Wednesday, 21 June 2023
Bills
Mineral Resources (Sustainable Development) Amendment Bill 2023
Bills
Mineral Resources (Sustainable Development) Amendment Bill 2023
Statement of compatibility
Lily DâAMBROSIO (Mill Park â Minister for Climate Action, Minister for Energy and Resources, Minister for the State Electricity Commission) (10:52): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Mineral Resources (Sustainable Development) Amendment Bill 2023.
Opening paragraphs
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Mineral Resources (Sustainable Development) Amendment Bill 2023 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Bill amends the Mineral Resources (Sustainable Development) Act 1990 to reform the legislative framework for the management of risks related to mining and extractive industries in Victoria.
The Bill provides for a new general duty regulatory model based on the risks related to mining and extractive industries. As far as reasonably practicable, it requires a person eliminate or minimise any risk posed to the environment, to any member of the public or to land, property or infrastructure by exploration, extractive industry, mining or rehabilitation of land or any related activity. The Bill removed the requirement that person holding a mining license, prospecting license or extractive work authority to provide work plans for Department Headâs approval; but retains the requirement to lodge a rehabilitation plan. The general duty approach requires certain consequential features, including new notification obligations.
Human Rights Issues
The human rights protected by the Charter that are relevant to the Bill are:
⢠the right to privacy and reputation (section 13);
⢠the right not be deprived of a personâs property (section 20);
⢠the right to protection against selfâincrimination (section 25(2)(k)); and
⢠the right not to be punished more than once (section 26).
Privacy and reputation
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference with privacy will not be âunlawfulâ where it is permitted by a law which is precise and appropriately circumscribed. Interferences with privacy will not be âarbitraryâ provided they are reasonable in the particular circumstances, and just and proportionate to the legitimate end they seek to achieve.
Notification obligations
The current regulatory framework provides that holders of licenses, work authorities or consents (collectively, authority holders) are to supply technical and financial information concerning their activities to the Minster. The Bill imposes additional obligations on authority holders (and former authority holders) to notify the Department Head, as the regulator, about any material change, or proposed change, in work, and any change, or foreseeable change, in circumstances that is likely to materially change increase the risk posed by the work. Failure to do notify will be an offence.
The notification requirements could feasibly require an authority holder to provide information relating to their personal affairs (for example, if ill-health of particular employees is the material change in circumstances for an operation) thereby engaging the right to privacy in section 13 of the Charter. This circumstance is considered unlikely to occur in practice; however, may be managed depending on the circumstances.
The substance of such notifications from authority holders allows the regulator to determine what category of risk and the corresponding standard and conditions it should be subject to. If an authority holder plans to make significant changes to its operations (for example, use a method of mining or extraction that attracts greater risk) it is appropriate that the regulator is made aware of the risk, and according, is able to manage such risks in the public interest.
The requirement to notify the Department Head about matters relevant to the risks being managed under the general duty and risk tier determination framework is a fundamental and essential feature of the general duty regulatory model. It ensures there is accountability for compliance with the law, and the regulator is in a position to put in place new regulatory controls when the risk profile of activities change.
Given the essential nature of the notification requirement, and that the information sought is necessary and relevant to assessing a change in the risk profile of operations, not arbitrary, the notification requirement is reasonable and proportionate and does not limit the right to privacy.
Right to protection against selfâincrimination
Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against selfâincrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.
Notification obligations
The right in section 25(2)(k) of the Charter is relevant to the Billâs proposed notification obligation for authority holders.
The Bill requires holders and former holders of licences (proposed section 43AB) and holders and former holders of extractive industry work authorities (proposed section 77KAA) to notify the Department Head of any material change, or proposed change, in work, and any change, or foreseeable change, in circumstances that is likely to materially change increase the risk posed by the work.
A person is not excused from notifying the Department Head on the grounds that the information provided might tend to incriminate a person or make the person liable to a penalty. However, any information given by a person as part of a notification is not admissible in evidence against the person in a proceeding for an offence or for the imposition of a penalty, other than a proceeding relating to false or misleading information provided by the person in a notification.
The notification requirements are a key component of ensuring high risk activities, which have the potential to cause great harm, are subject to appropriate regulatory controls, including that person subject to the notification provides truthful and accurate information. As the general duty framework requires authority holders to identify and manage risks, notification obligations accord the regulator with the necessary information to impose other regulatory controls (such moving the work into a higher risk tier, or imposing conditions) if necessary.
In my view, to the extent the new notification requirements impose a limitation on the right against selfâincrimination, that limitation is reasonable and justified under section 7(2) of the Charter.
Right not to be punished more than once
Section 26 of the Charter provides that a person has the right not to be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law.
Overlapping duties
The shift away from site-specific work plan authorisation towards a broad general duty that focuses on risks within an authority holderâs control (created by the proposed new Part 1A) means the general duty in the Bill could overlap with other, similarly broad duties. Such other duties include: the General Environmental Duty in the Environment Protection Act 2017; the âChain of Responsibilityâ in the Heavy Vehicle National Law; and the general duties relating to health and safety in the Occupational Health and Safety Act 2004.
By way of example, if extractive industry work authority holder fails to take reasonable steps to ensure that a load of gravel on a truck is properly secured, and that results in a harm to health, safety and environment, then that failure could feasibly expose the extractive industry work authority holder to liability for breach of the duties across multiple, overlapping regulatory regimes.
While these duties technically overlap in law, in practice the relevant duties are enforced by different regulators with separate regulatory objectives and priorities.
The general duty established by the Bill will be enforced by a specialist regulator for mining and extractive industries, which is best placed to regulate particularly highârisk operations of those activities and manage risks under the duty. Further, the creation of the general duty simply replaces the previous regulatory approach of the work plan approval process â essentially converting the risk management framework from the work plan into a regulatory approach that is more efficient and less burdensome for those subject to the legislative framework.
In my view, to the extent the overlapping of duties imposes on the right not to be punished more than once, that limitation is reasonable under section 7(2) of the Charter.
For these reasons, in my opinion, the Bill is compatible with human rights as set out in the Charter.
The Hon. Lily DâAmbrosio MP, Minister for Energy and Resources
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
The purpose of this Bill is to amend the Mineral Resources (Sustainable Development) Act 1990 to modernise the regulatory approval processes for exploration, mining and quarrying industries in Victoria.
The Bill will improve the management of risks associated with minerals and quarry operations by a primary duty to eliminate or, if not possible, to minimise the risks of harm so far as is reasonably practicable. This will replace the existing obligations on operators to submit and comply with a âwork planâ specific to each operation. It will deliver a simpler and more flexible regulatory framework by streamlining processes for the submission, assessment and determination of regulatory approvals for operating mines and quarries.
Social licence for the resources sector is critical. With this Bill, community confidence in minerals and quarry operations will be strengthened with the establishment of a risk-based framework to provide consistency and transparency in the way that decisions are made and regulatory activities are undertaken.
We know that earth resource exploration and development come with inherent risks that must be properly managed. This Bill will ensure risks are understood and effectively mitigated in a proportionate manner:
⢠A statutory âprimary dutyâ will form the basis for a new outcome focussed, risk-based regulatory framework to drive high standards of performance and best practice.
⢠Updated reporting requirements for new and changing work will ensure emerging and dynamic risks are identified and properly managed over the life of mining and quarry operations.
⢠Existing requirements for rehabilitation plans and bonds will be preserved to maintain a level of prescription that is appropriate to rehabilitation obligations.
⢠Penalty units will be strengthened to reflect the fact that failures to comply with obligations carry serious risks of harm to the environment, members of the public, land, property and infrastructure.
⢠There will be a greater ability and flexibility to prescribe criteria and standards on public safety, environmental matters and other matters, such as cultural heritage, that keep up with community expectations.
Victoria is a relatively small, densely populated state with a diverse economy. Mixed high-value land uses are often in close proximity to each other, such as residential areas, agriculture, tourism and recreation, environmental protection and earth resources activities. This means that community confidence and social licence is particularly important for Victorian resources operations.
This Bill will promote greater consistency and transparency in decision-making and earlier opportunities for the public to provide input into mining and quarrying proposals:
⢠The first step in the approvals process will require an operator to seek planning permission instead of statutory endorsement, which will no longer be required. This removes an opaque step and provides the community with a much earlier opportunity to understand and provide input on resources proposals.
⢠Penalty units will be strengthened to ensure that industry operates at the highest standard â consistent with community expectations.
Mineral and extractive resource exploration and development brings potential for significant investment and jobs, mostly based in the regions.
Victoria has critical minerals potential on a global scale. This Bill brings an increased capacity for Victoria to produce the critical minerals needed for the manufacture of renewable technologies that will support the global transition to net zero. The amendments will secure increased supply â at an affordable price â of the quarry materials required to deliver the Governmentâs infrastructure program, and build new homes.
These amendments will streamline entry into the industry, encourage competition and remove unnecessary regulatory burdens, while safeguarding the community and the environment, through:
⢠A new outcomes-based focus in the regulatory framework to drive innovation, do away with unnecessary prescription and provide industry with significantly more flexibility to determine how to most effectively manage its risks.
⢠Removing the requirement for operators to prepare and update work plans that must be individually approved by the regulator will remove a significant source of unnecessary red tape for industry.
⢠Rehabilitation plans will still require approval and will need to be regularly updated to ensure they are responsive to changing circumstances and the land is returned to a safe and stable state.
⢠No longer requiring operators to seek statutory endorsement of those work plans before seeking planning approval, removing a significant source of unnecessary cost and delay from the approvals process.
These reforms will significantly change the way that earth resources are regulated in Victoria. The Government acknowledges stakeholdersâ and partnersâ considerable interest in understanding the new regulatory framework. There will be a comprehensive implementation process, with early, ongoing and meaningful engagement with industry and other stakeholders on the regulations and guidance material that sits below these amendments. This will deliver effective support to those with regulatory oversight and to industry, from the companies operating Victoriaâs mines to the hundreds of small and medium businesses running our quarries. Commencement of the new framework will be scheduled to allow for the time needed to transition to the new regime.
Respect for Aboriginal cultural heritage is an important part of any approvals process for minerals and quarry operations. Accordingly, this Bill preserves requirements for Cultural Heritage Management Plans be prepared for certain mining and quarrying activities under the the Aboriginal Heritage Act 2006.
The removal of the statutory endorsement stage in the regulatory process ensures decision-making about appropriate land development and use under the planning regime takes place prior to the authorisation and commencement of operational activity. As a result of this change, planning scheme amendments will need to be made to the Victoria Planning Provisions (VPPs) and individual planning schemes. The Department of Energy, Environment, and Climate Action will work closely with the Department of Transport and Planning and consulting local councils on the Planning Scheme amendments to ensure consistency across regulatory systems, including the effective operation of referral processes.
As with any large-scale change it is critical that we keep track of our progress along the way. An independent review of the reforms will be undertaken, after they have been in operation for two years, to ensure they are delivering the intended benefits for all Victorians.
I commend the Bill to the house.
James NEWBURY (Brighton) (10:53): I move:
That debate be adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 5 July.