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2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Landholders' Right to Refuse (Coal Seam Gas) Bill 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Waters)
Landholders' Right to Refuse (Coal Seam Gas) Bill 2011
Outline
The Landholders' Right to Refuse (Coal Seam Gas) Bill 2011 provides
Australian landholders the right to refuse the undertaking of coal seam gas
mining activities on their land without prior written authorisation.
NOTES ON CLAUSES
Part 1 - Preliminary
Clauses 1
This is a formal provision specifying the short title.
Clause 2
The bill's provisions are to commence the day after the bill receives Royal
Assent.
Clause 3 and 4 - Definitions
These clauses provide definitions of key terms used in the bill, including
the meaning of ownership interests in food producing land.
Clause 5 - 6 Act bind the Crown, extension to external Territories
These clauses provide that the Crown is bound by the Act, and that the Act
will extend to Australia's external territories.
Clause 7 - Relationship to State and Territory laws
This clause clarifies that, to the extent possible, the Act is not intended
to exclude or limit the operation of any state or territory laws that are
capable of operating concurrently.
Part 2 - Coal seam gas mining on food producing land without prior written
authorisation is unlawful
Clause 8 - Application
This clause provides for when corporations need to secure written
authorisation prior to commencing any exploration or production of coal
seam gas. The intention is that prior written authorisation must be secured
prior to any new activities commencing. The provisions are not intended to
apply to activities already being undertaken before the commencement of the
Act. For example, if a corporation has already started exploring for coal
seam gas on particular land before the Act commences, authorisation to
continue that activity after commencement will not be required.
Authorisation will be required however if the corporation wishes to engage
in activities for the purpose of producing coal seam gas on that land after
commencement.
Clause 9 - Coal seam gas mining on food producing land without prior
written authorisation is unlawful
This provision provides that it is an offence for constitutional
corporations to enter or remain on food producing land for the purpose of
engaging in coal seam gas mining activity, or to actually engage in such
activity if the corporation does not own that land. The penalty is high,
reflecting the seriousness of the offence. There is an exception for
corporations; that is, if they have a prior written authorisation from
every person with an ownership interest in the land to engage in the
otherwise-prohibited activity. The corporation bears an evidential burden
in relation to this matter, which is appropriate given that it is a
straightforward matter for the corporation to produce a written
authorisation if they do indeed have one.
Clause 10 - Action for coal seam gas mining on food producing land without
prior written authorisation.
This clause provides that a land owner can bring a civil action against a
corporation that has contravened provisions of the Act in relation to that
land owner's land, within 6 years of the contravention.
Part 3 - Prior written authorisations for coal seam gas mining on food
producing land
Clause 11 - Obtaining prior written authorisation
This clause provides for the steps that corporations need to follow in
order to comply with the Act when conducting coal seam gas activities on
food producing land. The clause sets out the process that needs to be
followed in acquiring prior written authorisation from relevant land
owners, and also what must be contained in a prior written authorisation. A
prior written authorisation is invalid if it does not comply with the
requirements of this clause.
Part 4 - Remedies
Clause 12 - Remedies in actions for coal seam gas mining on food producing
land without prior written authorisation
This clause sets out the relief that a court may grant to a land owner
bringing an action in accordance with section 10, and specifically that:
- A court may grant, vary or discharge a permanent or interim
injunction;
- The court must order that all costs incurred by a land owner in an
action under this Act are to be paid by the respondent corporation,
except where the action is vexatious or unreasonable.
Part 5 - Other matters
Clause 13 - Application of this Act to joint ventures and partnership
This clause provides for the application of the Act to joint ventures and
partnerships. The Act is intended to apply to any corporation that engages
in coal seam gas activities, even when the activities are undertaken within
a partnership or joint venture arrangement. The clause sets out how
corporations within such arrangements are able to discharge their
obligations under the Act.
Clause 14 - Regulations
This clause provides for the Governor-General to make regulations under
this Act.