Environment and Sustainable Development 5 Minute Fix 32: ozone layer, nuclear energy, hydrogen, water, biodiversity and planning

10 Nov 2022
Time to read: 5 minutes

Climate change

Commonwealth: New laws introduced to close the hole in the ozone layer

The Ozone Protection and Synthetic Greenhouse Gas Management Reform (Closing the Hole in the Ozone Layer) Bill 2022 (Cth), which was introduced by the Albanese Government on 28 September 2022, is aimed at helping Australia manage the chemicals that destroy the ozone layer.

The Bill implements Australia’s commitment to the Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol), the Vienna Convention for the Protection of the Ozone Layer, the United Nations Framework Convention on Climate Change and the Kyoto Protocol by including stronger measures to heal the ozone layer and reduce harmful emissions.

As set out in the Explanatory Memorandum, if passed, the Bill would amend the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) to (amongst other things):

  • imposing controls that are currently imposed through licence conditions, such as the ban on import of bulk gas in non-refillable containers;
  • clarifying licence and exemptions requirements, including changes to make the legislation easier to understand and reduce unintentional non-compliance;
  • increasing the time allowed for submitting reports and payment levies;
  • adopting the standard provisions of the Regulatory Powers (Standard Provisions) Act 2014, including certain minor modifications;
  • updating the offence and civil penalty provisions;
  • introducing information gathering powers including the ability to issue a notice to produce;
  • providing the option of licence suspension as an alternative to immediate cancellation of financial penalties;
  • providing for an internal review mechanism for reviewable decisions; and
  • allowing the use or disclosure of certain information.

NSW: Net Zero Cities Action Plan released

The NSW Government has released its Net Zero Cities Action Plan which is aimed at achieving its net zero emissions by 2050 target and reducing the power bills of residents. As the basis for the development of the plan, Infrastructure, Cities and Active Transport Minister Rob Stokes pointed to the fact that Greater Sydney contributes 38% of the State’s greenhouse gas emissions. The plan sets out 16 actions which are to be implemented over the next three years and focus on the following three levels:

  1. at home, such as getting solar panels, recycling, and having smart water and energy meters;
  2. in the neighbourhood, including car sharing, community scale batteries and emission-free regular and reliable public transport; and
  3. in the suburb or city, for example a distributed energy network and micro-grid, a recycling facility and a fully integrated electric vehicle charging network.

TAS: Tasmanian proposes to set Australia’s most ambitious emissions reductions target

Under the Climate Change (State Action) Act 2008 (Tas), the Tasmanian Government is required to conduct an independent review of its action on climate change mitigation and adaptation every 4 years. As discussed in our 5 Minute Fix 21, the Climate Change (State Action) Amendment Bill 2021 was introduced on 24 November 2021 following the most recent independent review, however it lapsed due to the Parliament of Tasmania being prorogued.

The Bill has now resumed in Parliament and as previously discussed, intends to implement some of the recommendations arising from the most recent review by establishing a target of net zero emissions by 30 June 2030, amongst a range of other measures.

The Bill is quite far-reaching and requires the Minister for Climate Change to publish a five-yearly climate change plan, a five-yearly climate change risk assessment and five-yearly emissions reduction and resilience plans for individual sectors. It also seeks to establish annual greenhouse gas reporting and climate change activity statement, as well as expanded consultation with local communities.

Currently, the Bill has passed the Legislative Assembly and is pending approval from the Legislative Council.


Commonwealth: Bill to lift nuclear energy prohibitions referred to Committee for inquiry

In a bid to progress nuclear power as an energy source in Australia due to its potential to provide reliable and emission free power, the Environment and Other Legislation Amendment (Removing Nuclear Energy Prohibitions) Bill 2022 (Cth), a private member’s bill, was introduced to the Senate on 28 September 2022. There has been a blanket ban on nuclear energy since 1999 and this Bill seeks to remove the ban by amending:

  • the Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) to remove the prohibition on the construction or operation of certain nuclear installations; and
  • the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to remove the prohibition on the Minister for Environment and Water declaring, approving or considering actions relating to the construction or operation of certain nuclear installations.

On 27 October, the Bill was referred to the Environment and Communications Legislation Committee for inquiry and report by 31 March 2023. Any interested parties may make submissions by 12 December 2022 for consideration by the Committee in the manner prescribed here.

WA: Consultation for Renewable Hydrogen Target

The Western Australia Government is taking steps to implement its Renewable Hydrogen Strategy by inviting stakeholders to make submissions on the design of the Renewable Hydrogen Target (Target) for electricity generation on the South West Interconnected System. The Target options being considered have been set out in the Renewable Hydrogen Target Consultation Paper.

The purpose of the Target will be to support the growth of the renewable hydrogen industry and stimulate local demand for hydrogen. It is expected the Target will require electricity retailers to procure a certain percentage of electricity fuelled by renewable hydrogen, create a local market which would support emerging hydrogen projects and improve grid stability. It is anticipated that the design work will be finalised by 2023.

Stakeholder input will be crucial in this process and consultation closes 5pm 10 November 2022.

WA: New study to generate WA wind turbine manufacturing industry

As part of the Wind Turbine Manufacturing Initiative, the WA Government has commissioned an independent feasibility study into manufacturing wind turbine components in Western Australia. The feasibility study will be conducted by Aurecon who will consult with industry and supply chain participants.

The commitment to the full feasibility study follows the pre-feasibility study endorsed in 2021. This study recommended actions to progress wine turbine manufacturing in Western Australia and identified that Government financial assistance is critical to transitioning WA Businesses to wind turbine component manufacturing.

WA: Grants available to support innovation to reduce greenhouse gas emissions

The WA Government has launched a $15 million Carbon Innovations Grants Program to encourage innovation to remove, reduce or offset emissions from industrial processes. This forms part of the WA Government’s support to heavy industry transition to net zero carbon emissions by 2050. The grants, with approximately $4 million available each year until 2025, are to be delivered through two funding streams by the Department of Water and Environmental Regulation. The first will be grants for feasibility studies ranging from $50,000 to $500,000 to support development to progress from a concept to real world trials. The second will be grants for pilot projects and capital works, ranging from $100,000 to $1.5 million to support the "real world" testing of innovative technologies from pilot to full-scale deployment.

Applications for grants close on 16 December 2022 and will need to follow the application process set out here.


NSW: Bill seeking transparency of water ownership

The Water Management Amendment (Water Access Licence Register) Bill 2022 (NSW), a private member’s bill, was introduced on 20 October 2022 and proposes a number of changes to the Water Management Act 2000 (NSW) aimed at public transparency of water ownership in NSW, including:

  • introducing the requirement of Unique Identification Numbers and making them a requirement for applying for water access licences;
  • changing information recorded in the Access Register and how it can be publicly accessed; and
  • amending the Constitution Act 1902 and the Constitution (Disclosures by Members) Regulation 1983 to require Members of Parliament to disclose certain water interests.

SA: Review of petroleum and geothermal energy legislation: have your say

The Department for Energy and Mining (DEM) is seeking submissions on a new draft Bill to amend the Petroleum and Geothermal Energy Act 2000 (PGE Act). A draft Bill was originally introduced on 25 August 2021, however it did not progress before the March 2022 change of government. The new Petroleum and Geothermal Energy (Energy Resources) Amendment Bill 2022 (SA) has now been prepared which incorporates the proposed amendments which were the subject of public consultation in 2021.

The amendments proposed to the PGE Act are aimed at improving efficiency, clarity and transparency of existing regulatory processes. Importantly, the hydrogen generation provisions which were in the 2021 draft Bill have been removed and it is understood they will instead be included in separate legislation for licensing and regulating hydrogen energy.

The consultation period in the draft Bill closes on 14 November 2022 and submissions can be made in the manner prescribed here.


QLD: Fast-tracking emergency and community housing

On 21 October 2022, the Planning (Emergency Housing) Amendment Regulation 2022 (Qld) amended the Planning Regulation 2017 (Qld) to:

  • fast-track planning approvals for community, social and affordable housing through the infrastructure designation process. This includes housing provided as part of a program for providing social or affordable housing funded by the State as well as social and affordable housing that is provided by a registered provider within the meaning of the Housing Act 2003 (Qld); and
  • allow for temporary emergency accommodation without the need to seek planning approvals for persons affected by an “event” as defined under the Disaster Management Act 2003 (Qld). This accommodation is to be provided, or on behalf of, the State or a local government and cannot be in flood, bushfire or landslide hazard areas under a State planning instrument or local instrument.

Environmental protection

Commonwealth: New referral guidance released for endangered koala

Following the change to the listing of koalas from “vulnerable” to “endangered” under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) earlier this year, the Department of Climate Change, Energy, the Environment and Water has now released referral guidance for the endangered koala. The new guidance replaces the previous EPBC Act referral guidelines for the vulnerable koala and should be used by proponents, project managers and consultants in deciding how to most appropriately engage with the referral and assessment of the koala (combined populations of Queensland, New South Wales and the Australian Capital Territory) for actions under the EPBC Act.

The new referral guidance provides supporting documents including - identifying koala habitat, effects of fire on koalas and their habitat and revegetating koala habitat. As per the guidance, when self-assessing the potential negative impacts of an action on the koala, the following must be considered in the context of the endangered species criteria in the Significant Impact Guidelines 1.1:

  • the scale of the action and its impacts;
  • the intensity of the action and its impacts;
  • the duration and frequency of the action and its impacts;
  • the context of the environment eg. sensitivity, value, quality and size of the environment, the sites connectivity to other habitats and its importance in the conservation of the environment;
  • the nature of the potential impacts that are likely to result from the action; and
  • whether mitigation measures will avoid or reduce these impacts.

Proponents must also consider if their action is likely to have a significant impact on the koala which may include – a long-term decrease in population, reduction in the area of occupancy, adversely affecting critical habitat, interrupting the breeding cycle, an invasive species establishing in the koala’s habitat, introduction of disease or interfering with the species recovery process.

Commonwealth: Meeting of the environment ministers sets commitments on biodiversity

Australia’s Commonwealth Minister for the Environment and the environment minister from each Australian state and territory met on 21 October 2022 and agreed to three commitments to prevent and reverse biodiversity loss across Australia in a plan to put the environment back on track for recovery. The three main commitments included:

  1. work collectively to achieve a national target to protect and conserve 30% of Australia’s landmass and 30% of Australia’s marine areas by 2030;
  2. to note the Commonwealth’s intention to establish a national nature repair market and agreed to work together to make nature positive investments easier as well as focusing on a consistent approach to measure and track biodiversity; and
  3. work with the private sector to design out waste and pollution, keep materials in use and foster markets to achieve a circular economy by 2030.

In addition, the Ministers agreed to increase protection for threatened species and work towards zero new extinctions by endorsing the recently released Threatened Species Action Plan, establish a nature repair market to protect biodiversity, commit to stronger environmental laws to offer greater protection to nationally significant animals, plants, habitats and places and make progress towards improving Australia’s waste management and recycling activities under the National Waste Policy Action Plan.

QLD: Next stage reef protection: minimum agricultural standards commencing 1 December 2022

From 1 December 2022, the new Reef Protection regulations which stipulate minimum practice agricultural standards will apply across the following regions:

  • Wet Tropics – grazing;
  • Burdekin – bananas;
  • Mackay Whitsunday – bananas and grazing;
  • Fitzroy – bananas and sugarcane; and
  • Burnett Mary – bananas, sugarcane and grazing (collectively the Regions).

The requirements under the Reef protection guidelines are:

  • Record-keeping:- all graziers, sugarcane and banana producers and agricultural advisers in the Regions must keep records and those records need to demonstrate activities are being undertaken in accordance with the minimum practice standards.
  • Minimum practice agricultural standards: primary producers in the Regions need to comply with industry specific minimum practice agricultural standards and the government has committed to making these standards substantially unchanged until 1 December 2024. Minimum practice agricultural standards for grains and horticulture production have not yet been developed and are not proposed to come into effect until 1 December 2024.
  • Farm nitrogen and phosphorus budget (sugarcane only): All sugarcane producers in Fitzroy and Burnett Mary regions must have farm nitrogen and phosphorus budget from 1 December 2022. This was already required by 1 December 2021 in the Wet Tropics, Burdekin and Mackay Whitsunday regions.
  • New or expanding cropping and horticulture activities: activities in any Reef region on five hectares or more of land that does not have a cropping history requires an environmental authority (permit) before the activity or any work takes place. Once the permit starts, the producer must comply with the relevant general record keeping requirements, minimum practice agricultural standards and budget requirements outlined above.
  • New, expanded or intensified industrial land use activities: activities in any Reef region must meet new discharge standards (ensure no increase in nutrients or sediment pollutant loads within the Great Barrier Reef).

VIC: Ban on single-use plastic items set to commence on 1 February 2023

To encourage persons and entities to reduce the overall use of certain single-use plastic items, the Environment Protection Amendment (Banning Single-Use Plastic Items) Regulations 2022 (Vic) have now been made and will amend the Environment Protection Regulations 2021 (Vic) to (amongst other things) introduce a ban on the sale, supply, distribution or provision of single-use plastic drinking straws, plates, cutlery, drink stirrers, expanded polystyrene food and drink containers, and cotton bud sticks in Victoria. The ban will commence on 1 February 2023.

VIC: EPA actively enforcing Victoria’s new General Environmental Duty

The Victorian Environment Protection Authority has launched its first prosecutions alleging breaches of the new General Environmental Duty (GED) which came into force 1 July 2021. The GED imposes an obligation on businesses and individuals to take steps to identify and minimise environmental risks which is an indictable offence and currently carries weighty penalties of up to $1,849,200 for corporations or, in the case of individuals, fines of up to $369,840 with higher penalties applying to aggravated breaches, including 5 years imprisonment for an individual.

The EPA is seeking an injunction against a Ballarat development company, Vista Estate Pty Ltd, for allegedly allowing sediment from their construction site to run into a nearby river. Prior to commencing court proceedings, the EPA had issued five remedial notices to the company but remained unsatisfied with the action taken. The hearing is currently scheduled for mid-November.

On 27 October, the MTAW Group Pty Ltd was charged with breaching the GED by the EPA in relation to a detergent spill on 7 March 2022 which allegedly caused the deaths of thousands of fish. MTAW Group Pty Ltd is facing a penalty of $1.8 million if it is found to be in contravention.

Finally, on 28 October the EPA charged a landfill company, Barro Group Pty Ltd, with offences relating to smoke and odour from the Kealba landfill located in Sunshine, Victoria. The company has until 14 November to show why its licence to operate should not be revoked. The company also received an Environment Action Notice to require ongoing risks from the site continue to be monitored, prevented and managed, and a Clean Up Notice requiring the hotspots to be remediated with auditor-verification, and air monitoring and community engagement undertaken.

Each of these cases show that the EPA is now actively enforcing the GED, as well as the other duties in the Environment Protection Act 2017. This emphasises the importance of ensuring adequate systems and processes are in place to actively manage the risks of harm to human health or the environment from pollution or waste. We expect more enforcement activity following environmental incidents and expect to see the EPA demanding even more proactive risk identification and management measures being put in place to ensure the GED is being met.

VIC: New strategy aimed at air pollution and quality released

The Victorian Government has released Victoria’s Air Quality Strategy which is aimed at preventing air pollution and improving air quality. Development of the strategy has been prompted by Victoria’s rapid population growth, increasing urbanisation and transport use, and a warmer and drier climate. There are four pillars to the strategy:

  • targeting the main causes of air pollution in the industrial sector, motor vehicles, wood heaters and smoke from planned burns;
  • reduce the community impact of air pollution by supporting education and behaviour change;
  • better data on air quality on its impact through the Environmental Health Tracking Network; and
  • reducing the use of fossil fuels.

The strategy includes supporting businesses to reduce energy use, emissions, and pollution, and invest in energy innovation, as well as focusing on the adoption of zero emission vehicles. The strategy sets out an Action Plan for the first two years until 2024, with further Action Plans to be released between 2024-2030.

TAS: Reforming Tasmania’s environmental regulatory system

On 18 October 2022, the Minister for Environment and Climate Change introduced the Environmental Management and Pollution Control Amendment Bill 2022 (Tas) which proposes amendments to mandate the independence of the Environmental Protection Authority from the Department of Natural Resources and Environment Tasmania and improve public access to environmental monitoring information. Under the Bill, the Minister would be empowered to make Environmental Standards in consultation with the public, and to make Technical Standards to assist with the industry’s compliance with the environmental regime.

The central purpose of the Bill is to modernise environmental regulation, improve transparency and provide certainty as to the independence of that regulation. The Bill has passed the Legislative Assembly and is now being considered by the Legislative Council. 

WA: Western Australia’s Plan for Plastics – Stage 2: have your say

The Department of Water and Environmental Regulation has released the Stage 2 Plan for Plastics discussion paper for public comment which identifies a second set of single-use or disposable plastic items and materials to phase out from 2023, including:

  • expanded polystyrene packaging
  • degradable plastics (plastics designed to break up more rapidly into fragments under certain conditions).
  • barrier/produce bags
  • expanded polystyrene cups
  • coffee cups and lids
  • lids for cups, bowls and takeaway food containers
  • cotton buds with plastic shafts
  • microbeads

This second stage follows the Stage 1 regulations which imposed the ban of single-use bowls, cups, plates, cutlery, stirrers, straws, polystyrene food containers, thick plastic bags and helium balloon releases commencing on 1 January 2022. The Stage 2 Plan for Plastics discussion paper is open for public comment until 18 November 2022 and submissions can be made in the manner prescribed here.

WA: New waterwise plan released to support water efficiency

The second waterwise plan which builds on the first released in 2019 has been launched. The plan outlines the next steps towards building a more water-efficient Perth-Peel region, help tackle the impacts of climate change on water resources, save over 70GL of water every year by 2029 and implement a whole of government approach and Aboriginal engagement in future water resource management. The two-year plan includes 42 actions set to conserve water and support biodiversity, urban greening and cooling.

The plan includes actions to achieve the following by 2030:

  • 10,000 State Government-owned social housing properties State-wide retrofitted with water-efficient fixtures;
  • 10% less groundwater used across the Perth-Peel region;
  • 100% of government-led urban development projects in Perth and Peel to be waterwise;
  • 100 restoration projects to improve water quality and health of Swan/Canning Riverpark tributaries and catchment; and
  • Over 40% increase in the use of recycled water.

WA: Plan to protect West Australia’s forests

The West Australian Government has released a draft 10-year Forest Management Plan (2024-2033) for public comment. The plan is expected to preserve a minimum of 400,000 hectares and ensure the only timber taken from native forests will come from management activities designed to improve forest health. This plan affirms the McGowan Government’s commitment to act proactively on climate change and biodiversity protection by reducing deforestation and degradation. $80 million is being invested in the Native Forestry Transition plan to ensure workers, businesses and communities are adequately supported out of the native logging industry.

Submissions can be made until 18 December 2022 in the manner prescribed here.

WA: Public consultation now open on Sandalwood Management

Western Australians are now invited to comment on the Draft Sandalwood (Santalum spicatum) Biodiversity Management Programme in relation to the conservation and use of sandalwood over the next five years on both Crown and private land. This first Sandalwood Biodiversity Management Plan will set out how wild sandalwood will be conserved, protected and managed, as well as its ecologically sustainable use now and into the future consistent with the Biodiversity Conservation Act 2016 (WA). This will be achieved by administering limits on harvest quantities, gathering information including with respect to threats, mitigating such threats and implementing regeneration processes.

Submissions can be made until 9 December 2022 in the manner prescribed here.

SA: Have your say on the regulation of private conservation areas

The Native Vegetation Council has opened consultation on a draft Heritage Agreement policy and Application for financial assistance guideline. This policy and guidelines will streamline the decision-making process surrounding Heritage Agreements.

The draft Heritage Agreement policy facilitates conservation, establishes criteria for approving new Heritage Agreements, clarifies permitted activities including specifying carbon farming and biodiversity markets, establishes considerations for varying or terminating Heritage Agreements and creates incentives for Heritage Agreement owners.

The draft Application for financial assistance guideline specifies the required information to be included when making an application for financial assistance to manage a Heritage Agreement or approved revegetation project.

Contributions may be made here until 16 December 2022 in the manner prescribed here.

Special thanks to Sarah Ashley (Brisbane), Sian Ainsworth (Melbourne), Eli Hall (Sydney) and Isabelle Macdonald (Perth) for their contribution to this edition.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.