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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Environment and Infrastructure
Legislation Amendment (Stop Adani)
Bill 2017
No. , 2017
(Senator Waters)
A Bill for an Act to amend the Environment
Protection and Biodiversity Conservation Act 1999,
and for other purposes
No. , 2017
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Environment Protection and Biodiversity
Conservation Act 1999
3
Part 1--Amendments
3
Environment Protection and Biodiversity Conservation Act 1999
3
Part 2--Application and transitional provisions
6
Schedule 2--Northern Australia Infrastructure Facility Act
2016
9
Northern Australia Infrastructure Facility Act 2016
9
No. , 2017
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
1
A Bill for an Act to amend the Environment
1
Protection and Biodiversity Conservation Act 1999,
2
and for other purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the Environment and Infrastructure Legislation
6
Amendment (Stop Adani) Act 2017.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
No. , 2017
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Environment Protection and Biodiversity Conservation Act 1999 Schedule 1
Amendments Part 1
No. , 2017
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
3
Schedule 1--Environment Protection and
1
Biodiversity Conservation Act 1999
2
Part 1--Amendments
3
Environment Protection and Biodiversity Conservation Act
4
1999
5
1 Paragraph 131AA(2)(c)
6
Omit "subsection 136(4)", substitute "subsection 136(1A)".
7
2 Subsection 136(1)
8
Repeal the subsection, substitute:
9
Mandatory considerations
10
(1) In deciding whether or not to approve the taking of an action by a
11
person, and what conditions to attach to an approval, the Minister
12
must consider the following, so far as they are not inconsistent with
13
any other requirement of this Subdivision:
14
(a) whether the person is a suitable person to be granted an
15
approval;
16
(b) matters relevant to any matter protected by a provision of
17
Part 3 that the Minister has decided is a controlling provision
18
for the action;
19
(c) economic and social matters.
20
Factors the Minister must have regard to--suitable person
21
(1A) For the purposes of paragraph (1)(a), the Minister must have regard
22
to the following, whether within or outside Australia:
23
(a) the person's history in relation to environmental matters;
24
(b) if the person is a body corporate--the history of its executive
25
officers in relation to environmental matters;
26
(c) if the person is a body corporate that has an associated
27
entity--the history in relation to environmental matters of the
28
associated entity and the entity's executive officers;
29
(d) any other matter the Minister considers to be relevant.
30
Schedule 1 Environment Protection and Biodiversity Conservation Act 1999
Part 1 Amendments
4
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
No. , 2017
3 Subsection 136(2) (heading)
1
Repeal the heading, substitute:
2
Factors to be taken into account--protected, economic and social
3
matters
4
4 Subsection 136(2)
5
Omit "In considering", substitute "For the purposes of paragraphs (1)(b)
6
and (c), in considering".
7
5 Subsection 136(4)
8
Repeal the subsection.
9
6 Subsection 143(3)
10
Repeal the subsection, substitute:
11
(3) In deciding whether or not to revoke, vary or add to any conditions
12
attached to the approval of the taking of an action by a person, the
13
Minister must have regard to the following, whether within or
14
outside Australia:
15
(a) the person's history in relation to environmental matters;
16
(b) if the person is a body corporate--the history of its executive
17
officers in relation to environmental matters;
18
(c) if the person is a body corporate that has an associated
19
entity--the history in relation to environmental matters of the
20
associated entity and the entity's executive officers;
21
(d) any other matter the Minister considers to be relevant.
22
7 Subsection 144(3)
23
Repeal the subsection, substitute:
24
(3) In deciding whether or not to suspend an approval of the taking of
25
an action by a person, the Minister must have regard to the
26
following, whether within or outside Australia:
27
(a) the person's history in relation to environmental matters;
28
(b) if the person is a body corporate--the history of its executive
29
officers in relation to environmental matters;
30
Environment Protection and Biodiversity Conservation Act 1999 Schedule 1
Amendments Part 1
No. , 2017
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
5
(c) if the person is a body corporate that has an associated
1
entity--the history in relation to environmental matters of the
2
associated entity and the entity's executive officers;
3
(d) any other matter the Minister considers to be relevant.
4
8 Subsection 145(3)
5
Repeal the subsection, substitute:
6
(3) In deciding whether or not to revoke an approval of the taking of
7
an action by a person, the Minister must have regard to the
8
following, whether within or outside Australia:
9
(a) the person's history in relation to environmental matters;
10
(b) if the person is a body corporate--the history of its executive
11
officers in relation to environmental matters;
12
(c) if the person is a body corporate that has an associated
13
entity--the history in relation to environmental matters of the
14
associated entity and the entity's executive officers;
15
(d) any other matter the Minister considers to be relevant.
16
9 Subsection 145B(4)
17
Repeal the subsection, substitute:
18
Considerations in deciding whether to consent
19
(4) In deciding whether or not to consent to the transfer, the Minister
20
must consider:
21
(a) whether the transferee would be a suitable person to be
22
granted the approval, having regard to the following, whether
23
within or outside Australia:
24
(i) the transferee's history in relation to environmental
25
matters;
26
(ii) if the transferee is a body corporate--the history of its
27
executive officers in relation to environmental matters;
28
(iii) if the transferee is a body corporate that has an
29
associated entity--the history in relation to
30
environmental matters of the associated entity and the
31
entity's executive officers;
32
(iv) any other matter the Minister considers to be relevant;
33
and
34
Schedule 1 Environment Protection and Biodiversity Conservation Act 1999
Part 2 Application and transitional provisions
6
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
No. , 2017
(b) whether the transferee can comply with the conditions
1
attached to the approval.
2
10 Section 528
3
Insert:
4
associated entity has the same meaning as in the Corporations Act
5
2001.
6
Part 2--Application and transitional provisions
7
11 Application
8
(1)
This item applies in relation to the following decisions under Part 9 of
9
the Environment Protection and Biodiversity Conservation Act 1999:
10
(a) to approve or refuse to approve the taking of an action;
11
(b) to revoke, vary or add a condition attached to an approval;
12
(c) to suspend an approval;
13
(d) to revoke an approval;
14
(e) to consent or refuse to consent to the transfer of an approval.
15
(2)
The amendments made by this Schedule apply in relation to a decision
16
that is made on or after the day this item commences.
17
12 Review of existing approvals
18
(1)
The Secretary must review whether each holder of an approval under
19
the Environment Protection and Biodiversity Conservation Act 1999
20
relating to the following referral numbers is a suitable person to hold the
21
approval:
22
(a) referral number 2010/5736 (Adani Mining Pty
23
Ltd/Mining/Moray Downs Cattle Station 160km North West
24
of Clermont/QLD/Carmichael Coal Mine and Rail Project);
25
(b) referral number 2011/6194 (Adani Abbot Point Terminal Pty
26
Ltd/Mining/Port of Abbot Point/QLD/Abbot Point Coal
27
Terminal 0);
28
(c) referral number 2013/6885 (Adani Mining Pty
29
Ltd/Transport - land/Carmichael Mine & Rail Project's rail to
30
Port of Abbot Point/QLD/North Galilee Basin Rail Project).
31
Environment Protection and Biodiversity Conservation Act 1999 Schedule 1
Application and transitional provisions Part 2
No. , 2017
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
7
Note:
In 2017, information relating to referrals was available from the EPBC Act public
1
notices database on the Department's website
2
(http://www.environment.gov.au/epbc/public-notices).
3
(2)
For the purposes of a review under subitem (1), the Secretary must have
4
regard to the following, whether within or outside Australia:
5
(a) the holder's history in relation to environmental matters;
6
(b) if the holder is a body corporate--the history of its executive
7
officers in relation to environmental matters;
8
(c) if the holder is a body corporate that has an associated entity
9
(within the meaning of the Corporations Act 2001)--the
10
history in relation to environmental matters of the associated
11
entity and the entity's executive officers;
12
(d) any other matter the Secretary considers to be relevant.
13
(3)
Each review under subitem (1):
14
(a) must start on or before 20 business days after the
15
commencement of this item; and
16
(b) must be concluded within 40 business days after the
17
commencement of this item.
18
(4)
The Secretary must:
19
(a) give the Minister a written report of each review; and
20
(b) publish a copy of each report on the Department's website as
21
soon as practicable after the day the Minister is given the
22
report.
23
(5)
The Minister must cause a copy of each report to be tabled in each
24
House of the Parliament within 15 sitting days of that House after the
25
day the Minister is given the report.
26
(6)
As soon as practicable, but no later than 10 business days, after
27
receiving each report, the Minister must:
28
(a) consider the report; and
29
(b) consider or reconsider, as the case may be, whether the
30
holder is a suitable person to hold the approval, having regard
31
to the following, whether within or outside Australia:
32
(i) the holder's history in relation to environmental matters;
33
(ii) if the holder is a body corporate--the history of its
34
executive officers in relation to environmental matters;
35
Schedule 1 Environment Protection and Biodiversity Conservation Act 1999
Part 2 Application and transitional provisions
8
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
No. , 2017
(iii) if the holder is a body corporate that has an associated
1
entity (within the meaning of the Corporations Act
2
2001)--the history in relation to environmental matters
3
of the associated entity and the entity's executive
4
officers;
5
(iv) any other matter the Minister considers relevant.
6
(7)
If the Minister considers that the holder is not a suitable person to hold
7
the approval, the Minister:
8
(a) must notify the holder; and
9
(b) may, by written instrument, do any of the following:
10
(i) revoke, vary or add to any conditions attached to the
11
approval;
12
(ii) suspend the effect of the approval;
13
(iii) revoke the approval.
14
(8)
The revocation, variation, addition or suspension takes effect on the day
15
specified in the instrument. The Minister must not specify a day earlier
16
than the day the instrument is made.
17
(9)
As soon as practicable after making the instrument, the Minister must:
18
(a) give a copy of it to the holder of the approval; and
19
(b) publish a copy of the instrument on the Department's
20
website.
21
(10)
However, the Minister must not publish so much of the instrument as:
22
(a) is:
23
(i) an exempt document under section 47 of the Freedom of
24
Information Act 1982 (trade secrets etc.); or
25
(ii) a conditionally exempt document under section 47G of
26
that Act (business documents) to which access would,
27
on balance, be contrary to the public interest for the
28
purposes of subsection 11A(5) of that Act; or
29
(b) the Minister believes it is in the national interest not to
30
publish.
31
The Minister may consider the defence or security of the
32
Commonwealth when determining what is in the national interest. This
33
does not limit the matters the Minister may consider.
34
Northern Australia Infrastructure Facility Act 2016 Schedule 2
No. , 2017
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
9
Schedule 2--Northern Australia Infrastructure
1
Facility Act 2016
2
3
Northern Australia Infrastructure Facility Act 2016
4
1 Section 5
5
Insert:
6
associated entity has the same meaning as in the Corporations Act
7
2001.
8
executive officer has the same meaning as in the Environment
9
Protection and Biodiversity Conservation Act 1999.
10
2 After subsection 11(2)
11
Insert:
12
(2A) The proposal notice must include an assessment by the Facility of
13
whether the entity responsible for the project for which the
14
financial assistance is proposed to be provided is a suitable person
15
to benefit from the financial assistance.
16
(2B) For the purposes of an assessment under subsection (2A), the
17
Facility must have regard to the following, whether within or
18
outside Australia:
19
(a) the person's history in relation to environmental matters;
20
(b) if the person is a body corporate--the history of its executive
21
officers in relation to environmental matters;
22
(c) if the person is a body corporate that has an associated
23
entity--the history in relation to environmental matters of the
24
associated entity and the entity's executive officers;
25
(d) subject to the regulations, whether any of the following has
26
been convicted of, or investigated in relation to, an offence:
27
(i) the person;
28
(ii) if the person is a body corporate--its executive officers;
29
(iii) if the person is a body corporate that has an associated
30
entity--the associated entity and the entity's executive
31
officers;
32
Schedule 2 Northern Australia Infrastructure Facility Act 2016
10
Environment and Infrastructure Legislation Amendment (Stop Adani)
Bill 2017
No. , 2017
(e) any other matter prescribed by the regulations;
1
(f) any other matter the Facility considers to be relevant.
2
(2C) In undertaking an assessment under subsection (2A), the Facility
3
must consult with the following:
4
(a) the Department administered by the Minister administering
5
the Environment Protection and Biodiversity Conservation
6
Act 1999;
7
(b) the Australian Securities and Investments Commission;
8
(c) the Australian Crime Commission.
9
3 At the end of section 11
10
Add:
11
(6) Despite subsection (5), the Minister must give the rejection notice
12
before the end of the Minister's consideration period if the
13
Facility's assessment under subsection (2A) is that the entity
14
responsible for the project for which the financial assistance is
15
proposed to be provided is not a suitable person to benefit from the
16
financial assistance.
17
4 Application of amendments
18
The amendments made by this Schedule apply in relation to proposal
19
notices given on or after the day this item commences.
20
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