Environmental legislative developments November 2006

Commonwealth
New South Wales
Queensland
Western Australia
South Australia
Australian Capital Territory
Victoria
Tasmania
Northern Territory

Commonwealth

Renewable Energy (Electricity) Amendment Act 2006

The Renewable Energy (Electricity) Amendment Act 2006 (Amendment Act) amends the Renewable Energy (Electricity) Amendment Act 2000 (Act). The changes incorporate reforms in the National Electricity Market, set time limits on creation of renewable energy certificates and clarify various provisions of the Act.

The Amendment Act commenced 11 September 2006.

Environment and Heritage Legislation Amendment Bill 2006

The Environment and Heritage Legislation Amendment Bill 2006 (Bill) proposes to amend the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Bill was introduced into the House of Representatives and received its second reading speech on 12 October 2006.

Specifically, the Bill proposes to:

• streamline the project assessment and permit stages so that once a project is assessed and approved under Chapter 4 of the EPBC Act, subsequent protected species permits may be issued under Chapter 5 without further assessment
• reduce the processing time for assessments and approvals of developments referred under the EPBC Act. The Australian government would also be able to make decisions on different EPBC Act approval stages simultaneously
• allow the minister to declare that an action or class of action do not require the minister’s approval under Part 9 of the EPBC Act. There are a number of constraints and limitations on the minister’s ability to make such declarations, and no declaration will be able to be made in respect of nuclear actions
• enable conservation agreements to authorise actions or classes of actions that will not require approval under Part 9. These procedures are no doubt intended to allow minor or straight-forward matters of national environmental significance to proceed in a manner which does not jeopardise the values of those matters, but streamline the assessment and approval process for the action
• expressly provide for a proponent, or other person, to request the reconsideration of a proposal to take an action, referred to the minister, under section 75 of the EPBC Act and for the invitation and consideration of public comments in relation to this decision
• expressly allow variations to a referral which do not involve a substantial change in the character of an action
• strengthen the enforcement provisions of the EPBC Act by proposing for strict liability to apply to a range of offences under the EPBC Act. This would mean that the prosecution does not have to show that a person charged with an offence knew or was reckless to a particular fact. Specifically, the Bill proposes to apply strict liability to offences relating to (among others):

  • property declared World Heritage property
  • National Heritage values and place
  • areas declared a Ramsar wetlands
  • listed threatened species and threatened ecological communities
  • listed migratory species
  • Commonwealth marine areas
  • Commonwealth land
  • Commonwealth heritage places
  • members of a ‘listed threatened species’, or members of a ‘listed threatened ecological community’, and
  • cetaceans in Australian Whale Sanctuary or waters beyond the outer limits of the Australian Whale Sanctuary.

• repeal section 478 of the EPBC Act. The Commonwealth Government argues that this amendment would bring the Act into line with other Commonwealth legislation, where the Federal Court has the discretion whether or not to require an applicant for an injunction to give an undertaking as to damages, as a condition of granting an interim injunction
• extend the Federal Court’s power to make remediation orders. Under a new Division 14A the Federal Court would be able to make a remediation order without the need to grant an injunction
• amend the injunction standing requirements for interested individuals or organisations who may apply to the Federal Court for an injunction. Activities engaged in by the interested individual or organisation applying for an injunction would need to relate to the aspects of the environment that are, or would be, affected by the conduct or proposed conduct for which the injunction relates, and
• enhance enforcement action taken to address minor breaches of approval conditions by allowing the use of a new set of reduced penalties. The powers of the Minister for Environment and Heritage would be broadened to accommodate this change. This would allow remediation actions to be taken without the need for resort to court action where matters of national environmental significance have been damaged. Where impacts are unavoidable, voluntary compensatory actions and financial contributions will be able to be imposed on approvals to offset the impacts of developments.

Also, under the Bill:

• a world heritage area can be automatically listed on the National Heritage register without a further assessment or approval process
• a list of overseas places of historic significance would be established, and
• the register of the national estate ceases to be a statutory register after a five-year transitional period.

New South Wales

Protection of the Environmental Operations (Waste) Amendment (Waste Reduction) Regulation 2006

The Protection of the Environment Operations (Waste) Amendment (Waste Reduction) Regulation 2006 (amending Regulation) amends the Protection of the Environment Operations (Waste) Regulation 2005.

The amending Regulation:

• updates the method for calculating the contribution payable by the licensee of certain waste facilities, and
• increases the record-keeping obligations of licensees, including prescribing that failure to maintain adequate records may be taken into account when determining the contribution payable.

The amending Regulation commenced on 1 July 2006.

Queensland

Water Amendment Regulation (No 5) 2006

The Water Amendment Regulation (No 5) 2006 (amending Regulation) commenced on 1 July 2006. The amending Regulation permits certain prohibited activities, such as excavating, placing fill or destroying vegetation in a watercourse, for the purposes of restoring areas damaged by cyclones Larry and Monica.

Other minor changes include the declaration of parts of the Barambah Creek and Stuart River to be ‘water in a watercourse’ and the imposition of charges for metering assessment.

State Development and Public Works Organisation (Clean Coal Technology Project Board) Regulation 2006

The State Development and Public Works Organisation (Clean Coal Technology Project Board) Regulation 2006 outlines the powers and functions of the newly created Clean Coal Technology Project Board (board).

The board’s functions cover many aspects of Clean Coal Technology projects including construction, planning, business management, funding, marketing, research and development.

State Development and Public Works Organisation (Water Infrastructure Project Board) Regulation 2006

The State Development and Public Works Organisation (Water Infrastructure Project Board) Regulation 2006 outlines the powers and functions of the newly created Water Infrastructure Project Board (board).

The board has a broad role in relation to the coordination and oversight of drought contingency projects.

Water Amendment Regulation 2006 (No 6)

The Water Amendment Regulation (No 6) 2006 (amending Regulation) commenced on 8 August 2006.

The amending Regulation inserts a new Part 8 into the Water Regulation 2002, providing measures to combat the water supply emergency declared in the South-East Queensland (SEQ) region.

The new Part 8 sets out a number of initiatives to be implemented by local governments within the SEQ region, and their required outcomes. The new Part 8 also sets out the contributions to be made by the Queensland Government in relation to the water initiatives, and the dates by which they are to be implemented.

Building and Other Legislation Amendment Act 2006

The Building and Other Legislation Amendment Act 2006 (Amendment Act) received assent on 10 August 2006. The majority of the provisions of the Amendment Act commenced on assent, although some remaining minor amendments to the Fire and Rescue Service Act 1990 will commence on a date yet to be proclaimed.

Changes as a result of the Amendment Act include amendments to the Plumbing and Drainage Act 2002 and minor amendments to the Integrated Planning Act 1997.

Nature Conservation (Wildlife) Regulation 2006

The Nature Conservation (Wildlife) Regulation 2006 (Wildlife Regulation) commenced in full on 21 August 2006.

The purpose of the Wildlife Regulation is to classify native wildlife according to classifications contained in the schedules to the Wildlife Regulation.

The Wildlife Regulation also prescribes certain other types wildlife as international wildlife or prohibited wildlife, and sets out the declared management intent for each class of wildlife.

Western Australia

Contaminated Sites Act 2003

The Contaminated Sites Act 2003 (Act) has been proclaimed to commence on 1 December 2006. In addition, the Contaminated Sites Regulations 2006 (the Regulations) have been gazetted and will commence at the same time as the Act.

The Regulations include:

• forms, including those for reporting known or suspected contaminated sites
• the process for requesting public access to information
• matters incidental to the formation of a Contaminated Sites Committee, and
• matters concerned with the accreditation, functions and powers of auditors.

The Department of Environment and Conservation (DEC) has released Draft Guidelines under the Contaminated Sites Act 2003 as part of its Contaminated Sites Management Series.

Copies of the Contaminated Sites Management Series are available here.

Environmental Protection Amendment Regulations 2006

The Environmental Protection Amendment Regulations 2006 (amending Regulations) have been gazetted. The amending Regulations include: 

• an extension of exemptions in Part 9, relating to landfill levies
• amendments to the procedures for determining the amount of waste disposed of to a landfill
• power given to the CEO to make estimates of the volume of waste disposed of to a landfill, and
• amendments to the procedure for determining the amount of a landfill levy.

Draft Waste Avoidance and Resource Recovery Bill 2006

The DEC has released a Draft Waste Avoidance and Resource Recovery Bill 2006 (Bill) for public comment.

The aim of the Bill is to reduce landfill and increase recycling through the establishment of a new statutory Waste Authority. The Bill will give the Western Australian Government power to establish and implement product stewardship schemes. The Bill, if passed, will be accompanied by regulations to be implemented by the DEC to improve waste avoidance.

The Bill will also consolidate some of the waste provisions currently contained in the Environmental Protection Act 1986 and the Health Act 1911.

Rights in Water and Irrigation Amendment Regulations 2006

The Rights in Water and Irrigation Amendment Regulations 2006 (amending Regulations) amend the Rights in Water and Irrigation Regulations 2000-2001 (Regulations). The amending Regulations’ main amendment is to Schedule 2, which prescribes the modified penalties for prescribed offences.

The amending Regulations insert a modified penalty of $500 for the unauthorised taking of water. Previously, there was no modified penalty and the penalty was $10,000 with a daily penalty of $1,000.

Conservation and Land Management Amendment Regulations 2006

The Conservation and Land Management Amendment Regulations 2006 (amending Regulations) amend the Conservation and Land Management Regulations 2002 (Regulations). The amending Regulations:

• extend the definition of ‘without lawful authority’ to include actions in contravention of any written law and actions done by a person who has entered the land (upon which the action is done) without lawful authority
• give the Executive Director power to declare Conservation and Land Management (CALM) land a restricted area for bicycles or vehicles
• insert a new regulation that prohibits a person from discharging a firearm, using various weapons or using a restricted device to take fauna on certain land without lawful authority. The penalty for breaching the regulation is $1,000
• amend the taking of water from CALM land to exclude water taken for the personal needs of the individual or others associated with the individual
• insert a new regulation prohibiting disturbing or removing soil on CALM land without lawful authority. The penalty for breaching the regulation is $2,000, and
• increase numerous penalties included in the Schedules to the Regulations.

Agricultural Produce (Chemical Residues) Amendment Regulations 2006

The Agricultural Produce (Chemical Residues) Amendment Regulations 2006 (amending Regulations) amend the Agricultural Produce (Chemical Residues) Regulations 1985 (Regulations).

The amending Regulations insert definitions of the Food Standards Code and MRL Standard, both Commonwealth Standards, into the Regulations and amend the definition of Agricultural Chemicals.

Agricultural Chemicals dealt with by the Regulations are now no longer listed in Schedule 2 but are defined by reference to the Food Standards Code, the MRL Standard and Schedule 3 of the Regulations. The maximum residue limits are now also defined by reference to the Food Standards Code and MRL Standard. In addition, the chemicals contained in Schedule 3 have been amended.

South Australia

Environment, Resources and Development Court (Jurisdiction) Amendment Act 2006

The Environment, Resources and Development Court (Jurisdiction) Amendment Act 2006 (Act) amends the Environment, Resources and Development Court Act 1993. 

The Act was assented to on 29 June 2006 and is awaiting proclamation. The Act stipulates that major indictable offences are not within the jurisdiction of the Environment, Resources and Development Court (court). The Act also clarifies the application of the Summary Procedure Act 1921 in relation to a summary or minor indictable offence before the court, and specifies that in the case of a:

• minor indictable offence, the court will be constituted by a Judge with a maximum $300,000 fine to be imposed, and
• summary offence, the court will be constituted by either a Judge or a magistrate.

The Act also makes a number of minor and consequential amendments.

Natural Resources Management (Transfer of Water Licences) Amendment Act 2006

The Natural Resources Management (Transfer of Water Licences) Amendment Act 2006 (Act) has been proclaimed. Section 4 of the Act repeals and substitutes section 157(9) of the Natural Resources Management Act 2004.  This amendment applies to the transfer of a water licence, or of the whole or part of the water allocation of a water licence, effected by an instrument executed after the commencement of this Act.

Forest Property (Carbon Rights) Bill 2006

The Forest Property (Carbon Rights) Bill 2006 (Bill) proposes to amend the Forest Property Act 2000.  The Bill was introduced to the House of Assembly on 20 September 2006.

The Bill proposes to establish that the ‘capacity of forest vegetation to absorb carbon from the atmosphere is a form of property’ to be known as a ‘carbon right’.

Specifically, the Bill would provide that a carbon right attaches to the forest vegetation to which it relates, and ownership of the right passes with ownership of the forest vegetation except where ownership of the right is separated from ownership of the forest vegetation under a ‘forest property agreement’.

Consequently, the Bill would make provisions governing both ‘forest property (vegetation) agreements’ and ‘forest property (carbon rights) agreements’, including provisions relating to their form, content, variation and revocation. The Bill would also stipulate that agreements may be registered, and where unregistered the interest of the transferee is an equitable interest. Further, the Bill would enable a transferee under an agreement to deal with its interest in certain ways, including mortgaging or assigning the interest.

Natural Resources Management (Transitional Provisions — Levies) (Tintinara Coonallpyn Prescribed Wells Area) Variation Regulations 2006

The Natural Resources Management (Transitional Provisions — Levies) (Tintinara Coonallpyn Prescribed Wells Area) Variation Regulations (amending Regulations) commenced on 29 June 2006 and amend the Natural Resources Management (Transitional Provisions — Levies) Regulations 2005.

The amending Regulations prescribe the 2005/2006 levy rate for irrigation allocation, and provide the method for determining the amount payable by a person who is exempt from the levy imposed under regulation 4(1) for the 2005/2006 financial year.

Wilderness Protection Regulations 2006

The Wilderness Protection Regulations 2006 (the Regulations) revoke and replace the Wilderness Protection Regulations 1992. The Regulations commenced on 1 September 2006. The Regulations regulate matters relating to wilderness protection areas and zones.

Specifically, the Regulations:

• provide for the interpretation of certain terms
• specify prescribed qualifications for wardens under the Wilderness Protection Act 1992
• assign powers to the director to open and close wilderness protection areas and zones
• set out requirements and offences relating to wilderness protection areas and zones concerning entry, use of vehicles, use of aircrafts and vessels, fires, use of caves, abandoned property, and fossil and geomorphological sites
• set out requirements and offences relating to use of various tools and machines in wilderness protection areas and zones including chainsaws, generators and alternators, metal and mineral detectors, firearms and other weapons, fireworks and explosives
• set out requirements and offences relating to various activities in wilderness protection areas and zones including camping, swimming, certain recreational activities, scientific research, site seeing or scientific expeditions and interference with earth
• make provisions for matters concerning animals and plants in wilderness protection areas and zones
• establish offences relating to wilderness protection areas and zones concerning disorderly behaviour and littering
• specify activities that require authority under lease, licence or agreement
• make provisions regarding the powers of wardens and the director
• establish a general defence where the defendant acted reasonably in response to an emergency, and
• stipulate various fees.

Australian Capital Territory

The Radiation Protection Act 2006

The Radiation Protection Act 2006 (Act) received assent on 31 August 2006 and is currently awaiting proclamation. The Act repeals the Radiation Act 1983 and the Radiation Regulation 2002. The Act provides a regulatory regime for the use of ionising and the future use of non-ionising radiation in line with the National Directory for Radiation Protection Edition 1.0.

Specifically, the Act:

• provides for the licensing and registration of radiation sources, including outlining the use of emergency powers and related offences such as abandoning a radiation source
• creates the ‘Radiation Council’ and prescribes its structure, duties and authority, and
• provides for the enforcement of the proposed provisions, including outlining the use and application of search warrants and providing for the power to destroy unsafe seized property.

Land (Planning and Environment) Amendment Regulation (No 4) 2006

The Land (Planning and Environment) Amendment Regulation (No 4) 2006) (amending Regulations) amended the Land (Planning and Environment) Regulation 1992 (the Regulations). The amending Regulations have now been repealed, following incorporation of their changes into the Regulations.

The changes specified that installing or altering a satellite dish for receiving purposes will be deemed an unconditional exemption under Schedule 1, subject to certain requirements such as the dish and supporting structure having a matt finish.

Victoria

Victorian Renewable Energy Act 2006

The Victorian Renewable Energy Act 2006 (Act) received assent on 19 September 2006 and is currently awaiting proclamation. The Act amends the Essential Services Commission Act 2001.

The Act establishes the Victorian Renewable Energy Target (VRET) scheme, which mandates that Victoria's consumption of electricity generated from renewable sources is increased to 10 per cent by 2016.

The VRET scheme involves creating and acquiring ‘renewable energy certificates’ in order to meet the objectives of encouraging additional renewable energy generation, investment in technology, increased employment opportunities, and reduction of greenhouse gas emissions.

In relation to the VRET scheme, the Act:

• prescribes certain energy sources as ‘eligible renewable energy sources’
• outlines registration requirements stipulated by the Electricity Services Commission (ESC)
• provides an accreditation process for power stations
• prescribes the form and content of certificates, including details of eligible renewable energy sources
• specifies that certificates may be created for additional renewable energy generated by a power station
• stipulates times when certificates may be created, including after generation of the final part of electricity for a year, and after the installation of a ‘small generation unit’
• prohibits the creation of certificates where a Commonwealth certificate has already been created
• requires an ‘electricity generation return’ and/or a ‘small generation unit return’ to be provided to the ESC on a specified date
• outlines the requirements of returns, including details of the amount of electricity generated using scheme capacity, the amount generated using eligible renewable energy sources, and the number of certificates created
• stipulates that no certificates can be created for electricity generated on or after January 2031
• prescribes the offence of improperly creating a certificate, punishable by 60 penalty units (currently $6,445.80) for an individual and 240 penalty units for a body corporate (currently $25,783.20)
• provides that a certificate is not valid until registered by the ESC
• enables registered certificates to be transferred, provided that notification is provided to the ESC
• specifies that the owner of a certificate may surrender it to the ESC, with the effect that it ceases to be valid, and
• enables the ESC to suspend registration of a person or accreditation of a power station by notice if there are reasonable grounds for believing an offence has been committed.

The Act confers responsibilities and powers on the ESC to:

• administer the Act
• register persons
• accredit power stations
• monitor the certificate scheme
• enforce shortfall penalties
• monitor compliance with the Act
• publish details of the certificate scheme
• maintain registers of persons, accredited power stations, and certificates, and
• compel the provision of information and documents relevant to administering the Act.

Additionally, the Act:

• enables the minister to approve an interstate renewable energy regime but outlines circumstances when the minister must not approve such a law, including where it would detract from the proposed Act or impose unreasonable costs on Victorian consumers
• requires a relevant entity which acquires electricity under a scheme to lodge an ‘energy acquisition statement’ on a specified date
• prescribes the elements of an energy acquisition statement, including name and address of the entity, the amount of electricity acquired, the MWh value of certificates being surrendered, and any surplus being carried forward
• prohibits a relevant entity from having a ‘renewable energy certificate shortfall’ in a year when it makes an acquisition of electricity, punishable initially by $43 per MWh
• prescribes the process for determining whether a relevant entity has a shortfall
• outlines the circumstances in which the ESC may issue a certificate surrender notice, including where there are reasonable grounds for suspecting breach with the Act
• specifies that certain ESC decisions are reviewable by the ESC, and
• provides for other matters including the appointment, powers and functions of authorised officers, confidentiality, false or misleading information, fees and rule-making powers.

Planning and Environment (Fees) (Indexation) Regulations 2006

The Planning and Environment (Fees) (Indexation) Regulations 2006 (amending Regulations) amend the Planning and Environment (Fees) Regulations 2000 (the Regulations) in order to vary certain fees payable under the principal Regulations. The amending Regulations commenced on 1 August 2006.

Environment Protection (Amendment) Act 2006

The Environment Protection (Amendment) Act 2006 (Act) was assented to on 29 August 2006 and amends the Environment Protection Act 1970. All sections except section 42 and 44 (Metropolitan Waste Management Group) and section 54 (Landfill Levy amendments) have commenced and are now in operation.

The Act makes a number of miscellaneous amendments, including:

• clarifying the definition of ‘scheduled premises’ and the circumstances under which the Authority may amend a works approval
• providing for the ‘amalgamation of licences for multiple premises’ and prescribing the Victorian Civil and Administrative Tribunal's jurisdiction to hear issues relating to licence amalgamations
• enabling licence requirements for certain scheduled premises to be transferred to a new owner
• prescribing annual reporting standards for licence holders under the Environment Protection Act 1970 by way of a ‘performance statement’ signed by a representative of the licensee
• prescribing ‘Environment and Resource Efficiency Plan’ requirements in relation to the registration and monitoring of scheduled activities
• establishing the ‘Metropolitan Local Governments' Waste Forum’ and the ‘Metropolitan Waste Management Group’ and prescribing their functions and powers
• providing for the creation of a Metropolitan Waste and Resource Recovery Strategic Plan and prescribing its requirements
• authorising the making of regulations concerning the provision of plastic bags. Under the regulations, retailers would be required to charge a minimum prescribed fee (such as a minimum of 10 cents) per plastic bag
• amending the existing ‘one size fits all’ prescribed industrial waste landfill levy. From 1 July 2007, different levies will apply to wastes of different hazard levels being deposited to landfill, and
• repealing the defence that a director had no knowledge of a contravention by his or her corporation.

The Act makes other consequential, technical and minor amendments designed to improve the operation and effectiveness of the Environment Protection Act 1970. Of greatest interest is the ability for the Act to serve pollution abatement notices and direct parent companies to take clean up and on-going management measures for a subsidiary, related or associated entity who caused or permitted the pollution, or abandoned or dumped industrial waste or a potentially hazardous substance.

Mineral Resources Development (Sustainable Development) Act 2006

The Mineral Resources Development (Sustainable Development) Act 2006 (Act) was assented to on 29 August 2006. The majority of the provisions of the Act have commenced, although sections 6(2), 26(2), 27(4) and 56 will commence on a date yet to be proclaimed.

The Act provides for the appointment of an environmental auditor under the Environment Protection Act 1970 and makes consequential amendments to reflect the change in name of the Mineral Resources Development Act 1990 to the ‘Mineral Resources (Sustainable Development) Act 1990’.

The Act also provides for the following amendments:

• a duty to consult with local communities in order to encourage companies to engage with their communities across the life cycle of a mine
• confirm the validity of established approved mining and exploration operations that were reliant on consents under section 45
• improvements to the rehabilitation provisions and clarification of powers to establish environmental offsets
• enhancement of the mineral allocation framework by the introduction of two new processes to enable direct allocation of coal, and
• a number of additional amendments to enhance certainty, consistency, transparency and accountability under the Act.

The Act also makes a number of consequential amendments to various pieces of legislation including, amongst others:

• Electricity Industry Act 2000 (Vic)
• Environment Protection Act 1970 (Vic)
• Forests Act 1958 (Vic)
• Geothermal Energy Resources Act 2005 (Vic)
• National Parks Act 1975 (Vic)
• Nuclear Activities (Prohibitions) Act 1983 (Vic)
• Petroleum Act 1998 (Vic), and
• Victorian Plantations Corporation Act 1993 (Vic).

Water (Governance) Bill 2006

The Water (Governance) Bill 2006 (Bill) was introduced into the Legislative Assembly on 8 August 2006 and received its second reading speech on 10 August 2006. The Bill proposes to amend the following legislation:

• insert a new Division 3 into the Catchment and Land Protection Act 1994 (Act) to establish the ‘Catchment Management Authorities’, and would prescribe the functions, powers and obligations of those authorities, including annual reporting obligations, corporate planning obligations and powers of delegation
• insert a new Division 4 in the Act to outline the staffing and electoral requirements in relation to the Board of the Catchment Management Authorities, including the board's responsibility for strategic planning and policy development, and the terms and conditions of the appointment of board members, and
• make other minor, consequential and technical amendments.

• amend the Conservation, Forests and Lands Act 1987 to insert a new clause under ‘Delegation of functions and powers’ which would enable the delegation of powers to the proposed Catchment Management Authority established under the Catchment and Land Protection Act 1994.

• repeal and replace section 78H of the Water Act 1989 (Act) to prescribe the applicable penalties for individuals and corporations who contravene a Drought Response Plan or an Emergency Management Plan, and
• insert a new section 78HA in the Act to prescribe the authority of certain persons to issue infringement notices in relation to such a contravention, and list the relevant infringement penalties for each notice.

• amend section 10 of the National Parks Act 1975 (Act), which relates to the composition of the National Parks Advisory Council, and
• insert a new definition of ‘metropolitan area’ in the Act and grant the Governor-in-Council the power to declare an area to be a ‘metropolitan area’ for these purposes by Order in the Government Gazette.

Water (Resource Management) Act 2005

Remaining provisions of the Water (Resource Management) Act 2005 have been proclaimed. This affects the Environment Protection Act 1970 and the Water Act 1989.

Amendments to the Water Act 1989 are designed to improve the legislative arrangements for the sustainable management of Victoria's water resources and include:

• the establishment of a new system of entitlements for rural water users by dividing their entitlements into three separate components, namely water shares, water-use licences and delivery obligations
• transitional arrangements in respect of the new system of entitlements, and
• establishment of a Water Register comprising of records and information in respect of the new entitlements as well as a process for reconfiguring water distribution systems.

The Water (Resource Management) Act 2005 makes only consequential amendments to the Environment Protection Act 1970.

Catchment and Land Protection (Further Amendment) Act 2006

The Catchment and Land Protection (Further Amendment) Act 2006 (Act) amends the Catchment and Land Protection Act 1994. Most provisions are still awaiting proclamation.

According to section 1, the Act proposes to further provide for notices and declarations relating to noxious weeds and pest animals.

Specifically, the Act:

• enables the secretary to serve a land management notice if satisfied that a land owner has failed to comply with a priority area or directions notice
• prohibits the secretary from serving a land management notice relating to a noxious weed or pest animal if a directions notice dealing with these issues is already in force
• repeals the secretary's requirement to consult with a land owner before serving a land management notice
• ensures that a land management notice is served on joint owners of land
• extends the elements of a landowner's notice indicating compliance with a land management notice to include details of compliance measures undertaken or reasons for compliance measure not undertaken, punishable by 10 penalty units (currently $1,074.30)
• stipulates that the minister's declaration of an area of land as a ‘priority area’ for the purpose of controlling or eliminating prohibited weeds or pest animals must be published in the Government Gazette and a locally circulating newspaper and be accompanied by a plan or map
• prescribes the requirements of priority area and directions notices, including details of the category of noxious weed or pest animal, measures to be undertaken, and a timeframe for measures
• prescribes the offence of failing to take a measure outlined by a notice to deal with noxious weeds or pest animals within the specified time, punishable by 20 penalty units (currently $2,148.60)
• enables the minister to recommend a plant for declaration as a noxious weed if it is or may be a ‘serious threat to primary production’ beyond Victoria
• clarifies that the minister may recommend a plant for declaration as a ‘regionally prohibited weed’ even if it does not occur in the region
• removes the requirement for the minister to obtain advice before recommending a plant for declaration as a noxious weed if it does not threaten primary production
• prescribes the offences of displaying, planting or propagating noxious weeds in Victoria without a permit, punishable by 120 penalty units (currently $12,891.60)
• provides that an authorised officer may enter land with or without notice and take animal and plant samples to determine compliance with a priority area or directions notice
• enables a magistrate to grant a warrant for an authorised officer to re-enter land, and
• provides that a person who is served a notice but is not the land owner must inform the secretary within seven days, punishable by 10 penalty units (currently $1,074.30).

Planning and Environment (Growth Areas Authority) Act 2006

The Planning and Environment (Growth Areas Authority) Act 2006 (Act) amends the Planning and Environment Act 1987 (Vic) (principal Act). The Act was assented to on 13 June 2006 and received proclaimed on 31 August 2006.

The Act amends the principal Act in order to provide for the establishment of the Growth Areas Authority (authority). Specifically, the Act:

• authorises the minister to designate certain land as a ‘growth area’, and to add or remove land from established growth areas
• prescribes the Municipal Councils which are growth area councils
• establishes the Growth Areas Authority as a corporate entity
• outlines the objectives of the authority, including to ensure coordinated and timely development of growth areas and infrastructure, promoting sustainable development, promoting housing diversity, create employment opportunities and fostering community
• details the functions of the authority, including making recommendations to the minister on growth area planning and development issues
• prescribes other matters relating to the authority, including further powers, membership criteria, conditions of appointment, meeting procedures, and the provision of an annual business plan, and
• enables the minister to delegate powers to the authority.

The Act also makes a number of minor and consequential amendments.

Heritage Rivers (Further Protection) Act 2006

The Heritage Rivers (Further Protection) Act 2006 (Act) proposes to amend the Heritage Rivers Act 1992 (Vic). The Act was assented to on 19 September 2006 and is currently awaiting proclamation.

The Act prohibits construction of new ‘impoundments, barriers and structures’ that hinder the passage of water fauna in heritage river areas and amends provisions relating to management plans.

Specifically, the Act:

• requires a managing authority to prepare a management plan for a specific heritage river or a natural catchment area if requested by the minister
• enables the minister to consider the adequacy of other plans relating to the area and request the preparation of a new plan
• requires a Catchment Management Authority to consider public comments on its proposed management plan, and to publish a notice in the Government Gazette if it makes, amends or revokes a management plan
• stipulates that a Minister responsible for approving a management plan must consult with another minister to ensure that they are aware of additional requirements which may be imposed on an area
• provides that powers relating to management plans are subject to disallowance by parliament, and prescribes circumstances when a plan may be disallowed
• stipulates that the effect of disallowance is revocation
• requires notice of a disallowed plan to be published in the Government Gazette
• specifies that a management plan must include matters specified by the minister
• prohibits the construction or extension of an impoundment in a heritage river area, and
• omits Column 1 of the Schedule 3 table (Restricted land and water uses in heritage river areas).

The Act also makes other minor and consequential amendments.

Tasmania

Living Marine Resources Management (Miscellaneous Amendments) Bill 2006 and Marine Farming Planning Amendment Bill 2006

Two draft bills were recently released for public comment: the Living Marine Resources Management (Miscellaneous Amendments) Bill 2006 and the Marine Farming Planning Amendment Bill 2006.

Proposed changes to the Living Marine Resources Management Act 1995 include a variety of amendments to the fisheries management, licensing and regulating regime.

The Marine Farming Planning Act 1995 proposes to make minor consequential amendments to update statutory references and maintain consistency with the Living Marine Resources Management Act 1995.

Although public consultation in relation to the draft Bills closed on 31 August 2006, a summary of the proposed changes is available here.

Environmental Management and Pollution Control (Environmental Infringement Notices) Regulations 2006

The Environmental Management and Pollution Control (Environmental Infringement Notices) Regulations 2006 (Regulations) commenced on 30 August 2006, replacing the Environmental Management and Pollution Control (Infringement Notices) Regulations 1996.

The Regulations detail the penalties for a number of offences set out under the:

• Land Use Planning and Approvals Act 1993
• Environment Protection (Domestic Solid Fuel Burning Appliances) Regulations 1993
• Environmental Management and Pollution Control (Miscellaneous Noise) Regulations 2004, and
• Environmental Management and Pollution Control (Waste Management) Regulations 2000.

Northern Territory

Biological Resources Bill 2006

The Biological Resources Bill 2006 (Bill) has been introduced into the Northern Territory Parliament. The Bill seeks to:

• regulate bioprospecting access to biological resources in the Northern Territory
• ensure that the bioprospecting activities are only undertaken with the informed consent of the resource access provider
• ensure recognition of the traditional Indigenous knowledge, and
• ensure that the resource access provider receives a proportion of the benefits from any commercial outcome.

For more information please contact

Name : John Taberner
Title : Consultant
Office : Sydney
Phone : +61 2 9225 5427
Fax : +61 2 9322 4000
Email : john.taberner@freehills.com

Name : Michael Back
Title : Partner
Office : Brisbane
Phone : +61 7 3258 6611
Fax : +61 7 3258 6444
Email : michael.back@freehills.com

Name : Tim Power
Title : Partner
Office : Melbourne
Phone : +61 3 9288 1484
Fax : +61 3 9288 1567
Email : tim.power@freehills.com

Name : Tony van Merwyk
Title : Partner
Office : Perth
Phone : +61 8 9211 7660
Fax : +61 8 9211 7878
Email : tony.vanmerwyk@freehills.com