Commonwealth of Australia Explanatory Memoranda

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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (EXPANDING THE WATER TRIGGER) BILL 2023

                            2022-2023




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



               HOUSE OF REPRESENTATIVES




Environment Protection and Biodiversity Conservation Amendment
            (Expanding the Water Trigger) Bill 2023




              EXPLANATORY MEMORANDUM

                                and

   STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS




                      Circulated by authority of

            the Member for Mackellar, Dr Sophie Scamps MP




                                                                 1


Environment Protection and Biodiversity Conservation Amendment (Expanding the Water Trigger) Bill 2023 1. This Bill is for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999 (specifically, to expand the water trigger in that Act), and for related purposes (the Bill). Purpose 2. The Bill is intended to expand the circumstances in which certain petroleum mining developments must be assessed and approved by the Federal Environment Minister under Part 3, Division 1 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). 3. Currently, the EPBC Act requires Federal assessment and approval of 'coal seam gas developments'1 and 'large coal mining developments,'2 if those developments have, will, or are likely to have, a significant impact on a water resource.3 In this way, water resources are classified as Matters of National Environmental Significance under the EPBC Act (MNES), and required to be referred to the Federal Environment Minister for Approval,4 a legislative mechanism referred to as the water trigger. 4. The Bill repeals the reference to 'coal seam gas development' in the EPBC Act and replaces it with 'unconventional gas development', in order to capture mining developments for all forms of unconventional gas, including coal seam gas, shale and tight gas. The effect of this change is that these unconventional gas developments will be required to be referred to the Federal Environment Minister for assessment and approval under the EPBC Act. In other words, the Bill expands the water trigger to include all forms of unconventional gas developments, not just coal seam gas developments, which are currently not subject to the EPBC Act. Background to the enactment of the water trigger 5. The move to include a water trigger in the EPBC Act resulted from public concern around potential impacts to surface water and groundwater resources that were predicted to result from several prominent coal seam gas and coal mining proposals in NSW and Queensland. This was coupled with community perceptions that state-based regulatory systems were not doing enough to protect valuable water resources relied on by communities and farmers.5 6. According to the Report of the Independent Review of the Water Trigger Legislation (the Hunter Report), "the stated policy intention of enacting the water trigger was to address a perceived gap in an existing Australian Government regulatory regime, the EPBC Act, 1 Section 24D(1)(a)(i) of the EPBC Act. 2 Section 24D(1)(a)(i) of the EPBC Act. 3 Section 24D(1)(b)(i and ii) of the EPBC Act. 4 Section 34 of the EPBC Act. 5 Sarah Clarke and Timothy McDonald, 'Debate rages over coal seam gas plans', ABC News, 2 August 2011; Ian Kirkwood, 'Bore war: Residents fight coal seam gas', Newcastle Hearld, 1 November 2012; Rebekah Kebede, 'Australia's coal-seam gas industry feels the political heat', Reuters, 16 November 2011; 2


and to respond to public concern about the impacts to water resources of coal seam gas and large coal mining development'.6 7. In 2011, the Independent Member for the seat of New England, Tony Windsor, introduced a private member's bill to the House of Representatives to include a water trigger in the EPBC Act.7 Also in 2011, Greens Senator Larissa Waters introduced a bill to the Senate for the same purpose.8 Enactment of the water trigger in 2013 8. The bill to insert the water trigger into the EPBC Act was introduced to the House of Representatives by the then Minister for the Environment, Tony Burke, on 13 March 2013, and passed the Parliament on 19 June 2013. 9 In his second reading speech, Minister Burke noted that the proposed amendments were 'the product of a long period of engagement with the community, as well as with members of this parliament'.10 Minister Burke explained the proposed amendments would address the inability of the Minister to consider the impacts of a proposed development on water resources in circumstances where the impacts did not also directly or indirectly impact an existing MNES. 9. The water trigger operates in the same way as other MNES. A project proponent is required to refer a proposed action for a decision on whether or not the proposed action is a controlled action.11 The Minister can also request referral of proposed actions.12 The Minister for the Environment (or their delegate) makes a decision as to whether or not the proposed action is a controlled action and how the proposed action should be assessed.13 10. If an action involving CSG or a large coal mining development is determined to be a controlled action, the Minister is required to seek and consider the scientific advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC).14 11. There have been no further changes to sections 24D or 24E of the EPBC Act since their commencement on 22 June 2013. 6 Stephen Hunter, Independent Review of the Water Trigger Legislation, (Canberra: Commonwealth of Australia, April 2017), 5. 7 Environment Protection and Biodiversity Conservation Amendment (Mining, Petroleum and Water Resources) Bill 2011 (Cth). 8 Environment Protection and Biodiversity Conservation Amendment (Protecting Australia's Water Resources) Bill 2011 (Cth). 9 Environment Protection and Biodiversity Conservation Amendment Bill 2013 (Cth). 10 Tony Burke (Minister for Sustainability, Environment, Water, Population and Communities), Second Reading Speech: Environment Protection and Biodiversity Conservation Amendment Bill 2013, House of Representatives, Debates, 13 March 2013, 1846. 11 EPBC Act, section 68. 12 EPBC Act, section 70. 13 EPBC Act, sections 75 and 87. 14 EPBC Act, section 131AB. 3


Need to expand the water trigger to include all unconventional gas developments 12. In the same way as in the years leading up to the insertion of the water trigger for coal seam gas and large coal mining developments, there is now significant community concern about the impact of different forms of unconventional gas developments (other than just coal seam gas) on water resources.15 13. These concerns have arisen as a result of: a) an increase in the number of proposed projects involving the production (exploration and extraction) of unconventional gas; b) permissive state and territory regulatory environments which, without Federal oversight, will enable these projects to proceed without an assessment of the impact on water resources; and c) imminent droughts and water shortages in regions where fracking - a water-intensive activity - are proposed. 14. In May 2023, the Northern Territory government announced it would allow fracking to commence in the Territory.16 As at October 2023, transition from exploration to the granting of production licences is imminent for a number of unconventional gas fracking projects. 15. The key fracking proponent in the Northern Territory's Beetaloo Basin, Tamboran Resources, has publicly stated it intends to start producing gas from their fracking operations as soon as next year, with domestic gas sales by the end of 2025.17 In addition, Empire Energy has confirmed that it anticipates commercial production of its projects in the Beetaloo Basin by 2025.18 16. In Western Australia's Kimberley region, Black Mountain Oil and Gas has a proposed 20 well exploration and appraisal program19 which it has not referred to the Federal Government under national environment laws. If the water trigger is not expanded, these wells may be approved without the Federal government having been required to assess the impacts. 17. In September 2023, the Bureau of Meteorology issued a Climate Driver Update20 confirming that much of Australia will see warmer and drier conditions over the next three months, and reduced spring and summer rainfall. Precious water resources will be under immense strain and agricultural yield reduced. As unconventional gas reserves are often found in dry areas, extraction poses additional challenges in what are often already water-stressed environments. 15 Lisa Cox, '"Water is life": Indigenous musicians take Beetaloo basin anti-fracking message to Canberra', The Guardian, 16 September 2023. 16 Northern Territory Government, 'Final Implementation Report, Hydraulic Fracturing in the Northern Territory', 9 May 2023. 17 Colin Packham, 'Beetaloo gas developer targets production in 2024 after NT ruling', Financial Review, 4 May 2023. 18 Paul Sanger, 'Wheels in motion for Empire Energy's future large scale well drilling projects', Sharecafe, 7 September 2023. 19 Government of Western Australia, Application Form for the referral of a proposal to the Envinroment Protection Authority under Section 38 of the Environmental Protection Act 1986. 20 Australian Government, Bureau of Meteorology, 'Climate Driver Update', 26 September 2023. 4


Recommendations to expand the water trigger 18. There have been a series of parliamentary and independent inquiries which have recommended the expansion of the water trigger in the manner proposed in the Bill. 19. In March 2018, the final report of the Northern Territory Government's Scientific Inquiry into Hydraulic Fracturing in the Northern Territory21 was released (the Pepper Report). The Pepper Report recommended that "the Australian Government amends the EPBC Act to apply the 'water trigger' to onshore gas development."22 20. In October 2020, the final report of the Federal Government-commissioned Independent Review of the EPBC Act23 was released (the Samuel Report). 21. Following the Pepper and Samuel Reports, in December 2022, the Federal Government released its formal response to the Samuel Report, entitled the 'Nature Positive Plan'.24 In Appendix A of that Plan, the government committed to amend the water trigger to include all forms of unconventional gas.25 22. On 23 June 2021, the Senate referred an inquiry into oil and gas exploration and production in the Beetaloo Basin to the Senate Environment and Communications References Committee. In April 2023, that Committee published its report on Oil and Gas Exploration and Production in the Beetaloo Basin (the Senate Report).26 23. Recommendation 3 of the Senate Report was that the "Australian Government bring forward legislation to amend the EPBC Act to expand the water trigger to include all forms of unconventional gas, to be in operation by 31 December 2023." 27 24. Twelve Senators on the Committee were involved in the drafting of the Senate Report: two Australian Greens, four Labor Party (government) Senators, five Coalition Senators and one Independent Senator. The Coalition Senators produced a dissenting report, and Independent Senator Thorpe published additional comments. No Government Senator indicated any disagreement with the recommendations of the Senate Report. 21 Northern Territory Government, The Scientific Inquiry into Hydraulic Fracturing in the Northern Territory, 27 March 2018. 22 The Pepper Report, Recommendation 7.3, page 22. 23 Professor Graeme Samuel AC, Independent Review of the EPBC Act - Final Report, October 2020. 24 Australian Government, 'Nature Positive Plan: better for the environment, better for business', December 2022. 25 In fact, the Australian Labor Party's commitment to expand the water trigger in this way was first made in May 2016, as a promise ahead of the 2016 federal election: Babs McHugh, 'Labor and Greens battle over proposals to extend water trigger legislation to include shale and other gas operations', ABC News, 27 May 2016. 26 Australian Senate Standing Committee on Environment and Communications, 'Report into oil and gas exploration and production in the Beetloo Basin', April 2023. 27 Recommendation 3, pages ix and 35 of the Senate Report. 5


Expansion of the water trigger 25. The Bill seeks to ensure that all unconventional gas developments are subject to the requirements of the water trigger. That is, proponents of all unconventional gas projects (not just coal seam gas) likely to have a significant impact on water resources will be required to refer a proposed action for a decision on whether or not the proposed action is a controlled action.28 The Minister can also request referral of proposed actions29. The Minister for the Environment (or their delegate) would then be required to make a decision as to whether or not the proposed action is a controlled action and how the proposed action should be assessed.30 26. If an action involving unconventional gas developments (and large coal mining developments) are determined to be a controlled action, the Minister would be required to seek and consider the scientific advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC).31 Notes on schedules in the Bill Part 1 27. Schedule 1, Part 1 to the Bill has two objectives: a) to remove the phrase "coal seam gas development" and replace it with the phrase "unconventional gas development" wherever it appears in the Act; and b) to introduce a definition of the phrase "unconventional gas development". 28. In this way, the water trigger is expanded to apply not only to coal seam gas developments, but also to all forms of unconventional gas development. The phrase "large coal mining development" is not proposed to be amended by the Bill, such that large coal mining developments remain subject to the water trigger. Part 2 29. Schedule 1, Part 2 to the Bill contains application and transitional provisions including: a) definitions of "new law", "old law" and "transitional period"; b) sections clarifying the treatment of coal seam gas developments and unconventional gas developments during the transition period. c) sections permitting the making of regulations. 28 EPBC Act, section 68. 29 EPBC Act, section 70. 30 EPBC Act, sections 75 and 87. 31 EPBC Act, section 131AB. 6


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Environment Protection and Biodiversity Conservation Bill 2023 1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill 2. The Bill is intended to expand the circumstances in which certain petroleum mining developments must be assessed and approved by the Federal Environment Minister under Part 3, Division 1 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). 3. Currently, the EPBC Act requires Federal assessment and approval of 'coal seam gas developments'32 and 'large coal mining developments,'33 if those developments have, will, or are likely to have, a significant impact on a water resource.34 In this way, water resources are classified as Matters of National Environmental Significance under the EPBC Act (MNES), and required to be referred to the Federal Environment Minister for Approval,35 a legislative mechanism referred to as the water trigger. 4. The Bill repeals the reference to 'coal seam gas development' in the EPBC Act and replaces it with 'unconventional gas development', in order to capture mining developments for gas other than just coal seam gas, such as shale and tight gas. The effect of this change is that all unconventional gas developments will be required to be referred to the Federal Environment Minister for approval under the EPBC Act. In other words, the Bill expands the water trigger to include all unconventional gas developments, which are currently not subject to the EPBC Act. Expansion of the water trigger 5. The Bill seeks to ensure that all unconventional gas developments are subject to the requirements of the water trigger. That is, proponents of all unconventional gas projects will be required to refer a proposed action for a decision on whether or not the proposed action is a controlled action.36 The Minister can also request referral of proposed actions37 (the so-called "call-in power"). The Minister for the Environment (or their delegate) would then be required to make a decision as to whether or not the proposed action is a controlled action and how the proposed action should be assessed.38 32 Section 24D(1)(a)(i) of the EPBC Act. 33 Section 24D(1)(a)(i) of the EPBC Act. 34 Section 24D(1)(b)(i and ii) of the EPBC Act. 35 Section 34 of the EPBC Act. 36 EPBC Act, section 68. 37 EPBC Act, section 70. 38 EPBC Act, sections 75 and 87. 7


6. If an action involving unconventional gas developments (and large coal mining developments) are determined to be a controlled action, the Minister would be required to seek and consider the scientific advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC).39 Human rights implications 7. The proposed Bill engages the right to work (Part III, Article 6) under the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to work 8. The right to work is contained in Article 6 of the ICESCR which provides that: 1. "The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual." 9. The Bill only seeks to limit the right to work, to the extent that an individual's right to work is affected by a possible rejection of an application for an unconventional gas development project. (Work may have been available at projects which otherwise may have proceeded but for the enactment of the Bill.) 10. The Bill only allows the rejection of such an application in circumstances where the project has or is likely to have a significant negative impact on water resources, being a MNES. The ability of the Federal Minister to reject such an application is a measure to ensure the environment is protected, biodiversity is conserved, and climate change impacts are reduced. If those objectives are not achieved, an individual's right to work in the Australian economy will be more severely impacted by environment destruction, biodiversity loss and catastrophic climate change than by the halting of a specific unconventional gas project. 11. These limitations are necessary, reasonable and proportionate for the reasons outlined above. The Bill does not otherwise impose any restrictions on an individual's right to work. 12. The Bill is compatible with the right to work. 39 EPBC Act, section 131AB. 8


Conclusion 13. The Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. 9


 


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