EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 301

 

Subject - Environment Protection and Biodiversity Conservation Act 1999

 

Environment Protection and Biodiversity Conservation Amendment Regulations 2009 (No. 2)

 

Section 520 of the Environment Protection and Biodiversity Conservation Act 1999 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing 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.

 

Paragraph 528(j) of the Act provides that a ‘Commonwealth agency’ does not include ‘a company prescribed by the regulations for the purposes of this paragraph’. Paragraph 528(d) of the Act provides that a ‘Commonwealth agency’ means ‘a company in which the whole of the share or stock, or shares or stock carrying more than one-half of the voting power is or are owned by or on behalf of the Commonwealth’.

 

Regulation 19.02 of the Environment Protection and Biodiversity Conservation Regulations 2000 (the Principal Regulations) prescribes companies as not included in the definition of a Commonwealth agency for the purposes of paragraph 528(j) of the Act. Prior to the commencement of the Regulations, the Australian Rail Track Corporation Limited (ACN: 081 455 754, ABN 75 081 455 754) (the ARTC) was a Commonwealth agency for the purposes of the Act as it was a Commonwealth owned company.

 

The ARTC is responsible for building and maintaining critical rail infrastructure and does not have a regulatory role. These Regulations reduced the regulatory burden on the ARTC in accordance with the Australian Government’s deregulation agenda and enable the actions of the ARTC to be assessed for their impact on the environment in a manner that is consistent with other corporate entities that maintain critical infrastructure and do not have Commonwealth regulatory responsibilities.

 

These Regulations amend the Principal Regulations to prescribe the ARTC under regulation 19.02 of the Principal Regulations and thus excluded the ARTC from the definition of Commonwealth agency under the Act.

 

The prescription of the ARTC provides that the actions of the ARTC continue to be assessed for impact on matters of national environmental significance and impacts on the environment on Commonwealth land under the Act. However, the actions of the ARTC are no longer assessed for their impacts on the environment as a whole in every situation, as section 28 of the Act (actions by Commonwealth agencies) only applies to Commonwealth agencies.

 

This helps streamline the environmental assessment of proposed actions by the ARTC at the state or territory and Commonwealth level, as the requirement for duplicate environmental assessment approaches are removed.

 

These Regulations also reduced the regulatory burden on the ARTC by enabling the actions of the ARTC to now be assessed under bilateral agreements between the Commonwealth and the states and territories.

 

Section 49 of the Act prevented the actions of the ARTC as a Commonwealth agency from being assessed under bilateral agreement unless the bilateral agreement specifically provided otherwise. Actions of the ARTC are now able to be assessed under bilateral agreements whether or not the bilateral agreements expressly provides for assessment by bilateral agreement. Other powers and duties under the Act that are contingent with status as a Commonwealth agency are removed from the ARTC. These include referral powers under section 71, reporting obligations under subsection 516A(4) and the obligation to comply with various plans made under the Act.

 

These Regulations also inserted a definition of ‘Act’ into the dictionary of the Principal Regulations. The definition clarified that all references to the ‘Act’ in the Principal Regulations are interpreted to mean the Environment Protection and Biodiversity Conservation Act 1999.

 

Consultation was undertaken with the ARTC, through a request by the ARTC to have their status as a ‘Commonwealth agency’ under the Act reviewed. The Department of the Environment, Water, Heritage and the Arts held subsequent discussions with the ARTC.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

 

 

 

ATTACHMENT

 

Details of the Environment Protection and Biodiversity Conservation Amendment Regulations 2009 (No. 2).

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Environment Protection and Biodiversity Conservation Amendment Regulations 2009 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commenced on the day after they were 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 the Schedule.

 

Regulation 4 – Transitional

 

This regulation provides that that the Regulations apply to the ARTC in relation to actions that were referred to the Minister before, on or after the commencement time, but only if a decision that the action is a controlled action under section 75 of the Act had not been made in relation to the action before the commencement time. If a decision that the action was a controlled action under section 75 of the Act had been made in relation the action before the commencement time, then the ARTC will continue to be treated as a Commonwealth agency for the purposes of that action under the Act.

 

Schedule – Amendments

 

Item [1] – paragraph 19.02 (b)

 

This item made a grammatical amendment is of a minor and technical nature.

 

Item [2] – after paragraph 19.02 (b)

 

Regulation 19.02 provides that for paragraph 528(j) of the definition of ‘Commonwealth agency’ in the Act, those prescribed companies are not Commonwealth agencies.

 

This item amended regulation 19.02 to include the ARTC as a company that is not a Commonwealth agency for the purposes of the Act.

 

Item [3] – Dictionary, before definition of affected area

 

This item inserted a definition of “Act” to confirm that all references to the Act in the Principal Regulations are interpreted as references to the Environment Protection and Biodiversity Conservation Act 1999.