In the last issue of the Investment Guide to Australia, we introduced that Australia has a complete foreign investment review system, and investment in Australia needs to be reviewed by the Foreign Investment Review Board. Investors going to Australia should pay more attention to the foreign investment review system to reduce or avoid possible investment risks.

In addition to the foreign investment review system, Australia's environmental regulations and policies are equally strict, and the federal and state/territory have an independent and complete environmental protection system. And this strict environmental regulatory policy is also effective. For example, in the 2022 Environmental Performance Index jointly released by Yale and Columbia University, Australia also ranked eighth with 66.5 points. [1] In this investment guide to Australia, we will provide a detailed explanation of Australia's environmental protection regulations.

Author/Huixiang Sydney Law Firm

01

Australian Environmental Regulations and Regulatory Bodies

Australia's environmental law system is mainly composed of federal and state/territory regulations and regulatory bodies. The main federal environmental legislation is the Environmental Protection and Biodiversity Conservation Act (1999)(Environment Protection and Biodiversity Conservation Act1999)(hereinafter referred to as the Environmental Protection Act 1999), which provides for various important matters that have a significant impact on the country's environment and is jointly implemented by the Australian Department of Agriculture, Water and the Environment, enforcement measures include mandatory environmental audits, notices of violations, civil and criminal prosecutions, and decisions to repair environmental damage. [2] At the state/territory level, on the basis of the federal environmental regulatory framework, each state/territory formulates detailed environmental protection laws and regulations by its respective regulatory agencies, covering pollution, biodiversity, water trading and use, pollution, hazardous substances, resource recovery, waste and cultural heritage. The main environmental regulations and regulatory bodies in each state/territory are as follows:

environmental regulations]

regulatory agency]

By browsing the relevant laws and regulations, it is found that the main environmental laws and regulations of the above-mentioned states are different in content, but reflect a common goal: to regulate and reduce the damage caused by various behaviors to the environment. This goal is achieved through measures such as environmental permits and project approvals, environmental protection policies, and penalties for environmental violations under state environmental regulations. In addition, with the exception of New South Wales and Victoria, most states have a general environmental obligation not to cause environmental damage, I .e. individuals are responsible for acts they do that affect the environment and must not carry out any activity that causes or is likely to cause environmental damage unless the individual takes all reasonable and practicable measures to prevent and minimize the damage. [3] Among them, the environmental regulations of New South Wales divide the behaviors that cause environmental damage into the following aspects:(1) illegal behaviors (waste disposal, leakage of hazardous substances, substances that destroy the ozone layer into the atmosphere) require the actors to have subjective intention or negligence;(2) illegal behaviors (violation of the strict liability under the Environmental Operation Protection Act 1997 and related regulations, including water, air, land and noise pollution) will be prosecuted by the court;(3) If the violation is only a violation of strict liability, but does not cause environmental damage or pose a threat to human health, only a penalty notice will be received. [4] Victorian environmental law rules, on the other hand, focus more on the subjective intent of the perpetrator in causing environmental damage. For example, serious environmental damage caused intentionally or negligently is subject to the most severe penalties.

In addition, Australia's environmental regulations are an area of continuous development, and in September 2022, Australian Prime Minister Albanese introduced the Climate Change Bill. The bill clearly proposes to reduce Australia's carbon dioxide emissions by 43% from 2005 levels by 2030 and achieve net zero emissions by 2050. It will also expand the remit of the Australian Renewable Energy Agency to fund a wider range of clean technologies, including wind, solar, electrification and energy efficiency technologies. [5] Investors in these new energy fields can also pay corresponding attention to Australia.

Australia is also a party to the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement. After meeting and exceeding the target for the first period of the Kyoto Protocol in 2012 to reduce Australia's emissions to 108 per cent in 1990, the Australian Government approved the target for the second period of the Kyoto Protocol (2013-2020) in 2014. After achieving the goal of the second period of the "Kyoto Protocol" in 2020, the Australian government announced that it would follow the "Paris Agreement" as a guide and plan to reduce greenhouse gas emissions by 43% from 2005 levels by 2030. This echoes the aforementioned Climate Change Act. And Australia is implementing policies to ensure that it properly meets its obligations to reduce greenhouse gas emissions under the Paris Agreement. Among them are related to business investment:(1) the climate problem resolution plan, the Australian government based on existing policies and projects to invest an additional A $3.5 billion to solve the climate problem;(2) the active implementation of carbon neutral standards, the Australian government will work with Australian enterprises to encourage voluntary climate protection activities by providing certification schemes for carbon neutral enterprises;(3) reporting and monitoring of the largest source of emissions. For example, national greenhouse gas and energy reporting schemes have been established to report on greenhouse gas emissions, energy production and consumption. [6]

02

Environmental Protection Permit System and Environmental Impact Assessment System

Australia has a strict environmental regulatory policy, including a comprehensive environmental protection permit system and environmental impact assessment system.

environmental protection permit system]

The so-called environmental protection licensing system (Environmental Authority) refers to a set of management measures that must be applied to the relevant administrative organs before engaging in activities that are harmful or may be harmful to the environment, and after examination and approval, a license can be issued before the activity can be carried out. [7] At the federal level, the Environmental Protection Act 1999 requires individuals or companies to obtain the approval of the Federal Minister for the Environment when carrying out certain "controlled activities", such as activities involving world natural heritage, national monuments, Ramsar wetlands, endangered species and communities, and environment-related nuclear facilities. [8] And because many project proposals also need to take into account state and territory environmental regulations, the Australian Department of Agriculture, Water and Environment needs to work closely with state environmental regulators to achieve overall environmental protection.

At the state/territory level, most states in Australia currently have their own independent bilateral assessment agreements, which allow states/territories to individually assess the possible environmental impacts of proposed projects. After evaluation, the state/territory provides a report to the federal government, and when evaluated in this way, the project needs the approval of the federal government and the approval of the state or territory to proceed. [9] At the same time, in Australian states/territories, the type of environmental protection permit required depends on the type of project to be carried out, but in some states additional approval is required for environmental related projects, such as in New South Wales, the development permit for the relevant project is required before the environmental protection permit is issued. [10] For example, in recent years, a domestic central enterprise has waived its option to purchase a controversial Southern City Consolidated Apartment Development site on Sydney's North Shore for A $80 million. This is because the New South Wales Independent Planning Commission stated that the planning of the Southern District is inconsistent with the two larger development plans of the new state. And the Southern District development plan is likely to lead to "overdevelopment" of the area ". The environmental protection licensing systems of the Australian states/territories are as follows:

The above listed environmental protection permits applied for in accordance with the relevant regulations relate to the areas of air, water and soil pollution and are independent environmental protection permits. In Australia, most states/territories also implement comprehensive environmental protection licenses. The so-called comprehensive environmental protection license means that the environmental protection license issued covers all possible pollution to the environment caused by the predetermined project. [11] At present, industrial or agricultural intensive projects (including chemical manufacturing, sewage treatment, cement manufacturing and poultry farming), mining and oil extraction projects can apply for comprehensive environmental protection permits. The criteria for applying for a comprehensive environmental protection permit from a state/territory are usually the environmental impact of the relevant activity, whether the relevant activity has measures to mitigate or avoid the environmental impact, and the environmental value that the relevant activity may produce. [12] Environmental protection permits generally specify the monitoring, reporting and other clean-up obligations of individuals or enterprises for the environment in order to prevent pollution incidents or to take appropriate emergency measures in the event of an environmental pollution incident.

For the duration of environmental protection permits, the environmental protection permits of Australian states/territories are generally valid for five years, and the expiration date is clearly stated on the permit, but the environmental regulatory agencies of the states/territories will grant the permit a change period of 1-10 years after assessing the risk of the relevant activities. During this period, the environmental protection permit continues to be effective, but there may be circumstances in which the environmental protection permit is revoked, suspended or voluntarily abandoned by the permit holder. At present, most states/territories in Australia allow the transfer of environmental protection permits to continue related licensing activities. For example, in New South Wales and South Australia, the original environmental protection permit holder is allowed to transfer the permit upon death and the permit remains valid for the duration of its validity. In addition, Australian state/territory environmental regulators have the power to enforce the requirements of environmental protection permits, including the issuance of notices, orders or instructions, or the institution of legal proceedings for related violations. At the same time, in Australian states/territories, courts with environmental enforcement powers can order specific measures against environmental violators to remedy the environmental damage caused, or to pay reasonable environmental remediation costs based on the court's assessment.

environmental impact assessment system]

In addition to the above-mentioned environmental protection permit system, Australia's Commonwealth and states/territories also implement the Environmental Impact Assessment (EIA) system to prevent environmental pollution, protect the natural environment, and maintain ecological balance. The so-called environmental impact assessment refers to the process of identifying, predicting, evaluating and comprehensively analyzing the economic, social and environmental impacts involved in development and their possible consequences and impacts in the process of planning and decision-making. Environmental impact assessment is carried out by the federal government and state/territory governments, and the federal and state/territory governments have also formulated corresponding regulations on the environmental impact assessment system, among which the representative ones are the Environmental Protection Act 1997 and the Land and Environment Act of Queensland.

The process of environmental impact assessment is divided into 7 stages, including planning, preparation, assessment, consultation, draft report, review and approval, implementation and monitoring. The criteria for environmental impact assessment include water quality, air quality, noise, soil, landscape, wildlife, and cultural heritage. For example, in Australia, as long as 100-year-old buildings are not allowed to be demolished, otherwise it will violate the relevant laws. At the same time, the participants of the environmental impact assessment include project applicants, government departments, expert review teams, the public and environmental protection organizations. Participants can participate in all aspects of the evaluation, such as planning, evaluation, consultation, etc., in order to express their opinions and fight for their rights.

The Australian environmental impact assessment is divided into three categories, including projects that have significant environmental impacts, projects that may have environmental impacts, and projects that have no environmental impacts. Different categories of projects require different types of assessments and approvals. The methods of environmental impact assessment mainly include prediction, evaluation and analysis. However, there is an important prerequisite for environmental impact assessment-environmental baseline survey, that is, through a detailed survey of the natural and human environment of the region, to determine the baseline data. Baseline data is the basis for environmental impact assessment, which can better reflect the current environmental situation and provide data support for subsequent assessment. The prediction method of environmental impact assessment includes qualitative and quantitative methods. Among them, the qualitative method is mainly through the literature, survey experts and other ways to predict, quantitative method is through mathematical models, field experiments and other ways to predict, can more accurately reflect the degree of environmental impact, to provide a scientific basis for assessment. The presentation method of environmental impact assessment mainly includes text expression, chart and impact matrix. In Australia, the environmental impact report needs to be presented according to the requirements of the national and state governments, and at the same time, it needs to be presented according to the needs of the applicant and the balance of interests between different participants. In addition, in practice, Australia also has many famous environmental impact assessment cases, such as the construction of the Cockatoo Island wharf and the construction of facilities in the Bath Bay mining area. [13]

To sum up, the environmental protection licensing system and the environmental impact assessment system are not only very important for environmental protection in Australia, but also guide the implementation of environment-related projects to a certain extent. Therefore, investors in Australia need to focus on these two systems.

03

Environmental protection system in specific areas

In addition to the comprehensive environmental protection provisions of the Commonwealth of Australia and the states/territories listed above, the states/territories of Australia also provide corresponding environmental protection systems in specific areas such as land, climate and water. The following is a brief interpretation of the environmental protection regulations in the field of climate and water in Australia.

climate field]

As mentioned above, Australia is a party to the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement. Since 1988, the ruling government of the Labor Party has successively formulated and revised a series of greenhouse gas emission reduction laws and regulations under the guidance of the United Nations Framework Convention on Climate Change and the Kyoto Protocol, including the Renewable Energy Act 2000, the National Greenhouse Gas and Energy Report Act, the Clean Energy Act 2011, the Climate Change Act 2022, and the Renewable Energy Target (RET) Act 2022. On March 30, 2023, the Australian government passed the "2023 Safeguard Mechanism Regulations (Carbon Credit) Amendment Draft" (hereinafter referred to as the "Safeguard Regulations") to more effectively respond to climate change challenges and ensure that Australia's response to climate change is achieved on schedule. aims. The safeguard regulations came into effect on July 1, 2023, which has an impact on the security of China's strategic resources such as coal and iron ore and investment in projects in Australia, so enterprises investing in Australia should pay special attention to this safeguard regulation. [14] The Safeguards Regulation covers large industrial facilities in Australia that emit more than 100000 tonnes of carbon dioxide equivalent per year of greenhouse gas emissions. At the same time, the safeguards regulations require facilities within their constraints to keep their net emissions within the emission baseline (the emission baseline is based primarily on the facility's product output and the carbon intensity per unit of product, where the carbon intensity per unit of product is currently an important factor affecting the emission baseline). If the facility's emissions exceed or are expected to exceed its baseline, the facility main enterprise can manage the excess emissions in the following ways:(1) Apply to the government authority for a new baseline or production adjustment baseline;(2) Purchase ACCU (carbon credit unit) from other enterprises or deduct it from its own ACCU balance;(3) If the excess emissions are caused by special circumstances such as natural disasters or criminal activities, the main body of the facility may apply to the competent government department for an exemption from excess emissions. If the facility entity with excess emissions fails to take the above measures within the prescribed requirements, the relevant regulatory body may impose penalties by signing an enforceable undertaking, issuing a notice of infringement, initiating court proceedings to apply for an injunction or civil penalties.

In addition, in Australian states/territories, the release of toxic, noxious, irritant and hazardous substances into the air without legal authority is prohibited, otherwise civil or criminal penalties will be incurred. The holder of an environmental protection permit must also comply with the conditions, standards and concentration rates specified in the environmental protection permit for any substance released into the air. The state/territory environmental regulatory agency can issue a notice to the person suspected of causing air pollution, requiring him to take necessary clean-up measures in accordance with the provisions in the notice. However, the notification requirements of the states/territories are inconsistent. In New South Wales, South Australia and Queensland, the relevant regulatory agencies issue air pollution clean-up notices or orders. In Victoria and the Northern Territory, regulators can issue pollution prevention notices requiring remedial action. In Western Australia and Tasmania, regulators can issue environmental protection notices for emission control measures. If the notified person is unable to carry out the designated clean-up activities, the supervisory authority may carry out these activities on its own and require the notified person to bear the corresponding costs. Failure to comply with notices for clean-up, environmental protection or pollution prevention will result in penalties or fines. For example, in New South Wales, the fine for an air pollution offence committed by a company cannot exceed A $1 million and an individual cannot exceed A $250000. [15]

water field]

In June 2004, Australia held the 14th cabinet meeting to revise the national water management policy. In the same year, the Water Resources Management Law Amendment (2004) (The Water Management Amendment Act 2004) and the Water Resources Management Rules (2004) (The Water Management (General) Regulation 2004) were formulated, and a series of water resources management and agricultural water trading management systems were established and improved. The purpose is to improve the fairness and efficiency of water resources allocation through the reform of water resources management system. On the basis of years of reform of the water resources management and trading system, the Australian Cabinet Meeting in 2004 formulated the National Water Resources Management Action Interstate Agreement (Intergovernmental Agreement on a National Water Initiative). Except for Western Australia and Tasmania, which failed to sign the agreement due to considerations of interests and capabilities, New Zealand, Victoria, Queensland, South Australia, Canberra and Northern Territory all signed the National Water Resources Management Action Interstate Agreement.

As a country with very successful marketization of water rights, there are many large-cap, medium-cap and small-cap water conservancy companies in Australia all over the country to trade and distribute water resources. Water rights transactions for agricultural water, industrial water and urban water can be directly connected to the Internet by water demanders and trade water rights through the Internet. However, water administration units in various states and cities have not increased management costs due to the huge transaction volume. The main reason is that Australia's water rights transfer, trading or substantive transfer system is clear and thorough. Therefore, the water administration units of each state and city only need to set the water market transaction norms and provide the necessary transaction information of each water target and water conservancy company to activate the market, and do not need to intervene in the coordination between buyers and sellers. In the face of increasingly tense water resources, the Australian government not only vigorously improves the management system, establishes a standardized, transparent and fair water resources market and its regulation mechanism, but also often introduces water-saving measures according to the water use situation. [16] For example, New South Wales has an integrated water resources licensing and water supply engineering approval classification system, as well as an independent regulatory body called the National Resource Access Regulatory Agency and a state-owned enterprise, Water NSW, which manages the state's rivers and water supply systems.

While the agencies that issue water permits vary from state/territory to state/territory in Australia, for example, in the Northern Territory, the agency that issues water permits is the Water Resources Control Agency and in the Australian Capital Territory, it is the same that most states/territories require a water permit registry that details the permit, the permit holder and any matters related to the allocation of water or the enjoyment of water rights. In addition, each state/territory provides that it is a water use offence if an individual illegally takes water without a water use permit or exemption, or violates any conditions attached to the permit. However, penalties for water use offences vary from state to state, as in New South Wales, obtaining water from a regulated water source without permission is an offence without a defense, but criminal penalties are imposed depending on the seriousness of the circumstances, including fines of up to $5 million (applicable to companies) and imprisonment for up to two years. [17] In the Australian Capital Territory, Northern Territory and Queensland, fines are based on the perpetrator's subjective intent to cause damage to water resources, with penalties ranging from two to five years in prison if the perpetrator intentionally causes serious or substantial environmental damage. Therefore, investors coming to Australia should strictly abide by the water regulations of their state/territory in order to avoid possible penalties.

04

Conclusion

Almost everyone who has been to Australia will be deeply intoxicated by Australia's blue sky and white clouds, green mountains and clear water, as well as the fragrance of birds and flowers. For example, according to the list of the world's most livable cities published by the Economist in 2023, Melbourne and Sydney rank third and fourth in the world respectively. [18] Through the above detailed interpretation of Australia's environmental protection regulations, we can also see the efforts and achievements made by Australia in environmental protection-sound laws and regulations, clear responsibilities of regulatory agencies, complete environmental protection licensing system, and detailed and accurate environmental protection regulations in specific fields. In addition, through the environmental protection laws and regulations introduced above, it can be seen that the Australian government attaches great importance to environmental protection, which is a relatively good situation for investment in Australia. However, investors going to Australia should pay close attention to the provisions of Australian environmental protection regulations on project licensing, evaluation and related gas emissions and water use, so as to avoid possible penalties.

References:

[1] https://res.cenews.com.cn/h5/news.html?id=982628 。 Last visit, August 8, 2023.

[2] Environment Protection and Biodiversity Conservation Act1999，P322.

[3] https://environment.des.qld.gov.au/management/compliance-enforcement/obligations-duties #. Last visit, August 16, 2023.

[4] Environment Operations Act 1997.

[5] https://www.jiemian.com/article/8045023.html 。 Last visit, August 15, 2023.

[6] "New government takes office, climate action 'laggards" Australia raises 2030 emission reduction target to 43% ", Observer Network, https://baijiahao.baidu.com/s?id=1735776683064389217&wfr=spider&for=pc 。

[7]https://baike.baidu.com/item/环境保护许可制度/7676250?fr=ge_ala 。 Last visit date, August 21, 2023.

[8] Same note [3],P13-P65.

[9] https://www.dcceew.gov.au/environment/epbc/approvals/state-assessments #. Last visit, August 16, 2023.

[10] Protection of the Environment Operations Act 1997 No 156, P28.

[11] Same as note [10].

[12] Environment Protection Authority Regulatory Policy, P33.

[13] https://www.auplanking.com/article/156923 。 Last visit date, August 17, 2023.

[14] https://api.goalfore.cn/a/4328.html 。 Last visit date, August 21, 2023.

[15] Environmental law and practice in Australia: overview，Claire Smith.

[16] "Water Management and Utilization in Australia", Water Bank, 1 September 2022.

[17] Same note [10].

[18] "The latest! 2023 list of the world's most livable cities released, Vienna once again top the list", Tencent, https://new.qq.com/rain/a/20230703A073DY00 /.