State law of the State in which the
Commonwealth place is situated;
(ii) a State
or Territory, or the coastal waters of a State or Territory, in which, in the
Environment Minister’s opinion, the NEPM is not being implemented, or
satisfactorily implemented under a law of the State or
Territory;
(iii) a Commonwealth place in a
State, where a provision of a law of the State for the implementation of the
NEPM is not, and is not to be, applied under Part 2 in relation to the carrying
on of the activity;
(iv) a State or
Territory, or the coastal waters of a State or Territory where a provision of a
law of the State or Territory for the implementation of the NEPM is not, and is
not to be applied under Part 3 in relation to the carrying on of the
activity;
(v) an external Territory to which
this Act extends or its coastal waters;
(vi)
a part of the territorial sea of Australia that is not part of the coastal
waters of a State or Territory;
(vii) a part
of the exclusive economic zone;
(viii) a
part of any area of the continental shelf of Australia that is beyond the limits
of the exclusive economic zone; and
- the
NEPM is not, and is not to be, implemented by another law of the Commonwealth in
a way that the Environment Minister is satisfied will achieve appropriate
environmental outcomes.
• Sub-clause
(2) provides that Part 4 does not apply for the purposes of the implementation
of a NEPM in relation to an activity if the activity is excluded, under the
regulations, from the application of this Part for the purposes of the
implementation of the NEPM.
• Sub-clause
(3) provides that regulations made for the purposes of sub-clause (2) may
exclude an activity for the purposes of the application of a NEPM indefinitely
or for a particular period and either wherever the activity is carried on or in
a particular place where the activity is carried
on.
• Sub-clause (4) provides that
regulations may only be made for the purposes of sub-clause (2) if the
Environment Minister is satisfied that it is desirable to make the regulations
because of considerations relating to a matter of national interest. The
decision whether a regulation is to be made under this clause will be made by
the Environment Minister in consultation with the relevant
Minister(s).
• Sub-clause (5) provides
that the regulations may make provision for or in relation to the implementation
of a NEPM in respect of the carrying on of an activity by the Commonwealth or a
Commonwealth authority including provision for penalties for offences against
the regulations.
• Sub-clause (6) provides
that the penalty for a contravention of the regulations must not exceed (except
in the circumstances mentioned in sub-clause
(9)):
(a) if the contravention causes or is
likely to cause, whether directly or indirectly, harm to the environment
(irrespective of the duration of the harm):
(i)
in respect of a contravention by an individual - 2,000 penalty units; or
(ii) in respect of a contravention by a
corporation - 10,000 penalty units; or
(b)
otherwise:
(i) in respect of a contravention by
an individual- 500 penalty units; or
(ii) in
respect of a contravention by a corporation - 2,500 penalty
units.
These maximum penalties were decided
on for the following reasons:
The
legislative framework being established for the implementation of NEPMs is
unprecedented in Australia and is needed for the development of a wide range of
NEPMs. Section 14(1) of the National Environment Protection Council Act
1994 includes mention of NEPMs relating to ambient air and ambient marine,
estuarine and fresh water quality, the protection of amenity in relation to
noise, the movement of hazardous wastes across State and Territory boundaries
and general guidelines for the assessment of site contamination. The potential
breadth of the application of NEPMs and the potential degree of environmental
harm which may result in the failure to implement a NEPM necessitate the
prescribed maxima.
Because these penalties
apply to government business enterprises they ensure that, as part of national
competition policy, a ‘level playing field’ exists between such
enterprises and those owned by the private sector. The penalties are in line
with those penalties which exist under State environmental legislation to which
privately owned enterprises are currently
subject.
The maximum amounts prescribed by
the penalties are based on those contained in the Commonwealth’s hazardous
waste legislation
ie the Hazardous Waste
(Regulation of Exports and Imports) Act 1989 and the Hazardous Waste
(Regulation of Exports and Imports) Amendment Act 1996 . A NEPM for the
movement of hazardous wastes across State and Territory boundaries has now been
made by the National Environment Protection Council. The limited accessibility
of the subordinate legislation will not handicap those who will be bound by the
offences to be prescribed in the regulations. Firstly, the regulations to
implement a NEPM will be developed in conjunction with those Commonwealth
departments and agencies which will be so affected. Such consultation
mechanisms will ensure appropriate awareness of the offences and penalties.
Secondly, Environment Australia has set aside funds for a communication strategy
within the Commonwealth on the Bill and
NEPMs.
• Sub- clause (7) provides that
if harm to the environment is caused, or is likely to be caused, by a
combination of a contravention of the regulations and any other factor or
factors, the harm is taken for the purposes of sub-clause 6(a) to be caused, or
is likely to be caused, as the case may be, by the
contravention.
• Sub-clause (8) provides
that the provision for the implementation of a NEPM that may be made under
sub-clause (5) in respect of an activity may include the application, with or
without modifications, of provisions of a law of any State or Territory which
are in force either at a particular time or from time to time, even if the
activity is not carried on in that State or Territory.
This sub-clause can be used, for example, when
an activity entails trans-boundary movement which, but for the sub-clause, would
necessitate the application of provisions of a law of two or more States and/or
Territories.
• Sub-clause (9) provides
that the provisions of a law of a State or Territory that may be applied by
regulations under sub-clause (8) may include provisions of that law imposing
penalties for offences against those provisions so applied. However, any
modifications of those provisions made by the regulations must not increase
those penalties.
Part 5 - IMPLEMENTATION OF NEPMs
BY ENVIRONMENTAL AUDITS AND ENVIRONMENT MANAGEMENT PLANS
DIVISION 1 -
PRELIMINARY
CLAUSE 22 - MEANING OF
ENVIRONMENTAL AUDITOR
22. This clause
provides that, in this Part, ‘environmental auditor’ has the meaning
given by clause 25.
CLAUSE 23 -
ACTIVITIES IN RELATION TO WHICH THIS PART
APPLIES
23. Sub-clause (1) provides that
subject to this clause, Divisions 2 and 3 of this Part apply for the purposes of
the implementation of a NEPM in relation to an activity carried on by the
Commonwealth or a Commonwealth authority if the Environment Minister is
satisfied that:
- the NEPM is relevant to
the carrying on of the activity : and
- the
activity is carried on in:
(i) a
Commonwealth place in which, in the Environment Minister’s opinion, the
NEPM is not being implemented, or satisfactorily implemented under an applied
State law of the State in which the Commonwealth place is
situated;
(ii) a State or Territory, or the
coastal waters of a State or Territory, in which, in the Environment
Minister’s opinion, the NEPM is not being implemented, or satisfactorily
implemented under a law of the State or
Territory;
(iii) a Commonwealth place in a
State, where a provision of a law of the State for the implementation of the
NEPM that applies in the Commonwealth place under the Commonwealth Places
(Application of Laws) Act 1970 is not, and is not to be, applied under Part
2 in relation to the carrying on of the
activity;
(iv) a State or Territory, or the
coastal waters of a State or Territory where a provision of a law of the State
or Territory for the implementation of the NEPM is not, and is not to be applied
under Part 3 in relation to the carrying on of the
activity;
(v) an external Territory to which
this Act extends or its coastal waters;
(vi)
a part of the territorial sea of Australia that is not part of the coastal
waters of a State or Territory;
(vii) a part
of the exclusive economic zone;
(viii) a
part of any area of the continental shelf of Australia that is beyond the limits
of the exclusive economic zone; and
- the
NEPM is not, and is not to be, implemented by regulations under Part 4 or by
another law of the Commonwealth in a way that the Environment Minister is
satisfied will achieve appropriate environmental
outcomes.
• Sub-clause (2) provides
that Divisions 2 or 3, or a provision of Division 2 or 3, does not apply for the
purposes of the implementation of a NEPM in relation to an activity if the
activity is excluded, under the regulations, from the application of the
Division or provision, as the case may be, for the purposes of the
implementation of the NEPM.
• Sub-clause
(3) provides that regulations made for the purposes of sub-clause (2) may
exclude an activity for the purposes of the implementation of a NEPM
indefinitely or for a particular period and either wherever the activity is
carried on or in a particular place where the activity is carried
on.
• Sub-clause (4) provides that
regulations may only be made for the purposes of sub-clause (2) if the
Environment Minister is satisfied that it is desirable to make the regulations
because of considerations relating to a matter of national
interest.
The decision whether a regulation is to be made
under this clause will be made by the Environment Minister in consultation with
the relevant Minister(s).
• Under
sub-clause (5) if all or any of the provisions of Divisions 2 and 3 apply
for the purposes of the implementation of a NEPM in relation to an activity
carried on by the Commonwealth or a Commonwealth authority, the Environment
Minister must notify the relevant Minister
accordingly.
• Sub-clause (6) states that
if the relevant Minister is so notified, those provisions (other than those that
afterwards cease to apply because of regulations made for the purposes of
sub-clause (2) after the notification) have effect for the purposes of the
implementation of the NEPM in relation to the
activity.
DIVISION 2 - ENVIRONMENTAL
AUDITS
CLAUSE 24 - RELEVANT MINISTER
TO ARRANGE FOR CARRYING OUT OF ENVIRONMENTAL
AUDIT
24. This clause provides that if
the Environment Minister informs the relevant Minister that this Division
applies, the relevant Minister must arrange for an environmental audit to be
conducted for the purpose of the implementation of the NEPM with respect to the
activities.
CLAUSE 25 - ENVIRONMENTAL
AUDITORS
25. Sub-clause (1) provides that the relevant Minister may appoint any person (the environmental auditor) to carry out an environmental audit for the purposes of this Act subject to sections 26 and 27.
Sub-clause (2) provides that regulations may make provision for the accreditation of environmental auditors.
CLAUSE 26 - ENVIRONMENTAL AUDITOR NOT TO BE
OFFICER OR EMPLOYEE OF THE RELEVANT MINISTER’S DEPARTMENT OR TO BE
EMPLOYED BY THE RELEVANT COMMONWEALTH AUTHORITY
26. This clause provides that the environmental auditor is not to be an officer or employee of the relevant Minister’s Department or to be employed by the relevant Commonwealth authority.
CLAUSE 27 - ENVIRONMENTAL AUDITOR TO BE A FIT AND PROPER PERSON
27. Sub-clause (1) provides that a person must not be appointed as an environmental auditor unless the relevant Minister is satisfied that the person is a fit and proper person.
Sub-clause (2) requires that the relevant Minister, in deciding whether a person is fit and proper, must have regard to any environment related convictions of the person, or any body corporate of which the person is a director and any suspension or revocation of any licence or authority held by the person, or any body corporate of which the person is a director, under any Australian environment protection law.
Sub-clause (3) requires that a person’s appointment as an environmental auditor must be revoked if:
(a) the person, or a body corporate of which the person is a director, is convicted for a contravention of any Australian environment protection or related law; and
(b) any licence or authority held by the person, or a
body corporate of which the person is a director, under any Australian
environment protection or related law is suspended or
revoked.
CLAUSE 28 - NATURE OF
ENVIRONMENTAL AUDIT
28. This clause
provides that the environmental audit is to consist of an evaluation of the
nature of the environment that will be affected by the activities and an
assessment of the resulting risks to the environment from the activities, the
existing capacity of the Commonwealth or Commonwealth authority to comply with
the NEPM and what the Commonwealth or Commonwealth authority will need to do in
order to comply.
• The environmental
auditor may take into consideration a previous audit if it was related to the
implementation of an NEPM, if it was completed within the preceding two years
and if the environmental auditor is satisfied it is still
relevant.
• If, in the course of carrying
out an audit, the environmental auditor conceals or fails to take into account
any information or document, he or she will be guilty of an offence punishable
on conviction by imprisonment for not more than 6 months.
CLAUSE 29 - REPORT BY ENVIRONMENTAL
AUDITOR
29. This clause provides that on
completion of the environmental audit, a written report setting out the results
of the audit and the auditor’s qualifications and experience must be
prepared by the environmental auditor and sent to the relevant Minister and
Environment Minister. The clause prescribes a penalty for the inclusion of
false or misleading statements in a report by an environmental
auditor.
DIVISION 3 -
ENVIRONMENT MANAGEMENT
PLANS
CLAUSE 30 - ENVIRONMENT
MANAGEMENT PLAN
30. This clause provides
that, after receiving the report of the environmental auditor, the relevant
Minister must arrange for the Department or Commonwealth authority in question,
to prepare an environment management plan with respect to the activities
relevant to the NEPM. An officer of that Department or person employed by that
authority must be appointed as the environment manager for the purposes of the
environment management plan.
CLAUSE 31 -
MATTERS TO BE DEALT WITH IN ENVIRONMENT MANAGEMENT
PLAN
31. This clause sets out the
matters which must be included in an environment management plan. These matters
must have regard to the objects of the Act and the National Environment
Protection Council Act 1994. These include the objectives of the plan, the
activities to which the plan relates, appropriate performance indicators at
designated intervals, how the NEPM is to be implemented and a timetable for
implementation, how the activities will be carried out so as to give effect to
the NEPM; an appropriate provision for the participation of, and consultation
with, the community in the development of the plan, provision for monitoring and
reporting on the plan’s implementation and provision for action to be
taken in a contingency or emergency.
CLAUSE 32 - DUTIES OF ENVIRONMENT
MANAGER
32. This clause sets out the
duties of the environment manager in relation to an environment management plan.
These include the preparation of a preliminary plan and a final plan, copies of
which are to be sent to the relevant Minister and the Environment Minister, and
ensuring, to the maximum extent practicable, that the plan is not contravened.
• Unless the regulations provide
otherwise, the plan is to be made available for public inspection and purchase.
Regulations may only be made for this purpose if the Environment
Minister
is satisfied that it is desirable to make the
regulations because of considerations relating to a matter of national interest.
The decision whether a regulation is to be made under this clause will be made
by the Environment Minister in consultation with the relevant
Minister(s).
• If a further NEPM comes
into force or more than three years has elapsed since a final environment
management plan has been prepared or last revised, the plan is to be revised for
the purpose of giving effect to the NEPMs that apply to matters to which the
plan relates.
PART 6 - ENSURING
IMPLEMENTATION OF NEPMs
UNDER PARTS 4
AND 5.
CLAUSE 33 - RELEVANT MINISTER RESPONSIBLE FOR
ADEQUATE IMPLEMENTATION OF A NEPM IN RESPECT OF AN ACTIVITY TO WHICH PART 4 OR 5
APPLIES
33. This clause applies to
Commonwealth activities in respect of which either a regulation made for the
purposes of Part 4 applies or an environment management plan prepared under Part
5 applies for the purpose of implementing an
NEPM.
• Sub-clause (2) provides that the
relevant Minister must do everything necessary to ensure that the NEPM is
adequately implemented in respect of the
activities.
• If the Environment Minister
is not the relevant Minister and he or she forms the opinion that the NEPM is
not being adequately implemented in respect of the activities, the relevant
Minister may be requested to give the Environment Minister a written report
setting out the reasons for the inadequate implementation, the action the
relevant Minister intends to take and the period the relevant Minister thinks
necessary for taking the action.
If, after a
reasonable time, the Environment Minister is still satisfied that the NEPM has
not been adequately implemented he or she may make a written declaration to that
effect. The declaration is to be published in the Gazette .
PART 7 - ADMINISTRATIVE AND JUDICIAL REVIEW
CLAUSE 34 - REVIEW OF DECISIONS BY
ADMINISTRATIVE APPEALS
TRIBUNAL
34. Sub-clause (1) provides
that application may be made to the Administrative Appeals Tribunal for review
of any reviewable decision made under an applied provision of an applied State
law, an applied provision of a State or Territory law, a regulation made under
Part 4 or made under Part 5. The clause allows the extent of what is a
reviewable decision in relation to those provisions to be determined by
regulations.
• Reviewable decision
, in relation to an applied provision or regulation referred to in
sub-clause (1) or a provision of Part 5,
means:
(a) if the regulations provide that any
decision made under the provision is a reviewable decision - any decision made
under the provision; or
(b) if the regulations
provide that a decision of a kind described in the regulations that is made
under the provision is a reviewable decision- any decision of that kind made
under the provision.
• This clause has
effect subject to the Administrative Appeals Tribunal Act
1975.
CLAUSE 35- CIVIL JURISDICTION
OF FEDERAL COURT
35 Jurisdiction is
conferred on the Federal Court of Australia with respect to all civil matters
which arise under an applied provision of an applied State law, an applied
provision of a State or Territory law, a regulation made under Part 4 or made
under Part 5. The Federal Court’s jurisdiction is subject to the
Constitution and the Jurisdiction of Courts (Cross Vesting) Act 1987,
exclusive of the jurisdiction of any other court.
PART 8 -
MISCELLANEOUS
CLAUSE 36 - PERSON ENTERING OR SEARCHING PREMISES
OCCUPIED BY COMMONWEALTH OR COMMONWEALTH AUTHORITY NOT TO DISCLOSE INFORMATION
OBTAINED FROM ENTRY OR SEARCH
36. This
clause provides that a person entering or searching premises occupied by the
Commonwealth or a Commonwealth authority under a power she or he has because of
clauses 12, 17 or regulations made under clause 21 must not disclose any
information obtained during her or his presence on the premises. This does not
apply to a disclosure made in the performance of
duties.
• A penalty is stipulated for an
infringement of this
provision.
• Sub-clause (3) provides that
a court, which includes a tribunal, an authority or person having power to
require the production of documents or the answering of questions, cannot
require a person entering or searching premises under clauses 12, 17 or 21 to
disclose any document or any information in his or her possession or control as
a result of entering or searching the premises except for the purposes of an
applied provision of a law of a State or Territory or a provision of the
regulations.
CLAUSE 37 - RESTRICTION OF
ENTRY INTO OR SEARCH OF EXEMPT
PREMISES.
37. This clause provides that
regulations may declare premises to be exempt premises for the purposes
of this clause in relation to premises if the Environment Minister is satisfied
that, because of a matter of national interest, it is desirable that entry into,
or search of, the premises should be restricted or prohibited. The Environment
Minister may, by order, restrict or prohibit powers of entry into and search of
the premises under Parts 2, 3 and 4 with regard to those exempt premises
referred to in the order. An order of the Minister under this clause is a
disallowable instrument for the purposes of the Acts Interpretation Act
1901. A penalty is prescribed for persons who contravene such an
order.
• The decision whether a regulation
or an order is to be made under this clause will be made by the Environment
Minister in consultation with the relevant
Minister(s).
CLAUSE 38 - COMMONWEALTH OR
COMMONWEALTH AUTHORITY MAY PAY CERTAIN FEES AND
CHARGES
38. This clause enables the
Commonwealth or a Commonwealth authority to pay a fee or charge to a State or
Territory or a State or Territory authority which, if it were not for the
qualification provided by clauses 13(1)(f) and 18(1)(h), would have been payable
by the Commonwealth or the Commonwealth authority in respect of a licence, a
permit or other authorisation relating to an activity carried on, or to be
carried on, by the Commonwealth or the authority in the State or Territory or in
its coastal waters.
CLAUSE 39 -
ARRANGEMENTS WITH STATES AND
TERRITORIES
39. Sub-clause (1) enables
the Environment Minister to make an arrangement with an appropriate Minister of
a State or a Territory in relation to the exercise of a power, or the
performance of a duty or function by a State or Territory, a State or Territory
authority or by one of their officers.
• Sub-clause (2) provides that if an
arrangement is in force under sub-clause (1), the power, duty or function may
be, or is to be, as the case may be, exercised or performed by the officer or
authority accordingly.
• Sub-clause (3)
enables the Environment Minister to make an arrangement, including a financial
arrangement, with an appropriate Minister of a State or a Territory with respect
to any matter necessary or convenient for giving effect to this Act.
• Sub-clause (4) provides that, without
limiting the generality of subsections (1), (2), and (3), an arrangement may
contain any supplementary or incidental provisions that the Environment Minister
and the Minister of the State or Territory think
necessary.
• When such an arrangement is
in force, sub-clause (5) provides the Environment Minister may arrange with the
Minister of a State or a Territory for the variation or revocation of the
arrangement.
CLAUSE 40 - ANNUAL
REPORTS
40. This clause requires the
preparation of an annual report in the year ending on 30 June 1998 or in a later
year ending on 30 June by the Minister who administers the Department or
Commonwealth authority responsible for the activity to which a NEPM applies.
The Minister must give the annual report by the end of July each year to the
Environment Minister who must then lay a report as to the implementation of
NEPMs by the Commonwealth or Commonwealth authorities before each House of
Parliament.
CLAUSE 41 - APPLICATION OF
THE CRIMINAL
CODE
41. This clause
provides that Chapter 2 of the Criminal Code applies to all
offences referred to in sub-clause 21(5) and all offences against Parts 5 and
8.
CLAUSE 42 -
REGULATIONS
42. This clause provides
that the Governor-General may make regulations prescribing matters required or
permitted by this Bill to be prescribed, or necessary or convenient for carrying
out or giving effect to this Bill.
CLAUSE
43 - REVIEW OF OPERATION OF
ACT
43. Sub-clause (1) provides that the
Environment Minister must cause an independent review
of:
(a) the operation of the
Act;
(b) the extent to which the policy
objectives of the Act remain valid;
and
(c) whether the provisions of the Act
remain appropriate for the achievement of those policy
objectives
as
soon as possible after the fifth anniversary of the commencement of the
Act.
Sub-Clause (2) provides that the
person who undertakes such a review is to provide the Minister a written report
of the review.
Sub-Clause (3) provides that
the Minister must cause a copy of the report of the review to be tabled in each
House of the Parliament within 12 months after the fifth anniversary of the
commencement of the Act.
Sub-Clause (4)
provides that an independent review means a review undertaken by
persons who:
(a) in the Environment
Minister’s opinion possess appropriate qualifications to undertake the
review; and
(b) include one or more persons
who are not employed by the Commonwealth or a Commonwealth authority and have
not, since the commencement of the Act, provided services to the Commonwealth or
a Commonwealth authority under or in connection with a contract.