Jenny McAllister (NSW, Australian Labor Party, Assistant Minister for Climate Change and Energy) Share this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to the Nature Repair Market (Consequential Amendments) Bill 2023. Due to the routine of business today, I didn't, like others, have the opportunity to make a summing-up speech in the usual way. I want to take the opportunity now to place certain matters before the Senate and acknowledge the debate that has occurred so far, and I thank senators for their contributions.

This bill supports the operation of the nature repair market being established under the Nature Repair Market Bill. The bill will make it easier for businesses and philanthropic organisations to invest in reversing environmental decline and repairing and restoring nature. This bill will amend the Clean Energy Regulator Act to enable the Clean Energy Regulator to effectively regulate the nature repair market. This includes allowing for members of the regulator to have relevant experience in the market. This bill will also amend the National Greenhouse and Energy Reporting Act to allow the nature repair market to utilise the expertise of qualified and experienced auditors, ensuring integrity in the delivery of biodiversity projects.

Minister Plibersek has worked closely with Minister Bowen, the Minister for Climate Change and Energy, and they are committed to a nature repair market with integrity and transparency. This includes ensuring that the Clean Energy Regulator is resourced in operating to deliver its regulatory functions efficiently and effectively. The Clean Energy Regulator will be able to delegate its powers to staff within the environment department. This will ensure that the regular has access to the best expertise available for its regulatory powers and functions.

Earlier today, I circulated government amendments to the bill. These amendments will amend the Environment Protection and Biodiversity Conservation Act 1999 to expand the water trigger to cover unconventional gas developments. Before the election Labor promised to do this, and we are delivering. This is a commonsense change. It provides business with certainty, and it provides the community with confidence that water resources and our environment are properly regulated and protected. The update will expand the water trigger to include other types of unconventional gas projects, such as shale gas projects, which are emerging as a potential new use of fracking in Australia. Most new gas projects will be unaffected by the change as coal seam gas production is already covered by the existing water trigger, and the trigger does not apply to conventional gas production.

The transitional arrangements will provide certainty for business and ensure continuity of gas supply. Existing gas projects that are in commercial operation and already have a Commonwealth, state or territory approval are unaffected by the new laws. For clarity, a project is not in commercial operation merely because it is in the planning, exploration or appraisal phase, irrespective of any sale of gas from this precommercial activity. Projects regulated by the National Offshore Petroleum Safety and Environmental Management Authority, NOPSEMA, will also be unaffected by this update. The water trigger will also not apply to projects that have already been through the EPBC Act approval process. The water trigger will apply to all unconventional gas production that has a significant impact on water resources. This includes all activities associated with the different phases of the production process, including exploration, appraisal, extraction, recovery or intentional release of gas, whether by drilling, hydraulic fracturing or other means.

The expansion of the water trigger has been an important issue for Northern Territory parliamentarians, particularly the member for Lingiari, Marion Scrymgour, and Senator McCarthy, and I acknowledge their work and advocacy. This issue, more broadly, is important for many First Nations communities. I acknowledge that their concerns are broader than proper environmental regulation of water. Water has important cultural value, and First Nations communities are rightly concerned to protect this value as well. We will keep working with First Nations on this as we implement these laws.

The Senate Standing Committee on Environment and Communications held an inquiry into the bill, which included public hearings and the receipt of written submissions. The committee's report was released on 4 December. The committee made one recommendation, which is that both the Nature Repair Market Bill 2023 and the Nature Repair Market (Consequential Amendments) Bill 2023 be passed, and the government accepts this recommendation.

I conclude by indicating that we are delighted to have received support from many members of the crossbench for an update to the water trigger. We are grateful for their willingness to support the government pursuing this alongside this other important government initiative, the nature repair market. We have agreed to support a number of amendments proposed by the Greens—principally, amendments to prevent biodiversity certificates being used as environmental offsets and to remove references to offsets from the bill and an amendment to change the name of the bill. We, of course, appreciate the conversations we have with the crossbench every day on delivering our commitments, and that includes the conversations we've had about the nature repair market and expanding the water trigger. I thank senators again for their contributions. I commend the bills to the Senate.

With respect to the Nature Repair Market (Consequential Amendments) Bill 2023, I seek leave to move government amendments (1) and (2) on sheet SF110 together.

Leave granted.

I move:

(1) Clause 2, page 2 (table), omit the table (not including the note), substitute:

(2) Page 8 (after line 22), at the end of the bill, add:

Schedule 2—Protecting water resources from additional kinds of unconventional gas developments

Part 1—Amendments

Environment Protection and Biodiversity Conservation Act 1999

1 Subdivision FB of Division 1 of Part 3 (heading)

Omit "coal seam gas development", substitute "unconventional gas development".

2 Subparagraphs 24D(1)(a)(i), (2)(a)(i) and (3)(a)(i)

Repeal the subparagraphs, substitute:

(i) unconventional gas development; or

3 Subparagraphs 24E(1)(a)(i), (2)(a)(i) and (3)(a)(i)

Repeal the subparagraphs, substitute:

(i) unconventional gas development; or

4 Subsection 130(4A)

Omit "Coal Seam Gas", substitute "Unconventional Gas Development".

5 Section 131AB (heading)

Omit "Coal Seam Gas", substitute "Unconventional Gas Development".

6 Subparagraph 131AB(1)(a)(i)

Repeal the subparagraph, substitute:

(i) unconventional gas development; or

7 Subsection 131AB(2)

Omit "Coal Seam Gas", substitute "Unconventional Gas Development".

8 Paragraph 136(2)(fa)

Omit "Coal Seam Gas", substitute "Unconventional Gas Development".

9 Subparagraph 304(1)(a)(viia)

Omit "coal seam gas development", substitute "unconventional gas development".

10 Paragraph 305(1)(ga)

Omit "coal seam gas development", substitute "unconventional gas development".

11 Subparagraphs 305(1A)(b)(via) and (c)(viia)

Omit "coal seam gas development", substitute "unconventional gas development".

12 Paragraph 305(2)(ea)

Omit "coal seam gas development", substitute "unconventional gas development".

13 Subparagraphs 306(1)(a)(viia) and (b)(viia) and (2)(a)(viia) and (b)(viia)

Omit "coal seam gas development", substitute "unconventional gas development".

14 Division 2B of Part 19 (heading)

Omit "Coal Seam Gas", substitute "Unconventional Gas Development".

15 Subsection 505C(1)

Repeal the subsection, substitute:

(1) The committee established by this section as previously in force is continued in existence with the new name of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.

Note: See also section 25B of the Acts Interpretation Act 1901.

16 Paragraphs 505D(1)(a) and (b)

Omit "coal seam gas developments", substitute "unconventional gas developments".

17 Subparagraphs 505D(1)(c)(i) and (d)(i) and (ii)

Omit "coal seam gas", substitute "unconventional gas".

18 Paragraphs 505D(1)(e), (f) and (g)

Omit "coal seam gas", substitute "unconventional gas".

19 Paragraph 506(d)

Omit "Coal Seam Gas", substitute "Unconventional Gas Development".

20 Section 528 (definition of bioregional assessment )

Omit "coal seam gas development", substitute "unconventional gas development".

21 Section 528 (definition of coal seam gas development )

Repeal the definition.

22 Section 528 (definition of Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development )

Repeal the definition.

23 Section 528

Insert:

Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development means the Committee established by section 505C.

unconventional gas development means any activity involving unconventional gas production that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):

(a) in its own right; or

(b) when considered with other developments, whether past, present or reasonably foreseeable developments.

unconventional gas production means extraction, recovery, or intentional release, (whether by drilling, hydraulic fracturing or other means) of gas from:

(a) coal seams or beds; or

(b) layers of shale rock; or

(c) tight gas reservoirs; or

(d) any other sources prescribed by the regulations.

Part 2—Application and transitional provisions

24 Definitions

In this Part:

commencement day means the day this Schedule commences.

main Act means the Environment Protection and Biodiversity Conservation Act 1999.

transitional period means the period of 90 business days (measured in Canberra), beginning on the first such business day that is on or after the commencement day.

25 Amendments apply to actions taken after commencement

(1) The amendments made by Part 1 of this Schedule apply in relation to an action involving unconventional gas development that is taken on or after the commencement day, even if the action began before that time, unless item 26, 27 or 28 of this Schedule applies in relation to the action.

(2) If:

(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and

(b) immediately before the commencement day, the Minister has not decided whether the action is a controlled action; and

(c) the Minister has given a notice under section 74 of the main Act in relation to the action;

the validity of the notice is not affected by the amendments and the Minister is not required to give another notice under that section.

(3) However, if, after the commencement day, the Minister receives comments in response to the invitation in the notice (and within the period specified in the notice) that relate to whether the action is a controlled action for the purposes of a provision of section 24D or 24E of the main Act as amended by Part 1 of this Schedule, the Minister's duty under subsection 75(1A) of the main Act to consider comments includes a duty to consider any such comments.

26 Amendments do not apply—certain referred proposals

(1) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if, immediately before the commencement day:

(a) an approval of the taking of the action is in operation under Part 9 of the main Act; or

(b) both:

(i) a decision that the action is not a controlled action is in operation under section 75 of the main Act; and

(ii) the decision was not made because the Minister believed the action would be taken in a particular manner.

(2) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if:

(a) immediately before that day, a decision that the action is not a controlled action is in operation under section 75 of the main Act; and

(b) the decision was made because the Minister believed the action would be taken in a particular manner; and

(c) the action is being taken in that manner.

(3) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if:

(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and

(b) immediately before the commencement day, all of the following circumstances exist:

(i) the Minister has not decided whether or not to approve the taking of the action for the purposes of any controlling provisions;

(ii) the person has been informed under section 131AA of the main Act of the decision the Minister proposes to make in relation to the action;

(iii) if section 131AB of the main Act applies—the Minister has obtained advice from the Independent Scientific Committee on Coal Seam Gas and Large Coal Mining Development in accordance with subsection 131AB(2) of the main Act.

27 Amendments do not apply—development currently in production

(1) The amendments made by Part 1 of this Schedule do not apply in relation to an action involving unconventional gas development taken on or after the commencement day if:

(a) the unconventional gas development does not involve the extraction of coal seam gas; and

(b) the unconventional gas development was in production (within the meaning of subitem (2)) before the commencement day; and

(c) immediately before the commencement day:

(i) the action was authorised by a petroleum production authorisation (within the meaning of subitem (3)); and

(ii) the action was not contravening a provision of Part 3 of the main Act; and

(d) the action continues to be authorised by the petroleum production authorisation.

(2) For the purposes of this item, a development is in production if the development is extracting or producing gas:

(a) commercially; and

(b) in accordance with the laws of the Commonwealth and of any State or Territory that apply in relation to the development.

(3) For the purposes of this item, a petroleum production authorisation is a licence, permit, or other authority granted under a law of the Commonwealth or a State or Territory, that authorises the extraction of petroleum for commercial production. However, it does not include a lease or licence that is primarily for the purpose of reservation, retention or exploration.

28 Amendments do not apply—development that has ceased operation

The amendments made by Part 1 of this Schedule do not apply in relation to an action involving unconventional gas development taken on or after the commencement day if:

(a) the unconventional gas development does not involve the extraction of coal seam gas; and

(b) immediately before the commencement day, the action was not contravening a provision of Part 3 of the main Act; and

(c) immediately before the commencement day, either or both of the following apply:

(i) extraction and production of gas by the development had permanently ceased;

(ii) post-production had permanently ceased.

29 Minister to decide whether amended provisions are controlling provisions for certain controlled actions

(1) This item applies in relation to an action if:

(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and

(b) the action involves unconventional gas development; and

(c) item 26 does not apply in relation to the action; and

(d) before the commencement day, the Minister decided under section 75 of the main Act that the action is a controlled action; and

(e) immediately before the commencement day, the Minister has not decided whether or not to approve the taking of action under Part 9 of the main Act.

(2) The Minister must, before the end of the transitional period, decide in accordance with this item whether any provisions of section 24D or 24E of the main Act as amended by Part 1 of this Schedule are controlling provisions for the action.

(3) Before making the decision, the Minister must give the person proposing to take the action a written notice:

(a) setting out the decision the Minister proposes to make; and

(b) inviting the person to give the Minister written comments on the proposed decision within 10 business days (measured in Canberra) of the day the notice is given to the person.

(4) Before making the decision, the Minister (the Environment Minister) may:

(a) notify any other Minister whom the Environment Minister considers has administrative responsibilities relating to the proposed decision; and

(b) invite the relevant Minister to give the Environment Minister written comments on the proposed decision, within 10 business days (measured in Canberra).

(5) If the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision under subitem (2), the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

(6) If the Minister requests further information under subitem (5), the period within which the Minister is required to make a decision under subitem (2) is extended by the number of business days in the period:

(a) starting on the day the Minister requests the information; and

(b) ending on the day the Minister receives the last of the information requested.

(7) In making a decision under subitem (2), the Minister must consider:

(a) any comments received within the period specified in an invitation given under paragraph (3)(b) or (4)(b); and

(b) any further information provided in response to a request made under subitem (5); and

(c) any information included in the referral of the proposal to take the action relating to whether the action is a controlled action; and

(d) any other information, or any comments, relating to whether the action is a controlled action received (whether before or after the commencement day) in response to an invitation made before the commencement day under section 74 of the main Act.

(8) Subsections 75(2), (2A) and (2B) of the main Act apply in relation to the Minister's decision under this item:

(a) as if it were a decision under that section; and

(b) as if references to matters protected by provisions of Part 3 were references to matters protected by provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule.

(9) Within 10 business days after making a decision under subitem (2), the Minister must:

(a) give written notice of the decision to the person proposing to take the action; and

(b) publish notice of the decision in accordance with any regulations made for the purposes of paragraph 77(1)(b) of the main Act.

(10) The Minister must give reasons for the decision to the person proposing to take the action if the person makes a written request, within 28 days of being given the notice, that the Minister do so. The Minister must do so as soon as practicable, and in any case, within 28 days of receiving the request.

(11) The main Act has effect, after the Minister makes a decision under subitem (2) (the new controlling provisions decision), as if the decision mentioned in paragraph (1)(d) (the original controlling provisions decision) were varied to give effect to the new controlling provisions decision.

(12) The validity of the original controlling provisions decision, and any other decision made under Part 7, 8 or 9 of the main Act before the Minister made the new controlling provisions decision:

(a) is not affected by the making of the new controlling provisions decision; and

(b) cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to:

(i) the making of the new controlling provisions decision; or

(ii) the variation of the original controlling provisions decision as described in subitem (11).

(13) Anything done by the Minister under this item is not invalid merely because it was not done within the period required by this item. However, this does not reduce or remove an obligation under this item to do a thing within a particular period.

30 Minister to consider whether assessment approach should be changed

(1) This item applies in relation to an action if:

(a) the Minister has decided under subitem 29(2) that provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule are controlling provisions for the action (the new controlling provisions decision); and

(b) before the commencement day, the Minister had made a decision under section 87 of the main Act as to the approach to be used for assessment of the relevant impacts of the action.

(2) The Minister may, before the end of the period within which the Minister is required to make the new controlling provisions decision, decide whether, as a result of the new controlling provisions decision, a different approach should be used for assessment of the relevant impacts of the action.

(3) If the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision under subitem (2), the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

(4) If the Minister requests further information under subitem (3), the period within which the Minister is required to make a decision under subitem (2) is extended by the number of business days in the period:

(a) starting on the day the Minister requests the information; and

(b) ending on the day the Minister receives the last of the information requested.

(5) In making a decision under subitem (2), the Minister must consider:

(a) any further information provided in response to a request made under subitem (3); and

(b) any comments or information received or provided as mentioned in paragraph 29(7)(a) and (b) relating to the approach to be used for assessment of the relevant impacts of the action; and

(c) any information included in the referral of the proposal to take the action relating to the approach to be used for assessment of the relevant impacts of the action; and

(d) any other information, or any comments, relating to the approach to be used for assessment of the relevant impacts of the action received (whether before or after the commencement day) in response to an invitation made before the commencement day under section 74 of the main Act.

(6) Subsections 82(1) and (4) of the main Act apply in relation to the Minister's decision under subitem (2), as if references in those provisions to controlling provisions were references to provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule.

(7) Within 10 business days after making a decision under subitem (2), the Minister must:

(a) give written notice of the decision to the person proposing to take the action; and

(b) publish notice of the decision in accordance with any regulations made for the purposes of paragraph 91(1)(b) of the main Act.

(8) The Minister must give reasons for the decision to the person proposing to take the action if the person makes a written request, within 28 days of being given the notice, that the Minister do so. The Minister must do so as soon as practicable, and in any case, within 28 days of receiving the request.

(9) The main Act has effect, after the Minister makes a decision under subitem (2) (the new assessment approach decision), as if the decision mentioned in paragraph (1)(b) (the original assessment approach decision) were varied to give effect to the new assessment approach decision.

(10) The validity of the original assessment approach decision, and any other decision made under Part 7, 8 or 9 of the main Act before the Minister made the new assessment approach decision:

(a) is not affected by the making of the new assessment approach decision; and

(b) cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to:

(i) the making of the new assessment approach decision; or

(ii) the variation of the original assessment approach decision as described in subitem (9).

(11) Anything done by the Minister under this item is not invalid merely because it was not done within the period required by this item. However, this does not reduce or remove an obligation under this item to do a thing within a particular period.

31 Transitional rules

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of this Schedule.

(2) Rules made before the end of the period of 6 months starting on the commencement day may provide that provisions of this Part have effect with any modifications prescribed by the rules. The provisions then have effect as if they were so modified.

(3) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Schedule or the main Act;

(e) directly amend the text of this Schedule or the main Act.

(4) This Schedule (other than subitem (3)) does not limit the rules that may be made under this item.