Climate Change and Environment
Protection Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Climate Change Act 2010 (CC Act) and the
Environment Protection Act 1970 (EP Act) to give effect to changes arising
from a review of the CC Act. A review of the CC Act was triggered under
section 19 of the Act by the introduction of the Commonwealth
Government's Clean Energy Future Package into Federal Parliament, which
provided for a national carbon price and greenhouse gas emissions trading
scheme. Shortly after that a review of the CC Act (the Review) was
conducted and was tabled in the Victorian Parliament on 27 March 2012.
The Review examined the impact of a national carbon price and emissions
trading scheme on the Victorian Government's climate change policy
objectives as set out in the CC Act, as well as the appropriate mechanisms for
achieving the objectives. The Review made a series of recommendations for
legislative change to remove redundancies in light of the national emissions
reduction scheme and to improve the overall functionality of the legislation.
The Victorian Government response to the Review, also tabled in the
Victorian Parliament on 27 March 2012, endorsed the majority of the
recommendations, which are given effect in the Bill.
The Bill also makes a small number of other amendments to the EP Act,
unrelated to the Review.
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BILL LA INTRODUCTION 10/10/2012
Clause Notes
PART 1—PRELIMINARY
Clause 1
sets out the main purposes of the Bill which are to—

amend the CC Act and the EP Act to implement changes
arising from the Review;

amend the EP Act in relation to residential noise abatement
directions, litter penalties and service fees issued for
abatement, pollution abatement, and clean up notices;

consequentially amend the Transfer of Land Act 1958.
Clause 2
provides for the commencement of the Bill. The provisions of
the Bill come into operation on 1 July 2013 unless they are
proclaimed earlier.
Clause 3
defines the Climate Change Act 2010 as the Principal Act in the
Bill, for ease of reference throughout the Bill.
PART 2—CLIMATE CHANGE ACT 2010
Part 2 of the Bill amends the CC Act. In the following explanations, a
reference to a section, Division, Part, or Schedule is a reference to a provision
of that Act.
Division 1—Climate change
Clause 4
amends section 1, the purposes of the Act, and repeals sections 5
and 6 of the Act, relating to the greenhouse gas emissions target
and policy objectives, respectively.
Clause 4(1) substitutes proposed section 1(a) to provide for a new
purpose of the Act relating to the Government of Victoria's roles
and responsibilities in relation to climate change given the
national policy context. The new purpose more accurately
reflects the Act following the amendments made by the Bill.
The former purpose of the Act (to establish a target to reduce
Victoria's greenhouse gas emissions) is no longer relevant given
the repeal of section 5 (see clause 4(4)).
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Clause 4(2) amends section 1(d) to expand the purpose relating to
the Climate Change Adaptation Plan provisions to refer to
guidance for the preparation of the plan. This guidance will
come from the guiding principles in Division 3 of Part 2
(see clause 5) and from the detailed outline of what should be set
out in a Climate Change Adaptation Plan (see clause 6).
Clause 4(3) amends the heading to Part 2 to remove terminology
that will become redundant following the amendments made by
clause 4(4).
Clause 4(4) repeals Divisions 1 and 2 of Part 2 (containing
sections 5 and 6), which provide for a greenhouse gas emissions
target and policy objectives. The repeal of these Divisions
implements changes arising from the Review.
Clause 5
substitutes proposed new section 7 to clarify the application of
the guiding principles (sections 8 through 13) to the Ministerial
guidelines issued under section 15 and to the Climate Change
Adaptation Plan prepared under section 16. These amendments
implement changes arising from the Review.
Proposed section 7(1) provides that the Minister may have regard
to incorporating any of the guiding principles into any Ministerial
guidelines made or issued under section 15 of the Act, if the
Minister considers the principle(s) relevant under the
circumstances. Under section 15, the Minister may issue
guidelines to aid decision-makers in considering climate change
impacts when making a decision or taking an action referred to in
Schedule 1.
Proposed section 7(2) provides that the Minister must have
regard to the guiding principles in preparing the Climate Change
Adaptation Plan under section 16, as opposed to regard to the
principles in the general administration of section 16, as currently
provided for in the Act.
Clause 6
substitutes proposed section 16(1) relating to the preparation of
the Climate Change Adaptation Plan. These amendments
implement changes arising from the Review.
Proposed section 16(1) provides more guidance on the elements
of the Climate Change Adaptation Plan, including elements that
previously formed part of the climate change and emissions data
report under section 17 (which will cease to be required because
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of the repeal of section 17 by clause 7). The amended Plan must
provide for—

an assessment of climate change impacts and risks,
including specific regional impacts (see proposed
section 16(1)(a));

the Government of Victoria's roles and responsibilities
in managing climate change risks, including, where
applicable, the respective roles and responsibilities of
other governments, persons or bodies in managing
climate change risks (see proposed section 16(1)(b));

the Government of Victoria's strategic priorities for
managing climate change risks (see proposed section
16(1)(c));

the Government of Victoria's adaptation measures and
responses to potential climate change impacts
(see proposed section 16(1)(d));

data on observed changes in the climate of Victoria
(see proposed section 16(1)(e));

a synthesis of the best practicably available climate
change science relevant to Victoria (see proposed
section 16(1)(f)); and

any other information the Minister considers appropriate
(see proposed section 16(1)(g)).
The remaining provisions of section 16 are unchanged.
Clause 7
repeals the requirements relating to climate change and emissions
data reporting and makes other consequential amendments.
In particular, clause 7(1) amends the heading to Division 3 of
Part 3 to remove terminology that will become redundant
following amendments made by clause 7.
Clause 7(2) repeals section 17, which provides for the
preparation of a climate change and emissions data report.
This amendment is a consequence of the repeal of section 5, the
greenhouse gas emissions target, and implements changes arising
from the Review. The requirements of sections 17(2)(b), (c),
and (d), relating to climate change science generally, will remain
relevant despite the repeal of the target, and are incorporated into
proposed sections 16(1)(e), (f), and (g) (see clause 6).
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The remaining components of section 17 become redundant
given the repeal of the greenhouse gas emissions target.
Clause 7(3) amends section 18(3)(c) to remove a reference to the
climate change and emissions data report as a consequence of
repealing section 17.
Clause 7(4) repeals section 19, which is a spent provision relating
to a review by the Minister of the Act upon the introduction of a
Bill in the Commonwealth Parliament to enact a national
emissions trading scheme. As discussed in the general
explanation above, a review of the Act was conducted and tabled
in Parliament on 27 March 2012 in accordance with section 19 in
response to the Commonwealth's introduction of the Clean
Energy Future Package.
Division 2—Forest carbon rights
Clause 8
amends section 3, by updating the definitions of carbon
sequestration right, forest carbon right, forestry right, and soil
carbon right with new section numbers for the substantive
definitions inserted in proposed sections 3A−3D (see clause 9).
Clause 9
inserts proposed sections 3A, 3B, 3C, and 3D which provide for
the definitions of forest carbon right, carbon sequestration
right, forestry right, and soil carbon right, respectively.
These definitions were previously contained in Part 4 (formerly
sections 21, 22, 23, 24, along with section 25, which made
further provision in relation to forest carbon rights).
Their inclusion in Part 4 created a doubt as to whether these
terms had the same meaning within Part 5 of the Act because
section 20 (within Part 4) provides that Part 4 does not apply to
unalienated and reserved Crown land. Moving these sections to
Part 2 of the Act removes any doubt about the application of
these terms to Crown land under Part 5. Importantly, this
amendment clarifies that carbon sequestration rights and soil
carbon rights, which are defined to be interests in land, are
interests in Crown land under Part 5. The definitions and
characteristics of the rights in proposed sections 3A−3D have not
been amended. These amendments implement changes arising
from the Review.
Clause 10 repeals sections 21, 22, 23, 24, and 25 as a consequence of
inserting proposed sections 3A−3D (see clause 9).
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Clause 11 inserts proposed section 40(5), which clarifies that even though
the granting of a carbon sequestration right or soil carbon right
could be taken to be an alienation of Crown land, Part 5 of the
Act continues to apply despite section 40 providing that Part 5
only applies to unalienated and reserved Crown land.
Clause 12 inserts the term "interests" into section 41 to ensure that any
"interests and rights" created under Part 5 are not intended to and
do not extinguish native title. This amendment is a consequence
of clause 9, which effectively clarifies that carbon sequestration
rights or soil carbon rights are interests in Crown land under
Part 5.
Clause 13 substitutes in section 47(1)(a) "the term of the agreement"
in place of "a specified term". The amendment ensures that the
carbon sequestration right or soil carbon right and the Carbon
Sequestration Agreement are granted for the same period.
Clause 14 inserts proposed new section 47A. Proposed section 47A sets out
certain requirements in relation to the granting of carbon
sequestration rights or soil carbon rights by the Secretary to the
Department of Sustainability and Environment.
Proposed section 47A(1) has the effect of providing that a person
who enters into a Carbon Sequestration Agreement with the
Secretary must be the same legal person to be granted the carbon
sequestration right or soil carbon right. Effectively, this means
that the carbon sequestration right or soil carbon right and the
Carbon Sequestration Agreement are co-dependent, which
ensures the individual receiving the economic benefit of the right
also has the corresponding obligations under the Carbon
Sequestration Agreement.
Proposed section 47A(2) provides that the Secretary must not
grant a person a carbon sequestration right and carbon soil right
in relation to Crown land in the same Carbon Sequestration
Agreement. The Secretary must issue separate Carbon
Sequestration Agreements for the different types of rights
because the Act treats carbon sequestration rights and soil carbon
rights as independent legal rights, which may be issued to
different persons and under different terms.
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Proposed section 47A(3) provides that a carbon sequestration
right or a soil carbon right granted under a Carbon Sequestration
Agreement is extinguished on the date the agreement ends.
This amendment is necessary to give effect to the co-dependent
relationship between the carbon sequestration right or soil carbon
right and the Carbon Sequestration Agreement.
Clause 15 substitutes proposed new section 54, relating to the written
consent of the Secretary that is required before any Carbon
Sequestration Agreement is transferred and any rights under that
agreement are assigned. These amendments are a consequence
of inserting proposed section 47A (see clause 14), and necessary
to ensure that the transfer of an agreement includes the
assignment of the rights under that agreement. The proposed
amendments allow the Secretary to ensure that the party to a
Carbon Sequestration Agreement is the same person who holds
the rights under that agreement.
Clause 16 inserts proposed sections 56(2)(ab) and 56(2)(ba), which will
ensure that the Register of Carbon Sequestration Agreements
contains the relevant kinds of information regarding Carbon
Sequestration Agreements, carbon sequestration rights, and soil
carbon rights as a consequence of the amendments made by
clauses 14 and 15.
Clause 17 inserts proposed new section 56A, which provides that an extract
from the Register of Carbon Sequestration Agreements, certified
by the Secretary, setting out that a person is a party to a Carbon
Sequestration Agreement is evidence of that person being the
owner of a carbon sequestration right or soil carbon right, as the
case may be.
Clause 18 substitutes section 64(1) with a general regulation making power
to replace the specific regulation making powers related to the
greenhouse gas emissions target, which will become redundant
given the repeal of section 5 (see clause 4(4)).
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PART 3—ENVIRONMENT PROTECTION ACT 1970
Part 3 of the Bill amends the EP Act. In the following explanations, a
reference to a section, Division, Part or Schedule is a reference to a provision
of that Act.
Division 1—Amendments relating to climate change
Clause 19 repeals section 13(1)(ga)(i), which enables the Environment
Protection Authority to recommend to the Governor in Council
the making of statutory policies and regulations to regulate the
emission of greenhouse gas substances for the purpose of the
greenhouse gas emissions target in section 5 of the CC Act.
This section will become redundant given the repeal of section 5
of the CC Act which provided for the greenhouse gas emissions
target (see clause 4(4)).
Clause 20 repeals Division 2 of Part IX of the Act, which provides for
climate covenants. The repeal of this Division implements
changes arising from the Review.
Clause 21 amends sections 70E(b) and (f) of the Act consequential to the
renaming of the "Climate Communities Fund Account" to the
"Sustainability Fund Account" which is effected by proposed
section 70F (see clause 22).
Clause 22 substitutes section 70F. Proposed new section 70F renames the
"Climate Communities Fund Account" as the "Sustainability
Fund Account" and provides for other necessary amendments
resulting from renaming the fund. The renaming of the fund
implements changes arising from the Review.
Division 2—General amendments
Clause 23 substitutes section 48A(7). Proposed new section 48A(7) allows
a member of the police force or a council officer to give a noise
abatement direction under section 48A(6) for any period of time
up to 72 hours. Any direction given under section 48A(6)
remains in force for the period specified by the direction.
Currently the Act provides that the abatement direction remains
in force for a flat 12 hour period.
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Clause 24 amends Schedule A by increasing infringement penalties for
littering offences under section 45E in relation to—

litter that is burning when it is deposited from
"2 penalty units" to "4 penalty units". This offence
includes the depositing of a lit cigarette butt.

non-burning small items from "1 penalty unit" to
"2 penalty units". This offence includes the depositing
of an extinguished cigarette butt, a ring pull or any other
small item.
Clause 25 repeals section 60C, which provides that a person who is served
an abatement notice, a pollution abatement notice or a clean up
notice must pay a fee of 40 fee units to the Environment
Protection Authority within 30 days. The repeal will abolish the
requirement to pay such a fee.
Clause 26 provides for the typographical correction of certain references
within Schedule A for certain infringements.
PART 4—TRANSFER OF LAND ACT 1958
Clause 27 amends the definition of land in section 4(1) of the Transfer of
Land Act 1958. The definition of land is amended to exclude
any carbon sequestration right or soil carbon right granted in
relation to a Carbon Sequestration Agreement on Crown land
under Part 5 of the CC Act. This amendment ensures the carbon
sequestration rights or soil carbon rights granted under Part 5 of
the CC Act, which are interests in Crown land, are not subject to
the provisions of the Transfer of Land Act 1958.
PART 5—REPEAL OF THE AMENDING ACT
Clause 28 provides for the repeal of this Act on 1 July 2014. The repeal of
this Act does not affect the continuing operation of the
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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