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Great Barrier Reef Protection Amendment Bill 2009
Great Barrier Reef Protection Amendment
Bill 2009
General Outline
Short Title
The short title of the Bill is the Great Barrier Reef Protection Amendment
Bill 2009.
Policy Objectives of the Legislation
The principal objective of the Bill is to introduce a regulatory structure to
reduce the impact of agricultural activities on the quality of water entering
the Great Barrier Reef and contribute to achieving the targets under
agreements between the State and Commonwealth. The current agreement
is the Reef Water Quality Protection Plan (Reef Plan).
Reasons for the Bill
In 2003, the Queensland and Australian Governments made a 10 year
commitment to the Reef Plan to address the diffuse pollution from
broadscale land use and to halt and reverse the decline in water quality
entering the Great Barrier Reef. The key focus of many actions in Reef
Plan has been to assist landholders in adopting best management practices
through voluntary and incentive schemes. The Reef Plan also stated that
there was a need for regulation `where there was a risk that voluntary
approaches will fail to deliver significant water quality improvements'.
The 2008 Scientific Consensus Statement on Water Quality in the Great
Barrier Reef (Consensus Statement) stated that water discharge from rivers
into the Great Barrier Reef continues to be of poor quality in many
locations and that land derived contaminants, including suspended
sediments, nutrients and pesticides are present in Great Barrier Reef waters
at concentrations likely to cause environmental harm.
Adopting certain farm management practices are known to reduce the
amount of contaminants leaving the farm. As a result, regulation is needed
to ensure that farm management practices that impact on water quality are
improved. This in turn will improve water quality in the Great Barrier Reef
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Great Barrier Reef Protection Amendment Bill 2009
lagoon. The provisions of the Bill are designed to complement other
measures such as the Australian Government's $200 million Reef Rescue
that includes water quality grants or incentives for farmers to assist in the
adoption of best management practice.
Implementation of the Bill will help deliver State government targets of
50% reduction within four years in the discharge of dangerous pesticides
and fertilisers capable of killing the Great Barrier Reef.
Estimated Cost for Implementation
Cost effectiveness has been maximised by tightly targeting the Bill
through:
· Limiting the regulatory net to the three highest priority catchments;
· Regulating the two agricultural sectors (cattle and cane) that
contribute the highest levels of chemicals and sediment found in Reef
waters;
· Adopting standard minimum requirements for all properties where
possible;
· Containing the environmental risk management plan (ERMP)
requirements initially to the highest priority activities with thresholds
based on property size, with a further mechanism to enable ERMPs to
be required in other identified hot spots;
· Ensuring the Bill has the least cost impact on producers; and
· Use of the existing provisions of the Environmental Protection Act
1994.
Around 4,500 operators are likely to be affected by the Bill. It is estimated
that approximately 1,000 operators will initially be required to prepare
ERMPs. The level of regulatory impact on individual operators, however,
will vary considerably depending on the level of hazard inherent in an
individual's land holding and the effectiveness of an operator's current
management practices. The cost impacts of the regulatory measures are
likely in many instances to be largely offset by cost savings resulting from
productivity enhancements and reduced input costs. For example,
operators not currently undertaking soil testing to guide fertiliser
applications will face additional costs for testing. However, by using the
test results to calculate the optimum amount of fertiliser to be applied, the
operator may save money from reduced fertiliser input.
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Great Barrier Reef Protection Amendment Bill 2009
The costs to operators required to prepare an ERMP will vary depending on
the availability of resource condition information, the size and complexity
of the resource base and the operator's management practices (existing or
proposed) to manage risks. Low risk operators will not be required to have
an ERMP, medium and high risk operators only a simple, menu-driven
ERMP at little or no financial cost to the operator. A risk-based evaluation
of these initial ERMPs would identify operators who would be required to
develop more detailed ERMPs in future years. The Department of
Environment and Resource Management estimates that the average cost for
an operator to develop a more detailed ERMP is $3,500. This cost is only
incurred in the development phase and is not ongoing. No administrative
fees will be charged initially for assessment and accreditation of ERMPs.
Those operators who can demonstrate that they are already implementing
management practices that adequately address the identified risks of their
operation will not incur any additional costs associated with implementing
improved practices. For example, a cattle grazing operation with a Land
Management Agreement under the Delbessie arrangements for leasehold
land are likely to be able to satisfy the ERMP requirements for sediment
management on grazing lands without significant additional work. Those
operators who have a plan to implement management practices equivalent
to an ERMP will not incur additional costs associated with the preparation
of an ERMP. Both will, however, bear the minimal administrative costs
associated with reporting under the legislation (approximately two to three
hours of time per year).
The ERMP approach allows operators to spread their investment in new
practices over the life of the ERMP. As it is a planning document, the
operator may plan to make different investments or practice changes in
different years. It is also up to the operator to choose whether to implement
a low cost solution or invest in a more expensive solution. For example,
fertiliser losses can be reduced by applying less fertiliser, or not applying
near watercourses or in wet weather conditions. This is a low cost solution.
Alternatively, fertiliser loss can be reduced through investment in precision
fertiliser equipment at a cost of about $30,000. The flexibility of the
ERMP model allows operators to control their investment. Operators with
better management practices would require less or no investment to
implement their ERMP and all operators could reduce capital investment
costs by sharing equipment.
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Great Barrier Reef Protection Amendment Bill 2009
Improved management practice can save operators significant costs
through reduced input costs, enhanced productivity and maintaining
property value. For example:
· The Great Barrier Reef Marine Park Authority estimates that 150,000
tonnes of fertiliser is used annually in the Reef catchments for cane
growing. CSIRO estimates that about 32,000 tonnes of fertiliser is
lost to the environment each year. At a price of $1,000 per tonne (a
figure likely to rise with increased oil prices), this equates to a loss of
$32 million. Recent work by the Department of Employment,
Economic Development and Innovation's model farms project
indicates fertiliser use can be significantly reduced without loss of
production.
· For grazing properties, ERMPs would drive increased investment in
fencing off erosion hazard areas and vegetation cover management to
reduce sediment loss by systematic control of stocking rates. The
investment cost will vary greatly but is likely to be much less than
$10,000 annually.
· Improved management practices can significantly increase the
productive efficiency of primary producers by reducing the waste of
water, fertiliser, pesticide and soil. In the Mackay-Whitsunday region,
implementation of improved practices in cane has been demonstrated
to improve profit by $91 per hectare (Mackay-Whitsunday Water
Quality Improvement Plan). For grazing properties, adoption of
relatively conservative stocking rates has been demonstrated to
increase accumulated cash surplus by $9,000 per 100 hectares after 10
years, with animals on average 50-70 kg heavier (Wambiana Trial
1998-2008).
· Work by the Central Queensland University indicates that graziers
who overgraze their land can permanently degrade their land and
hence reduce future productivity and income. This will result in a
permanent loss of their land's net present value which far outweighs
any once off or short term gain in income.
Additionally, the Bill has been designed to complement the Australian
Government's investment through the $200 million Reef Rescue initiative.
The Reef Rescue package includes a grants pool of $146 million over five
years. Operators may be eligible to access these grants to implement key
components of their ERMPs such as upgrading plant and equipment.
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Great Barrier Reef Protection Amendment Bill 2009
The cost to the government of implementing the new regulatory
requirements is approximately $10 million per year for five years. This
includes program development of $1.4 million, extension of around $4.24
million per year, monitoring of $1 million per year and compliance and
enforcement averaging $4.5 million per year.
Consistency with Fundamental Legislative Principles
Does the legislation have sufficient regard to the rights and liberties of
individuals--LSA, s 4(2)(a)
The Bill affects existing cane growing and cattle grazing activities that are
carried out within the three priority catchments. The new provisions do not
prevent these activities from being carried out but do place additional
requirements on operators who are undertaking these activities. These
provisions are necessary to protect the health of the Great Barrier Reef,
which is important to Queensland for environmental, social and economic
reasons.
The Great Barrier Reef is the world's largest coral reef ecosystem and one
of the most complex natural systems on earth. It has high levels of
biodiversity and is recognised internationally as a World Heritage Area. Its
environmental values support a number of industries including tourism,
recreational activity and commercial fishing.
Access Economics estimates that the Great Barrier Reef directly
contributes $5.8 billion annually to the Australian economy ($5.1 billion
from the tourism industry, $610 million from recreational activity and $119
million from commercial fishing) and supports approximately 64,000 jobs.
Agricultural production in Reef catchments also provides a significant but
lower contribution to the Queensland economy, with agricultural
production of cattle, cane and horticulture in Reef catchments contributing
approximately $3.8 billion annually.
The Consensus Statement links a decline in Reef water quality to
agricultural activity in the Reef catchments. Voluntary measures have had
some effect but in order to ensure a more rapid change in farm management
practices to improve the quality of water entering the Reef, regulation is
necessary.
To ensure that the rights and liberties of individuals are not unduly affected,
the Bill is tightly targeted based on risk. Low risk activities will only be
required to record and report data on management practices. Recording
this kind of data is good business practice that will assist operators in
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Great Barrier Reef Protection Amendment Bill 2009
making future decisions in relation to their management practices.
Operators using fertilisers will be required to undertake soil testing and
calculate the optimum amount of fertiliser to be used on the crop. This will
prevent over-fertilising, which has the additional benefit of saving
operators money through reduced fertiliser costs.
Higher risk operators may also be required to prepare and implement an
ERMP to improve their farm management practices. Initially, an ERMP is
required of the identified higher risk activities of more than 70 hectares of
cane growing in the Wet Tropics catchment and more than 2,000 hectares
of cattle farming in the Burdekin Dry Tropics catchment. There is also a
mechanism for the Minister to decide that an environmental risk
management plan is required for further activities or catchments in order to
minimise or prevent further impacts on the Great Barrier Reef.
Additionally, an ERMP may be required as a compliance measure. These
mechanisms ensure appropriate targeting of regulatory requirements so that
lower risk operators are not over regulated.
Any other fundamental legislative principles raised by particular sections
of this Act are addressed in the discussion of each of those sections below.
Consultation
The primary vehicle for consultation with industry and other stakeholder
groups was through the Reef Stakeholder Advisory Committee (the
Committee), chaired by the then Minister for Sustainability, Climate
Change and Innovation. This committee included representatives from the
peak agricultural organisations (Queensland Farmers Federation (QFF),
AgForce, Growcom, Canegrowers, Australian Cane Farmers Association),
Conservation groups (WWF-Australia, Queensland Conservation Council
(QCC)), Queensland Tourism Council, Regional NRM Groups, Great
Barrier Reef Marine Park Authority, Local Government Association of
Queensland and CropLife.
A series of small group meetings of Committee members and allied
stakeholders were held out-of-session with QFF, Canegrowers and
Growcom, QCC, WWF, Australian Marine Conservation Society,
Environmental Defenders Office, Wildlife Preservation Society and
Queensland Tourism Council, AgForce and Australian Banana Growers
Council. The then Minister for Sustainability, Climate Change and
Innovation also held four public meetings in Home Hill, Ingham,
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Proserpine and Mackay attended by a total of 440 farmers, graziers,
community groups and others.
Industry groups including Canegrowers and individual canefarmers do not
support any legislative approach and believe that voluntary risk
management and incentive based approaches are more effective to reduce
agricultural pollution. WWF, other conservation groups and the
Queensland Tourism Council support the concept of targeted regulation.
Feedback was considered as part of the development of regulatory options
and drafting of the Bill.
Notes on Provisions
Part 1 Preliminary
Clause 1 Short title
This clause states that the Act should be cited as the Great Barrier Reef
Protection Amendment Act 2009.
Clause 2 Commencement
This clause provides that the Act is to commence on a day to be fixed by
proclamation, other than section 19, which will commence on assent. The
intention is to commence the remainder of the Act on 1 January 2010.
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Part 2 Amendment of Environment
Protection Act 1994
Clause 3 Act amended
This clause states that this part amends the Environmental Protection Act
1994.
Clause 4 Amendment of s 18 (Meaning of
environmentally relevant activity)
This clause amends section 18 of the Environmental Protection Act 1994 to
include agricultural ERAs as environmentally relevant activities. The
agricultural activities regulated in the new Chapter 4A are classed as
environmentally relevant activities. This is because these activities release
contaminants, for example agricultural chemicals, nutrients and sediment,
into the environment. These contaminants are known to cause
environmental harm, notably damage to coral reefs. Section 75 defines
`agricultural ERA' for the purposes of this section.
Clause 5 Amendment of s19 (Environmentally
relevant activity may be prescribed)
This clause amends section 19 of the Environmental Protection Act 1994 to
exclude agricultural ERAs from this section. Since the Act makes
agricultural ERAs environmentally relevant activities by virtue of the
amendment to section 18, it is not appropriate or necessary for the
Governor in Council to prescribe these activities as environmentally
relevant activities.
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Clause 6 Insertion of new ch 4A
This clause inserts a new chapter 4A into the Environmental Protection Act
1994.
Chapter 4A Great Barrier Reef protection
measures
Part 1 Preliminary
74 Purpose of ch 4A
This section states that the purpose of the chapter is to reduce the impact of
agricultural activities on the quality of water entering the Great Barrier
Reef and contribute to achieving the targets under agreements between the
State and Commonwealth. The current agreement is the Reef Water
Quality Protection Plan. Prior to this Act, a combination of voluntary and
incentive based programs were used in the Great Barrier Reef catchments
to improve and change agricultural management practices in order to
improve the quality of water being discharged from agricultural activities
into the Reef waters. Despite these actions, water quality in the Reef
continues to be poor, much of which can be linked to run off of agricultural
chemicals, nutrients and sediment associated with agricultural activities.
75 What is an agricultural ERA
This section defines `agricultural ERA' for the purposes of the
Environmental Protection Act 1994. This describes the regulatory net, i.e.
who will be captured. The activities that are defined as an agricultural
ERA are:
· all commercial sugar cane growing; and
· cattle grazing (beef and dairy) on properties carrying more than 100
standard cattle units.
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These activities were chosen because they are the predominant agricultural
land use in the catchments and cumulatively cause the greatest impact.
Other agricultural activities, particularly horticulture, also contribute to run
off of agricultural chemicals, nutrients and sediment but given the
relatively small area occupied by these activities, the contribution to Reef
pollution is comparatively small.
In addition, an activity is only an agricultural ERA if it is carried out in the
priority catchments, namely the Wet Tropics, Mackay-Whitsunday and
Burdekin Dry Tropics catchments. These catchments are described with
reference to a purpose-made map drafted on cadastral boundaries. Other
land may be prescribed by regulation if the criteria in subsection (4) are
met.
The fundamental legislative principle of equality under the law is raised by
the selection of two agricultural sectors (cane farming and cattle grazing)
and the priority catchments (Wet Tropics, Mackay-Whitsunday and
Burdekin Dry Tropics) to regulate. This is justified because these activities
in these catchments carry the greatest pollutant loads and discharge close to
coral reef systems.
The fundamental legislative principle of sufficient regard for the institution
of Parliament is raised by this section in that it allows an extension of the
area of the priority catchments by regulation. Subsection (3)(b) allows a
regulation to include land other than the land identified on the map as land
to be regulated. However, the limiting criteria in this case are very
stringent. Under paragraph (4)(a), the area may only be extended by
regulation for the purposes of covering agricultural properties that are only
partly in the catchments under the map. Consequently, the extension of the
area by regulation will not bring anyone into the regime that is not already
included.
Subsections (3) and (4) are similar to section 318ELAA of the Mineral
Resources Act 1989.
76 Who carries out an agricultural ERA
This section clarifies that a person carries out an agricultural ERA if they
carry it out personally or employ or engage another person to carry it out
on their behalf.
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77 Other definitions for ch 4A
This section defines words and phrases which are used throughout chapter
4A.
Part 2 Requirements for carrying out
agricultural ERAs
Division 1 Fertiliser application requirements
Subdivision 1 Offence
78 Offence about fertiliser application
This section requires that anyone who carries out an agricultural ERA does
so in accordance with the requirements of subdivision 2. However, the
person does not have to comply with the requirements of subdivision 2 if
they have an accredited ERMP that specifically states an alternative
procedure is substituted for the requirements of subdivision 2.
An operator who has an accredited ERMP under Part 3 may have a
different method of calculating the optimum amount of nitrogen or
phosphorus that may be applied to the land. In these circumstances, best
practice environmental management would be to use the method in the
ERMP and not the default requirements in subdivision 2.
The maximum penalty for non-compliance with the requirements of
subdivision 2 is 100 penalty units ($10,000). This is the same level of
penalty for non-compliance with a transitional environmental program
(TEP) requirement (section 332 of the Environmental Protection Act 1994)
or for failure to provide an annual return for a TEP (section 345). Although
this offence could be benchmarked against the water contamination offence
in section 440ZG of the Environmental Protection Act 1994 (which is 300
penalty units) or the controlled chemicals offence in section 8 of the
Chemical Usage (Agricultural and Veterinary) Control Act 1988 (which is
600 penalty units), the level of penalty for this offence is lower because it is
a very new offence and entering into an area where there has not
historically been a lot of environmental regulation.
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Note that there is no offence for non-compliance with an accredited ERMP.
However, a direction notice may be issued for non-compliance with an
ERMP and non-compliance with a direction notice is an offence with a
maximum penalty of 300 penalty units ($30,000) or an on-the-spot fine of
10 penalty units ($1000) for an individual and 20 penalty units ($2000) for
a corporation.
The fundamental legislative principle that appropriate defences to liability
must be provided is raised by this section. While they are not worded as
such, the defence to this section is that the person has an accredited ERMP
that specifically states an alternative procedure is substituted for the
requirements of subdivision 2. The standard Criminal Code defences (i.e.
mistake of fact, accident etc) would also apply. The nature of the
obligation in this section means that a defence of `reasonable excuse' is not
appropriate. The obligations are not general, but restricted to particular
people in particular circumstances, and strict consistent observance is
necessary to ensure that the quality of water entering the reef is not affected
by over-fertilisation.
Subdivision 2 Conditions to prevent
over-fertilisation
79 Application of sdiv 2
This section states that subdivision 2 applies to a person carrying out an
agricultural ERA.
The following three sections work in conjunction to prevent
over-fertilisation. A person who is applying fertiliser containing nitrogen or
phosphorus to the soil must work out how many additional nutrients are
required to meet the needs of the plant without over-fertilising. In order to
work out the optimum amount, the person will have to do a soil test to
determine the characteristics of the soil. Performing these tests and
calculations will help prevent over-fertilisation by ensuring that only the
necessary amount of fertiliser is applied. This will improve the quality of
water leaving a property by reducing run-off of excess fertilisers into the
water and seepage into ground water, which can have negative impacts on
the Great Barrier Reef.
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80 Working out optimum amount
This section requires the person carrying out an agricultural ERA to use the
results of the soil test under section 81 to calculate the correct amount of
fertilisation to achieve optimum yield without over-fertilisation.
Over-fertilisation is defined in section 77 as applying fertiliser at above the
needs of the plant being fertilised. A methodology for calculating the
optimum rate may be prescribed by regulation and will take into account
variables such as soil and fertiliser type. If prescribed, the methodology
must be used to calculate the correct amount of fertiliser to use. The
Department of Environment and Resource Management intends to develop
a calculator-type approach for calculating optimum fertiliser rates.
81 Soil testing
This section requires soil testing before fertiliser (both organic and
inorganic) containing nitrogen or phosphorous is applied to the soil. A
report must be prepared and the test and reports must be prepared by an
appropriately qualified person, such as a laboratory accredited by the
National Association of Testing Authorities (NATA). Amendments to the
Environmental Protection Regulation 2008 will specify how frequently the
tests must be carried out and the methodology for carrying out the tests.
82 Restriction on application of fertiliser
This section restricts a person carrying out an agricultural ERA from
applying more fertiliser than the optimum rate worked out under section
80.
Division 2 Document requirements
Subdivision 1 Documents that must be kept
All persons carrying out an agricultural ERA are required to keep certain
records. Since the requirement to keep records for prescribed agricultural
provisions is not linked to an environmental authority or development
approval, this division lists the main areas about which records must be
kept. These are linked to management practices that can affect the quality
of water being released from a property.
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Great Barrier Reef Protection Amendment Bill 2009
83 Required record
This section requires anyone carrying out an agricultural ERA to keep
certain records unless they have a reasonable excuse. The maximum
penalty for non-compliance with the record-keeping requirement is 100
penalty units ($10,000). This is the same level of penalty for
non-compliance with a TEP requirement (section 332 of the Environmental
Protection Act 1994) or for failure to provide an annual return for a TEP
(section 345).
A reasonable excuse could be that the documents were destroyed by a
natural disaster such as fire or flood. Failure to remember to keep the
documents would not be a reasonable excuse.
84 Obligation to keep relevant primary documents
This section requires a person carrying out an agricultural ERA to keep
relevant primary records unless they have a reasonable excuse. Primary
records are the original documents, not just a record that the document
exists (as in section 83). It includes documents such as invoices for the
purchase of fertiliser, reports about soil tests and documents calculating the
optimum rate of fertiliser under section 80.
A reasonable excuse could be that the documents were destroyed by a
natural disaster such as fire or flood. Failure to remember to keep the
documents would not be a reasonable excuse.
The maximum penalty for non-compliance with the document-keeping
requirement is 100 penalty units ($10,000). This is the same level of
penalty for non-compliance with a TEP requirement (section 332 of the
Environmental Protection Act 1994) or for failure to provide an annual
return for a TEP (section 345).
Subdivision 2 Production of documents
85 Power to require production of documents
This section requires a person carrying out an agricultural ERA to produce
records or the relevant primary documents upon being served notice. The
operator is not required to regularly report the results of soil tests and
fertiliser application to the administering authority, but the administering
authority can require the operator to produce the records or document at
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Great Barrier Reef Protection Amendment Bill 2009
any time to ensure compliance. An authorised person may also use section
466 for the immediate production of documents, for example, while
conducting a site inspection. Section 86 makes it an offence to fail to
comply with this requirement unless the person has a reasonable excuse.
86 Offence not to comply with production requirement
This section provides an offence for failure to comply with a production
requirement under section 85 unless the person has a reasonable excuse. A
reasonable excuse in these circumstances may include that the documents
have been destroyed by fire or flood. It would not be a reasonable excuse
to claim that another person should have made the record as it is the
responsibility of every person who carries out an agricultural ERA to
ensure that the relevant records are made. Note that self-incrimination is
not a reasonable excuse due to the operation of section 87. The maximum
penalty for non-compliance with the production requirement is 100 penalty
units ($10,000). This is the same level of penalty for non-compliance with
a TEP requirement (section 332 of the Environmental Protection Act 1994)
or for failure to provide an annual return for a TEP (section 345).
87 Derivative use immunity for production
This section negates the defence of self-incrimination for failure to produce
the required records. A defendant cannot claim self-incrimination as a
defence for non-compliance with a production requirement. However, the
documents or records produced cannot be used in a court case against the
individual who could otherwise claim self-incrimination.
The fundamental legislative principle of providing appropriate protection
against self-incrimination is raised by this section. The power to require
information is similar to the operation of sections 466 and 477 of the
Environmental Protection Act 1994. However, section 477 provides for the
defence of a reasonable excuse and the excuse could include that it might
incriminate the individual. This section will remove this excuse for the
production of documents under section 86.
This section is required to avoid the situation where an employee of a
company can decline to provide information or produce a document
thereby making it extremely difficult to obtain sufficient evidence against
the corporate entity regarding an alleged offence. In effect, a corporation
can currently choose to accept a smaller penalty (failure to provide
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Great Barrier Reef Protection Amendment Bill 2009
information or failure to produce a document) rather than risk prosecution
for the original offence.
Additionally, collection of records is important to ensure that there is
accurate information about management practices to inform other types of
regulatory intervention, for example, a decision to require an ERMP.
A safeguard is provided in that the information or document may not then
be used to prosecute the individual required to provide it. Consequently, the
individual is protected against the consequences of self-incrimination.
Similar provisions are provided under the Vegetation Management Act
1999 and Electricity Act 1994. It should be noted that the High Court has
determined that a corporate entity is not entitled to protect itself against
self-incrimination, so the defence of self-incrimination cannot be claimed
by a company or a body corporate.
Part 3 Environmental risk management
plans
In order to entrench the adoption of best management practices and
continuous improvement on higher risk properties, a management plan
approach will be implemented, known as the environmental risk
management plan (ERMP).
Division 1 General matters
88 When an accredited ERMP is required
This section requires certain operators to have an ERMP. These operators
are the larger operators in the identified "hotspots" or those who have been
given an ERMP direction. An ERMP may also be voluntarily submitted.
The "hotspots" which were identified by the Department of Environment
and Resource Management are:
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Activity Size Catchment
Sugar cane growing > 70 ha Wet tropics
Cattle grazing > 2000 ha Burdekin dry tropics
When compared with the thresholds for the agricultural ERA in section 75
(i.e. any commercial operation for sugar cane growing, and 100 standard
cattle units for cattle grazing), it is clear that this section is designed to only
capture the larger producers in these areas.
There is considerable evidence that it is essential to reduce the pollution
load generated across the majority of cane and grazing lands to achieve
long term Reef health targets. Because of the variability across individual
properties, doing this using a universal approach would be difficult,
expensive and inefficient. It is far more efficient to target the larger
properties covering large areas of the catchment with fewer actual
operators with risk management planning and rely on a prescriptive
approach to deal with the smaller properties.
Wet Tropics sugar cane growing
Managing the impacts of Wet Tropics' sugar cane is an important priority
to reduce agricultural pollution. In the Wet Tropics area, sugar cane
contributes 78% of the dissolved inorganic nitrogen (DIN) anthropogenic
load (2800 tonnes). This contribution is spread across some 1,300
operators suggesting an average contribution of 2 tonnes per annum per
property (assuming all properties are of similar sizes). Decreasing the load
from sugar cane by 50% in line with Reef Plan targets to 1,400 tonnes,
would require either a small number of operators to significantly reduce
their DIN loads or for at least 50% of operators to moderately reduce DIN
contributions across a large area.
The average size of cane farms in the Wet Tropics is 60 to 70 hectares. The
aim is for operators of the larger properties to prepare ERMPs, so a
threshold of 70 ha was chosen for this purpose. The 70ha threshold will
capture a large proportion of the catchment with proportionately fewer
producers.
Burdekin Dry Tropics cattle grazing
The Burdekin Water Quality Improvement Plan identifies the need to
reduce mean annual sediment load at end-of-Burdekin catchment from
~3,700 kt/yr in 2008 to 2,220 kt/yr and that at least 30% to 50% of
landholders would need to adopt improved practices for erosion
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Great Barrier Reef Protection Amendment Bill 2009
management to achieve catchment water quality targets. The roll-out of an
ERMP approach will support the meeting of these targets.
The threshold for ERMP targeting for cattle grazing in the Burdekin Dry
Tropics is designed to capture most large-scale cattle grazing properties
that are the major contributors to nutrient and sediment release in the
priority catchments. Dairies and smaller coastal graziers cumulatively
contribute much less pollution and will not be captured by the ERMP
threshold.
The fundamental legislative principle of equality under the law is raised by
this section. However, this is balanced by the need to consider the
fundamental legislative principle that legislation should be reasonable and
fair in its treatment of individuals and should not impose unnecessary
regulation. As indicated above, this section is targeted to the hotspots with
the highest risk so that agricultural ERAs generally are not overregulated.
Under section 92, a person who is required to have an ERMP must submit
an ERMP which complies with division 2 to the administering authority
within 3 months of being required to have the accredited ERMP under this
section.
In addition, under section 656 (inserted by clause 18), the application of
this section to existing agricultural ERAs is deferred for 6 months to allow
operators of agricultural ERAs time to commission or prepare their ERMP
for accreditation. Consequently, the operator has 9 months in total from
the commencement of this section on 1 January 2010 to submit the ERMP
to the administering authority. The relevant operators will be notified via
the Department of Environment and Resource Management
communications in the media and through stakeholder meetings, and via
the Department's extension activities.
89 When ERMP direction may be given
This section provides that the Minister may give an ERMP direction to any
person carrying out an agricultural ERA. The Minister must consider that
an ERMP is necessary or desirable, for example, where a hot spot has been
identified or to improve the practices of an individual property.
Consequently, the ERMP direction is both a compliance tool and a
proactive tool to assist the administering authority to reduce the impact of
the activity on water quality in the reef.
The decision to extend the ERMP requirement will be made based on best
available evidence, for example, identifying by remote sensing data
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Great Barrier Reef Protection Amendment Bill 2009
properties with high risk of sediment loss due to areas of low ground cover
or catchments with high nutrient impacts based on water quality
monitoring. The Minister will be able to direct that those operators prepare
an ERMP to target the particular issue identified. While the power to issue
an ERMP direction may be delegated to departmental officers, it is
anticipated that directions for multiple properties will remain with the
Minister and will not be delegated.
The ERMP direction must comply with the content requirements set out in
section 90. The usual review and appeal provisions of the Environmental
Protection Act 1994 will apply to the ERMP direction.
90 Form of ERMP direction and what it may require
This section sets out the content requirements for an ERMP direction. The
ERMP direction must include the details listed in subsection (1) and may
also include the details set out in subsections (2) and (3). Subsection (2)
allows the ERMP direction to require a whole ERMP be prepared or a
component of an ERMP, depending on the issue that needs to be addressed
in a particular area or by a particular property. Subsection (3) allows the
ERMP direction to also include other terms of reference which the ERMP
must address.
91 Public notice of ERMP directions with multiple recipients
This section requires a notice to be placed in newspapers circulating in the
relevant district where a decision is made to extend the ERMP direction to
multiple operators. While affected operators will still be notified
individually, this will serve as public notice of the extension of the
requirements of the legislation in different areas.
92 Obligations if accredited ERMP required
This section creates an offence for failure to prepare and submit the ERMP.
A person who is required to have an ERMP under section 88 must prepare
the ERMP in accordance with division 2 and submit it to the administering
authority for accreditation. The person can claim reasonable excuse as a
reason for not submitting the ERMP within 3 months and for failing to
prepare the ERMP in accordance with division 2.
The maximum penalty for non-compliance with the ERMP requirement is
300 penalty units ($30,000). This is consistent with the maximum penalty
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Great Barrier Reef Protection Amendment Bill 2009
for non-compliance with a direction notice under the Environmental
Protection Act 1994.
93 Unaccredited ERMP has no effect
This section makes it clear that an ERMP which has not been accredited
has no effect for the purposes of the provisions of the Environmental
Protection Act 1994. For example, an unaccredited ERMP cannot be used
to avoid the duty to notify harm (section 320), or as evidence of compliance
with the general environmental duty (section 493A).
Division 2 ERMP content requirements
94 General content requirements
This section sets up the broad matters that must be addressed in an ERMP.
This includes the power under subsection (g) to prescribe additional
matters under an environmental protection policy or regulation. The
Department of Environment and Resource Management intends to prepare
a handbook to inform the preparation of ERMPs, which will be called up
through the Environmental Protection Regulation 2008. Preparation of the
ERMP must be in accordance with this handbook by virtue of subsection
(g) of this section. It is intended that the complexity of an ERMP will be
commensurate with the risks of an operation i.e. low risk operations need
only a basic ERMP while higher risk operations need a more complex
ERMP.
Failure to prepare an ERMP which meets these required contents is an
offence under section 92. However, to ensure that operators are not
required to duplicate existing effort, an operator may demonstrate through
documentation that they have and are implementing a risk management
plan that is the equivalent of an ERMP or part of an ERMP (see section 96).
95 Exceptions for management plan requirement
This section states that section 94(d)(i) does not apply if the operator has
been certified as an organic operator by the Australian Quarantine
Inspection Service. This is because organic and bio-dynamic producers do
not use agricultural chemicals.
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Great Barrier Reef Protection Amendment Bill 2009
This section also states that if the agricultural ERA is cattle grazing, then
the requirement to manage nutrients applied to the soil only applies to
fertilised pastures on the property. This is because the majority of
fertilisers used on cattle grazing properties are used on improved pastures.
96 Documents that may make up ERMP
This section clarifies that the ERMP may be made up of many documents,
which may have been prepared for another purpose and which may not be
called an ERMP. This is to ensure that operators are not required to
duplicate existing effort.
An operator may demonstrate through documentation that they have and
are implementing a risk management plan that is the equivalent of an
ERMP or part of an ERMP. This will satisfy the requirement to hold an
ERMP or that particular part of an ERMP. For example, a cattle grazing
operation with a Land Management Agreement under the Delbessie
arrangements for leasehold land is likely to be able to satisfy the ERMP
requirements for sediment management on grazing lands without
significant additional work. Similarly, requirements for land and water use
management plans under the Water Act 2000 may be able to satisfy some of
the ERMP requirements.
Division 3 Accreditation of ERMPs
The purpose of this division is to provide an administrative process for
accreditation of an ERMP. This provision is modelled on s360ZCD of the
Water Act 2000 about approving water efficiency plans.
97 Application of div 3
This section states that this division applies if a person has submitted an
ERMP. This division applies whether the person was required to submit an
ERMP as a targeted "hotspot" under section 88(a), required to submit an
ERMP because of an ERMP direction, or has submitted the ERMP
voluntarily.
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Great Barrier Reef Protection Amendment Bill 2009
98 Request for further information
This section allows the administering authority to request further
information from the person submitting the ERMP for accreditation. This
is to ensure that the administering authority has sufficient information to
decide whether the ERMP should be accredited or not.
Failure to provide the information could lead to the administering authority
making a decision to refuse to accredit the ERMP (section 99) and
requiring an amended ERMP (section 101).
99 Deciding whether to accredit
This section requires the administering authority to make a decision to
either accredit or refuse to accredit the ERMP. The administering authority
may only accredit the ERMP if it is satisfied that the ERMP complies with
the content requirements in division 2.
100 Notice of decision
This section requires the administering authority to give the person who
has applied for accreditation notice of the decision under section 99. The
administering authority must give an information notice if it decides to
refuse to accredit the ERMP. `Information notice' is defined in the
Environmental Protection Act 1994 as:
information notice, about a decision, means a written notice stating--
(a) the decision; and
(b) if the decision is a decision other than to impose a condition on an
environmental authority, the reasons for the decision; and
(c) the review or appeal details.
The usual review and appeal provisions of the Environmental Protection
Act 1994 apply.
101 Amended ERMP required if accreditation refused
This section applies if the administering authority makes a decision to
refuse to accredit the ERMP. When that happens, the recipient of the
information notice under section 100 must amend the ERMP to address the
deficiencies identified in the information notice and resubmit it to the
administering authority within 20 business days of receipt of the
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Great Barrier Reef Protection Amendment Bill 2009
information notice. Failure to do so is an offence, with a maximum penalty
of 100 penalty units ($10,000). This is the same level of penalty for
non-compliance with a TEP requirement (section 332 of the Environmental
Protection Act 1994) or for failure to provide an annual return for a TEP
(section 345).
The administering authority may extend the 20 business day time limit. It
is anticipated that extensions would only be granted if the recipient of the
information notice requests an extension and provides reasonable grounds
for why such an extension should be granted.
Division 4 Amendment of accredited ERMPs
102 Application of div 4
This section applies to anyone carrying out an agricultural ERA for which
there is an accredited ERMP.
103 Voluntary amendment
This section provides the process for amendment of the accredited ERMP
at the initiation of the operator of the agricultural ERA.
104 Direction to amend
This section provides the process for amendment of the accredited ERMP
at the initiation of the administering authority. This section sets out the
grounds upon which the administering authority may require amendment
of the accredited ERMP, how the notice is given and the time by which the
operator has to comply.
The direction under this section is taken to be a direction notice for the
purposes of divisions 1 to 3, so it must comply with section 90. The usual
review and appeal provisions of the Environmental Protection Act 1994
apply.
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Great Barrier Reef Protection Amendment Bill 2009
Division 5 Annual reporting
105 Annual reporting requirement
This section requires anyone carrying out an agricultural ERA under an
accredited ERMP to give the administering authority an annual report
about the implementation of the ERMP within 2 months after the end of the
financial year unless the person has a reasonable excuse.
This section links in with the record-keeping requirements. Annual
reporting for the ERMPs is necessary to monitor how the ERMPs are being
implemented and to measure the progress of this package of regulation.
This is similar to the annual reporting which can be required for other
ERAs under section 316 of the Environmental Protection Act 1994. There
is no offence for non-compliance with an annual notice which requires an
annual return under section 316, but if the operator or holder does not
comply with the notice, their approval to operate the ERA may be
cancelled or suspended.
A reasonable excuse could be that the person has been unable to comply
with the requirement due to prolonged hospitalisation, or because their
property has been stricken by fire or flood which has destroyed records of
implementation.
It is an offence to fail to comply with a maximum penalty of 100 penalty
units ($10,000). This is the same level of penalty for non-compliance with
a TEP requirement (section 332 of the Environmental Protection Act 1994)
or for failure to provide an annual return for a TEP (section 345).
7 Amendment of s 320 (Duty to notify environmental harm)
This clause amends section 320 of the Environmental Protection Act 1994
so that a person acting under an accredited ERMP is not required to notify
the administering authority of environmental harm authorised by that
ERMP. A person has a duty to advise the administering authority of serious
or material environmental harm caused or threatened by their acts or
omissions. However, this section does not apply if the harm is authorised
to be caused under a development condition of a development approval, an
environmental authority, a transitional environment program, an
environmental protection order etc. This amendment adds accredited
ERMPs to that list of exemptions.
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Great Barrier Reef Protection Amendment Bill 2009
8 Amendment of s 346 (Effect of compliance with program)
This clause amends section 346 of the Environmental Protection Act 1994
to add accredited ERMPs to the list of approvals affected by transitional
environmental programs (TEPs). The terms of the TEP usually override
any other form of approval or permit. This concept is to be extended to
agricultural ERAs with accredited ERMPs so that a person acting under the
TEP may do, or not do, the thing despite what the accredited ERMP says.
9 Amendment of s 358 (When order may be issued)
This clause amends section 358 of the Environmental Protection Act 1994
to extend the grounds for issuing an environmental protection order (EPO)
to non-compliance with accredited ERMPs. The administering authority
may issue an EPO if, for example, there is non-compliance with a
development approval, environmental authority, or TEP. This amendment
allows an EPO to also be issued where there is non-compliance with a
person's accredited ERMP.
10 Replacement of s 363A (Prescribed provisions)
This clause amends section 363A of the Environmental Protection Act
1994 to extend the grounds for issuing a direction notice to include a
contravention of an accredited ERMP. There is no offence for failure to
comply with an ERMP. This is because an ERMP is designed to be a
flexible document that develops as more information and new technologies
become available and improvements in management practice are made.
However, if a person fails to comply with their accredited ERMP, an
authorised person may issue a direction notice requiring them to take action
or cease action to meet the conditions of their ERMP. The direction notice
is the appropriate tool in these circumstances as it can require action to be
taken to meet the standard set by the ERMP, or require that activities be
ceased until they meet the ERMP.
The current penalty for non-compliance with a direction notice (300
penalty units ($30,000); on-the-spot fines of 10 penalty units ($1000) for
an individual and 20 penalty units ($2000) for a corporation) will apply.
11 Amendment of s 452 (Entry of place-general)
This clause amends section 452 of the Environmental Protection Act 1994
to extend the power of entry to a place where an agricultural ERA is being
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Great Barrier Reef Protection Amendment Bill 2009
carried out. This section contains a general power of entry where the place
is subject to a registration certificate and a Chapter 4 activity is being
carried out. This amendment is necessary to ensure that this power applies
to agricultural ERAs so that offences under the new Chapter 4A may be
enforced.
12 Amendment of s 458 (Order to enter land to conduct
investigation or conduct work)
This clause amends section 458 of the Environmental Protection Act 1994
to extend the power to obtain an order to enter land. An authorised person
may enter land to secure compliance with development conditions of a
development approval, an environmental authority, a transitional
environmental program etc. This amendment permits an authorised person
to also enter land to secure compliance with a person's accredited ERMP.
13 Amendment of s 490 (Evidentiary provisions)
This clause amends section 490 of the Environmental Protection Act 1994
to ensure that the evidentiary provisions apply to the offences in the new
chapter 4A.
14 Amendment of s 493A (When environmental harm or related
acts are unlawful)
This clause amends section 493A of the Environmental Protection Act
1994 to extend the defence to accredited ERMPs. Under this section, it is a
defence to a charge of unlawfully doing a relevant act (including
environmental harm, water contamination) if the defendant was carrying
out a lawful activity and complied with the general environmental duty
(GED). The defendant is taken to have complied with the GED if the
defendant was complying with a relevant approved Code of Practice. This
amendment extends this defence to a defendant who was complying with
their accredited ERMP. However, there are some circumstances where a
code of practice may overlap with an activity required to prepare an ERMP.
In these circumstances, an operator may only rely on complying with a
code of practice to the extent that it relates to a matter not otherwise
covered by an accredited ERMP.
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Great Barrier Reef Protection Amendment Bill 2009
15 Amendment of s 520 (Dissatisfied person)
This clause amends section 520 of the Environmental Protection Act 1994
to ensure that the review and appeal provisions apply to decisions in the
new chapter 4A.
16 Amendment of s 538 (Appeals may be heard with planning
appeals)
This clause amends section 538 of the Environmental Protection Act 1994
to ensure that the review and appeal provisions apply to decisions in the
new chapter 4A.
17 Amendment of s 540 (Required registers)
This clause amends section 540 of the Environmental Protection Act 1994
to require that the administering authority keeps registers of ERMP
directions and accredited ERMPs.
18 Insertion of new ch 13, pt 12
This clause inserts transitional provisions into the Environmental
Protection Act 1994 for this Act.
Part 13 Transitional provisions for Great
Barrier Reef Protection
Amendment Act 2009
657 Deferral of automatic ERMP requirement for existing
agricultural ERAs
This section defers the commencement of section 88(a) until 6 months after
the commencement of the Act. This will allow operators of agricultural
ERAs that were operating before the commencement of the Act time to
obtain an accredited ERMP.
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Great Barrier Reef Protection Amendment Bill 2009
658 Provision of appeals for ch 4
This section gives retrospective application to the appeal provisions in
relation to this Act so that any decision made about a registration certificate
under sections 73F, 73FA, 73L or 73O will, from 23 February 2009, be
subject to the review and appeal provisions of the Environmental
Protection Act 1994. A reprint of the Environmental Protection Act 1994
on 23 February 2009 accidentally omitted these provisions from the
reprint.
While the fundamental legislative principle of retrospectivity would
ordinarily be raised by this section, this section does not adversely affect
rights and liberties, or impose obligations, retrospectively. In fact, this
section is beneficial to members of the community and only adverse to the
State, as it cures a defect in the review and appeal rights of operators with
respect to registration certificates.
19 Amendment of sch 2 (Original decisions)
This clause amends schedule 2 of the Environmental Protection Act 1994 to
ensure that the review and appeal provisions apply to the new chapter 4A.
This clause also amends schedule 2 to correct an error. A reprint of the
Environmental Protection Act 1994 on 23 February 2009 accidentally
omitted these provisions from the reprint. The insertion of section 657 by
clause 18 ensures that this amendment has retrospective application back to
23 February 2009.
20 Amendment of sch 4 (Dictionary)
This clause amends the Dictionary in schedule 4 of the Environmental
Protection Act 1994 to define words and phrases which are used throughout
the Environmental Protection Act 1994.
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Great Barrier Reef Protection Amendment Bill 2009
Part 3 Amendment of Integrated
Planning Act 1997
Clause 21 Act amended
This clause states that this part amends the Integrated Planning Act 1997.
Clause 22 Amendment of s 1.3.5 (Definitions for
terms used in development)
This clause amends the definition of `material change of use' in section
1.3.5 of the Integrated Planning Act 1997 to ensure that agricultural ERAs
are not captured by the Integrated Planning Act 1997.
Clause 23 Amendment of sch 8 (Assessable
development and self-assessable
development)
This clause amends schedule 8 of the Integrated Planning Act 1997 to
ensure that agricultural ERAs are not captured by the Integrated Planning
Act 1997.
Clause 24 Amendment of sch 10 (Dictionary)
This clause amends schedule 10 of the Integrated Planning Act 1997 to
define `agricultural ERA' for the purposes of the Integrated Planning Act
1997 and to ensure that agricultural ERAs are not captured by the
Integrated Planning Act 1997.
© State of Queensland 2009
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