EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 167

Issued by the Authority of the Minister for the Environment and Heritage

 

Environment Protection and Biodiversity Conservation Act 1999

 

Environment Protection and Biodiversity Conservation Amendment Regulations 2005 (No. 1)

 

Subsection 520(1) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Under section 45 of the Act, the Minister for the Environment and Heritage (the Minister) may enter into a bilateral agreement with a State or self-governing Territory in relation to one or more of the following:

·         protecting the environment;

·         promoting the conservation and ecologically sustainable use of natural resources;

·         ensuring an efficient, timely and effective process for environmental assessment and approval of actions;

·         minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State or Territory (or vice versa).

 

Such a bilateral agreement may declare that certain actions approved by a State or Territory in accordance with a management plan accredited under the Act do not require approval by the Minister for the purposes of Part 3 of the Act. Part 3 provides protection for matters of national environmental significance, including World Heritage properties, National Heritage places, wetlands of international importance, nationally threatened species, migratory species and the Commonwealth marine area.

 

Paragraph 46(3)(a) of the Act provides that the Minister may accredit a management plan for the purposes of such a bilateral agreement only if satisfied that, amongst other things, the management plan and the law under which it is in force (or is to be in force) meet the criteria prescribed by the regulations. The Regulations prescribe the criteria that must be met before the Minister may accredit a management plan for a World Heritage property or a National Heritage place.

 

Prescribed criteria are required at this time to enable the preparation of management plans by the States of New South Wales and Victoria for accreditation by the Minister for the Sydney Opera House and the Royal Exhibition Building respectively, which are both National Heritage places. Criteria for accrediting management plans for other matters of national environmental significance will need to be prescribed at an appropriate time in the future.

 

The Regulations prescribe that the development of a management plan for a World Heritage property or a National Heritage place must have included public consultation.

 

 

The Regulations also prescribe criteria relating to the content of a management plan, in particular that the management plan must:

·         state what must be done to ensure that the relevant World Heritage or National Heritage values are protected and conserved;

·         provide that adequate environmental assessment of the impacts on the relevant values of any proposed actions approved in accordance with the plan (in particular the impacts of any actions likely to have a significant impact on the relevant values) has been or will be undertaken;

·         state that actions that will have unacceptable or unsustainable impacts (in particular actions that will have a significant impact on the relevant values) are inconsistent with the plan and cannot be approved;

·         set out the means that enable the setting of enforceable conditions on approval, and provide for any subsequent monitoring, auditing and enforcement of approvals and approval conditions; and

·         set out the means by which the plan is to be enforced.

 

The Regulations also prescribe the criterion that the law of the State or Territory under which the management plan is in force (or is to be in force) must be capable of providing protection for the relevant World Heritage or National Heritage values of the property or place.

 

The criteria allow the Minister to make a decision on whether to accredit a management plan for a World Heritage property or a National Heritage place for the purposes of a bilateral agreement under section 46 of the Act. Under the Act, accreditation of a management plan would also be subject to disallowance by either House of Parliament.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations commenced on the day after they were registered.

 

 

ATTACHMENT

 

Details of the proposed Environment Protection and Biodiversity Conservation Amendment Regulations 2005 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Environment Protection and Biodiversity Conservation Amendment Regulations 2005 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered.

 

Regulation 3 – Amendment of Environment Protection and Biodiversity Conservation Regulations 2000

 

This regulation provides that the Environment Protection and Biodiversity Conservation Regulations 2000 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Part 2B

 

Item 1 inserts a new Part 2B “Bilaterally accredited management plans” into the Principal Regulations to prescribe criteria for the purposes of paragraph 46(3)(a) of the Act. These are the criteria that the management plan and the law of the State or Territory under which the plan is in force (or is to be in force) must meet before the Minister may accredit a management plan for the purposes of a bilateral agreement. Such a bilateral agreement may declare that certain actions approved in accordance with the plan do not require approval by the Minister under Part 9 of the Act for the purposes of a specified provision of Part 3. There are two Notes in the new Part 2B which outline in general terms the relevant provisions of the Act relating to bilateral agreements and accredited management plans.

 

New regulation 2B.01 “Criteria for accreditation of management plans for World Heritage properties and National Heritage places” concerns the accreditation of a management plan for a World Heritage property or a National Heritage place, for the purposes of a bilateral agreement which declares that certain actions approved in accordance with the plan do not require approval by the Minister for the purposes of the following provisions of Part 3:

·         sections 12 and 15A of the Act (in relation to a World Heritage property); and

·         sections 15B and 15C of the Act (in relation to a National Heritage place).

 

The regulation prescribes that the development of a management plan for a World Heritage property or a National Heritage place must have included public consultation:

·         with the Australian community generally and any particular affected groups; and

 

·         for a period of at least 20 business days.

 

The regulation also prescribes criteria relating to the content of a management plan, namely that the management plan must:

·         outline the consultation process undertaken in developing the plan;

·         state the law under which the plan is in force;

·         include a description of the property or place, including its boundary and the relevant World Heritage or National Heritage values;

·         state what must be done to ensure that the relevant values are protected and conserved;

·         set out the means by which risk management of the property or place will be addressed;

·         provide that adequate assessment of the impacts on the relevant values of any proposed actions has been or will be undertaken, and set out the means, including any legislation other than the plan, and the processes by which this will be achieved;

·         require that the impacts of any actions likely to have a significant impact on the relevant values have been or will be assessed by means that are equivalent to those provided under the Act;

·         provide that actions in relation to the property or place may be approved only in accordance with the plan;

·         require a decision-maker to take account of the precautionary principle in making a decision in relation to the property or place;

·         set out the means, and any legislation other than the plan, that enable the setting of enforceable conditions on approval, and provide for any subsequent monitoring, auditing and enforcement of approvals and approval conditions;

·         set out the means by which the plan will seek to prevent, or minimise the impacts of, any actions likely to degrade the relevant values, including actions leading to cumulative degradation;

·         state that actions that will have unacceptable or unsustainable impacts (in particular, actions that will have a significant impact on the relevant values) are inconsistent with the plan and cannot be approved;

·         set out the means for the plan to be enforced;

·         ensure that management actions for values that are not the relevant values are consistent with the management of the relevant values;

·         promote the integration of Commonwealth, State or Territory, and local government responsibilities for the property or place;

·         provide for continuing monitoring and reporting on the state of the relevant values; and

·         provide that the plan be reviewed at intervals of not more than 5 years.

 

The regulation also prescribes the criterion that the law of the State or Territory under which the management plan is in force (or is to be in force) must be capable of providing protection for the relevant World Heritage or National Heritage values of the property or place.