VIC Parliament Considers Constitution Amendment (Fracking Ban) Bill 2020

On 19 February 2021, the Constitution Amendment (Fracking Ban) Bill 2020 (Vic) (the Bill) was introduced into the Victorian Legislative Council. Broadly, the Bill amends the Constitution Act 1975 (Vic) ("the Constitution Act") to entrench the existing legislated bans on hydraulic fracturing and coal seam gas exploration and mining. Hydraulic fracturing and coal seam gas exploration and mining are currently prohibited under the Mineral Resources (Sustainable Development) Act 1990 (Vic) and the Petroleum Act 1998 (Vic), as a result of amendments made by the Resources Legislation Amendment (Fracking Ban) Act 2017 (Vic). In his second reading speech the Minister for Economic Development, Mr Pallas, stated:

Overview of Proposed Amendments

The Bill, in clause 3, inserts a new paragraph (fab) into section 18(2) of the Constitution Act, to provide that it is unlawful to present to the Governor for Royal Assent any Bill by which the new Part VIII, also inserted by the Bill, is repealed, altered or varied unless the third reading of the Bill is passed by a special majority, being three-fifths of each House.

Clause 4 inserts the above mentioned new Part VIII—"Maintaining the prohibitions on hydraulic fracturing and coal seam gas exploration and mining" into the Constitution Act.

Outline of Proposed New Part VIII

New section 98 outlines the purposes of Part VIII as being to constrain the power of the Parliament to make laws repealing, altering or varying provisions that prohibit hydraulic fracturing and coal seam gas exploration and mining, in order to ensure that the prohibitions, or prohibitions that are no less onerous, remain in force at all times as part of the law of Victoria.

Section 99 of the new Part VIII provides that the Victorian Parliament may not by any Act, whether expressly or by implication, repeal, alter, or vary, the provisions comprising the existing legislated bans.  The section sets out what is a permissible alteration, change or variation, what otherwise will be taken to "repeal, alter or vary" and defines key terms used in the section. Section 99(1) provides that the Victorian Parliament may not by any Act, whether express or implied, repeal, alter or vary any of the following legislation:

• The Petroleum Act 1998 section 16A , which prohibits hydraulic fracturing in the course of carrying out a petroleum operation;
• The Mineral Resources (Sustainable Development) Act 1990 section 8AD, which prohibits hydraulic fracturing on land by the holder of an exploration licence, a mining licence or a retention licence, in the course of carrying out exploration or mining under the licence;
• The Mineral Resources (Sustainable Development) Act 1990 section 8AC, which prohibits carrying out exploration for, or mining of, coal seam gas on land;
• The Mineral Resources (Sustainable Development) Act 1990 section 15(1BAA), which prohibits the Minister accepting an application for an exploration licence, a mining licence or a retention licence, to the extent that it specifies that the licence is to relate to coal seam gas;
• A provision of an Act to the extent that the provision is necessary for the effective operation of any of the above provisions.

Section 99(2) provides that despite section 99(1), the Parliament may by any Act repeal, alter or vary a provision referred to in section 99(1) if the repeal, alteration or variation:

• substitutes for the provision one or more other provisions that have the same effect; or
•  repeals and re-enacts the provision; or
• makes editorial changes that do not derogate from the substantive operation of the provision including, but not limited to, any of the following changes:
• changes made to correct typographical, grammatical or clerical errors;
• changes to numbering;
• changes of references to a re-named entity or Act;
• changes of a consequential nature that are required because of amendments or repeals of any Act, alterations in the arrangements relating to the machinery of government (however described) or for any other reason; or
• increases the penalty for contravening the provision; or
• widens the class of persons liable to a penalty for contravening the provision.

Section 99(3) provides that without limiting section 99(1), an Act is taken to repeal, alter or vary a provision referred to in that subsection if the Act:

• reduces the penalty for contravening the provision; or
• narrows the class of persons liable to a penalty for contravening the provision; or
• reduces the geographical area to which the provision applies.

Section 99(4) provides definitions of the key terms used in section 99:

• "coal seam gas" has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990, namely, that coal seam gas means natural gas when it is contained in oil shale or coal, whether or not it is in a gaseous state;
• "commencement day" means the day on which section 4 of the Bill commences;
• "exploration" has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990 which provides that exploration means exploration for minerals and includes:
• conducting geological, geophysical and geochemical surveys; and
• drilling; and
• taking samples for the purposes of chemical or other analysis; and
• extracting minerals from land, other than for the purpose of producing them commercially; and
• in relation to an exploration licence, anything else (except mining) that is specified in the licence;
• "exploration licence" means an exploration licence under Part 2 of the Mineral Resources (Sustainable Development) Act 1990;
• "hydraulic fracturing" has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990 which provides that hydraulic fracturing means an injection of a substance or substances into a bore under pressure for the purposes of stimulating a geological formation;
• "Mineral Resources Sustainable Development Act 1990" means the Mineral Resources (Sustainable Development) Act 1990 as in force immediately before the commencement day;
• "mining" has the same meaning as in section 4(1) of the Mineral Resources (Sustainable Development Act) 1990 which provides that mining means extracting minerals from land for the purposes of producing them commercially, and includes processing and treating ore; 
• "mining licence" means a mining licence under Part 2 of the Mineral Resources (Sustainable Development) Act 1990;
• "Petroleum Act 1998" means the Petroleum Act 1998 as in force immediately before the commencement day;
• "petroleum operation" has the meaning given by section 4 of the Petroleum Act 1998 which provides that petroleum operation means any activity relating to petroleum exploration or to petroleum production;
• "retention licence" means a retention licence under Part 2 of the Mineral Resources (Sustainable Development) Act 1990.

Criticism of the Bill

Former Liberal Party MP for Hawthorn, John Pesutto writing in The Age, notes that the precedent set by this Bill, namely, using the state's constitution as a way to "fortify" government policy is dangerous and could have adverse results in the future:

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Constitution Amendment (Fracking Ban) Bill 2020 (Vic), second reading speech and explanatory materials available from TimeBase's LawOne service

Victoria's constitution should not be used to prop up fracking ban (John Pesutto, The Age, 20 April 2020)

Victoria quietly lifted its gas exploration pause but banned fracking for good. It’s bad news for the climate (Samantha Hepburn, Director of the Centre for Energy and Natural Resources Law, Deakin Law School, Deakin University, The Conversation, March 19, 2020)