The Landholders’ Right to Refuse (Gas and Coal) Bill 2015 would make it unlawful for a constitutional corporation to enter land or carry out gas or coal exploration, mining or production on land unless it holds a prior written authorisation from every person with an ownership interest. The authorisation must be written, signed, contain prescribed details (including an independent risk assessment) and explicitly inform the landholder of their right to refuse and to seek independent advice.
Separately, the bill prohibits constitutional corporations from conducting hydraulic fracturing operations and attaches a civil penalty to that contravention; it creates private and ministerial injunctive remedies and enables the Environment Minister to seek pecuniary penalties in the Federal Court. The measures overlay existing state and territory mining regimes, bind the Crown, extend to external territories and carry significant compliance, litigation and federal‑state coordination implications for industry and regulators.
At a Glance
What It Does
The bill criminalises gas or coal mining activity by constitutional corporations on land without prior written authorisation from each person with an ownership interest, prescribes the content and formalities of that authorisation, and treats failure to obtain it as a separate offence for each day the activity continues. It separately makes hydraulic fracturing by constitutional corporations a civil penalty contravention, enforceable by injunctions and pecuniary penalty orders.
Who It Affects
Federally regulated companies (constitutional corporations) conducting exploration, production or related activities on land; private landholders and occupants with legal or equitable interests; environmental organisations and the Environment Minister (who gain standing to seek injunctions or penalties); and state and territory regulators because the bill overlays existing licensing schemes.
Why It Matters
The bill shifts decisive leverage over access to on‑shore resources from licensing regimes toward individual landholders and the federal courts, potentially override commercial mining access and complicate existing state lease frameworks. It also introduces strong civil enforcement tools for fracking bans and lowers procedural barriers for injunctions, increasing litigation risk for industry.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
The bill establishes two separate but related federal regimes. First, it makes it unlawful for a constitutional corporation to enter or remain on land to carry out gas or coal mining activities, or to engage in such activities on or in relation to land, unless the corporation has a prior written authorisation from every person with an ownership interest.
The authorisation must be written and signed by the landholder, identify the parties and land, describe the proposed activity and timing, state effective and expiry dates, include an independent assessment of current and future risks (including groundwater impacts), and include any regulation‑required details. The authorisation is invalid unless the corporation has advised the landholder in writing that they may refuse and should seek independent advice.
The regime is forward‑looking but contains explicit carve‑outs for constitutional corporations that commenced exploration or production on particular land before the Division’s commencement; those continuing projects are not caught. The bill also narrows the definition of ownership interest by excluding interests that exist solely because of rights granted under Commonwealth, State or Territory mining laws, meaning a statutory mining right does not by itself qualify as a landholder consent right.Second, the bill bans hydraulic fracturing operations carried out by constitutional corporations and designates that contravention as a civil penalty provision with a high penalty expressed in penalty units.
The Environment Minister and identified 'interested persons' — including individuals with affected interests and incorporated organisations that have recently undertaken environmental protection activities — can apply to the Federal Court for prohibitory, mandatory or interim injunctions and for orders requiring remediation. The Court may also, on the Minister’s application within six years, impose pecuniary penalties; civil penalty proceedings are subject to rules coordinating them with parallel criminal prosecutions and protecting certain evidence from being used in subsequent criminal cases.Procedurally, a landholder can commence an action for unlawful gas/coal activity within six years of the cause of action arising, and the court must generally order the defendant to pay the plaintiff’s costs unless the action was vexatious or unreasonable.
The bill attributes conduct by employees, agents or officers to the corporation, applies to joint ventures and partnerships composed of constitutional corporations, binds the Crown, and extends to external territories. It also leaves open the making of regulations for implementation and explicitly states it is not intended to exclude State and Territory laws to the extent concurrent operation is possible.
The Five Things You Need to Know
A constitutional corporation faces a criminal penalty of 5,000 penalty units for each day it enters, remains on, or engages in gas or coal mining activity on land without a prior written authorisation from every person with an ownership interest.
A prior written authorisation must include an independent assessment of current and future risks (including groundwater impacts), effective and expiry dates, detailed activity descriptions and written advice that the landholder can refuse and should seek independent advice; missing any required item invalidates the authorisation.
Hydraulic fracturing by constitutional corporations is a civil penalty contravention carrying a sanction of 50,000 penalty units, enforceable by the Environment Minister applying to the Federal Court for a pecuniary penalty within six years of the contravention.
The bill gives standing to individuals and incorporated organisations as 'interested persons' to seek prohibitory, mandatory or interim injunctions against proposed or ongoing fracking, with statutory criteria defining who qualifies as interested.
The Federal Court must generally order a defendant to pay the costs of a landholder who brings an action under the Act unless the court finds the claim vexatious or without reasonable cause, increasing the litigation risk and potential cost exposure for companies.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Definitions, Crown and territorial coverage, and relationship to state law
This section set establishes key terms — including 'constitutional corporation', 'hydraulic fracturing operations', 'gas or coal mining activity' and 'ownership interest' — and makes the Act bind the Crown and extend to external territories. Practically, the Act deliberately avoids attempting to wholly displace State and Territory mining laws; it asserts concurrent operation where possible, which sets up a framework where federal prohibitions and consent requirements sit alongside, and can complicate, state licensing regimes.
Scope, grandfathering and private causes of action
Section 9 limits the Division to constitutional corporations and contains explicit grandfathering: corporations that commenced exploration or production on particular land before commencement are excluded in relation to that land. Section 11 gives any person with an ownership interest a statutory cause of action against a constitutional corporation that operates without the required authorisation and sets a six‑year limitation for bringing that claim, creating a clear window for litigation tied to landholder rights.
Daily criminal offence and evidential burden
Section 10 creates the core offence: entering, remaining on, or engaging in gas or coal activity without ownership interest or prior written authorisation. It treats each day of continuing conduct as a separate offence (increasing exposure for prolonged projects) and specifies a 5,000 penalty‑unit sanction. The provision also imports an evidential burden on defendants to demonstrate they had prior written authorisation, affecting how corporations must preserve proof of consent and meeting dates.
Formal requirements for prior written authorisations
Section 12 prescribes the form and minimum content of authorisations and renders them invalid if formalities are missing. The requirement for an independent risk assessment and a written notice to landholders advising them they may refuse and should seek independent advice raises compliance costs for proponents and creates a potential basis for challenge whenever the assessment or advisory process is inadequate or disputed.
Fracking ban, injunctions, and civil‑penalty enforcement
Section 14 makes hydraulic fracturing by constitutional corporations a civil penalty contravention with a high penalty expressed in penalty units. Sections 15–18 broaden injunctive relief: the Environment Minister, qualified individuals and organisations can seek prohibitory, mandatory and interim injunctions; the Court can order remediation; and traditional considerations like likelihood of repetition or proof of significant environmental harm are explicitly not required. Subdivision A (19–21) sets a six‑year window for the Minister to seek pecuniary penalties and directs the Court to weigh factors (nature/extent of contravention, loss, circumstances, prior findings) in setting amounts. Subdivisions B and C establish how civil penalty proceedings interact with criminal prosecutions and how attribution to corporate participants operates.
Joint ventures, attribution and regulation‑making
Section 28 clarifies that where joint ventures or partnerships consist of constitutional corporations, obligations and liabilities under the Act apply to each participant and may be performed by one or more participants on behalf of the entity. Section 29 authorises regulations for implementation, which means many operational details, enforcement procedures and prescribed information for authorisations can be set by regulation rather than in the Act itself.
This bill is one of many.
Codify tracks hundreds of bills on Environment across all five countries.
Explore Environment in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Private landholders and occupiers — obtain a statutory right to refuse access and to require a written, signed authorisation containing an independent risk assessment and explicit advice; this converts consent into a negotiable, enforceable instrument.
- Environmental organisations and local community groups — gain standing as 'interested persons' to seek injunctions against proposed or ongoing hydraulic fracturing, lowering the procedural barriers for judicial intervention.
- Environment Minister and Commonwealth — receive a targeted enforcement tool to seek pecuniary penalties for fracking contraventions and can initiate injunctive or civil penalty proceedings on behalf of the public interest.
Who Bears the Cost
- Constitutional corporations operating in the gas and coal sectors — face new criminal exposure (daily offences), higher compliance costs to secure and document valid authorisations (including independent risk assessments), and elevated litigation and penalty risk under the fracking ban.
- State and Territory regulators and permit holders — may confront conflicts between existing licences and federal prohibitions or consent rules, complicating permit administration, enforcement and compensation questions.
- Joint venture participants and service contractors — may see liability attributed across partners and face vicarious exposure for actions of employees and agents, increasing due diligence and contractual allocation of risk.
Key Issues
The Core Tension
The bill pits individual property rights and precautionary environmental protections against the need for regulatory certainty for resource development and the constitutional province of State mining regimes: it strengthens landholders’ control and judicial remedies but does so by imposing federal constraints on corporations whose operations have historically been governed and licensed at the State level, producing a fundamental federalism and investment‑certainty dilemma.
The bill creates immediate and practical tensions that implementation would need to resolve. First, the federal consent requirement and fracking ban overlay state‑issued licences: where a corporation holds a statutory right under State mining law, the Act excludes that statutory right from counting as an 'ownership interest', but it does not remove the need for private landholder authorisations for access — a mismatch that could produce conflicting legal rights, compensation claims, and constitutional litigation over inconsistency and the corporations power.
Second, the grandfathering language protects activities that commenced before commencement, but it is narrowly tied to particular land and activity timing; determining whether an activity 'commenced' in the statutory sense will be litigated and could leave large parts of existing projects uncertain.
On enforcement mechanics, the Act shifts evidential burdens and broadens injunctive standing while making civil penalty proceedings distinct from criminal prosecutions and protecting some evidence from later criminal use. Those choices reduce traditional judicial gatekeeping (courts may grant injunctions without finding likelihood of repeat conduct or significant risk) and raise the possibility of expedited, wide‑ranging injunctions based on landholder or NGO claims.
Finally, many implementation details are left to regulations (including prescribed authorisation information and administrative procedures), so the practical impact will depend heavily on delegated instruments and resourcing for enforcement — neither of which the bill funds or specifies, creating uncertainty about how the regime will operate on the ground.
Try it yourself.
Ask a question in plain English, or pick a topic below. Results in seconds.