In October 2006, the Environment and Heritage Legislation Amendment Bill (No.1) 2006 (“
the Bill") was introduced in the House of Representatives by the Howard Government in the Australian Commonwealth Parliament. The Bill proposes to make numerous amendments to the Commonwealth Government’s key instrument regulating matters of national environmental significance, being the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the Act’").
The Bill reflects consultation with public, private and environmental association stakeholders regarding their experiences with the Act over the last six years, and the amendments are designed to improve the operation of the Act with a focus on improving its efficiency while maintaining and enhancing its environmental effectiveness.
At this stage, the Bill is under consideration in the Senate, and both the Australian Labor Party and the Australian Greens have proposed significant number of amendments to the Bill. One criticism of the Bill is the failure of the Howard Government to include any amendments in response to greenhouse gas emissions associated with global warming in the Bill. Another criticism is abolishment of the right to appeal ministerial decisions with regard to threatened species, migratory species, marine species, whales and dolphins, and wildlife trade permits.
Business implications
Notwithstanding criticisms of the Bill, if the Bill is passed then it will ease the process of certain approval processes under the Act, and increase potential liabilities for businesses.
In relation to approval processes, key amendments include:
- Removal of certain individual permit requirements for activities consistent with ‘bioregional plans’ which can be prepared by proponents;
- Mandatory public disclosure of all material supporting referrals and permit applications (previously the Commonwealth Environment Minister had discretion to withhold commercial-in-confidence information from the public); and
- New powers for the Environment Minister to request further information about whether proposed activities are a component of a larger activity.
On the liability side, the Bill will introduce a number of strict liability offences for situations where approvals are required but not obtained. This means that in many cases it will not be necessary for a prosecuting authority to show that an offence was committed ‘knowingly’ or ‘recklessly’ where the offending activity in question required assessment and approval under the Act.
It is expected that these new features will allow the Commonwealth Government to take a more strategic approach to environmental assessment, and will also allow for enhanced framework to assist enforcement and compliance activities.
Outlook
For PwC clients, subject to the final form of the Bill, the outlook is one of new risks and opportunities.
On the risk side, strict liability offences and a tighter enforcement program means greater risk of prosecutions and penalties. A company’s best defence to this new compliance environment is to establish a robust due diligence program. Our eDiagnostic tool can help with this.
The opportunity is for project proponents to utilise the new bioregional plan process to reduce their compliance burden, and minimise the opportunity for groups opposed to the project to slow progress through legal challenges.
