LEGISLATION REVIEW DIGESTENVIRONMENTAL PLANNING AND ASSESSMENT...

LEGISLATION REVIEW DIGEST
ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT (SEA BED MINING AND
EXPLORATION) BILL 2024
44 DIGEST NO. 10/58
4. Environmental Planning and
Assessment Amendment (Sea Bed
Mining and Exploration) Bill 2024
Date introduced 7 February 2024
House introduced Legislative Assembly
Minister responsible The Hon. Paul Scully MP
Portfolio Planning and Public Spaces
Purpose and description
4.1 The object of this Bill is to amend the Environmental Planning and Assessment Act
1979 (the Act) to prohibit the carrying out of sea bed petroleum and mineral
exploration and recovery and related development.
Background
4.2 The Bill proposes to make amendments to the Act to prohibit sea bed petroleum and
mineral exploration and recovery, and related development within NSW.
4.3 In his second reading speech, the Hon. Paul Scully MP, Minister for Planning and
Public Spaces, explained that the Bill would amend the Act to 'prohibit the carrying
out of seabed petroleum and mineral exploration and recovery' and 'other
development anywhere within the State, including in the State's coastal waters, for
the purposes of seabed petroleum or mineral exploration or recovery'.
4.4 The Bill seeks to give effect to this prohibition in the coastal waters of NSW by
inserting Schedule 10 into the Act which establishes a new offence in section 2. This
offence is subject to the maximum tier 1 monetary penalty, which is $5 000 000 for a
corporation and $1 000 000 for an individual. Subsection 2(1) provides that a person
must not carry out:
(a) sea bed petroleum exploration or recovery, or sea bed mineral exploration or
recovery, in the coastal waters of the State,
(b) other development within the State for the purposes of sea bed petroleum or
recovery or sea bed mineral exploration or recovery.
4.5 Subsection 3(3) of proposed Schedule 10 provides that 'sea bed petroleum
exploration or recovery' and 'sea bed mineral exploration or recovery' in subsection
2(1) includes those activities 'whether within the coastal waters of the State or
elsewhere.'
4.6 Section 4 of proposed Schedule 10 prohibits the Minister from granting or renewing
an authorisation that relates to a development proposed to be prohibited in section
2, including authorisations under the Offshore Minerals Act 1999 and Petroleum
(Offshore) Act 1982.
LEGISLATION REVIEW DIGEST
ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT (SEA BED MINING AND
EXPLORATION) BILL 2024
12 MARCH 2024 45
Issues considered by the Committee
Inappropriately delegates legislative powers: s 8A(1)(b)(iv) of the LRA
Henry VIII clause
4.7 Section 3 of Schedule 10 proposed to be inserted into the Act by the Bill sets out a
regulation-making power to exempt certain activities from the proposed prohibition
on sea bed petroleum and mineral activities under subsection 2(1). Subsection 3(2)
requires the Minister to consult with the Minister administering the Protection of the
Environment Operations Act 1997 before making a regulation exempting activities.
4.8 The Minister stated in his second reading speech that this regulation-making power
seeks to provide 'additional flexibility for exceptions' and is intended to 'accommodate
other limited exceptions that offer an environmental or public benefit, and which are
deemed necessary through the implementation of the Bill.'
The Bill proposed to insert Schedule 10 into the Environmental Planning
and Assessment Act 1979. Section 3 of this proposed Schedule provides
for a regulation-making power to exempt certain activities from the
prohibition under subsection 2(1) of the Schedule, namely sea bed
mineral exploration or recovery and sea bed petroleum exploration or
recovery. Before making such regulations, subsection 3(2) would require
the Minister to consult with the Minister administering the Protection of
the Environment Operations Act 1997.
Therefore, the Bill would insert a provision that may amount to a Henry
VIII clause by allowing the Executive to make regulations that alter the
operation of the parent Act without reference to the Parliament. The
Committee generally considers Henry VIII clauses to be an inappropriate
delegation of legislative powers.
However, the Committee recognises that any regulations made under
this provision must be tabled in Parliament and are therefore subject to
disallowance under section 41 of the Interpretation Act 1987. It also notes
that the Minister must consult with the Minister administering the
Protection of the Environment Operations Act 1997 before making any
such regulations. Further, it is intended that regulations can only be
made in limited circumstances. As a result, the Committee makes no
further comment.