Environment and Sustainable Development 5 Minute Fix 41: sea dumping, climate change, wind farms, housing affordability

25 Aug 2023

Climate change

Commonwealth: Private member's Bill proposes statutory climate change duty of care: have your say

On 3 August 2023, Independent Senator David Pocock introduced a private member's Bill, the Climate Change Amendment (Duty of Care and Intergenerational Climate Equity) Bill 2023 (Cth), which is to "plug the gap exposed by the Sharma case and create further safeguards to avert harm to the health and wellbeing of current and future Australian children".

The Bill proposes to amend the Climate Change Act 2022 (Cth) to impose two statutory duties on decision-makers for significant decisions made under the

  • Environment Protection and Biodiversity Conservation Act 1999;
  • Export Finance and Insurance Corporation Act 1991;
  • Infrastructure Australia Act 2008;
  • National Reconstruction Fund Corporation Act 2023;
  • Northern Australia Infrastructure Facility Act 2016; and
  • Offshore Petroleum and Greenhouse Gas Storage Act 2006 (referred to as a "relevant enactment").

The proposed statutory duties of care under the Bill are:

  1. A person would have a statutory duty to consider the health and wellbeing of current and future children in Australia when making certain administrative decisions contributing to climate change (called significant decisions).
  2. A person would have a statutory duty not to make a significant decision in relation to the exploration or extraction of coal, oil or natural gas if the likely emission of greenhouse gases as a result of the decision poses a material risk of harm to the health and wellbeing of current and future children in Australia.

The "significant decisions" to which the statutory duties will apply:

  • are decisions of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under a relevant enactment or a part of a relevant enactment, and that is likely to result directly or indirectly, over the lifetime of one or more facilities, in the emission of greenhouse gases that are scope 1 emissions, scope 2 emissions or scope 3 emissions and have a carbon dioxide equivalence of at least 100,000 tonnes (gross); and
  • also include relevant decisions of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under the Export Finance and Insurance Corporation Act 1991, Infrastructure Australia Act 2008; the National Reconstruction Fund Corporation Act 2023; the Northern Australia Infrastructure Facility Act 2016, and any other Act or instrument prescribed by the rules (a new provision is to be inserted to allow the Minister to make rules for the purposes of the Climate Change Act 2022).

The Bill also proposes to add a new object to section 3 of the Climate Change Act "to promote intergenerational equity by requiring the health and wellbeing of current and future children in Australia to be considered by persons making certain administrative decisions that are likely to contribute to climate change."

The phrase "health and wellbeing" in the proposed object to section 3 includes the following:

  • emotional health and wellbeing;
  • cultural health and wellbeing;
  • spiritual health and wellbeing.

Upon its introduction, the Bill was automatically referred to the Environment and Communications Legislation Committee for inquiry and report by 1 February 2024. On 7 August the Committee was granted an extension of time for the report until 1 March 2024. Submissions to the Committee on the Bill can be made in the approved form by 20 October 2023.

WA Government introduces first Climate Change Adaption Strategy

On 25 July, the WA Government released its first Climate Adaptation Strategy, which outlines the Government's approach to ensuring communities, the environment and the economy are resilient to future climate change and its effects.

The Strategy outlines four key directions to support and accelerate climate adaption in WA:

  1. Produce and communicate credible climate information and resources.
  2. Build public sector climate capability and strengthen accountability.
  3. Enhance sector-wide and community partnerships to unite and coordinate action.
  4. Empower and support the climate resilience of Aboriginal people.

The Strategy also includes a Climate Adaption Action Plan, which outlines 37 actions for how the WA Government and its Departments / Agencies will address and implement the Strategy's four key directions, including indicative timeframes to complete these actions.

This Strategy is designed to align with the WA Government's proposed new Climate Change Act and Climate Risk Framework, which are intended to be introduced into WA Parliament later this year.


Commonwealth: Committee recommends passing Bill to allow sea dumping for climate change

The Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 2022 (Cth), which was introduced on 22 June 2023, proposes to amend the Environment Protection (Sea Dumping) Act 1981 (Cth) (Sea Dumping Act) to give effect to Australia’s international obligations under 2009 and 2013 amendments to the London Protocol.

If passed, the Bill will amend the Sea Dumping Act to allow the Minister for the Environment to:

  • issue an export permit for a controlled material, being a carbon dioxide stream from carbon dioxide capture processes for sequestration into a sub-seabed geological formation, in specified circumstances; and
  • issue a permit for the placement of wastes or other matter for a marine geoengineering activity as permitted by the London Protocol (currently, ocean fertilisation for legitimate scientific research). It would also make a range of consequential and technical amendments, including to offence and enforcement provisions.

On the same day as its introduction, the Bill was referred to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 27 July 2023.

In its report, tabled on 27 July 2022, the Committee recommended the Bill be passed and acknowledged the "benefits of implementing Australia's obligations under the London Protocol, including ensuring the establishment of a structured regulatory framework for such activities, via a dedicated application, assessment and approval permitting process" as this would provide legal certainty for industry and research organisations.

The Bill passed the House of Representatives on 3 August 2023 and is currently before the Senate.

QLD: Queensland plastic ban commencing 1 September 2023

Queensland's single-use plastic ban is set to expand with the prohibition of additional single-use plastic items from 1 September 2023 as part of Queensland's Plastic Pollution Reduction Plan.

From 1 September 2023, the ban will extend to include the supply of the following single-use plastic items:

  • cotton buds with plastic stems;
  • expanded polystyrene loose packaging;
  • plastic microbeads in rinseable personal care and cleaning products;
  • heavyweight plastic shopping bags; and
  • mass release of lighter than air balloons.

There are exemptions in place permitting the following businesses to continue to use banned single-use plastic items. These include clinics or facilities that provide care to persons with disability or healthcare needs; hospitals; dental clinics; medical clinics; pharmacies; aged care facilities; and medical suppliers.

The additional single-use plastic items expand the 1 September 2021 ban on the supply of the following single-use plastic items:

  • single-use plastic straws
  • plastic stirrers and swizzle sticks
  • plastic plates
  • unenclosed plastic bowls
  • plastic forks, spoons, knives, splayds, chopsticks, and food picks
  • expanded polystyrene (EPS) takeaway food containers
  • expanded polystyrene (EPS) cups.

The expansion of single-use items banned under Queensland's Plastic Ban coincides with the commencement of amendments to the Waste Reduction and Recycling Act 2011 (Qld) by the Waste Reduction and Recycling and Other Legislation Amendment Act (2023) (Qld), which prohibits the release of lighter-than-air balloons without lawful reason. The littering offence of lighter-than-air balloons commencing 1 September 2023 is a related action under Queensland's Plastic Pollution Reduction Plan.


QLD: Regulatory framework for wind farms under review

The Queensland Government has released a Draft Planning Guidance for State Code 23: Wind Farm Development and Draft State Development Assessment Provision (draft SDAP) for public consultation as part of its review of the State Code 23: Wind Farm Development (Wind Farm Code).

Currently, the State Government assesses all wind farm applications through the State Assessment and Referral Agency (SARA) using the Wind Farm Code and associated Planning Guidance.

While the Wind Farm Code already includes requirements aimed at ensuring wind farms are designed and operated to minimise adverse impacts on the natural environment, ecological processes, visual amenity, air services, transport networks and noise levels, a number of key changes to the Wind Farm Code and Planning Guidance are being proposed to:

  • strengthen the environmental assessment criteria to prevent impacts on threatened species and associated habitats and areas of high ecological value
  • clarify requirements for replanting and rehabilitating areas that are cleared for construction that are not needed to remain cleared for operations
  • require projects to better understand areas of high erosion risk, particularly in Great Barrier Reef catchments, when formulating site layouts and to submit material for assessment to demonstrate that erosion and run off during construction can be adequately managed
  • require applicants to demonstrate during the assessment that a viable heavy haulage route can support project construction
  • introduce a new assessment criterion requiring proponents to assess the implications on surrounding communities and townships of proposed on-site construction camps.

Feedback can be provided via a survey until Monday 4 September 2023.


VIC: Modernising regulatory process for sustainable mining

On 3 August 2023, the Victorian Parliament passed the Mineral Resources (Sustainable Development) Amendment Bill 2023 (Vic) to amend the Mineral Resources (Sustainable Development) Act 1990 (Vic) (including to change its name to the Mineral Resources and Extractive Industries Act 1990) to modernise the regulatory process for exploration, mining and quarrying industries in Victoria.

Upon its commencement, the amendments will introduce a new duty-based regulatory model which:

  • includes a statutory primary duty to eliminate as far as reasonably practicable or, if it is not reasonably practicable to eliminate risks of harm, reduce so far as reasonably practicable the risk of harm to the environment, public, land, property and infrastructure of particular work or rehabilitation carried out by the person;
  • removes the existing requirement for holders and applicants of certain licences and extractive industry work authorities to lodge a work plan for the licence or authority;
  • provides for a system of risk levels for authorities that determines the obligations with which an authority holder must comply in relation to the duty to eliminate or minimise risk;
  • removes the requirement to lodge work plans, while retaining the requirements relating to rehabilitation plans;
  • require the regular review of rehabilitation plans; and
  • amends the Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020 to reflect the removal of the requirement to lodge work plans.

To determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm posed to the environment, to any member of the public or to land, property or infrastructure, regard must be had to the following matters:

  • the likelihood of the risk eventuating;
  • the severity of the harm that may result if the risk eventuates;
  • what the duty holder of the authority knows, or ought reasonably to know, about the risk and any methods of eliminating or minimising the risk;
  • the availability and suitability of any methods of eliminating or minimising the risk;
  • the cost of eliminating or minimising the risk.

The Bill is currently awaiting assent and will commence on a day to be proclaimed and no later than 1 July 2027.


Commonwealth: National Cabinet delivers blueprint for planning reforms aimed at housing affordability

On 16 August 2023, it was announced that National Cabinet had met and agreed to a National Planning Reform Blueprint and A better Deal for Renters to tackle the current need for more secure and affordable housing.

The National Planning Reform Blueprint is a key measure aimed at improving housing supply and affordability through:

  • Updating state, regional and local strategic plans to reflect their share of housing supply targets.
  • Undertaking planning, zoning, land release and other reforms, such as increasing density, to meet their share of housing supply targets.
  • Streamlining approval pathways, including strengthened "call in powers", and prioritising planning amendments to support diverse housing across a range of areas eg. by addressing barriers to subdivision for appropriate medium density housing.
  • Promoting medium and high-density housing in well located areas close to existing public transport connections, amenities and employment.
  • Reforms to support the rapid delivery of social and affordable housing.
  • Reforms to address barriers to the timely issuing of development approvals.
  • Consideration of the phased introduction of inclusionary zoning and planning to support permanent affordable, social and specialist housing in ways that do not add to construction costs.
  • Rectifying gaps in housing design guidance and building certification to ensure the quality of new builds, particularly apartments.
  • Improving community consultation processes.
  • Adequately resourcing built environmental professionals, including planners, in local government.

QLD: Consultation on the SEQ Regional Plan update open

On 2 August 2023, the Queensland Government delivered on its commitment to review the SEQ Regional Plan 2017 as announced at the October 2022 Queensland Housing Summit, by releasing the draft ShapingSEQ: South East Queensland Regional Plan 2023 Update (draft SEQ Regional Plan) for public consultation.

The aim of the review is to refresh the framework for the expected future growth and development for the South-East Queensland region to 2046 cognisant of the current housing affordability crisis.

At a glance, the draft SEQ Regional Plan provides updated housing targets, new housing diversity and density targets for local governments to deliver a mix of housing as well as targets and requirements for both social housing and affordable housing based upon updated population projections.

The draft SEQ Regional Plan also includes Urban Footprint expansion areas in Southern Thornlands, Redland Bay, Yandina, West Toowoomba and Stapylton and prioritises investigations and unlocking underutilised land in the Urban Footprint.

Alongside the draft SEQ Regional Plan, draft updated interactive mapping and draft SEQ Infrastructure Supplement (draft SEQIS) have also been released:

  • The draft interactive mapping provides mapping layers to represent the draft Regional Activity Centres Network, draft Major Development Area, draft Regional Economic Cluster and draft Regional Land Use Category.
  • The draft SEQIS outlines the infrastructure planning and delivery challenges and opportunities in the context of the drivers of change and regional growth challenges as set out in the draft SEQ Regional Plan.

Submissions on the draft SEQ Regional Plan can be made until 20 September 2023 in the manner prescribed here

QLD: A new version of the Minister's Guidelines and Rules now in effect

The Planning Regulation 2017 (Qld) was amended by the Planning (Assessment fees and other matters) Amendment Regulation 2023 (Qld) (Amendment Regulation) on 28 July 2023.

A key amendment made was to give effect to Version 2.0 of the Minister's Guidelines and Rules (MGRs). This version replaces Version 1.1 which came into effect in September 2020.

Amongst some minor and administrative changes, a key substantive change in the MGRs 2.0 is contained in Schedule 1, Part 2 which relates to a minor change to a planning scheme, which is aimed at supporting the efficient administration of the Resilient Homes Fund.

A minor amendment to a planning scheme now includes, for premises owned by a local government following acquisition of the premises under a land acquisition scheme wholly or partly funded by the Commonwealth, State or local government for the purpose of disaster recovery or disaster resilience, where the local government is satisfied that the amendment meets the following:

  • is a change to the zone of the premises to any of the following zones:
    • open space;
    • conservation;
    • environmental management;
    • environmental management and conservation;
    • recreation and open space;
    • open space and recreation;
    • open space and reserve; and
  • removes the effect of an overlay to the extent it applies to the premises, where that overlay affects the demolition or removal of structures on the subject premises.

WA: Local planning scheme exemptions: what this means for approvals under the region planning scheme

In West Australian Shalom Group Inc. and City of Joondalup [2023] WASAT 63, the State Administrative Tribunal considered whether exemption from approval under local planning scheme means development is also exempt for purposes of region planning scheme.

In these proceedings, the Shalom Group was seeking to change the use of land in the suburb of Craigie from an aged care facility to recovery accommodation facility. The City of Joondalup (local government) refused the occupancy permit for Shalom Group, on the basis that it deemed that the Shalom Group had not met the approval requirements under the Metropolitan Region Scheme (MRS) for the proposed change in use.

The Shalom Group was of the view that it would be exempt from requiring development approval under the MRS and could proceed with its intended use because:

  • its proposed usage for the land was permitted under the ‘Private Community Purposes’ zoning under the local planning scheme; and
  • no physical works were required to be able to use the land for their proposed purpose.

The Senior Member of the Tribunal, Dr Willey, held that where development approval is not required under a local planning scheme, it cannot be construed to mean that the applicant does not require approval under the MRS as "an exemption from requiring approval is not the same as a development approval" and are they are "simply different things" (contrary to the Applicant's submissions).

The Senior Member also confirmed the only developments that are exempt under the MRS are a single house on a single lot or the carrying out of works under a road or street by a public authority pursuant to a written law. Therefore this means that all other 'development' will require approval under the MRS.

As a result of this decision, the WA Planning Commission has subsequently published the Position Statement – Exemptions under local planning schemes and approvals under the Metropolitan Region Scheme. This Position Statement is designed to "help local governments in their determination if development approval is required under the MRS for a proposal that does not need approval under their local planning scheme".

SA: Greater Adelaide Regional Plan Discussion Paper: have your say

The State Planning Commission has released a Discussion Paper for consultation, with the feedback received to inform the draft Greater Adelaide Regional Plan. Once in effect, the new Regional Plan will replace the current 30-Year Plan for Greater Adelaide which was released in 2010.

The aim of regional plans as part of the strategic framework in South Australia's planning and development system is to provide the long term vision for regions or areas about the integration of land use, transport, infrastructure, and public realm.

The aim of the new Regional Plan will be to establish a 30-year vision for the Greater Adelaide region based upon the current population projections and the following key outcomes about how Greater Adelaide should grow:

  • A greener, wilder and climate resilient environment.
  • A more equitable and socially cohesive place.
  • A strong economy built on a smarter, cleaner, regenerative future.
  • A greater choice of housing in the right places.

Submissions can be made until 5pm on 6 November 2023 in the manner prescribed here.

Environmental protection

Commonwealth: PFAS and PeBC scheduling management standards: have your say

The Department of Climate Change, Energy, the Environment and Water is undertaking consultation on the scheduling and proposed standards to manage the environmental risk of three groups of per and poly fluoroalkyl (PFAS) chemicals – PFOA, PFOS and PFHxS – and pentachlorobenzene (PeCB).

It is proposed that the above chemicals be listed in schedule 7 of the Industrial Chemicals Environmental Management Register as they are likely to cause serious or irreversible harm to the environment. Schedule 7 chemicals generally cannot be imported, exported, manufactured or used within Australia and the proposed decisions set out the exceptions to this prohibition.

For the PFAS chemicals, it is proposed that the entry will come into effect on 1 July 2025. The entry for PeCB will come into effect on 1 July 2024.

A copy of the decision for consultation, Q&A and chemical profile for each chemical can be found here.

A survey for each of the proposed Schedule 7 decisions can be completed here until 1 September 2023.

SA: Interim guidance for reuse of PFAS soils

Environment Protection Authority South Australia has released its PFAS in waste soils interim guideline (EPA 1130/23) which provides interim direction and guidance for the reuse of waste soils containing per- and poly-fluoroalkyl substances (PFAS).

In South Australia, the EPA permits reuse options for waste soils containing PFAS in accordance with the PFAS National Environmental Management Plan, and the principles that reuse must not lead to an unacceptable risk to human health and/or the environment, or an increase in the level of risk at or near the location in which it is used. Accordingly, this interim guideline outlines the EPA’s position on the suitability of waste soils containing specific levels of PFAS for reuse or disposal, in particular the:

  • Waste Fill (PFAS interim) criteria – for waste soils that contain very low concentrations of PFAS; and
  • Intermediate Waste Soil (PFAS interim) criteria – for soils that contain higher concentrations of PFAS.

The interim guideline will apply until amendments are made to the Environment Protection Regulations 2009 (SA), the Current criteria for the classification of waste, and the Standard for the production and use of waste derived fill.

Special thanks to Nicole Besgrove (Brisbane) for co-ordinating the ESD 5 Minute Fix and to Joseph McDonald (Melbourne), Sarah Gough (Brisbane) and Isabella Fiolo (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.