Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Environmental Protection
ENVIRONMENTAL PROTECTION
AMENDMENT BILL 1996
EXPLANATORY NOTES
The Environmental Protection Amendment Act has been drafted to be
consistent with current legislative drafting practice and in modern language.
As a consequence particular sections, clauses and sub-clauses require little
or no further explanation and in these Explanatory Notes those parts will be
repeated or summarised in general terms only.
Short Title
The short title of this Bill is the Environmental Protection Amendment
Act 1996.
Policy Objectives of the Bill
There are two main objectives of this Bill. Firstly, this Bill deals with
matters arising from the Environmental Protection (Interim) Regulation
Amendment (No.2) 1996 and Environmental Protection (Interim)
Regulation Amendment (No.3) 1996. This involves validation of certain
actions taken during the periods covered by these two pieces of subordinate
legislation. Secondly this Bill clarifies other matters which have arisen
during the implementation of the Environmental Protection Act 1994.
How the Policy Objectives will be Achieved
The Bill validates the Environmental Protection (Interim) Regulation
Amendment (No.2) 1996 and Environmental Protection (Interim)
Regulation Amendment (No.3) 1996. The Bill also validates actions taken
by both administering authorities and the public during the period covered
2
Environmental Protection
by these two pieces of subordinate legislation. The Bill also resolves minor
drafting issues, and administrative problems which have arisen as a result
of the implementation of the Act. As these issues are legislative in nature,
an Act of Parliament is the only option available to address them.
Administrative Cost of the Bill
In most cases, the amendments proposed in this Bill will have no effect
on costs, for example, section 47A avoids more complex procedures of
calculating and paying refunds for the unused portion of a cancelled
provisional licence; sections 61A and 236 reduce the peak administrative
load by extending the assessment period for new ERAs and at the end of
the moratorium; and sections 243 to 252 validate a number of actions
during the moratorium to avoid repeating these administrative actions or
defending them in courts if they were challenged. Section 47A removes the
possibility of collecting a duplicate application fee.
Consistency with the Fundamental Legislative Principles
The Bill is consistent with fundamental legislative principles with one
exception. Section 251 provides a regulation making power able to override
the provision of the Environmental Protection Act 1994. This power is
limited to the making of provisions of a transitional nature which relate only
to matters arising from the Environmental Protection (Interim) Regulation
Amendment (No.2) 1996 and the Environmental Protection (Interim)
Regulation Amendment (No.3) 1996. This regulation making power is
necessary as there may be matters arising from these regulation
amendments which were unforeseeable at the time of drafting this
amendment act.
Consultation
Comments have been sought from the following organisations; The
Queensland Office of the Parliamentary Counsel, Crown Law, Department
of Local Government and Planning, Department of Mines and Energy,
Department of Natural Resources, Department of Primary Industries,
Department of Tourism and Small Business and members of the
Ministerial Advisory Committee representing local government and
industry.
3
Environmental Protection
NOTES ON PROVISIONS
Section 1 states the short title of the Act.
Section 2 indicates which Act this Act amends.
Section 3 provides that other than section 13 and 24 which commence on
1 June 1996, the Act commences on the date of Royal Assent.
Section 4 amends the definition of environmental nuisance to remove any
doubt that environmental nuisance is a type of environmental harm.
Section 5 adds the word "enhance" to section 23 of the Environmental
Protection Act 1994 (the Act) in order to make section 23 consistent with
section 25.
Section 6 includes the word "amendment" so that the term "application
date" applies not only to applications for and transfers of licences, but also
to applications for amendment.
Section 7 amends section 39 of the Act to clarify when a licence is
required for activities which become environmentally relevant activities for
the first time (see section 61A).
Section 8 amends section 44 of the Act in order to remove doubt that an
environmental protection policy is able to state procedures which an
administering authority must follow in evaluating, granting or refusing an
application for an environmental authority.
Section 9 amends section 46 of the Act. This amendment highlights the
fact that there are some conditions which must be included in an
environmental authority.
Section 10 inserts a new provision (s.47A) which describes the
procedure for converting a provisional licence into a full licence. A
provisional licence was issued on the basis of insufficient information to
issue a full licence. The holder of the provisional licence may apply for it to
be converted into a full licence. The decision of the administering authority
is on the basis that additional information supplied is sufficient. As the
application form has already been lodged and the application fee already
been paid, the applicant is not required to lodge another form or pay a
second application fee.
Section 11 amends section 49(7) of the Act which refers to the
amendment of licences on the application of the licensee. This amendment
is to ensure that statutory timelines are based on the date the application for
a licence takes effect (s.35), rather than on the date of receipt of the
application.
4
Environmental Protection
Section 12 inserts a new section (s.61A) which provides transitional
timeframes for activities which become environmentally relevant activities
for the first time. An operator has four months to apply for an
environmental authority after an activity first becomes an environmentally
relevant activity.
Despite section 43(1) of the Act under which an administering authority
has 28 days to consider an application, the amendment provides three
months for such consideration for those activities which have become
activities for the first time.
This new section also provides that once an application has been
submitted, an applicant cannot be prosecuted simply for carrying out an
environmentally relevant activity without an authority until the licence takes
effect or has been refused.
Section 13 changes the timing of the anniversary day in section 68. Prior
to the amendment the anniversary day was based on the anniversary of the
day a licence was issued. It is possible for a licence to be issued in advance
but not to take effect for a substantial period of time. This amendment
provides for the anniversary day to be the anniversary of the day a licence
takes effect.
Section 14 amends section 88. The amendment simply removes an
inconsistency in drafting, i.e. the Act requires public notice, not the
administering authority.
Section 15 amends section 89 of the Act in order to remove doubt that an
environmental protection policy is able to state procedures which an
administering authority must follow in evaluating, granting or refusing an
application for a draft environmental management program.
Section 16 amends section 92 of the Act. This clarifies a minor
typographical error.
Section 17 amends section 196 of the Act to allow a local government to
set "the fees payable to it for the devolved matter" by resolution as well as
by local law. However a local government is not able to set a fee higher than
a fee which has already been prescribed in the Regulation.
Section 18 provides that a regulation or environmental protection policy
may prescribe a person to which a decision under the regulation or policy
relates, to be a dissatisfied person for the purposes of review and appeal
under section 200(1).
Section 19 amends section 202 to clarify the statutory timelines for
consideration of an application for review and the notification of the
decision. This amendment provides for 14 day period within which an
5
Environmental Protection
administering authority must consider an application for review and a
further 14 day period within which the administering authority must notify
the applicant. If the administering authority does not make a decision and
notify the applicant within 28 days, the administering authority is deemed to
have made a decision confirming the decision.
Section 20 simply amends section 220 of the Act to allow Regulations to
be made to either reduce or waive the requirements to pay fees.
Section 21 amends the heading of Chapter 8 of the Act to indicate that
this Chapter now includes validatory provisions.
Section 22 amends the definition of "commencing day" in section 224 of
the Act. This amendment clarifies the date of the commencing day.
Section 23 inserts three new transitional provisions, sections 236, 236A
and 237. Section 236 extends the administering authority's timeframe to
decide an application made prior to 1 July 1996, from 28 days to 3 months.
Section 236A exempts a person from section 39 of the EP Act and
section 5 of the Regulation, if an application was lodged before the end of
the moratorium. This gives the full effect of the moratorium to continuing
activities by exempting the person from the need to have a licence or an
approval until the application is refused or the licence or approval takes
effect.
Section 237 removes the need to repeat the first round of consultation for
the noise and waste environmental protection policies already undertaken.
Section 24 inserts a new transitional provision (section 240) which
simply confirms that a notice (under section 68) sent to the holder of a
licence requiring them to pay their annual licence fee before the date of
commencement of this Act is still valid and that the anniversary day shall be
based on the day the licence was issued, rather than the day the licence took
effect.
Section 25 inserts a new subsection to section 238. The transitional
arrangements for the agricultural industry now expire on the 1 September
1997 rather than 1 March 1997.
Section 26 inserts a new transitional section 241. This amendment
provides for the expiry of this division.
Section 27 inserts a new part 3 of Chapter 8 to validate and clarify the
effect of the moratorium on licensing.
Section 242 defines various terms used in this new part.
Section 243 validates existing regulations relating to the waiver of fees.
6
Environmental Protection
Section 244 ensures that the amending regulations establishing the
moratorium were validly made.
Section 245 ensures that any actions or omissions undertaken by the
administering authority such as issuing a licence or approving a draft
environmental management program, during the period 1 March 1996 to 7
March 1996 were valid.
Section 246 provides that a notice requiring payment of the annual
licence fee, given between 1 March 1996 and 7 March 1996 was validly
given.
Section 247 ensures that if an unlawful past act was done and unlawful
environmental harm was caused because of the suspension of the licensing
system between 1 March 1996 and 7 March 1996, the act that would
otherwise have been illegal is authorised.
Section 248 ensures that applications for matters dealing with licences
made between 1 March 1996 and 7 March 1996 are deemed to have been
made on 8 March 1996. This means that calculation of the application date
is based on the 8 March 1996, rather than the date the application was
lodged.
Section 249 ensures that if an administering authority was deemed to
have been refused an application during the suspension period (section 68),
the applicant does not need to relodge the application or pay another fee.
This section also provides that the application date is deemed to be on the
commencement of this section, and the administering authority has 3
months from this date for consideration of the application.
Section 250 ensures that if the anniversary day for a licence fell between
1 March 1996 and 7 March 1996, the anniversary day is taken to be that
date, despite the amending regulations.
Section 251 provides a regulation making power for matters arising out
of the Environmental Protection (Interim) Regulation Amendment (No2)
1996 and the Environmental Protection (Interim) Regulation Amendment
(No3) 1996. Any regulations made under this section may apply to matters
which arose before this section commenced and may refer to matters to
which another provision of this Act applies.
Section 252 indicates when this part expires.
© The State of Queensland 1996