Environmental Offsets Act 2014

This Act may be cited as the Environmental Offsets Act 2014.

This Act, other than the following provisions, commences on a day to be fixed by proclamation—

• part 14

• section 101

• section 102, to the extent it inserts section 14

• sections 106 to 111

• section 114

• sections 125 to 127

• section 133

• section 135

• sections 137 and 138

• part 25

• schedule 1.

The main purpose of this Act is to counterbalance the significant residual impacts of particular activities on prescribed environmental matters through the use of environmental offsets.

The main purpose is achieved primarily by—

establishing a framework for environmental offsets; and

recognising the level of protection given to prescribed environmental matters under other legislation; and

providing for national, State and local matters of environmental significance to be prescribed environmental matters for the purpose of this Act; and

coordinating the implementation of the framework in conjunction with other legislation.

Note—

Section 95(1) provides this Act applies to an authority granted under another Act only if the application under the other Act for the authority was made on or after the commencement of that section. See section 95 for further relevant provisions.

This Act binds all persons including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.

Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an offence against this Act.

This Act does not affect or limit the functions or powers under the State Development Act of the Coordinator-General, including, for example, the power to impose a condition under part 4, division 8 of that Act.

Also, this Act does not affect or limit—

the power of an assessment manager to impose a condition stated in a report of the Coordinator-General under section 39 of the State Development Act; or

a person’s obligation under section 54 of the State Development Act to take into consideration the Coordinator-General’s report; or

the obligation on an administering authority under the Environmental Protection Act 1994, section 205(2) to impose a condition.

To remove any doubt, it is declared that if there is an inconsistency between—

an imposed condition; and

a deemed condition;

the imposed condition prevails to the extent of the inconsistency with the deemed condition.Note for subsection (3)—

However, a deemed condition prevails over some conditions in the following Acts—

• the Environmental Protection Act 1994—see section 714;

• the Marine Parks Act 2004—see section 151B;

• the Nature Conservation Act 1992—see sections 66A and 100J.

In this section—

Coordinator-General see schedule 2 of the State Development Act.

imposed condition means—

a condition imposed under another Act as a result of a power or obligation mentioned in subsection (2); or

an imposed condition within the meaning of the State Development Act, section 54B(2).

The dictionary in schedule 2 defines particular words used in this Act.

Under another Act, an administering agency may impose a condition (an offset condition) on an authority under the other Act for a prescribed activity for a prescribed environmental matter that—

requires an environmental offset to be undertaken; orExamples of environmental offsets for paragraph (a)—

• carrying out work to maintain the viability of a prescribed environmental matter

• preparing a plan about a prescribed environmental matter

• conducting scientific research or an education program

otherwise relates to an environmental offset.Example for paragraph (b)—

payment of a financial settlement offset

An environmental offset is an activity undertaken to counterbalance a significant residual impact of a prescribed activity on a prescribed environmental matter.

However, an environmental offset for a prescribed environmental matter that is a protected area, other than a special wildlife reserve or nature refuge, may include the delivery of any activity that provides a social, cultural, economic or environmental benefit to any protected area.

Generally, a significant residual impact is an adverse impact, whether direct or indirect, of a prescribed activity on all or part of a prescribed environmental matter that—

remains, or will or is likely to remain, (whether temporarily or permanently) despite on-site mitigation measures for the prescribed activity; and

is, or will or is likely to be, significant.

If a prescribed environmental matter is a protected area and the adverse impact of the prescribed activity results, or will or is likely to result, in 1 or more of the following, for the purpose of subsection (1)(b), the impact is significant—

the authorised clearing or inundation of all or part of the protected area for the construction of private or publicly owned infrastructure on the area;

the exclusion of, or reduction in, the public use or enjoyment of all or part of the protected area;

a reduction in the natural or cultural values, within the meaning of the Nature Conservation Act 1992, of all or part of the protected area.

However, an impact as mentioned in subsection (2) is not a significant residual impact for the protected area if the prescribed activity is—

conducted by an authorised person performing functions under the Nature Conservation Act 1992; and

consistent with the management of the area under the Nature Conservation Act 1992, section 15.

If a prescribed environmental matter is, or is in, a legally secured offset area and the adverse impact of the prescribed activity on all or part of the matter results, or will or is likely to result, in 1 or more of the following, for the purpose of subsection (1)(b), the impact is significant—

for the prescribed environmental matter for which the area was set aside for the purposes of an environmental offset—a use of the area that is inconsistent with how the environmental offset was or is required to be undertaken to achieve a conservation outcome for the prescribed environmental matter under a delivery or management plan or agreement (however described in this or another Act);

for any other prescribed environmental matter in the area—a significant residual impact as mentioned in subsection (1) on the other prescribed environmental matter.

For subsection (2), a protected area does not include a nature refuge.

To remove any doubt, it is declared that subsection (2) does not apply to a prescribed environmental matter in a protected area.

A prescribed activity is an activity—

the subject of an authority under another Act; and

for which an offset condition may be imposed under the other Act on the authority; and

that is prescribed under a regulation.

A prescribed environmental matter is any of the following matters prescribed under a regulation to be a prescribed environmental matter—

a matter of national environmental significance;

a matter of State environmental significance;

a matter of local environmental significance.

The prescription of a prescribed environmental matter may be made by reference to a matter declared, defined, designated, established, listed, prescribed or otherwise described under this Act or another Act.Examples for subsection (2)—

• a fish habitat area declared under the Fisheries Act 1994

• a marine conservation park zone established under a zoning plan for a State marine park under the Marine Parks Act 2004

• vulnerable wildlife prescribed under the Nature Conservation Act 1992

A regulation may only prescribe a matter of national environmental significance to be a prescribed environmental matter if—

it is a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), chapter 2; and

it is, or may be, the subject of an approval for the taking of an action or class of actions in relation to the matter under section 46 or 146B of that Act.

A conservation outcome is achieved by an environmental offset for a prescribed activity for a prescribed environmental matter if the offset is selected, designed and managed to maintain the viability of the matter.

An environmental offsets policy is a document prescribed under a regulation to be an environmental offsets policy.

As soon as possible after the prescription as an environmental offsets policy of a document made by the chief executive, the chief executive must make the policy available for inspection in the way the chief executive considers appropriate.

As soon as possible after the prescription as an environmental offsets policy of a document made by a local government, the local government must ensure the policy is available for inspection in the way the local government considers appropriate.

For subsections (2) and (3), an example of a way the chief executive or a local government may consider appropriate is making the document available in an electronic form on a website.

If the document prescribed to be an environmental offsets policy is amended or repealed, the amendment or repeal does not take effect for this Act until—

for an amendment—the document as amended is prescribed to be an environmental offsets policy; or

for a repeal—the document is prescribed to have been repealed.