An Act relating to the protection of the environment and the
conservation of biodiversity, and for related purposes
Chapter 1—Preliminary
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Environment
Protection and Biodiversity Conservation Act 1999.
2
Commencement [see
Note 1]
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1)
within the period of 12 months beginning on the day on which it receives the
Royal Assent, it commences on the first day after the end of that period.
3
Objects of Act
(1) The objects of this Act are:
(a) to provide for the protection of
the environment, especially those aspects of the environment that are matters
of national environmental significance; and
(b) to promote ecologically
sustainable development through the conservation and ecologically sustainable
use of natural resources; and
(c) to promote the conservation of
biodiversity; and
(ca) to provide for the protection and
conservation of heritage; and
(d) to promote a co‑operative
approach to the protection and management of the environment involving
governments, the community, land‑holders and indigenous peoples; and
(e) to assist in the co‑operative
implementation of Australia’s international environmental responsibilities; and
(f) to recognise the role of
indigenous people in the conservation and ecologically sustainable use of Australia’s
biodiversity; and
(g) to promote the use of indigenous
peoples’ knowledge of biodiversity with the involvement of, and in co‑operation
with, the owners of the knowledge.
(2) In order to achieve its objects, the Act:
(a) recognises an appropriate role for
the Commonwealth in relation to the environment by focussing Commonwealth
involvement on matters of national environmental significance and on
Commonwealth actions and Commonwealth areas; and
(b) strengthens intergovernmental co‑operation,
and minimises duplication, through bilateral agreements; and
(c) provides for the intergovernmental
accreditation of environmental assessment and approval processes; and
(d) adopts an efficient and timely
Commonwealth environmental assessment and approval process that will ensure
activities that are likely to have significant impacts on the environment are
properly assessed; and
(e) enhances Australia’s capacity to
ensure the conservation of its biodiversity by including provisions to:
(i) protect native species
(and in particular prevent the extinction, and promote the recovery, of
threatened species) and ensure the conservation of migratory species; and
(ii) establish an
Australian Whale Sanctuary to ensure the conservation of whales and other
cetaceans; and
(iii) protect ecosystems by
means that include the establishment and management of reserves, the
recognition and protection of ecological communities and the promotion of off‑reserve
conservation measures; and
(iv) identify processes that
threaten all levels of biodiversity and implement plans to address these
processes; and
(f) includes provisions to enhance
the protection, conservation and presentation of world heritage properties and
the conservation and wise use of Ramsar wetlands of international importance;
and
(fa) includes provisions to identify
places for inclusion in the National Heritage List and Commonwealth Heritage
List and to enhance the protection, conservation and presentation of those
places; and
(g) promotes a partnership approach to
environmental protection and biodiversity conservation through:
(i) bilateral agreements
with States and Territories; and
(ii) conservation
agreements with land‑holders; and
(iii) recognising and
promoting indigenous peoples’ role in, and knowledge of, the conservation and
ecologically sustainable use of biodiversity; and
(iv) the involvement of the
community in management planning.
3A
Principles of ecologically sustainable development
The following principles are principles
of ecologically sustainable development:
(a) decision‑making processes
should effectively integrate both long‑term and short‑term
economic, environmental, social and equitable considerations;
(b) if there are threats of serious or
irreversible environmental damage, lack of full scientific certainty should not
be used as a reason for postponing measures to prevent environmental
degradation;
(c) the principle of inter‑generational
equity—that the present generation should ensure that the health, diversity and
productivity of the environment is maintained or enhanced for the benefit of
future generations;
(d) the conservation of biological
diversity and ecological integrity should be a fundamental consideration in
decision‑making;
(e) improved valuation, pricing and
incentive mechanisms should be promoted.
4 Act
to bind Crown
This Act binds the Crown in each of its
capacities.
5
Application of Act
Extension to external Territories
(1) This Act extends to each external
Territory.
Limited extraterritorial application
(2) This Act applies to acts, omissions,
matters and things in the Australian jurisdiction, and does not apply to acts,
omissions, matters and things outside the Australian jurisdiction except so far
as the contrary intention appears.
Application limited to Australians outside exclusive
economic zone
(3) A provision of this Act that has effect
in relation to a place that is outside the outer limits of the exclusive
economic zone and is not on or in the continental shelf applies only in
relation to:
(a) Australian citizens; and
(b) persons who:
(i) are not Australian
citizens; and
(ii) hold permanent visas
under the Migration Act 1958; and
(iii) are domiciled in Australia
or an external Territory; and
(c) corporations incorporated in Australia
or an external Territory; and
(d) the Commonwealth; and
(e) Commonwealth agencies; and
(f) Australian aircraft; and
(g) Australian vessels; and
(h) members of crews of Australian
aircraft and Australian vessels (including persons in charge of aircraft or
vessels).
Application to everyone in Australia and exclusive
economic zone
(4) A provision of this Act that has effect
in relation to a place that is within the outer limits of the exclusive
economic zone (whether the place is in the zone or in Australia or an external
Territory) or that is on or in the continental shelf applies in relation to:
(a) all persons (including persons who
are not Australian citizens); and
(b) all aircraft (including aircraft
that are not Australian aircraft); and
(c) all vessels (including vessels
that are not Australian vessels).
Note: A reference to Australia or to an external
Territory generally includes a reference to the coastal sea of Australia or the
Territory (as appropriate). See section 15B of the Acts Interpretation
Act 1901.
Definitions
(5) In this Act:
Australian aircraft means:
(a) an aircraft that is owned,
possessed or controlled by:
(i) the Commonwealth or a
Commonwealth agency; or
(ii) a State, a self‑governing
Territory or an agency of a State or self‑governing Territory; or
(b) an aircraft that is registered in Australia.
Australian jurisdiction means the land,
waters, seabed and airspace in, under or above:
(a) Australia; or
(b) an external Territory; or
(c) the exclusive economic zone; or
(d) the continental shelf.
Note: A reference to Australia or to an external
Territory generally includes a reference to the coastal sea of Australia or the
Territory (as appropriate). See section 15B of the Acts Interpretation
Act 1901.
Australian vessel means:
(a) a vessel that is owned, possessed
or controlled by:
(i) the Commonwealth or a
Commonwealth agency; or
(ii) a State, a self‑governing
Territory or an agency of a State or self‑governing Territory; or
(b) a vessel that is registered in Australia;
or
(c) a vessel that is flying the
Australian flag.
6
Extended application of Act to match extended management of fisheries under the
Fisheries Management Act 1991
(1) This
section applies if:
(a) under the Fisheries Management
Act 1991, a plan of management in force under that Act applies to
particular fishing activities in a particular area of water; and
(b) the area of water is not within,
or is not wholly within:
(i) the Australian
jurisdiction; or
(ii) a Commonwealth area;
or
(iii) a Commonwealth marine
area; and
(c) the area of water is not:
(i) an area of water,
rights in respect of which have been vested in a State by section 4 of the
Coastal Waters (State Title) Act 1980 or in the Northern Territory by
section 4 of the Coastal Waters (Northern Territory Title) Act 1980;
or
(ii) an area of water
within the limits of a State or the Northern Territory.
(2) If, apart from this subsection, a
provision of this Act would, or would not, apply in relation to the fishing
activities (or in relation to fish or other things taken in the course of the
activities) because the area of water mentioned in subsection (1) is not
within, or is not wholly within:
(a) the Australian jurisdiction; or
(b) a Commonwealth area; or
(c) a Commonwealth marine area;
that provision has effect in relation to the fishing
activities (and in relation to fish or other things taken in the course of the
activities) as if the area of water were wholly within:
(d) the Australian jurisdiction; or
(e) a Commonwealth area; or
(f) a Commonwealth marine area;
as the case requires.
Note: This section is subject to subsection 5(3).
Example 1: Fishing activities
in an area of water that is not a Commonwealth area generally do not contravene
Part 13. However, because of this subsection, that Part applies to fishing
activities to which this section applies as if the area of water were within a
Commonwealth area. The fishing activities may therefore contravene that Part.
Example 2: If fish taken in the course of fishing activities
in an area of water that is not within the Australian jurisdiction are brought
into Australia, this generally constitutes an import (being an import by way of
introduction from the sea) of the fish into Australia, which may contravene
Part 13A. However, because of this subsection, that Part applies to the
fish as if the area of water were within the Australian jurisdiction. The
bringing of the fish into Australia therefore does not constitute an import for
the purposes of that Part.
Example 3: This section allows a plan of management to be
accredited under Part 13 in respect of the entire area of water to which
the plan relates (even if some of the area is outside the Australian
jurisdiction, a Commonwealth area or a Commonwealth marine area).
(3) In this section:
fishing has the same meaning as in the Fisheries
Management Act 1991.
7
Application of the Criminal Code
Chapter 2 of the Criminal Code
(except Part 2.5) applies to all offences against this Act.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Part 2.5 of the Criminal Code
(which deals with corporate criminal responsibility) is excluded from applying
to offences against this Act by subsection 498B(9).
8
Native title rights not affected
(1) To avoid doubt, nothing in this Act
affects the operation of section 211 of the Native Title Act 1993
in relation to a provision of this Act.
Note: Section 211 of the Native Title Act
1993 provides that holders of native title rights covering certain
activities do not need authorisation required by other laws to engage in those
activities.
(2) This Act does not affect the operation
of:
(a) the Aboriginal Land
Rights (Northern Territory) Act 1976; or
(b) the Native Title Act 1993.
9
Relationship with other Acts
Aboriginal Land Rights (Northern Territory) Act 1976
(1A) Subsection 70(1) of the Aboriginal
Land Rights (Northern Territory) Act 1976 does
not prevent a person exercising powers or performing functions or duties under
Division 4 or 5 of Part 15, or Division 5 of Part 19, of
this Act from entering or remaining on land:
(a) in the Kakadu region or Uluru
region; and
(b) in which an Aboriginal Land Trust
established under that Act holds an estate in fee simple.
Airports Act 1996 not affected
(1) This Act does not affect the operation of
the Airports Act 1996.
Antarctic Treaty (Environment Protection) Act 1980 not
affected
(2) To avoid doubt, nothing in this Act
affects the operation of subsection 7(1) of the Antarctic Treaty
(Environment Protection) Act 1980 or regulations made for the purposes of
that subsection.
10
Relationship with State law
This Act is not intended to exclude or
limit the concurrent operation of any law of a State or Territory, except so
far as the contrary intention appears.
Chapter 2—Protecting the environment
Part 2—Simplified outline of this Chapter
11
Simplified outline of this Chapter
The following is a simplified outline of
this Chapter:
This Chapter provides a basis for the
Minister to decide whether an action that has, will have or is likely to have a
significant impact on certain aspects of the environment should proceed.
It does so by prohibiting a person
from taking an action without the Minister having given approval or decided
that approval is not needed. (Part 9 deals with the giving of approval.)
Approval is not needed to take an
action if any of the following declare that the action does not need approval:
(a) a bilateral
agreement between the Commonwealth and the State or Territory in which the
action is taken;
(b) a declaration
by the Minister.
Also, an action does not need approval
if it is taken in accordance with Regional Forest Agreements or a plan for
managing the Great Barrier Reef.
Part 3—Requirements for environmental approvals
Division 1—Requirements relating to matters of national environmental
significance
Subdivision A—World Heritage
12
Requirement for approval of activities with a significant impact on a declared
World Heritage property
(1) A person must not take an action that:
(a) has or will have a significant
impact on the world heritage values of a declared World Heritage property; or
(b) is likely to have a significant
impact on the world heritage values of a declared World Heritage property.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(2) Subsection (1) does not apply to an
action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
(3) A property has world heritage
values only if it contains natural heritage or cultural heritage. The world
heritage values of the property are the natural heritage and cultural
heritage contained in the property.
(4) In this section:
cultural heritage has the meaning given by
the World Heritage Convention.
natural heritage has the meaning given by the
World Heritage Convention.
13
What is a declared World Heritage property?
Properties on World Heritage List
(1) A property included in the World Heritage
List is a declared World Heritage property as long as the
property is included in the List.
Properties not yet on World Heritage List
(2) A property specified in a declaration made
under section 14 (with any amendments made under section 15) is a declared
World Heritage property for the period for which the declaration is in
force.
14
Declaring a property to be a declared World Heritage property
Making declarations
(1) The Minister may declare a specified
property to be a declared World Heritage property by notice in the Gazette
if:
(a) the property is a property
submitted by the Commonwealth to the World Heritage Committee under Article 11
of the World Heritage Convention as suitable for inclusion in the World
Heritage List; or
(b) the Minister is satisfied that:
(i) the property has, or
is likely to have, world heritage values; and
(ii) some or all of the
world heritage values of the property are under threat.
Note 1: The Minister may make more than one declaration
relating to the same property. See subsection 33(1) of the Acts
Interpretation Act 1901.
Note 2: The Minister may make an extra declaration to
cover property that is an extension of a property previously submitted to the
World Heritage Committee.
Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration
relating to property wholly or partly within a State or self‑governing
Territory, the Minister must inform the appropriate Minister of the State or
Territory of the proposal to make the declaration, and give him or her a
reasonable opportunity to comment on the proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply
with subsection (2) if:
(a) he or she proposes to make a
declaration in the circumstances described in paragraph (1)(b); and
(b) he or she is satisfied that the
threat mentioned in subparagraph (1)(b)(ii) is imminent.
Failure to comply with subsection (2)
(4) The validity of a declaration is not
affected by a failure to comply with subsection (2) in relation to the
making of the declaration.
When a declaration is in force
(5) A declaration:
(a) comes into force when it is
published in the Gazette; and
(b) remains in force (whether amended
under section 15 or not) until the earliest of the following events:
(i) the end of the period
specified in the declaration as the period for which the declaration is in
force;
(ii) the revocation of the
declaration;
(iii) if the declaration
specifies a property submitted to the World Heritage Committee for inclusion in
the World Heritage List—the Committee either includes the property in the List
or decides the property should not be included in the List.
Specified period for which declaration is in force
(6) The Minister must specify in a
declaration the period for which it is to be in force. The period must not be
longer than the period the Minister believes:
(a) the World Heritage Committee needs
to decide whether or not to include the property in the World Heritage List, in
the case of a declaration specifying a property that has been submitted to the
Committee for inclusion in the List; or
(b) the Commonwealth needs to decide
whether the property has world heritage values and to submit the property to
the World Heritage Committee for inclusion in the World Heritage List, in the
case of a declaration specifying a property not yet submitted to the Committee
for inclusion in the List.
Declarations because of threat in force for a year or
less
(7) The Minister must not specify that a
declaration of a property is to be in force for more than 12 months if:
(a) the declaration is made in the
circumstances described in paragraph (1)(b); and
(b) the property is not a property
submitted by the Commonwealth to the World Heritage Committee under Article 11
of the World Heritage Convention as suitable for inclusion in the World
Heritage List.
15
Amending or revoking a declaration of a declared World Heritage property
Revoking declarations specifying nominated property
(1) The Minister must, by notice in the Gazette,
revoke a declaration made under section 14 specifying a property that has
been submitted to the World Heritage Committee for inclusion in the World
Heritage List if the Commonwealth decides to withdraw the submission of the
property for inclusion in the List.
Amending declarations specifying nominated property
(2) The Minister must, by notice in the Gazette,
amend a declaration made under section 14 specifying a property that has
been submitted to the World Heritage Committee for inclusion in the World
Heritage List so as to remove from the specification any part of the property
that the Commonwealth decides to withdraw from the submission.
Revoking declarations specifying property not yet
nominated
(3) The Minister must, by notice in the Gazette,
revoke a declaration made under section 14 specifying a property that is
not submitted to the World Heritage Committee for inclusion in the World
Heritage List if:
(a) the Minister is satisfied that the
property does not have world heritage values; or
(b) the Commonwealth decides not to
submit the property to the Committee for inclusion in the List; or
(c) the Minister is satisfied that
none of the world heritage values of the property are under threat.
15A
Offences relating to declared World Heritage properties
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result
in a significant impact on the world heritage values of a property; and
(c) the property is a declared World
Heritage property.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a
significant impact on the world heritage values of a property; and
(c) the property is a declared World Heritage
property.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) or
(2) is punishable on conviction by imprisonment for a term not more than 7
years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(4) Subsections (1) and (2) do not apply
to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Subdivision AA—National Heritage
15B
Requirement for approval of activities with a significant impact on a National
Heritage place
(1) A constitutional corporation, the
Commonwealth or a Commonwealth agency must not take an action that has, will have
or is likely to have a significant impact on the National Heritage values of a
National Heritage place.
Civil Penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(2) A person must not, for the purposes of
trade or commerce:
(a) between Australia and another
country; or
(b) between 2 States; or
(c) between a State and Territory; or
(d) between 2 Territories;
take an action that has, will have or is likely to have a
significant impact on the National Heritage values of a National Heritage
place.
Civil Penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(3) A person must not take an action in:
(a) a Commonwealth area; or
(b) a Territory;
that has, will have or is likely to have a significant
impact on the National Heritage values of a National Heritage place.
Civil Penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(4) A person must not take an action that
has, will have or is likely to have a significant impact on the National
Heritage values, to the extent that they are indigenous heritage values, of a
National Heritage place.
Civil Penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Note: For indigenous heritage value,
see section 528.
(5) A person must not take an action that
has, will have or is likely to have a significant impact on the National
Heritage values of a National Heritage place in an area in respect of which Australia
has obligations under Article 8 of the Biodiversity Convention.
Civil Penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(6) Subsection (5) only applies to
actions whose prohibition is appropriate and adapted to give effect to Australia’s
obligations under Article 8 of the Biodiversity Convention. (However, that
subsection may not apply to certain actions because of subsection (8).)
(8) Subsections (1) to (5) (inclusive) do
not apply to an action if:
(a) an approval of the taking of the
action by the constitutional corporation, Commonwealth agency, Commonwealth or
person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the
constitutional corporation, Commonwealth agency, Commonwealth or person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
15C
Offences relating to National Heritage places
(1) A constitutional corporation, or a
Commonwealth agency that does not enjoy the immunities of the Commonwealth, is
guilty of an offence if:
(a) the corporation or agency takes an
action; and
(b) the action results or will result
in a significant impact on the heritage values of a place; and
(c) the heritage values are National
Heritage values of the place; and
(d) the place is a National Heritage
place.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraphs (1)(c)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) A constitutional corporation, or a
Commonwealth agency that does not enjoy the immunities of the Commonwealth, is
guilty of an offence if:
(a) the corporation or agency takes an
action; and
(b) the action is likely to have a
significant impact on the heritage values of a place; and
(c) the heritage values are National
Heritage values of the place; and
(d) the place is a National Heritage
place.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraphs (2)(c)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken for the
purposes of trade or commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and
Territory; or
(iv) between 2 Territories;
and
(c) the action results or will result
in a significant impact on the heritage values of a place; and
(d) the heritage values are National
Heritage values of the place; and
(e) the place is a National Heritage
place.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(d)
and (e).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken for the
purposes of trade or commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and
Territory; or
(iv) between 2 Territories;
and
(c) the action is likely to have a
significant impact on the heritage values of a place; and
(d) the heritage values are National
Heritage values of the place; and
(e) the place is a National Heritage
place.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(d)
and (e).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(5) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in:
(i) a Commonwealth area;
or
(ii) a Territory; and
(c) the action results or will result
in a significant impact on the heritage values of a place; and
(d) the heritage values are National
Heritage values of the place; and
(e) the place is a National Heritage
place.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(5A) Strict liability applies to paragraphs (5)(d)
and (e).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(6) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in:
(i) a Commonwealth area;
or
(ii) a Territory; and
(c) the action is likely to have a
significant impact on the heritage values of a place; and
(d) the heritage values are National
Heritage values of the place; and
(e) the place is a National Heritage
place.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(6A) Strict liability applies to paragraphs (6)(d)
and (e).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(7) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result
in a significant impact on the heritage values, to the extent that they are
indigenous heritage values, of a place; and
(c) the heritage values are National
Heritage values of the place; and
(d) the place is a National Heritage
place.
Note 1: For indigenous heritage value,
see section 528.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(7A) Strict liability applies to paragraphs (7)(c)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(8) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant
impact on the heritage values, to the extent that they are indigenous heritage
values, of a place; and
(c) the heritage values are National
Heritage values of the place; and
(d) the place is a National Heritage
place.
Note 1: For indigenous heritage value,
see section 528.
Note 2: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(8A) Strict liability applies to paragraphs (8)(c)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(9) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result
in a significant impact on the heritage values of a place; and
(ba) the heritage values are National
Heritage values of the place; and
(bb) the place is a National Heritage
place; and
(c) the National Heritage place is in
an area in respect of which Australia has obligations under Article 8 of the
Biodiversity Convention.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(9A) Strict liability applies to paragraphs (9)(ba),
(bb) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(10) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a
significant impact on the heritage values of a place; and
(ba) the heritage values are National
Heritage values of the place; and
(bb) the place is a National Heritage
place; and
(c) the National Heritage place is in
an area in respect of which Australia has obligations under Article 8 of the
Biodiversity Convention.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(10A) Strict liability applies to paragraphs (10)(ba),
(bb) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(13) An offence against any of subsections (1)
to (10) (inclusive) is punishable on conviction by imprisonment for a term not
more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(14) Subsections (9) and (10) only apply
to actions whose prohibition is appropriate and adapted to give effect to Australia’s
obligations under Article 8 of the Biodiversity Convention. (However, those
subsections may not apply to certain actions because of subsection (16).)
(16) Subsections (1) to (10) (inclusive)
do not apply to an action if:
(a) an approval of the taking of the
action by the constitutional corporation, Commonwealth agency or person is in
operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the
constitutional corporation, Commonwealth agency or person take the action
without an approval under Part 9 for the purposes of this section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Subdivision B—Wetlands of international importance
16
Requirement for approval of activities with a significant impact on a declared
Ramsar wetland
(1) A person must not take an action that:
(a) has or will have a significant
impact on the ecological character of a declared Ramsar wetland; or
(b) is likely to have a significant
impact on the ecological character of a declared Ramsar wetland.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(2) Subsection (1) does not apply to an
action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
(3) In this Act:
ecological character has the same meaning as
in the Ramsar Convention.
17
What is a declared Ramsar wetland?
Areas designated for listing
(1) A wetland, or part of a wetland,
designated by the Commonwealth under Article 2 of the Ramsar Convention for
inclusion in the List of Wetlands of International Importance kept under that
Article is a declared Ramsar wetland as long as the wetland or
part is not:
(a) excluded by the Commonwealth from
the boundaries of a wetland in the List under that Article; or
(b) deleted by the Commonwealth from
the List under that Article.
Areas declared by the Minister
(2) A wetland, or part of a wetland, is also
a declared Ramsar wetland for the period for which a declaration
of the wetland as a declared Ramsar wetland is in force.
17A
Making and revoking declarations of wetlands
Declaring threatened wetlands of international
importance
(1) The Minister may declare a specified
wetland to be a declared Ramsar wetland by notice in the Gazette if the
Minister is satisfied that:
(a) the wetland is of international
significance or is likely to be of international significance because of its
ecology, botany, zoology, limnology or hydrology; and
(b) the ecological character of some
or all of the wetland is under threat.
Note: The Minister may make more than one
declaration of the same wetland under this section. See subsection 33(1) of the
Acts Interpretation Act 1901.
Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration
relating to a wetland wholly or partly within a State or self‑governing
Territory, the Minister must inform the appropriate Minister of the State or
Territory of the proposal to make the declaration, and give him or her a
reasonable opportunity to comment on the proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply
with subsection (2) if he or she is satisfied that the threat mentioned in
paragraph (1)(b) is imminent.
Failure to comply with subsection (2)
(4) The validity of a declaration is not
affected by a failure to comply with subsection (2) in relation to the
making of the declaration.
When a declaration is in force
(5) A declaration comes into force on the day
it is published in the Gazette and remains in force for the period
specified in the declaration, unless it is revoked earlier.
Specifying period for which declaration is in force
(6) The Minister must specify in a
declaration the period for which it is to be in force. The period must not be
longer than the shorter of the following periods:
(a) the period the Minister believes
the Commonwealth needs to:
(i) decide whether the
wetland is of international significance in terms of ecology, botany, zoology,
limnology or hydrology; and
(ii) designate the wetland
for inclusion in the List of Wetlands of International Importance kept under
Article 2 of the Ramsar Convention;
(b) 12 months.
Revocation of declaration of threatened wetland
(7) The Minister must, by notice in the Gazette,
revoke a declaration of a wetland if:
(a) the Minister is satisfied that the
wetland is not of international significance because of its ecology, botany,
zoology, limnology or hydrology; or
(b) the Minister is satisfied that
there is no longer a threat to any part of the wetland.
17B
Offences relating to declared Ramsar wetlands
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result
in a significant impact on the ecological character of a wetland; and
(c) the wetland is a declared Ramsar
wetland.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a
significant impact on the ecological character of a wetland; and
(c) the wetland is a declared Ramsar
wetland.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) or
(2) is punishable on conviction by imprisonment for a term not more than 7
years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(4) Subsections (1) and (2) do not apply
to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Subdivision C—Listed threatened species and communities
18
Actions with significant impact on listed threatened species or endangered
community prohibited without approval
Species that are extinct in the wild
(1) A person must not take an action that:
(a) has or will have a significant
impact on a listed threatened species included in the extinct in the wild
category; or
(b) is likely to have a significant
impact on a listed threatened species included in the extinct in the wild
category.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Critically endangered species
(2) A person must not take an action that:
(a) has or will have a significant
impact on a listed threatened species included in the critically endangered
category; or
(b) is likely to have a significant
impact on a listed threatened species included in the critically endangered
category.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Endangered species
(3) A person must not take an action that:
(a) has or will have a significant
impact on a listed threatened species included in the endangered category; or
(b) is likely to have a significant
impact on a listed threatened species included in the endangered category.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Vulnerable species
(4) A person must not take an action that:
(a) has or will have a significant
impact on a listed threatened species included in the vulnerable category; or
(b) is likely to have a significant
impact on a listed threatened species included in the vulnerable category.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Critically endangered communities
(5) A person must not take an action that:
(a) has or will have a significant
impact on a listed threatened ecological community included in the critically
endangered category; or
(b) is likely to have a significant
impact on a listed threatened ecological community included in the critically
endangered category.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Endangered communities
(6) A person must not take an action that:
(a) has or will have a significant
impact on a listed threatened ecological community included in the endangered
category; or
(b) is likely to have a significant
impact on a listed threatened ecological community included in the endangered
category.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
18A
Offences relating to threatened species etc.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result
in a significant impact on:
(i) a species; or
(ii) an ecological
community; and
(c) the species is a listed threatened
species, or the community is a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a
significant impact on:
(i) a species; or
(ii) an ecological
community; and
(c) the species is a listed threatened
species, or the community is a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) or
(2) is punishable on conviction by imprisonment for a term not more than 7
years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(4) Subsections (1) and (2) do not apply
to an action if:
(a) the listed threatened species
subject to the significant impact (or likely to be subject to the significant
impact) is:
(i) a species included in
the extinct category of the list under section 178; or
(ii) a conservation
dependent species; or
(b) the listed threatened ecological
community subject to the significant impact (or likely to be subject to the
significant impact) is an ecological community included in the vulnerable
category of the list under section 181.
Note 1: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Note 2: Section 19 sets out other defences. The
defendant bears an evidential burden in relation to the matters in that section
too. See subsection 13.3(3) of the Criminal Code.
19
Certain actions relating to listed threatened species and listed threatened
ecological communities not prohibited
(1) A subsection of section 18 or 18A
relating to a listed threatened species does not apply to an action if an
approval of the taking of the action by the person is in operation under Part 9
for the purposes of any subsection of that section that relates to a listed
threatened species.
(2) A subsection of section 18 or 18A
relating to a listed threatened ecological community does not apply to an
action if an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of either subsection of that section that
relates to a listed threatened ecological community.
(3) A subsection of section 18 or 18A
does not apply to an action if:
(a) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of the
subsection; or
(b) there is in force a decision of
the Minister under Division 2 of Part 7 that the subsection is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(c) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
(4) A subsection of section 18 or 18A
does not apply to an action, to the extent that it is covered by subsection
517A(7).
Subdivision D—Listed migratory species
20
Requirement for approval of activities with a significant impact on a listed
migratory species
(1) A person must not take an action that:
(a) has or will have a significant
impact on a listed migratory species; or
(b) is likely to have a significant
impact on a listed migratory species.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(2) Subsection (1)
does not apply to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
20A
Offences relating to listed migratory species
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result
in a significant impact on a species; and
(c) the species is a listed migratory
species.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability , see section 6.1 of
the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a
significant impact on a species; and
(c) the species is a listed migratory
species.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability , see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) or
(2) is punishable on conviction by imprisonment for a term not more than 7
years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(4) Subsections (1) and (2) do not apply
to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
20B
Certain actions relating to listed migratory species not prohibited
A subsection of section 20 or 20A
does not apply to an action, to the extent that it is covered by subsection
517A(7).
Subdivision E—Protection of the environment from nuclear actions
21
Requirement for approval of nuclear actions
(1) A constitutional corporation, the
Commonwealth or Commonwealth agency must not take a nuclear action that has,
will have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(2) A person must not, for the purposes of
trade or commerce:
(a) between Australia and another
country; or
(b) between 2 States; or
(c) between a State and a Territory;
or
(d) between 2 Territories;
take a nuclear action that has, will have or is likely to
have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(3) A person must not take in a Territory a
nuclear action that has, will have or is likely to have a significant impact on
the environment.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(4) Subsections (1), (2) and (3) do not
apply to an action if:
(a) an approval of the taking of the
action by the constitutional corporation, Commonwealth agency, Commonwealth or
person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the
constitutional corporation, Commonwealth agency, Commonwealth or person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
22
What is a nuclear action?
(1) In this Act:
nuclear action means any of the following:
(a) establishing or significantly
modifying a nuclear installation;
(b) transporting spent nuclear fuel or
radioactive waste products arising from reprocessing;
(c) establishing or significantly
modifying a facility for storing radioactive waste products arising from
reprocessing;
(d) mining or milling uranium ore;
(e) establishing or significantly
modifying a large‑scale disposal facility for radioactive waste;
(f) de‑commissioning or
rehabilitating any facility or area in which an activity described in paragraph (a),
(b), (c), (d) or (e) has been undertaken;
(g) any other action prescribed by the
regulations.
nuclear installation means any of the
following:
(a) a nuclear reactor for research or
production of nuclear materials for industrial or medical use (including
critical and sub‑critical assemblies);
(b) a plant for preparing or storing
fuel for use in a nuclear reactor as described in paragraph (a);
(c) a nuclear waste storage or
disposal facility with an activity that is greater than the activity level
prescribed by regulations made for the purposes of this section;
(d) a facility for production of
radioisotopes with an activity that is greater than the activity level
prescribed by regulations made for the purposes of this section.
Note: A nuclear waste storage or disposal facility
could include a facility for storing spent nuclear fuel, depending on the
regulations.
radioactive waste means radioactive material
for which no further use is foreseen.
reprocessing means a process or operation to
extract radioactive isotopes from spent nuclear fuel for further use.
spent nuclear fuel means nuclear fuel that
has been irradiated in a nuclear reactor core and permanently removed from the
core.
(2) In this Act:
large‑scale disposal facility for
radioactive waste means, if regulations are made for the purposes of this
definition, a facility prescribed by the regulations.
22A
Offences relating to nuclear actions
(1) A constitutional corporation, or a
Commonwealth agency that does not enjoy the immunities of the Commonwealth, is
guilty of an offence if:
(a) the corporation or agency takes a
nuclear action; and
(b) the nuclear action results or will
result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) A constitutional corporation, or a
Commonwealth agency that does not enjoy the immunities of the Commonwealth, is
guilty of an offence if:
(a) the corporation or agency takes a
nuclear action; and
(b) the nuclear action is likely to
have a significant impact on the environment and the corporation or agency is
reckless as to that fact.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3) A person is guilty of an offence if:
(a) the person takes a nuclear action;
and
(b) the nuclear action is taken for
the purposes of trade or commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and a
Territory; or
(iv) between 2 Territories;
and
(c) the nuclear action results or will
result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4) A person is guilty of an offence if:
(a) the person takes a nuclear action;
and
(b) the nuclear action is taken for
the purposes of trade or commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and a
Territory; or
(iv) between 2 Territories; and
(c) the nuclear action is likely to
have a significant impact on the environment and the person is reckless as to
that fact.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(5) A person is guilty of an offence if:
(a) the person takes a nuclear action;
and
(b) the nuclear action is taken in a
Territory; and
(c) the nuclear action results or will
result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(6) A person is guilty of an offence if:
(a) the person takes a nuclear action;
and
(b) the nuclear action is taken in a
Territory; and
(c) the nuclear action is likely to
have a significant impact on the environment and the person is reckless as to
that fact.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(7) An offence against subsection (1),
(2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a
term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(8) Subsections (1), (2), (3), (4), (5)
and (6) do not apply to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Subdivision F—Marine environment
23 Requirement
for approval of activities involving the marine environment
Actions in Commonwealth marine areas affecting the
environment
(1) A person must not take in a Commonwealth
marine area an action that has, will have or is likely to have a significant impact
on the environment.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Actions outside Commonwealth marine areas affecting
those areas
(2) A person must not take outside a
Commonwealth marine area but in the Australian jurisdiction an action that:
(a) has or will have a significant
impact on the environment in a Commonwealth marine area; or
(b) is likely to have a significant
impact on the environment in a Commonwealth marine area.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Fishing in State or Territory waters managed by
Commonwealth
(3) A person must not take in the coastal
waters (as defined in the Fisheries Management Act 1991) of a State or
the Northern Territory an action:
(a) that:
(i) is fishing (as defined
in the Fisheries Management Act 1991); and
(ii) is included in the
class of activities forming a fishery (as defined in that Act) that is managed
under the law of the Commonwealth as a result of an agreement made under
section 71 or 72 of that Act before the commencement of this section; and
(b) that:
(i) has or will have a
significant impact on the environment in those coastal waters; or
(ii) is likely to have a significant
impact on the environment in those coastal waters.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
Exceptions to prohibitions
(4) Subsection (1), (2) or (3) does not
apply to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of the
subsection; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of the
subsection; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that the subsection is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the person taking the action is
the Commonwealth or a Commonwealth agency; or
(e) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: Section 28 regulates actions by the
Commonwealth or a Commonwealth agency with a significant impact on the
environment.
Exception—fishing in Commonwealth waters managed by
State
(5) Subsection (1) does not apply to an
action if the action:
(a) is fishing (as defined in the Fisheries
Management Act 1991); and
(b) is included in the class of
activities forming a fishery (as defined in that Act) that is managed under the
law of a State or the Northern Territory as a result of an agreement made under
section 71 or 72 of that Act before the commencement of this section; and
(c) is permitted under a law of the
State or Territory.
Exception—fishing outside Commonwealth marine areas
(6) Subsection (2) does not apply to an
action that:
(a) is fishing (as defined in the Fisheries
Management Act 1991); and
(b) is permitted under a law of a
State or self‑governing Territory.
24
What is a Commonwealth marine area?
Each of the following is a Commonwealth
marine area:
(a) any waters of the sea inside the
seaward boundary of the exclusive economic zone, except:
(i) waters, rights in
respect of which have been vested in a State by section 4 of the Coastal
Waters (State Title) Act 1980 or in the Northern Territory by section 4
of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the
limits of a State or the Northern Territory;
(b) the seabed under waters covered by
paragraph (a);
(c) airspace over waters covered by paragraph (a);
(d) any waters over the continental
shelf, except:
(i) waters, rights in
respect of which have been vested in a State by section 4 of the Coastal
Waters (State Title) Act 1980 or in the Northern Territory by section 4
of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the
limits of a State or the Northern Territory; and
(iii) waters covered by paragraph (a);
(e) any seabed under waters covered by
paragraph (d);
(f) any airspace over waters covered
by paragraph (d);
(g) any other area of sea or seabed
that is included in a Commonwealth reserve.
24A
Offences relating to marine areas
Actions in Commonwealth marine areas affecting the
environment
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in a
Commonwealth marine area; and
(c) the action results or will result
in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Actions in Commonwealth marine areas likely to affect
the environment
(2) A person
is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in a
Commonwealth marine area; and
(c) the action is likely to have a
significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Actions outside Commonwealth marine areas affecting
those areas
(3) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside a
Commonwealth marine area but in the Australian jurisdiction; and
(c) the action results or will result
in a significant impact on the environment in an area; and
(d) the area is a Commonwealth marine
area.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(b)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Actions likely to affect environment in Commonwealth
marine areas
(4) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside a
Commonwealth marine area but in the Australian jurisdiction; and
(c) the action is likely to have a
significant impact on the environment in an area; and
(d) the area is a Commonwealth marine
area.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(b)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Fishing with impact in State or Territory waters
managed by Commonwealth
(5) A person is guilty of an offence if:
(a) the person takes an action that:
(i) is fishing (as defined
in the Fisheries Management Act 1991); and
(ii) is included in the
class of activities forming a fishery (as defined in that Act) that is managed
under the law of the Commonwealth as a result of an agreement made under
section 71 or 72 of that Act before the commencement of this section; and
(b) the action is taken in the coastal
waters (as defined in the Fisheries Management Act 1991) of a State or
the Northern Territory; and
(c) the action results or will result
in a significant impact on the environment in those coastal waters.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(5A) Strict liability applies to paragraph (5)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Fishing with likely impact in State or Territory waters
managed by Commonwealth
(6) A person is guilty of an offence if:
(a) the person takes an action that:
(i) is fishing (as defined
in the Fisheries Management Act 1991); and
(ii) is included in the
class of activities forming a fishery (as defined in that Act) that is managed
under the law of the Commonwealth as a result of an agreement made under
section 71 or 72 of that Act before the commencement of this section; and
(b) the action is taken in the coastal
waters (as defined in the Fisheries Management Act 1991) of a State or
the Northern Territory; and
(c) the action is likely to have a
significant impact on the environment in those coastal waters.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(6A) Strict liability applies to paragraph (6)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
Penalties
(7) An offence against subsection (1),
(2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a
term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
Defences—general
(8) Subsection (1), (2), (3), (4), (5)
or (6) does not apply to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that the subsection is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Defence—fishing in Commonwealth waters managed by State
(9) Subsections (1) and (2) do not apply
to an action if the action:
(a) is fishing (as defined in the Fisheries
Management Act 1991); and
(b) is included in the class of
activities forming a fishery (as defined in that Act) that is managed under the
law of a State or the Northern Territory as a result of an agreement made under
section 71 or 72 of that Act before the commencement of this section; and
(c) is permitted under a law of the
State or Territory.
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Defence—fishing outside Commonwealth marine areas
(10) Subsections (3) and (4) do not apply
to an action that:
(a) is fishing (as defined in the Fisheries
Management Act 1991); and
(b) is permitted under a law of a
State or self‑governing Territory.
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Subdivision G—Additional matters of national environmental significance
25
Requirement for approval of prescribed actions
(1) A person must not take an action that is
prescribed by the regulations for the purposes of this subsection.
Civil penalty:
(a) for an individual—5,000 penalty
units;
(b) for a body corporate—50,000
penalty units.
(2) Subsection (1) does not apply to an
action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
(3) Before the Governor‑General makes
regulations prescribing an action for the purposes of subsection (1), the
Minister (the Environment Minister) must:
(a) inform the appropriate Minister of
each State and self‑governing Territory of the proposal to prescribe:
(i) the action; and
(ii) a thing as matter
protected by this section in relation to the action; and
(b) invite the appropriate Minister of
each State and self‑governing Territory to give the Environment Minister
comments on the proposal within a specified period of at least 28 days; and
(c) consider the comments (if any);
and
(d) if comments have been given as
described in paragraph (b)—take all reasonable steps to consult the
appropriate Minister of each State and self‑governing Territory with a
view to agreeing on:
(i) the action to be
prescribed; and
(ii) the thing to be
prescribed as matter protected by this section in relation to the action.
Note: Section 34 provides that the matter
protected by this section is a thing prescribed by the regulations in relation
to the action.
(3A) To avoid doubt, regulations may be made for
the purposes of this section even if no agreement is reached on the matters
described in paragraph (3)(d).
(4) The regulations may prescribe different
things as matter protected by this section in relation to different actions
prescribed for the purposes of subsection (1).
(5) This
section applies only to actions:
(a) taken in a Territory or a place
acquired by the Commonwealth for public purposes (within the meaning of section 52
of the Constitution); or
(b) taken in a Commonwealth marine
area; or
(c) taken for the purpose of trade or
commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and a
Territory; or
(iv) between 2 Territories;
or
(d) taken by a constitutional
corporation; or
(e) whose regulation is appropriate
and adapted to give effect to Australia’s obligations under an agreement with
one or more other countries.
(6) Regulations prescribing an action whose
regulation is appropriate and adapted to give effect to Australia’s obligations
under an agreement with one or more countries must specify the agreement.
Subdivision H—Actions that are taken to be covered by this Division
25A
Actions that are taken to be covered by this Division
(1) The regulations may provide that a
specified action is taken to be an action to which a specified regulatory
provision applies.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(2) To avoid doubt, if, as a result of a
regulation made for the purposes of subsection (1), a regulatory provision
applies to an action, the action is taken to be described in the provision.
(3) Regulations made for the purposes of subsection (1)
may only specify actions:
(a) taken in a Territory; or
(b) taken in a Commonwealth marine
area; or
(c) taken for the purpose of trade or
commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and a
Territory; or
(iv) between 2 Territories;
or
(d) taken by a constitutional
corporation; or
(e) whose regulation is appropriate
and adapted to give effect to Australia’s obligations under an agreement with
one or more other countries.
(4) Regulations specifying an action whose
regulation is appropriate and adapted to give effect to Australia’s obligations
under an agreement with one or more countries must specify the agreement.
(5) In this section:
regulatory provision means:
(a) a civil penalty provision set out
in this Division; or
(b) a provision of this Division that
creates an offence.
Subdivision HA—Limitation on liability for actions of third parties
25AA
Limitation on liability for actions of third parties
(1) A provision mentioned in subsection (2)
or (3) does not apply to an action (the primary action) if:
(a) a person (the primary person)
takes the action; and
(b) as a consequence of the primary action,
another person (the secondary person) takes another action (the secondary
action); and
(c) the secondary action is not taken
at the direction or request of the primary person; and
(d) the significant impact referred to
in the provision is a consequence of the secondary action.
Defence to offences
(2) For the purposes of subsection (1),
the following provisions do not apply to the primary action:
(a) subsections 15A(1) and (2);
(b) subsections 15C(1) to (10);
(c) subsections 17B(1) and (2);
(d) subsections 18A(1) and (2);
(e) subsections 20A(1) and (2);
(f) subsections 22A(1) to (6);
(g) subsections 24A(1) to (6).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Exception to civil penalties
(3) For the purposes of subsection (1),
the following provisions do not apply to the primary action:
(a) subsection 12(1);
(b) subsections 15B(1) to (5) and (7);
(c) subsection 16(1);
(d) subsections 18(1) to (6);
(e) subsection 20(1);
(f) subsections 21(1) to (3);
(g) subsections 23(1) to (3);
(h) subsection 25(1).
Subdivision I—Evidentiary certificates
25B
Evidentiary certificates
Contravention
(1) The Minister may issue a written
certificate:
(a) stating that a specified person
has contravened, or is contravening, a specified civil penalty provision set
out in this Division; and
(b) setting out particulars of that
contravention.
(2) The Minister may issue a certificate
under subsection (1) relating to a particular contravention if the
Minister has reason to believe that the person concerned has committed, or is
committing, the contravention.
(3) To avoid doubt, a certificate under subsection (1)
may be issued even if any relevant proceedings under section 475, 480A,
480K or 481 have been instituted.
Proposal
(4) The Minister may issue a written
certificate stating that, if a specified person were to carry out a proposal to
engage in specified conduct, that conduct would contravene a specified civil
penalty provision set out in this Division.
(5) The Minister may issue a certificate
under subsection (4) if the Minister has reason to believe that:
(a) the person proposes to engage in
the conduct concerned; and
(b) the conduct would contravene the
civil penalty provision concerned.
(6) To avoid doubt, a certificate under subsection (4)
may be issued even if any relevant proceedings under section 475 have been
instituted.
25C
Certificate to be given to person
As soon as practicable after issuing a
certificate under subsection 25B(1) or (4), the Minister must give a copy of
the certificate to the person concerned.
25D
Evidentiary effect of certificate
(1) In any proceedings under section 475,
480A, 480K or 481, a certificate under subsection 25B(1) is prima facie
evidence of the matters in the certificate.
(2) In any proceedings under section 475,
a certificate under subsection 25B(4) is prima facie evidence of the matters in
the certificate.
(3) A document purporting to be a certificate
under subsection 25B(1) or (4) must, unless the contrary is established, be
taken to be such a certificate and to have been properly issued.
(4) The Minister may certify that a document
is a copy of a certificate under subsection 25B(1) or (4).
(5) This section applies to the certified
copy as if it were the original.
25E
Variation of certificate
(1) The Minister may vary a certificate under
subsection 25B(1) or (4) so long as the variation is of a minor nature.
(2) If a certificate is varied, the Minister
must give the person concerned a written notice setting out the terms of the
variation.
25F
Revocation of certificate
(1) The Minister may revoke a certificate
under subsection 25B(1) or (4).
(2) If a certificate is revoked, the Minister
must give the person concerned a written notice stating that the certificate
has been revoked.
Division 2—Protection of the environment from proposals involving the
Commonwealth
Subdivision A—Protection of environment from actions involving
Commonwealth land
26
Requirement for approval of activities involving Commonwealth land
Actions on Commonwealth land
(1) A person must not take on Commonwealth
land an action that has, will have or is likely to have a significant impact on
the environment.
Civil penalty:
(a) for an individual—1,000 penalty
units;
(b) for a body corporate—10,000
penalty units.
Actions outside Commonwealth land affecting that land
(2) A person must not take outside
Commonwealth land an action that:
(a) has or will have a significant
impact on the environment on Commonwealth land; or
(b) is likely to have a significant
impact on the environment on Commonwealth land.
Civil penalty:
(a) for an individual—1,000 penalty
units;
(b) for a body corporate—10,000
penalty units.
Exceptions to prohibitions
(3) Subsection (1) or (2) does not apply
to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of the
subsection; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of the
subsection; or
(d) there
is in force a decision of the Minister under Division 2 of Part 7
that the subsection is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the
action is taken in that manner; or
(e) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process); or
(f) the person taking the action is
the Commonwealth or a Commonwealth agency.
Note 1: This section protects (among other things) the
Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth
land, because the heritage values of a place are part of the environment. See
the definition of environment in section 528.
Note 2: Section 28 regulates actions by the
Commonwealth or a Commonwealth agency with a significant impact on the
environment.
27
What is Commonwealth land?
Commonwealth land is so
much of a Commonwealth area as is not a Commonwealth marine area.
27A
Offences relating to Commonwealth land
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken on
Commonwealth land; and
(c) the action results or will result
in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken on
Commonwealth land; and
(c) the action is likely to have a
significant impact on the environment.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside
Commonwealth land but in the Australian jurisdiction; and
(c) the action results or will result
in a significant impact on the environment in an area; and
(d) the area is Commonwealth land.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(b)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(4) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside
Commonwealth land but in the Australian jurisdiction; and
(c) the action is likely to have a
significant impact on the environment in an area; and
(d) the area is Commonwealth land.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(b)
and (d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(5) An offence against subsection (1),
(2), (3) or (4) is punishable on conviction by imprisonment for a term not more
than 2 years, a fine not more than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(6) Subsection (1), (2), (3) or (4) does
not apply to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of the
subsection; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of the
subsection; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that the subsection is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process); or
(e) the person taking the action is a
Commonwealth agency.
Note 1: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Note 2: This section protects (among other things) the
Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth
land, because the heritage values of a place are part of the environment. See
the definition of environment in section 528.
Note 3: Section 28 regulates actions by the
Commonwealth or a Commonwealth agency with a significant impact on the
environment.
Subdivision AA—Protection of Commonwealth Heritage places outside the
Australian jurisdiction
27B
Requirement for approval of actions with significant impact on Commonwealth
Heritage places overseas
(1) A person must not take outside the
Australian jurisdiction an action that has, will have or is likely to have a
significant impact on the environment in a Commonwealth Heritage place outside
the Australian jurisdiction.
Civil Penalty:
(a) for an individual—1,000 penalty
units;
(b) for a body corporate—10,000 penalty
units.
(2) Subsection (1) does not apply to an
action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: Subdivision F of Division 1 and
Subdivision A of this Division protect the environment in Commonwealth Heritage
places inside the Australian jurisdiction because those places are in
Commonwealth marine areas or on Commonwealth land.
27C
Offences relating to Commonwealth Heritage places overseas
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside the
Australian jurisdiction; and
(c) the action results or will result
in a significant impact on the environment in a place; and
(ca) the place is a Commonwealth
Heritage place; and
(d) the place is outside the
Australian jurisdiction.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(ca).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian
jurisdiction; and
(c) the action is likely to have a
significant impact on the environment in a place; and
(d) the place is a Commonwealth
Heritage place; and
(e) the place is outside the
Australian jurisdiction.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) or
(2) is punishable on conviction by imprisonment for a term not more than 2
years, a fine not more than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
(4) Section 14.1 (standard geographical
jurisdiction) of the Criminal Code does not apply to an offence created
by this section.
Note: Section 5 affects the extra‑territorial
operation of this section.
(5) Subsections (1) and (2) do not apply
to an action if:
(a) an approval of the taking of the
action by the person is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the person take
the action without an approval under Part 9 for the purposes of this
section; or
(c) there is in force a decision of
the Minister under Division 2 of Part 7 that this section is not a controlling
provision for the action and, if the decision was made because the Minister
believed the action would be taken in a manner specified in the notice of the
decision under section 77, the action is taken in that manner; or
(d) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Subdivision B—Protection of the environment from Commonwealth actions
28
Requirement for approval of activities of Commonwealth agencies significantly
affecting the environment
(1) The Commonwealth or a Commonwealth agency
must not take inside or outside the Australian jurisdiction an action that has,
will have or is likely to have a significant impact on the environment inside
or outside the Australian jurisdiction.
Civil penalty:
(a) for a Commonwealth agency that is
an individual—1,000 penalty units;
(b) for a Commonwealth agency that is
a body corporate—10,000 penalty units.
Note 1: This section protects (among other things) the
Commonwealth Heritage values of a Commonwealth Heritage place from an action
taken by the Commonwealth or a Commonwealth agency, because the heritage values
of a place are part of the environment. See the definition of environment
in section 528.
Note 2: This section does not apply to decisions to
authorise activities. See Subdivision A of Division 1 of Part 23.
(2) Subsection (1) does not apply to an
action if:
(a) an approval of the taking of the
action by the Commonwealth or Commonwealth agency is in operation under Part 9
for the purposes of this section; or
(b) Part 4 lets the Commonwealth
or Commonwealth agency take the action without an approval under Part 9
for the purposes of this section; or
(c) the action is one declared by the
Minister in writing to be an action to which this section does not apply; or
(d) there is in force a decision of the
Minister under Division 2 of Part 7 that this section is not a
controlling provision for the action and, if the decision was made because the
Minister believed the action would be taken in a manner specified in the notice
of the decision under section 77, the action is taken in that manner; or
(e) the action is an action described
in subsection 160(2) (which describes actions whose authorisation is subject to
a special environmental assessment process).
(3) The Minister may make a written
declaration that actions are actions to which this section does not apply, but
only if he or she is satisfied that it is necessary in the interests of:
(a) Australia’s defence or security;
or
(b) preventing, mitigating or dealing
with a national emergency.
(4) The Minister may make a written
declaration that all actions, or a specified class of actions, taken by a
specified Commonwealth agency are actions to which this section does not apply.
(5) The Minister may make a declaration under
subsection (4) relating to a Commonwealth agency’s actions only if he or
she is satisfied that:
(a) in taking the actions to which the
declaration relates, the agency must comply with the law of a State or
Territory (including a law of a State that is applied to a Commonwealth place
by virtue of the Commonwealth Places (Application of Laws) Act 1970),
that has either or both of the following objects (whether express or implied):
(i) to protect the
environment;
(ii) to promote the
conservation and ecologically sustainable use of natural resources; and
(b) the impacts that the actions have,
will have or are likely to have on the environment, are adequately addressed
under the State or Territory law.
Subdivision C—Actions that are taken to be covered by this Division
28AA
Actions that are taken to be covered by this Division
(1) The regulations may provide that a
specified action is taken to be an action to which a specified regulatory
provision applies.
Note: For specification by class, see subsection
46(2) of the Acts Interpretation Act 1901.
(2) To avoid doubt, if, as a result of a
regulation made for the purposes of subsection (1), a regulatory provision
applies to an action, the action is taken to be described in the provision.
(3) In this
section:
regulatory provision means:
(a) a civil penalty provision set out
in this Division; or
(b) a provision of this Division that
creates an offence.
Subdivision D—Limitation on liability for actions of third parties
28AB
Limitation on liability for actions of third parties
(1) A provision mentioned in subsection (2)
or (3) does not apply to an action (the primary action) if:
(a) a person (the primary person)
takes the action; and
(b) as a consequence of the primary
action, another person (the secondary person) takes another
action (the secondary action); and
(c) the secondary action is not taken
at the direction or request of the primary person; and
(d) the significant impact referred to
in the provision is a consequence of the secondary action.
Defence to offences
(2) For the purposes of subsection (1),
the following provisions do not apply to the primary action:
(a) subsections 27A(1) to (4);
(b) subsections 27C(1) and (2).
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Exception to civil penalties
(3) For the purposes of subsection (1),
the following provisions do not apply to the primary action:
(a) subsections 26(1) and (2);
(b) subsection 27B(1);
(c) subsection 28(1).
Part 4—Cases in which environmental approvals are not needed
Division 1—Actions covered by bilateral agreements
29
Actions declared by agreement not to need approval
(1) A person may take an action described in
a provision of Part 3 without an approval under Part 9 for the
purposes of the provision if:
(a) the action is taken in a State or
self‑governing Territory; and
(b) the action is one of a class of
actions declared by a bilateral agreement between the Commonwealth and the
State or Territory not to require approval under Part 9 for the purposes
of the provision (because the action is approved in accordance with a management
arrangement or authorisation process that is a bilaterally accredited
management arrangement or a bilaterally accredited authorisation process for
the purposes of the bilateral agreement); and
(c) the provision of the bilateral
agreement making the declaration is in operation in relation to the action; and
(d) either of the following applies:
(i) in the case of a
bilaterally accredited management arrangement—the management arrangement is in
force under a law of the State or Territory identified in or under the
bilateral agreement;
(ii) in the case of a
bilaterally accredited authorisation process—the authorisation process is set
out in a law of the State or Territory, and the law and the authorisation
process are identified in or under the bilateral agreement; and
(e) the action is taken in accordance
with the bilaterally accredited management arrangement or bilaterally
accredited authorisation process.
Note 1: Section 46 deals with bilateral agreements
making declarations described in paragraph (1)(b).
Note 2: Division 3
of Part 5 explains how the operation of a bilateral agreement may be ended
or suspended. Also, under section 49, bilateral agreements do not operate
in relation to actions in Commonwealth areas, or actions taken by the
Commonwealth or a Commonwealth agency, unless they expressly provide that they
do.
(2) If the action is to be taken in 2 or more
States or self‑governing Territories, this section does not operate
unless it operates in relation to each of those States or Territories.
30
Extended operation in State and Northern Territory waters
(1) Section 29 applies to an action
taken on, over or under the seabed vested in a State by section 4 of the Coastal
Waters (State Title) Act 1980 in the same way that it applies to an action
taken in the State.
(2) Section 29 applies to an action
taken on, over or under the seabed vested in the Northern Territory by section 4
of the Coastal Waters (Northern Territory Title) Act 1980
in the same way that it applies to an action taken in the Territory.
(3) Section 29 applies to an action
taken in a Commonwealth marine area to which a law of a State or self‑governing
Territory is applied by a Commonwealth law or by an agreement or arrangement
under a Commonwealth law (other than this Act) in the same way as it applies to
an action in the State or Territory, if the provision of the bilateral
agreement has effect in relation to the area.
Note: A provision of a bilateral agreement only has
effect in relation to a Commonwealth area if the agreement expressly provides
that it does. See section 49.
31
Extended operation in non‑self‑governing Territories
A person may take an action described in
a provision of Part 3 without an approval under Part 9 for the
purposes of the provision if:
(a) the action is taken in a Territory
(the action Territory) that is not a
self‑governing Territory; and
(b) an Act providing for the
government of the action Territory provides that some or all of the law of a
State or self‑governing Territory is in force in the action Territory as
a law of the Territory; and
(c) the action is one of a class of
actions declared by a bilateral agreement between the Commonwealth and the
State or self‑governing Territory not to require approval under Part 9
for the purposes of the provision of Part 3 (because the action is
approved or taken in accordance with a bilaterally accredited management
arrangement or a bilaterally accredited authorisation process); and
(d) the bilateral agreement specifies
that the provision of the agreement making the declaration has effect in
relation to actions in the action Territory; and
(e) the provision of the bilateral
agreement making the declaration is in operation in relation to the action; and
(f) either of the following applies:
(i) in the case of a
bilaterally accredited management arrangement—the management arrangement is in
force under a law of the State or self‑governing Territory identified in
or under the bilateral agreement;
(ii) in the case of a
bilaterally accredited authorisation process—the authorisation process is set
out in a law of the State or self‑governing Territory, and the law and
the authorisation process are identified in or under the bilateral agreement;
and
(g) the action is taken in accordance
with the bilaterally accredited management arrangement or bilaterally
accredited authorisation process.
Note: Division 3 of Part 5 explains how
the operation of a bilateral agreement may be ended or suspended.
Division 2—Actions covered by Ministerial declarations and accredited
management arrangements or accredited authorisation processes
Subdivision A—Effect of declarations
32
Actions declared by Minister not to need approval
A person may take an action described in
a provision of Part 3 without an approval under Part 9 for the
purposes of the provision if:
(a) the action is one of a class of
actions declared by the Minister under section 33 not to require approval
under Part 9 for the purposes of the provision (because the action is
approved in accordance with an accredited management arrangement or an
accredited authorisation process for the purposes of the declaration); and
(b) the declaration is in operation
when the action is taken; and
(c) one of the following applies:
(i) in the case of an
accredited management arrangement—the management arrangement is in operation
under a law of the Commonwealth identified in or under the declaration;
(ii) in the case of an
accredited authorisation process—the authorisation process is set out in a law
of the Commonwealth, and the law and the authorisation process are identified
in or under the declaration; and
(d) the action is taken in accordance
with the accredited management arrangement or accredited authorisation process.
Subdivision B—Making declarations
33
Making declaration that actions do not need approval under Part 9
Declaration of actions not needing approval
(1) The Minister may declare in writing that
actions in a class of actions specified in the declaration wholly or partly by
reference to the fact that their taking has been approved by the Commonwealth
or a specified Commonwealth agency, in accordance with a management arrangement
or authorisation process that is an accredited management arrangement or an
accredited authorisation process for the purposes of the declaration, do not
require approval under Part 9 for the purposes of a specified provision of
Part 3.
Note 1: Subdivisions C and D set out rules about
prerequisites for making a declaration and limits on making a declaration.
Note 2: Section 35 provides for revocation of a
declaration.
What is an accredited management arrangement?
(2) A management arrangement is an accredited
management arrangement for the purposes of a declaration that certain
actions do not require approval under Part 9 for the purposes of a
specified provision of Part 3 if and only if:
(a) the management arrangement is in
operation under a law of the Commonwealth identified in or under the
declaration; and
(b) the management arrangement has
been accredited in writing by the Minister in accordance with this section for
the purposes of the declaration.
What is an accredited authorisation process?
(2A) An authorisation process is an accredited
authorisation process for the purposes of a declaration that certain
actions do not require approval under Part 9 for the purposes of a
specified provision of Part 3 if and only if:
(a) the authorisation process is set
out in a law of the Commonwealth, and the law and the authorisation process are
identified in or under the declaration; and
(b) the authorisation process has been
accredited in writing by the Minister in accordance with this section for the
purposes of the declaration.
Accrediting management arrangement or authorisation
process
(3) For the purposes of subsection (2) or
(2A), the Minister may accredit by written instrument a management arrangement
or authorisation process for the purposes of a declaration. However, the
Minister may do so only if the Minister is satisfied that:
(a) the management arrangement or
authorisation process and the law under which it is in operation, or in which
it is set out, meet the criteria prescribed by the regulations; and
(b) there has been or will be adequate
assessment of the impacts that actions approved in accordance with the management
arrangement or authorisation process:
(i) have or will have; or
(ii) are likely to have;
on each matter protected by a
provision of Part 3 to which the declaration relates; and
(c) actions approved or taken in
accordance with the management arrangement or authorisation process will not
have unacceptable or unsustainable impacts on a matter protected by a provision
of Part 3 to which the declaration relates.
The Minister must publish in accordance with the
regulations (if any) the instrument accrediting the management arrangement or
authorisation process.
Note: Subdivision C sets out more prerequisites for
accrediting a management arrangement or authorisation process.
Tabling of management arrangement or authorisation
process before accreditation
(4) The Minister must cause to be laid before
each House of the Parliament:
(a) a copy of:
(i) in the case of a
management arrangement—the management arrangement; or
(ii) in the case of an
authorisation process—the relevant part of the law in which the authorisation
process is set out;
that the Minister is considering
accrediting for the purposes of subsection (2) or (2A); and
(b) a notice that the Minister proposes
to accredit the management arrangement or authorisation process for the
purposes of a declaration under this section.
Limitations on accreditation during period for
opposition
(5) The Minister must not accredit a management
arrangement or authorisation process for the purposes of subsection (2) or
(2A) under a bilateral agreement:
(a) before, or within 15 sitting days
after, a copy of the management arrangement or authorisation process is laid
before each House of the Parliament under this section; or
(b) if, within those 15 sitting days
of a House, notice of a motion to oppose accreditation of the management
arrangement or authorisation process is given in that House—subject to subsection (5A),
within 15 sitting days of that House after the notice is given.
(5A) If:
(a) notice of a motion to oppose
accreditation of the management arrangement or authorisation process is given
in a House of the Parliament within 15 sitting days after the management
arrangement or authorisation process is laid before the House under this
section; and
(b) the notice is withdrawn or
otherwise disposed of within 15 sitting days of that House after the notice is
given;
then, subject to paragraph (5)(a), the Minister may
accredit the management arrangement or authorisation process after the motion
is withdrawn or otherwise disposed of.
No accreditation after accreditation opposed
(6) The Minister must not accredit the
management arrangement or authorisation process if either House of the
Parliament passes a resolution opposing accreditation of the management
arrangement or authorisation process following a motion of which notice has
been given within 15 sitting days after the management arrangement or relevant
part of the law has been laid before the House under this section.
No accreditation if motion not defeated in time
(7) The Minister must not accredit the
management arrangement or authorisation process if, at the end of 15 sitting
days after notice of a motion to oppose accreditation of the management
arrangement or authorisation process that was given in a House of the
Parliament within 15 sitting days after the management arrangement or relevant
part of the law was laid before the House under this section:
(a) the notice has not been withdrawn
and the motion has not been called on; or
(b) the motion has been called on,
moved and seconded and has not been withdrawn or otherwise disposed of.
Extended time after dissolution or prorogation
(8) If:
(a) notice of a motion to oppose the
accreditation of the management arrangement or authorisation process is given
in a House of the Parliament (the opposing House); and
(b) before the end of 15 sitting days
of the opposing House after the notice is given:
(i) the House of
Representatives is dissolved or expires; or
(ii) the Parliament is
prorogued; and
(c) at the time of the dissolution,
expiry or prorogation (as appropriate):
(i) the notice has not
been withdrawn and the motion has not been called on; or
(ii) the motion has been
called on, moved and seconded and has not been withdrawn or otherwise disposed
of;
the management arrangement or relevant part of the law is
taken for the purposes of subsections (5), (5A), (6) and (7) to have been
laid before the opposing House on the first sitting day of that House after the
dissolution, expiry or prorogation (as appropriate).
34
What is matter protected by a provision of Part 3?
The matter protected by a
provision of Part 3 specified in column 2 of an item of the following
table is the thing specified in column 3 of the item.
|
Matter protected by provisions of Part 3
|
|
Item
|
Provision
|
Matter protected
|
|
1
|
section 12
|
the world heritage values of a declared World Heritage
property
|
|
1A
|
section 15A
|
the world heritage values of a declared World Heritage
property
|
|
1B
|
section 15B
|
the National Heritage values of a National Heritage place
|
|
1C
|
section 15C
|
the National Heritage values of a National Heritage place
|
|
2
|
section 16
|
the ecological character of a declared Ramsar wetland
|
|
2A
|
section 17B
|
the ecological character of a declared Ramsar wetland
|
|
3
|
subsection 18(1)
|
a listed threatened species in the extinct in the wild
category
|
|
4
|
subsection 18(2)
|
a listed threatened species in the critically endangered
category
|
|
5
|
subsection 18(3)
|
a listed threatened species in the endangered category
|
|
6
|
subsection 18(4)
|
a listed threatened species in the vulnerable category
|
|
7
|
subsection 18(5)
|
a listed threatened ecological community in the critically
endangered category
|
|
8
|
subsection 18(6)
|
a listed threatened ecological community in the endangered
category
|
|
8A
|
subsection 18A(1) or (2)
|
a listed threatened species (except a species included in
the extinct category of the list referred to in section 178 or a
conservation dependent species) and a listed threatened ecological community
(except an ecological community included in the vulnerable category of the
list referred to in section 181)
|
|
9
|
section 20
|
a listed migratory species
|
|
9A
|
section 20A
|
a listed migratory species
|
|
10
|
section 21
|
the environment
|
|
10A
|
section 22A
|
the environment
|
|
11
|
subsection 23(1)
|
the environment
|
|
12
|
subsection 23(2)
|
the environment in a Commonwealth marine area
|
|
13
|
subsection 23(3)
|
the environment in the coastal waters (as defined in the Fisheries
Management Act 1991) in which the action is taken of the State or
Territory
|
|
13A
|
subsection 24A(1) or (2)
|
the environment
|
|
13B
|
subsection 24A(3) or (4)
|
the environment in a Commonwealth marine area
|
|
13C
|
subsection 24A(5) or (6)
|
the environment in the coastal waters (as defined in the Fisheries
Management Act 1991) in which the action is taken of the State or
Territory
|
|
14
|
section 25
|
a thing prescribed by the regulations for the purposes of
this item in relation to an action to which section 25 applies
|
|
15
|
subsection 26(1)
|
the environment
|
|
16
|
subsection 26(2)
|
the environment on Commonwealth land
|
|
16A
|
subsection 27A(1) or (2)
|
the environment
|
|
16B
|
subsection 27A(3) or (4)
|
the environment on Commonwealth land
|
|
16C
|
section 27B
|
the environment in a Commonwealth Heritage place outside
the Australian jurisdiction
|
|
16D
|
subsections 27C(1) and (2)
|
the environment in a Commonwealth Heritage place outside
the Australian jurisdiction
|
|
17
|
section 28
|
the environment
|
Subdivision C—Prerequisites for making declarations
34A
Minister may only make declaration if prescribed criteria are met
The Minister may make a declaration
under section 33 only if the Minister is satisfied that the declaration:
(a) accords with the objects of this
Act; and
(b) meets the requirements (if any)
prescribed by the regulations.
34B
Declarations relating to declared World Heritage properties
(1) The Minister may make a declaration under
section 33 relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with Australia’s obligations under the World
Heritage Convention; and
(b) the Minister is satisfied that the
declaration will promote the management of the property in accordance with the
Australian World Heritage management principles; and
(c) the declaration meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or authorisation process under section 33 for the purposes of
a declaration relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with Australia’s
obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the management of
the property in accordance with the Australian World Heritage management
principles.
34BA
Declarations relating to National Heritage places
(1) The Minister may make a declaration under
section 33 relating to a National Heritage place only if:
(a) the Minister is satisfied that the
declaration will promote the management of the place in accordance with the
National Heritage management principles; and
(b) the declaration meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or authorisation process under section 33 for the purposes of
such a declaration only if he or she is satisfied that the management
arrangement or authorisation process will promote the management of the place
concerned in accordance with the National Heritage management principles.
34C
Declarations relating to declared Ramsar wetlands
(1) The Minister may make a declaration under
section 33 relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with Australia’s obligations under the Ramsar
Convention; and
(b) the Minister is satisfied that the
declaration will promote the management of the wetland in accordance with the
Australian Ramsar management principles; and
(c) the declaration meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or authorisation process under section 33 for the purposes of
a declaration relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with Australia’s
obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the management of
the wetland in accordance with the Australian Ramsar management principles.
34D
Declarations relating to listed threatened species and ecological communities
(1) The Minister may make a declaration under
section 33 relating to a listed threatened species or a listed threatened
ecological community only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with Australia’s obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; and
(b) the Minister is satisfied that the
declaration will promote the survival and/or enhance the conservation status of
each species or community to which the declaration relates; and
(c) the Minister is satisfied that the
declaration is not inconsistent with any recovery plan for the species or
community or a threat abatement plan; and
(ca) the Minister has had regard to any
approved conservation advice for the species or community; and
(d) the declaration meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or authorisation process under section 33 for the purposes of
a declaration relating to a listed threatened species or a listed threatened
ecological community only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with Australia’s
obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the survival
and/or enhance the conservation status of each species or community to which
the declaration relates; and
(c) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with any
recovery plan for the species or community or a threat abatement plan; and
(d) the Minister has had regard to any
approved conservation advice for the species or community.
34E
Declarations relating to migratory species
(1) The Minister may make a declaration under
section 33 relating to a listed migratory species only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with the Commonwealth’s obligations under whichever
of the following conventions or agreements because of which the species is
listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international
agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the
declaration will promote the survival and/or enhance the conservation status of
each species to which the declaration relates; and
(c) the declaration meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement
or authorisation process under section 33 for the purposes of a
declaration relating to a listed migratory species only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with the
Commonwealth’s obligations under whichever of the following conventions or
agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international
agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the survival
and/or enhance the conservation status of each species to which the declaration
relates.
34F
Declarations relating to Commonwealth Heritage places
(1) The Minister may make a declaration under
section 33 relating to a Commonwealth Heritage place only if:
(a) the Minister is satisfied that the
declaration will promote the management of the place in accordance with the
Commonwealth Heritage management principles; and
(b) the declaration meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or authorisation process under section 33 for the purposes of
such a declaration only if he or she is satisfied that the management
arrangement or authorisation process will promote the management of the place
concerned in accordance with the Commonwealth Heritage management principles.
Subdivision D—Other rules about declarations
35
Revoking declarations
Revoking declarations
(1) The Minister may, by written instrument,
revoke a declaration made under section 33.
Revocation does not affect some actions
(2) If:
(a) a declaration made under section 33
is revoked; and
(b) before the revocation, an action
was being taken that could be taken without approval under Part 9 because
its taking was covered by the declaration; and
(c) the action had not been completed
before the revocation;
this Act continues to operate in relation to the action as
if the declaration had not been revoked.
36
Other rules about declarations
Minister must not give preference
(1) In making a declaration or accrediting a management
arrangement or authorisation process under section 33, or revoking a
declaration under section 35, relating to an action taken:
(a) by a person for the purposes of
trade between Australia and another country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning
of section 99 of the Constitution) to one State or part of a State over
another State or part of a State.
Publishing declarations
(2) The Minister must publish a declaration
made under section 33, an instrument accrediting a management arrangement
or authorisation process under section 33, or an instrument under section 35
revoking a declaration, in accordance with the regulations.
36A
Minor amendments of accredited management arrangement or accredited
authorisation process
(1) If:
(a) a management arrangement or an
authorisation process is an accredited management arrangement or an accredited
authorisation process; and
(b) the management arrangement or
authorisation process is amended, or is proposed to be amended; and
(c) the Minister is satisfied that the
amendments are, or will be, minor; and
(d) the Minister is satisfied that the
management arrangement or authorisation process as amended meets, or will meet,
the requirements of:
(i) paragraphs 33(3)(a),
(b) and (c); and
(ii) section 34A; and
(iii) subsection 34B(2),
34BA(2), 34C(2), 34D(2), 34E(2) or 34F(2) (as the case requires);
the Minister may, by instrument in writing, determine that
this section applies to the amendments.
(2) If the Minister makes a determination
under subsection (1):
(a) the management arrangement or
authorisation process as amended is, for the purposes of this Act, taken to be
an accredited management arrangement or accredited authorisation process; and
(b) subsections 33(1) to (8) do not
apply in relation to the amendments to the management arrangement or
authorisation process, or the management arrangement or authorisation process
as amended; and
(c) actions taken after the
determination is made in accordance with the accredited management arrangement
or accredited authorisation process as amended do not require approval under
Part 9 for the purposes of a specified provision of Part 3.
(3) The Minister must publish a determination
under subsection (1) in accordance with the regulations (if any).
(4) A determination under subsection (1)
is not a legislative instrument.
Division 3—Actions covered by Ministerial declarations and bioregional
plans
Subdivision A—Effect of declarations
37
Actions declared by Minister not to need approval
A person may take an action described in
a provision of Part 3 without an approval under Part 9 for the
purposes of the provision if:
(a) the action is an action, or one of
a class of actions, declared by the Minister under section 37A not to
require approval under Part 9 for the purposes of the provision (because
the taking of the action is in accordance with a particular bioregional plan);
and
(b) the declaration is in operation
when the action is taken; and
(c) the action is taken:
(i) in the bioregion to
which the plan applies; and
(ii) in accordance with the
plan.
Note: Division 2 of Part 12 deals with
bioregional plans.
Subdivision B—Making declarations
37A
Making declarations that actions do not need approval under Part 9
Subject to Subdivisions C and D, the
Minister may, by legislative instrument, declare that an action or class of
actions specified in the declaration, wholly or partly by reference to the fact
that the taking of the action or class of actions is in accordance with a
bioregional plan, do not require approval under Part 9 for the purposes of
a specified provision of Part 3.
Note 1: Subdivisions C and D set out rules about
prerequisites for making a declaration and limits on making a declaration.
Note 2: Section 37K provides for revocation of a
declaration.
Subdivision C—Prerequisites for making declarations
37B
General considerations
(1) In deciding whether to make a declaration
under section 37A, the Minister must consider the following, so far as
they are not inconsistent with any other requirements of this Subdivision:
(a) matters relevant to any matter
protected by a provision of Part 3 that the Minister considers is relevant
to the action or class of actions to which the declaration relates;
(b) economic and social matters.
(2) In considering those matters, the
Minister must take into account the principles of ecologically sustainable
development.
(3) The Minister must not make a declaration
under section 37A in relation to an action or class of actions and a
provision of Part 3 if the Minister considers that the action, or an action
in the class, if taken, would have unacceptable or unsustainable impacts on a
matter protected by the provision.
37C
Minister may make declaration only if prescribed criteria are met
The Minister may make a declaration
under section 37A only if the Minister is satisfied that the declaration:
(a) accords with the objects of this
Act; and
(b) meets the requirements (if any)
prescribed by the regulations.
37D
Declarations relating to declared World Heritage properties
The Minister may make a declaration
under section 37A relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with Australia’s obligations under the World
Heritage Convention; and
(b) the Minister is satisfied that the
declaration will promote the management of the property in accordance with the
Australian World Heritage management principles; and
(c) the Minister is satisfied that the
declaration is not inconsistent with a plan that has been prepared for the management
of the declared World Heritage property under section 316 or as described
in section 321.
37E
Declarations relating to National Heritage places
The Minister may make a declaration
under section 37A relating to a National Heritage place only if:
(a) the Minister is satisfied that the
declaration will promote the management of the place in accordance with the
National Heritage management principles; and
(b) the Minister is satisfied that the
declaration is not inconsistent with:
(i) an agreement to which
the Commonwealth is a party in relation to the National Heritage place; or
(ii) a plan that has been
prepared for the management of the National Heritage place under section 324S
or as described in section 324X.
37F
Declarations relating to declared Ramsar wetlands
The Minister may make a declaration
under section 37A relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with Australia’s obligations under the Ramsar
Convention; and
(b) the Minister is satisfied that the
declaration will promote the management of the wetland in accordance with the
Australian Ramsar management principles.
37G
Declarations relating to listed threatened species and ecological communities
The Minister may make a declaration
under section 37A relating to a listed threatened species or a listed
threatened ecological community only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with Australia’s obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; and
(b) the Minister is satisfied that the
declaration will promote the survival and/or enhance the conservation status of
each species or community to which the declaration relates; and
(c) the Minister is satisfied that the
declaration is not inconsistent with any recovery plan for the species or
community or a threat abatement plan; and
(d) the Minister has had regard to any
approved conservation advice for the species or community.
37H
Declarations relating to listed migratory species
The Minister may make a declaration
under section 37A relating to a listed migratory species only if:
(a) the Minister is satisfied that the
declaration is not inconsistent with whichever of the following conventions or
agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international
agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the
declaration will promote the survival and/or enhance the conservation status of
each species to which the declaration relates.
37J No
declarations relating to nuclear actions
The Minister must not make a declaration
relating to an action consisting of, or involving the construction or operation
of, any of the following nuclear installations:
(a) a nuclear fuel fabrication plant;
(b) a nuclear power plant;
(c) an enrichment plant;
(d) a reprocessing facility.
Subdivision D—Other rules about declarations
37K
Revoking declarations
Revoking declarations
(1) The Minister may, by legislative
instrument, revoke a declaration made under section 37A.
Revocation does not affect some actions
(2) If:
(a) a declaration made under section 37A
is revoked; and
(b) before the revocation, an action
was being taken that could be taken without approval under Part 9 because
its taking was covered by the declaration; and
(c) the action had not been completed
before the revocation;
this Act continues to operate in relation to the action as
if the declaration had not been revoked.
37L
Other rules about declarations
Minister must not give preference
(1) In making a declaration under section 37A,
or revoking a declaration under section 37K, relating to an action taken:
(a) by a person for the purposes of
trade or commerce between Australia and another country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning
of section 99 of the Constitution) to one State or part of a State over
another State or part of a State.
Publishing declarations
(2) Within 10 business days after the
Minister makes a declaration under section 37A, or an instrument under
section 37K revoking a declaration, the Minister must publish the
declaration or instrument in accordance with the regulations.
Division 3A—Actions covered by conservation agreements
37M
Actions declared by conservation agreement not to need approval
A person may take an action described in
a provision of Part 3 without an approval under Part 9 for the
purposes of the provision if:
(a) the action is included in a class
of actions declared in a conservation agreement, in accordance with section 306A,
not to require approval under Part 9 for the purposes of the provision;
and
(b) the conservation agreement is in
operation when the action is taken; and
(c) the action is taken in accordance
with the conditions (if any) specified in the declaration.
Division 4—Forestry operations in certain regions
Subdivision A—Regions covered by regional forest agreements
38
Part 3 not to apply to certain RFA forestry operations
(1) Part 3 does not apply to an RFA
forestry operation that is undertaken in accordance with an RFA.
(2) In this Division:
RFA or regional forest agreement has
the same meaning as in the Regional Forest Agreements
Act 2002.
RFA forestry operation has the same meaning
as in the Regional Forest Agreements Act 2002.
Note: This section does not apply to some RFA
forestry operations. See section 42.
Subdivision B—Regions subject to a process of negotiating a regional
forest agreement
39
Object of this Subdivision
The purpose of this Subdivision is to
ensure that an approval under Part 9 is not required for forestry
operations in a region for which a process (involving the conduct of a
comprehensive regional assessment, assessment under the Environment
Protection (Impact of Proposals) Act 1974 and protection of the environment
through agreements between the Commonwealth and the relevant State and
conditions on licences for the export of wood chips) of developing and
negotiating a regional forest agreement is being, or has been, carried on.
40
Forestry operations in regions not yet covered by regional forest agreements
(1) A person may undertake forestry
operations in an RFA region in a State or Territory without approval under Part 9
for the purposes of a provision of Part 3 if there is not a regional
forest agreement in force for any of the region.
Note 1: This section does not apply to some forestry
operations. See section 42.
Note 2: The process of making a regional forest
agreement is subject to assessment under the Environment Protection (Impact
of Proposals) Act 1974, as continued by the Environmental Reform
(Consequential Provisions) Act 1999.
(2) In this Division:
forestry operations means any of the
following done for commercial purposes:
(a) the planting of trees;
(b) the managing of trees before they
are harvested;
(c) the harvesting of forest products;
and includes any related land clearing, land preparation and
regeneration (including burning) and transport operations. For the purposes of paragraph (c),
forest products means live or dead trees, ferns or shrubs, or
parts thereof.
RFA region has the meaning given by section 41.
(3) Subsection (1) does not operate in
relation to an RFA region that is the subject of a declaration in force under
this section.
(4) The Minister may declare in writing that subsection (1)
does not apply to an RFA region.
(5) A declaration is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(6) The Minister must not make a declaration
that has the effect of giving preference (within the meaning of section 99
of the Constitution) to one State or part of a State over another State or part
of a State, in relation to the taking of the action:
(a) by a person for the purposes of
trade or commerce between Australia and another country or between 2 States; or
(b) by a constitutional corporation.
41
What is an RFA region?
Regions that are RFA regions
(1) Each of
the following is an RFA region:
(a) the area delineated as the Eden
RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;
(b) the area delineated as the Lower
North East RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;
(c) the area delineated as the Upper
North East RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;
(d) the area delineated as the South
Region on the map of the Comprehensive Regional Assessment South CRA Region
dated August 1997 and published by the State Forests GIS Branch of the
organisation known as State Forests of New South Wales;
(e) the area delineated as the
Gippsland Region in the map of that Region dated 11 March 1998 and published by the Forest Information Section of the Department of Natural Resources and
Environment of Victoria;
(f) the area delineated as the North
East RFA Region in the map of that Region dated 11 March 1998 and
published by the Forest Information Section of the Department of Natural
Resources and Environment of Victoria;
(g) the area delineated as the West
Region in the map of that Region dated 3 March 1999 and published by the
Forest Information Section of the Department of Natural Resources and
Environment of Victoria;
(h) the area delineated as the South
East Queensland RFA Region on the map of that Region dated 21 August 1998 and published by the Bureau of Resource Sciences.
Regulations may amend list of regions
(2) The regulations may amend subsection (1).
Prerequisites for prescribing RFA regions
(3) Before the Governor‑General makes
regulations amending subsection (1), the Minister must be satisfied that
the proposed regulations, in conjunction with this Subdivision, will not give
preference (within the meaning of section 99 of the Constitution) to one
State or part of a State over another State or part of a State.
Subdivision C—Limits on application
42
This Division does not apply to some forestry operations
Subdivisions A and B of this Division,
and subsection 6(4) of the Regional Forest Agreements
Act 2002, do not apply to RFA forestry operations, or to forestry
operations, that are:
(a) in a property included in the
World Heritage List; or
(b) in a wetland included in the List
of Wetlands of International Importance kept under the Ramsar Convention; or
(c) incidental to another action whose
primary purpose does not relate to forestry.
Division 5—Actions in the Great
Barrier Reef Marine Park
43
Actions taken in accordance with permission
A person may take an action described in
a provision of Part 3 without an approval under Part 9 for the
purposes of the provision if:
(a) the action is taken in the Great
Barrier Reef Marine Park established by the Great Barrier Reef Marine Park
Act 1975; and
(b) the person is authorised to take
the action in the place where he or she takes it, by any of the following
instruments made or issued under that Act (including instruments made or issued
under an instrument (including regulations) made or issued under that Act):
(i) a zoning plan;
(ii) a plan of management;
(iii) a permission;
(iv) an authority;
(v) an approval;
(vi) a permit.
Division 6—Actions with
prior authorisation
43A Actions with prior authorisation
(1) A
person may take an action described in a provision of Part 3 without an
approval under Part 9 for the purposes of the provision if:
(a) the
action consists of a use of land, sea or seabed; and
(b) before the commencement of this
Act, the action was authorised by a specific environmental authorisation; and
(c) immediately
before the commencement of this Act, no further specific environmental authorisation was necessary to
allow the action to be taken lawfully; and
(d) at the time the action is taken,
the specific environmental authorisation continues to be in force.
(1A) For the purposes of paragraphs (1)(c)
and (d), a renewal or extension of a specific environmental authorisation is
taken to be a new specific environmental authorisation unless:
(a) the action that is authorised by
the authorisation following the renewal or extension is the same as the action
that was authorised by the authorisation before the commencement of this Act;
and
(b) the renewal or extension could
properly be made or given without any further consideration of the
environmental impacts of the action.
Note: If a renewal or extension of a specific
environmental authorisation is taken to be a new specific environmental
authorisation, the condition in paragraph (1)(c) or (d) would not be met.
(2) In this
Act:
environmental
authorisation means an
authorisation under a law of the Commonwealth, a State or a self‑governing
Territory that has either or both of the following objects (whether express or
implied):
(a) to
protect the environment;
(b) to
promote the conservation and ecologically sustainable use of natural resources.
specific environmental authorisation means an
environmental authorisation that:
(a) identifies the particular action
by reference to acts and matters uniquely associated with that action; or
(b) was issued or granted following a
consideration of the particular action by reference to acts and matters uniquely
associated with that action.
43B Actions which are lawful continuations of use
of land etc.
(1) A
person may take an action described in a provision of Part 3 without an
approval under Part 9 for the purposes of the provision if the action is a
lawful continuation of a use of land, sea or seabed that was occurring
immediately before the commencement of this Act.
(2) However, subsection (1) does not
apply to an action if:
(a) before the commencement of this
Act, the action was authorised by a specific environmental authorisation; and
(b) at the time the action is taken,
the specific environmental authorisation continues to be in force.
Note: In that case, section 43A applies
instead.
(3) For the purposes of this section, neither
of the following is a continuation of a use of land, sea or
seabed:
(a) an enlargement, expansion or
intensification of use;
(b) either:
(i) any change in the
location of where the use of the land, sea or seabed is occurring; or
(ii) any change in the
nature of the activities comprising the use;
that results in a substantial
increase in the impact of the use on the land, sea or seabed.
Chapter 3—Bilateral agreements
Part 5—Bilateral agreements
Division 1—Object of Part
44
Object of this Part
The object of this Part is to provide
for agreements between the Commonwealth and a State or self‑governing
Territory that:
(a) protect the environment; and
(b) promote the conservation and
ecologically sustainable use of natural resources; and
(c) ensure an efficient, timely and
effective process for environmental assessment and approval of actions; and
(d) minimise duplication in the
environmental assessment and approval process through Commonwealth
accreditation of the processes of the State or Territory (and vice versa).
Division 2—Making bilateral agreements
Subdivision A—Power to make bilateral agreements
45
Minister may make agreement
Making bilateral agreement
(1) On behalf of the Commonwealth, the
Minister may enter into a bilateral agreement.
Note 1: A bilateral agreement can detail the level of
Commonwealth accreditation of State practices, procedures, processes, systems,
management plans and other approaches to environmental protection.
Note 2: Subdivision B sets out some prerequisites for
entering into bilateral agreements.
What is a bilateral agreement?
(2) A bilateral agreement is a
written agreement between the Commonwealth and a State or a self‑governing
Territory that:
(a) provides for one or more of the
following:
(i) protecting the
environment;
(ii) promoting the
conservation and ecologically sustainable use of natural resources;
(iii) ensuring an efficient,
timely and effective process for environmental assessment and approval of
actions;
(iv) minimising duplication
in the environmental assessment and approval process through Commonwealth
accreditation of the processes of the State or Territory (or vice versa); and
(b) is expressed to be a bilateral
agreement.
Publishing notice of intention to enter into agreement
(3) As soon as practicable after starting the
process of developing a draft bilateral agreement with a State or self‑governing
Territory, the Minister must publish, in accordance with the regulations (if
any), notice of his or her intention to develop a draft bilateral agreement
with the State or Territory.
Publishing bilateral agreements and related material
(4) As soon as practicable after entering
into a bilateral agreement, the Minister must publish in accordance with the
regulations:
(a) the agreement; and
(b) a statement of the Minister’s
reasons for entering into the agreement; and
(c) a report on the comments (if any)
received on the draft of the agreement published under Subdivision B.
46
Agreement may declare actions do not need approval under Part 9
Declaration of actions not needing approval
(1) A bilateral agreement may declare that
actions in a class of actions specified in the agreement wholly or partly by
reference to the fact that their taking has been approved by:
(a) the State or self‑governing
Territory that is party to the agreement; or
(b) an agency of the State or
Territory;
in accordance with a management arrangement or
authorisation process that is a bilaterally accredited management arrangement
or a bilaterally accredited authorisation process for the purposes of the
agreement do not require approval under Part 9 for the purposes of a
specified provision of Part 3.
What is a bilaterally accredited management
arrangement?
(2) A management arrangement is a bilaterally
accredited management arrangement for the purposes of a bilateral
agreement declaring that certain actions do not require approval under Part 9
for the purposes of a specified provision of Part 3 if and only if:
(a) the management arrangement is in
force under a law of the State or Territory that is a party to the agreement
and the law is identified in or under the agreement; and
(b) the management arrangement has
been accredited in writing by the Minister in accordance with this section for
the purposes of the agreement.
What is a bilaterally accredited authorisation
process?
(2A) An authorisation process is a bilaterally
accredited authorisation process for the purposes of a bilateral
agreement declaring that certain actions do not require approval under Part 9
for the purposes of a specified provision of Part 3 if and only if:
(a) the authorisation process is set
out in a law of the State or Territory that is a party to the agreement, and
the law and the process are identified in or under the agreement; and
(b) the authorisation process has been
accredited in writing by the Minister in accordance with this section for the
purposes of the agreement.
Accrediting management arrangement or authorisation
process
(3) For the purposes of subsection (2) or
(2A), the Minister may accredit in writing a management arrangement or an
authorisation process for the purposes of a bilateral agreement with a State or
self‑governing Territory. However, the Minister may do so only if the
Minister is satisfied that:
(a) the management arrangement or
authorisation process and the law under which it is in force, or in which it is
set out, meet the criteria prescribed by the regulations; and
(b) there has been or will be adequate
assessment of the impacts that actions approved in accordance with the management
arrangement or authorisation process:
(i) have or will have; or
(ii) are likely to have;
on each matter protected by a
provision of Part 3 in relation to which the agreement makes a declaration
under subsection (1); and
(c) actions approved in accordance
with the management arrangement or authorisation process will not have
unacceptable or unsustainable impacts on a matter protected by a provision of
Part 3 in relation to which the agreement makes a declaration under subsection (1).
The Minister must publish in accordance with the
regulations (if any) the instrument accrediting the management arrangement or
authorisation process.
Note: Subdivision B sets out more prerequisites for
accrediting a management arrangement or an authorisation process.
Tabling of management arrangement or authorisation
process before accreditation
(4) The Minister must cause to be laid before
each House of the Parliament a copy of:
(a) in the case of a management
arrangement—the management arrangement; or
(b) in the case of an authorisation
process—the relevant part of the law in which the authorisation process is set
out;
that the Minister is considering accrediting for the
purposes of subsection (2) or (2A).
Limitations on accreditation during period for
disallowance
(5) The Minister must not accredit a management
arrangement or authorisation process for the purposes of subsection (2) or
(2A) under a bilateral agreement:
(a) before, or within 15 sitting days
after, a copy of the management arrangement or authorisation process is laid
before each House of the Parliament; or
(b) if, within those 15 sitting days
of a House, notice of a motion to disallow the management arrangement or
authorisation process is given in that House—subject to subsection (5A), within
15 sitting days of that House after the notice is given.
(5A) If:
(a) notice of a motion to disallow
accreditation of the management arrangement or authorisation process is given
in a House of the Parliament within 15 sitting days after the management
arrangement or authorisation process is laid before the House under this
section; and
(b) the notice is withdrawn or
otherwise disposed of within 15 sitting days of that House after the notice is
given;
then, subject to paragraph (5)(a), the Minister may
accredit the management arrangement or authorisation process after the motion
is withdrawn or otherwise disposed of.
Disallowance motion passed
(6) The Minister must not accredit the
management arrangement or authorisation process if either House of the
Parliament passes a resolution disallowing the accreditation of the management
arrangement or authorisation process following a motion of which notice has
been given within 15 sitting days after the management arrangement or relevant
part of the law has been laid before the House.
Disallowance motion not defeated in time
(7) The Minister must not accredit the
management arrangement or authorisation process if, at the end of 15 sitting
days after notice of a motion to disallow the management arrangement or
authorisation process that was given in a House of the Parliament within 15
sitting days after the management arrangement or relevant part of the law was
laid before the House:
(a) the notice has not been withdrawn
and the motion has not been called on; or
(b) the motion has been called on,
moved and seconded and has not been withdrawn or otherwise disposed of.
Extended time after dissolution or prorogation
(8) If:
(a) notice of a motion to disallow the
management arrangement or authorisation process is given in a House of the Parliament
(the disallowing House); and
(b) before the end of 15 sitting days
of the disallowing House after the notice is given:
(i) the House of
Representatives is dissolved or expires; or
(ii) the Parliament is
prorogued; and
(c) at the time of the dissolution,
expiry or prorogation (as appropriate):
(i) the notice has not
been withdrawn and the motion has not been called on; or
(ii) the motion has been
called on, moved and seconded and has not been withdrawn or otherwise disposed
of;
the management arrangement or relevant part of the law is
taken for the purposes of subsections (5), (5A), (6) and (7) to have been
laid before the disallowing House on the first sitting day of that House after
the dissolution, expiry or prorogation (as appropriate).
No preference
(9) In accrediting a management arrangement
or authorisation process for the purposes of a bilateral agreement making a
declaration relating to an action:
(a) by a person for the purposes of
trade between Australia and another country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning
of section 99 of the Constitution) to one State or part of a State over
another State or part of a State.
Requirements for bilateral agreement making declaration
(10) If the declaration is for actions approved
in accordance with a bilaterally accredited management arrangement, the
declaration does not have effect for the purposes of this Act unless the
bilateral agreement requires the State or self‑governing Territory that
is party to the agreement and agencies of the State or Territory:
(a) to act in accordance with the
management arrangement; and
(b) not to approve the taking of
actions that would be inconsistent with the management arrangement.
47
Agreement may declare classes of actions do not need assessment
Declaration of actions that do not need further
assessment
(1) A bilateral agreement may declare that
actions in a class of actions identified wholly or partly by reference to the
fact that they have been assessed in a specified manner need not be assessed
under Part 8.
Note: A declaration described in subsection (1)
can accredit practices, procedures, systems of the State or self‑governing
Territory for environmental assessment.
Prerequisite to declaration
(2) The Minister may enter into a bilateral
agreement declaring that actions assessed in a specified manner need not be
assessed under Part 8 only if he or she is satisfied that assessment of an
action in the specified manner will include assessment of the impacts the
action:
(a) has or will have; or
(b) is likely to have;
on each matter protected by a provision of Part 3.
Assessment approaches that may be accredited
(3) The manner of assessment of actions that
may be specified in a bilateral agreement between the Commonwealth and a State
or Territory for the purposes of subsection (1) includes:
(a) assessment by any person under a
law of the State or Territory; and
(b) assessment by any person under an
agreement or other instrument made under a law of the State or Territory; and
(c) assessment by any person in
accordance with criteria specified in an instrument agreed by the parties to
the bilateral agreement.
This does not limit subsection (1).
Report on actions that do not need further assessment
(4) If a bilateral agreement has (or could
have) the effect that an action need not be assessed under Part 8 but the
action must still be approved under Part 9, the agreement must provide for
the Minister to receive a report including, or accompanied by, enough
information about the relevant impacts of the action to let the Minister make
an informed decision whether or not to approve under Part 9 (for the
purposes of each controlling provision) the taking of the action.
48
Other provisions of bilateral agreements
(1) A bilateral agreement may include:
(a) provisions for State accreditation
of Commonwealth processes and decisions; and
(b) other provisions for achieving the
object of this Part; and
(c) provisions for the provision of
information by one party to the agreement to the other party; and
(d) provisions for the publication of
information relating to the agreement; and
(e) provisions relating to the
operation of the whole agreement or particular provisions of the agreement,
such as:
(i) provisions for the
commencement of all or part of the agreement; or
(ii) provisions for
auditing, monitoring and reporting on the operation and effectiveness of all or
part of the agreement; or
(iii) provisions for review
of all or part of the agreement; or
(iv) provisions for
rescission of all or part of the agreement; or
(v) provisions for expiry
of the agreement; and
(f) provisions varying or revoking
another bilateral agreement between the same parties; and
(g) a provision dealing with a matter
that another section of this Act permits a bilateral agreement to deal with.
Consistency with Act and regulations
(2) A provision of a bilateral agreement has
no effect for the purposes of this Act to the extent that it is inconsistent
with this Act or the regulations. A provision of a bilateral agreement is not
inconsistent with this Act or the regulations if it is possible to comply with
both the provision on the one hand and the Act or regulations on the other
hand.
Relationship with sections 46 and 47
(3) Subsection (1) does not limit
sections 46 and 47.
48A
Mandatory provisions
Application
(1) A bilateral agreement with a State or
self‑governing Territory including a declaration that is described in
section 46 or 47 and covers actions described in subsection (2) or
(3) does not have effect for the purposes of this Act unless the agreement also
includes the undertaking required by subsection (2) or (3) (as
appropriate).
Agreements including declarations about approvals
(2) A bilateral agreement including a
declaration described in section 46 must include an undertaking by the
State or Territory to ensure that the environmental impacts that the following
actions covered by the declaration have, will have or are likely to have on a
thing that is not a matter protected by a provision of Part 3 for which
the declaration has effect will be assessed to the greatest extent practicable:
(a) actions taken in the State or
Territory by a constitutional corporation;
(b) actions taken in the State or
Territory by a person for the purposes of trade or commerce between Australia
and another country, between 2 States, between a State and a Territory or
between 2 Territories;
(c) actions that are taken in the
State or Territory and are actions whose regulation is appropriate and adapted
to give effect to Australia’s obligations under an agreement with one or more
other countries;
(d) actions taken in the Territory (if
applicable).
Agreements including declarations about assessment
(3) A bilateral agreement including a
declaration described in section 47 must include an undertaking by the
State or Territory to ensure that the environmental impacts that the following
actions covered by the declaration have, will have or are likely to have (other
than the relevant impacts of those actions) will be assessed to the greatest
extent practicable:
(a) actions taken in the State or
Territory by a constitutional corporation;
(b) actions taken in the State or
Territory by a person for the purposes of trade or commerce between Australia
and another country, between 2 States, between a State and a Territory or
between 2 Territories;
(c) actions that are taken in the
State or Territory and are actions whose regulation is appropriate and adapted
to give effect to Australia’s obligations under an agreement with one or more
other countries;
(d) actions taken in the Territory (if
applicable).
Auditing
(4) A bilateral agreement does not have
effect for the purposes of this Act unless it includes a provision recognising
that, under the Auditor‑General Act 1997, the Auditor‑General
may audit the operations of the Commonwealth public sector (as defined in
section 18 of that Act) relating to the bilateral agreement.
49
Express provision needed to affect Commonwealth areas or actions
(1) A provision of a bilateral agreement does
not have any effect in relation to an action in a Commonwealth area or an
action by the Commonwealth or a Commonwealth agency, unless the agreement
expressly provides otherwise.
(2) A provision of a bilateral agreement does
not have any effect in relation to an action in Booderee National Park, Kakadu National
Park or Uluru‑Kata Tjuta National Park.
(3) Booderee National
Park is the Commonwealth reserve (as it exists from time to time) to
which the name Booderee National Park was given by Proclamation continued in
force by the Environmental Reform (Consequential Provisions) Act 1999.
Subdivision B—Prerequisites for making bilateral agreements
49A
Consultation on draft agreement
The Minister may enter into a bilateral
agreement only if he or she:
(a) has published in accordance with
the regulations:
(i) a draft of the
agreement; and
(ii) an invitation for any
person to give the Minister comments on the draft within a specified period of
at least 28 days after the latest day on which the draft or invitation was
published; and
(b) has taken into account the
comments (if any) received in response to the invitation; and
(c) has considered the role and
interests of indigenous peoples in promoting the conservation and ecologically
sustainable use of natural resources in the context of the proposed agreement,
taking into account Australia’s relevant obligations under the Biodiversity
Convention.
50
Minister may only enter into agreement if prescribed criteria are met
The Minister may enter into a bilateral
agreement only if the Minister is satisfied that the agreement:
(a) accords with the objects of this
Act; and
(b) meets the requirements (if any)
prescribed by the regulations.
51
Agreements relating to declared World Heritage properties
(1) The Minister may enter into a bilateral
agreement containing a provision relating to a declared World Heritage property
only if:
(a) the Minister is satisfied that the
provision is not inconsistent with Australia’s obligations under the World
Heritage Convention; and
(b) the Minister is satisfied that the
agreement will promote the management of the property in accordance with the
Australian World Heritage management principles; and
(c) the provision meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or an authorisation process under section 46 for the purposes
of a bilateral agreement containing a provision relating to a declared World
Heritage property only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with Australia’s
obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the management of
the property in accordance with the Australian World Heritage management
principles.
51A
Agreements relating to National Heritage places
(1) The Minister may enter into a bilateral
agreement containing a provision relating to a National Heritage place only if:
(a) the Minister is satisfied that the
agreement will promote the management of the place in accordance with the
National Heritage management principles; and
(b) the provision meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or an authorisation process under section 46 for the purposes
of such a bilateral agreement only if he or she is satisfied that the
management arrangement or authorisation process will promote the management of
the place concerned in accordance with the National Heritage management
principles.
52
Agreements relating to declared Ramsar wetlands
(1) The Minister may enter into a bilateral
agreement containing a provision relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the
provision is not inconsistent with Australia’s obligations under the Ramsar
Convention; and
(b) the Minister is satisfied that the
agreement will promote the management of the wetland in accordance with the
Australian Ramsar management principles; and
(c) the provision meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or an authorisation process under section 46 for the purposes
of a bilateral agreement containing a provision relating to a declared Ramsar
wetland only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with Australia’s
obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the management of
the wetland in accordance with the Australian Ramsar management principles.
53
Agreements relating to listed threatened species and ecological communities
(1) The Minister may enter into a bilateral
agreement containing a provision relating to a listed threatened species or a
listed threatened ecological community only if:
(a) the Minister is satisfied that the
provision is not inconsistent with Australia’s obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; and
(b) the Minister is satisfied that the
agreement will promote the survival and/or enhance the conservation status of
each species or community to which the provision relates; and
(c) the Minister is satisfied that the
provision is not inconsistent with any recovery plan for the species or
community or a threat abatement plan; and
(ca) the Minister has had regard to any
approved conservation advice for the species or community; and
(d) the provision meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or an authorisation process under section 46 for the purposes
of a bilateral agreement containing a provision relating to a listed threatened
species or a listed threatened ecological community only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with Australia’s
obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the survival
and/or enhance the conservation status of each species or community to which
the provision relates; and
(c) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with any
recovery plan for the species or community or a threat abatement plan; and
(d) the Minister has had regard to any
approved conservation advice for the species or community.
54
Agreements relating to migratory species
(1) The Minister may enter into a bilateral
agreement containing a provision relating to a listed migratory species only
if:
(a) the Minister is satisfied that the
provision is not inconsistent with the Commonwealth’s obligations under
whichever of the following conventions or agreements because of which the
species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international
agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the
agreement will promote the survival and/or enhance the conservation status of
each species to which the provision relates; and
(c) the provision meets the
requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management
arrangement or an authorisation process under section 46 for the purposes
of a bilateral agreement containing a provision relating to a listed migratory
species only if:
(a) the Minister is satisfied that the
management arrangement or authorisation process is not inconsistent with the
Commonwealth’s obligations under whichever of the following conventions or
agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international
agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the
management arrangement or authorisation process will promote the survival
and/or enhance the conservation status of each species to which the provision
relates.
55
Agreements relating to nuclear actions
The Minister must not enter into a
bilateral agreement, or accredit for the purposes of a bilateral agreement a management
arrangement or an authorisation process, containing a provision that:
(a) relates to a nuclear action; and
(b) has the effect of giving
preference (within the meaning of section 99 of the Constitution) to one
State or part of a State over another State or part of a State, in relation to
the taking of a nuclear action:
(i) by a person for the
purposes of trade or commerce between Australia and another country or between
2 States; or
(ii) by a constitutional
corporation.
56
Agreements relating to prescribed actions
The Minister must not enter into a
bilateral agreement containing a provision that:
(a) relates to an action prescribed
for the purposes of subsection 25(1); and
(b) has the effect of giving
preference (within the meaning of section 99 of the Constitution) to one
State or part of a State over another State or part of a State, in relation to
the taking of the action:
(i) by
a person for the purposes of trade or commerce between Australia and another
country or between 2 States; or
(ii) by a constitutional
corporation.
Subdivision C—Minor amendments of bilateral agreements
56A
Ministerial determination of minor amendments to bilateral agreements
(1) This section applies if:
(a) the Minister intends to develop a
draft amendment to a bilateral agreement (the principal agreement);
and
(b) the Minister is satisfied that the
amendment will not have a significant effect on the operation of the principal
agreement; and
(c) the Minister makes a
determination, in writing, to that effect.
(2) If the Minister makes a determination
under paragraph (1)(c):
(a) the following provisions of this
Part do not apply in relation to the amendment to the principal agreement:
(i) subsection 45(3);
(ii) paragraphs 45(4)(b)
and (c);
(iii) section 49A; and
(b) the Minister must publish the
principal agreement, as amended by the amending agreement, at the same time as
publishing the amending agreement under paragraph 45(4)(a).
(3) A determination made under paragraph (1)(c)
is not a legislative instrument.
Division 3—Suspending and ending the effect of bilateral agreements
Subdivision A—Suspension and cancellation of effect
57
Representations about suspension or cancellation
Representations
(1) A person may refer to the Minister a
matter that the person believes involves a contravention of a bilateral
agreement.
Minister must decide whether agreement has been
contravened
(2) The Minister must:
(a) decide whether or not the
bilateral agreement has been contravened; and
(b) decide what action he or she
should take in relation to any contravention.
Publication of decision and reasons
(3) The Minister must publish in accordance
with the regulations each decision he or she makes, and the reasons for it.
Minister need not decide on vexatious referrals
(4) Despite subsection (2), the Minister
need not make a decision under that subsection if he or she is satisfied that:
(a) the referral was vexatious,
frivolous, or not supported by sufficient information to make a decision; or
(b) the matter referred is the same in
substance as a matter that has been referred before; or
(c) if the alleged contravention of
the bilateral agreement were a contravention of the Act, the person referring
the matter would not be entitled to apply under section 475 for an
injunction in relation to the contravention.
58
Consultation before cancellation or suspension
(1) The Minister (the Environment
Minister) must consult the appropriate Minister of a State or Territory
that is party to a bilateral agreement if the Environment Minister believes
that the State or Territory:
(a) has not complied with the
agreement or will not comply with it; or
(b) has not given effect, or will not
give effect, to the agreement in a way that:
(i) accords with the
objects of this Act and the objects of this Part; and
(ii) promotes the discharge
of Australia’s obligations under any agreement with one or more other countries
relevant to a matter covered by the agreement.
(2) Subsection (1) operates whether the
Environment Minister’s belief relates to a matter referred to him or her under
section 57 or not.
59
Suspension or cancellation
Minister may give notice of suspension or cancellation
(1) If, after the consultation, the Environment
Minister is not satisfied that the State or Territory:
(a) has complied with, and will comply
with, the agreement; and
(b) has given effect, and will give
effect, to the agreement in a way that:
(i) accords with the
objects of this Act and the objects of this Part; and
(ii) promotes the discharge
of Australia’s obligations under all international agreements (if any) relevant
to a matter covered by the agreement;
he or she may give the appropriate Minister of the State
or Territory a written notice described in subsection (2) or (3).
Example 1: The Minister could give notice if the agreement
declared that certain actions affecting the world heritage values of a declared
world heritage property did not require approval under Part 9 if approved
by the State, and the State approved an action that was not consistent with the
protection, conservation and presentation of those values.
Example 2: The Minister could give notice if the agreement
declared that certain actions affecting the ecological character of a declared
Ramsar wetland did not require approval under Part 9 if approved by the
State, and the State approved an action that had a significant adverse impact
on that character.
Example 3: The Minister could give notice if the agreement
declared that certain actions affecting a listed threatened species did not
require approval under Part 9 if approved by the State, and the State
approved an action that caused the species to become more threatened.
Notice of suspension
(2) A notice may state that the effect of the
agreement, or specified provisions of the agreement, for the purposes of this
Act or specified provisions of this Act is suspended, either generally or in
relation to actions in a specified class, for a period:
(a) starting on a specified day at
least 10 business days (in the capital city of the State or Territory) after
the day on which the notice is given; and
(b) ending on a specified later day or
on the occurrence of a specified event.
Notice of cancellation
(3) A notice may state that the effect of the
agreement, or specified provisions of the agreement, for the purposes of this
Act or specified provisions of this Act is cancelled, either generally or in
relation to actions in a specified class, on a specified day at least 10 business
days (in the capital city of the State or Territory) after the day on which the
notice is given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified
provision of an agreement is suspended or cancelled for the purposes of this
Act, or of a specified provision of this Act, either generally or in relation
to actions in a specified class, in accordance with the notice. This subsection
has effect subject to sections 61 and 62.
Reasons for giving notice
(5) When giving a notice, the Environment
Minister must give the appropriate Minister of the State or Territory a written
statement of reasons for the giving of the notice.
Publishing notice and reasons
(6) As soon as practicable after the
suspension or cancellation occurs, the Environment Minister must publish in
accordance with the regulations:
(a) notice of the suspension or
cancellation; and
(b) reasons for the suspension or
cancellation.
60
Emergency suspension of effect of bilateral agreement
(1) This section applies if the Minister is
satisfied that:
(a) the State or Territory that is
party to a bilateral agreement is not complying with it, or will not comply
with it; and
(b) as a result of the non‑compliance,
a significant impact is occurring or imminent on any matter protected by a
provision of Part 3 that is relevant to an action in a class of actions to
which the agreement relates.
(2) The Minister may suspend the effect of
the agreement or specified provisions of the agreement for the purposes of this
Act or specified provisions of this Act, by notice:
(a) given to the appropriate Minister
of the State or Territory; and
(b) published in accordance with the
regulations.
(3) The suspension continues for the shorter
of the following periods:
(a) 3 months;
(b) the period that is specified in
the notice (either by reference to time or by reference to the occurrence of an
event).
(4) Subsection (3) has effect subject to
section 62.
(5) As soon as practicable after the Minister
(the Environment Minister) gives the appropriate Minister of the
State or Territory (the State or Territory Minister) notice of
the suspension, the Environment Minister must consult the State or Territory
Minister about the non‑compliance.
(6) To avoid doubt, this section has effect
despite sections 58 and 59.
61
Cancellation during suspension
(1) The Minister may give notice of the
cancellation of the effect of a bilateral agreement even while its effect is
suspended under section 59 or 60.
(2) The cancellation may occur even though
the period of suspension has not ended.
(3) This section applies whether the
cancellation or suspension has effect generally or in relation to actions in a
specified class.
62
Revocation of notice of suspension or cancellation
(1) This section applies if the Minister:
(a) has given a notice under section 59
or 60 to suspend or cancel the effect of a bilateral agreement (either
generally or in relation to actions in a specified class); and
(b) is later satisfied that the State
or Territory that is party to the agreement will comply with the agreement and
give effect to it in a way that:
(i) accords with the
objects of this Act and the objects of this Part; and
(ii) promotes the discharge
of Australia’s obligations under all international agreements (if any) relevant
to a matter covered by the agreement.
(2) The Minister must revoke the notice of
suspension or cancellation by another written notice:
(a) given to the appropriate Minister
of the State or Territory; and
(b) published in accordance with the
regulations.
However, the Environment Minister must not revoke the
notice of cancellation after cancellation of the effect of the agreement
occurs.
(3) Suspension or cancellation of the effect
of the agreement does not occur if the notice of suspension or cancellation is
revoked before the suspension or cancellation would otherwise occur.
(4) Suspension of the effect of the agreement
ends when the notice of suspension is revoked.
63
Cancellation or suspension at request of other party
Minister must give notice of cancellation or suspension
(1) The Minister must give the appropriate
Minister of a State or self‑governing Territory that is party to a
bilateral agreement a notice under subsection (2) or (3) if the
appropriate Minister has requested a notice under that subsection in accordance
with the agreement.
Notice of suspension
(2) A notice may state that the effect of the
agreement, or specified provisions of the agreement, for the purposes of this
Act or specified provisions of this Act is suspended, either generally or in
relation to actions in a specified class, for a period:
(a) starting on a specified day after
the day on which the notice is given; and
(b) ending on a specified later day or
on the occurrence of a specified event.
Notice of cancellation
(3) A notice may state that the effect of the
agreement, or specified provisions of the agreement, for the purposes of this
Act or specified provisions of this Act is cancelled, either generally or in
relation to actions in a specified class, on a specified day after the day on
which the notice is given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified
provision of an agreement is suspended or cancelled for the purposes of this
Act, or of a specified provision of this Act, either generally or in relation
to actions in a specified class, in accordance with the notice.
Publishing notice and reasons
(5) As soon as practicable after the
suspension or cancellation occurs, the Minister must publish in accordance with
the regulations:
(a) notice of the suspension or
cancellation; and
(b) reasons for the suspension or
cancellation.
64
Cancellation or suspension of bilateral agreement does not affect certain
actions
Application
(1) This section explains how this Act
operates in relation to an action that a person was able to take without
approval under Part 9 for the purposes of a provision of Part 3
because of Division 1 of Part 4 and a provision of a bilateral
agreement immediately before the cancellation or suspension of the operation of
the provision of the agreement for the purposes of this Act or of any provision
of this Act.
Actions approved in specified manner may be taken
(2) If the action was able to be taken
without approval under Part 9 because its taking had already been approved
in accordance with a management arrangement or an authorisation process that is
a bilaterally accredited management arrangement or a bilaterally accredited
authorisation process for the purposes of the agreement, this Act continues to
operate in relation to the action as if the suspension or cancellation had not
occurred.
Subdivision B—Expiry of bilateral agreements
65
Expiry and review of bilateral agreements
(1) A bilateral agreement ceases to have effect
for the purposes of this Act at the time when the agreement provides for it to
cease to so have effect.
Note: The parties to a bilateral agreement may also
agree to revoke it.
(2) The Minister must cause a review of the
operation of a bilateral agreement to be carried out at least once every 5
years while the agreement remains in effect. The Minister must give a copy of
the report of each review to the appropriate Minister of the State or Territory
that is party to the agreement.
Note: A bilateral agreement may also provide for
review of its operation.
(3) The Minister must publish the report on
each subsection (2) review in accordance with the regulations.
65A
Expiry of bilateral agreement does not affect certain actions
Application of subsection (2)
(1) Subsection (2) explains how this Act
operates in relation to an action that a person was able to take without
approval under Part 9 for the purposes of a provision of Part 3
because of Division 1 of Part 4 and a provision of a bilateral
agreement immediately before the agreement ceases to have effect for the
purposes of this Act under section 65.
Actions already approved may be taken
(2) This Act continues to operate in relation
to the action as if the agreement had not ceased to have effect if the action
was able to be taken without approval under Part 9 because its taking had
already been approved in accordance with a management arrangement or an
authorisation process that was a bilaterally accredited management arrangement
or a bilaterally accredited authorisation process for the purposes of the
agreement.
Chapter 4—Environmental assessments and approvals
Part 6—Simplified outline of this Chapter
66
Simplified outline of this Chapter
The following is a simplified outline of
this Chapter:
This Chapter deals with assessment and
approval of actions that Part 3 prohibits without approval (controlled
actions). (It does not deal with actions that a bilateral agreement
declares not to need approval.)
A person proposing to take an action,
or a government body aware of the proposal, may refer the proposal to the
Minister so he or she can decide:
(a) whether his
or her approval is needed to take the action; and
(b) how to
assess the impacts of the action to be able to make an informed decision whether
or not to approve the action.
An assessment may be done using:
(a) a process
laid down under a bilateral agreement; or
(b) a process
specified in a declaration by the Minister; or
(c) a process
accredited by the Minister; or
(ca) information
included in the referral; or
(d) preliminary
documentation provided by the proponent; or
(e) a public
environment report; or
(f) an
environmental impact statement; or
(g) a public
inquiry.
Once the report of the assessment is
given to the Minister, he or she must decide whether or not to approve the
action, and what conditions to attach to any approval.
Part 7—Deciding whether approval of actions is needed
Division 1—Referral of proposals to take action
67
What is a controlled action?
An action that a person proposes to take
is a controlled action if the taking of the action by the person
without approval under Part 9 for the purposes of a provision of Part 3
would be (or would, but for section 25AA or 28AB, be) prohibited by the
provision. The provision is a controlling provision for the
action.
67A
Prohibition on taking controlled action without approval
A person must not take a controlled
action unless an approval of the taking of the action by the person is in
operation under Part 9 for the purposes of the relevant provision of Part 3.
Note: A person can be restrained from contravening
this section by an injunction under section 475.
68
Referral by person proposing to take action
(1) A person proposing to take an action that
the person thinks may be or is a controlled action must refer the proposal to
the Minister for the Minister’s decision whether or not the action is a
controlled action.
(2) A person proposing to take an action that
the person thinks is not a controlled action may refer the proposal to the
Minister for the Minister’s decision whether or not the action is a controlled
action.
(3) In a referral under this section, the
person must state whether or not the person thinks the action the person
proposes to take is a controlled action.
(4) If the person states that the person
thinks the action is a controlled action, the person must identify in the
statement each provision that the person thinks is a controlling provision.
(5) Subsections (1) and (2) do not apply
in relation to a person proposing to take an action if the person has been
informed by the Minister under section 73 that the proposal has been
referred to the Minister.
(6) This section is affected by section 68A.
68A
Actions proposed to be taken under a contract etc.
(1) This section applies in relation to an
action that is proposed to be taken under a contract or an agreement,
arrangement or understanding, other than:
(a) a subcontract; or
(b) an agreement, arrangement or
understanding entered into for the purposes of a contract or another agreement,
arrangement or understanding.
Note: A person proposing to take an action under a
subcontract, or an agreement, arrangement or understanding entered into for the
purposes of a contract or another agreement, arrangement or understanding, is
not required or permitted to refer the proposal to take the action to the
Minister under section 68.
(2) For the purposes of section 68 and
subject to subsection (3), a reference to, or relating to, a person
proposing to take the action is a reference to, or relating to, any of the
following persons:
(a) a party to the contract,
agreement, arrangement or understanding for whose benefit the action is
proposed to be taken;
(b) a person who:
(i) requested or procured,
or proposes to request or procure, the creation of the contract, agreement,
arrangement or understanding; and
(ii) is to be responsible
for controlling and directing the taking of the proposed action.
(3) If a person (the first person)
referred to in paragraph (2)(a) or (b) refers a proposal to take the
action to the Minister under section 68:
(a) no other person is required or
permitted to refer a proposal to take the action to the Minister under section 68;
and
(b) for the purposes of this Chapter,
a reference to, or relating to, the person proposing to take the action is a
reference to, or relating to, the first person.
(4) For the purposes of this section, a
reference to a contract or subcontract or an agreement, arrangement or
understanding includes a reference to a proposed contract, proposed
subcontract, proposed agreement, proposed arrangement or proposed
understanding.
(5) Nothing in this section is intended to
affect the capacity of a person to refer a proposal to take an action to the
Minister under subsection 68(1) or (2) on behalf of the person proposing to
take the action.
69
State or Territory may refer proposal to Minister
(1) A State, self‑governing Territory
or agency of a State or self‑governing Territory that is aware of a
proposal by a person to take an action may refer the proposal to the Minister
for a decision whether or not the action is a controlled action, if the State,
Territory or agency has administrative responsibilities relating to the action.
(2) This section does not apply in relation
to a proposal by a State, self‑governing Territory or agency of a State
or self‑governing Territory to take an action.
Note: Section 68 applies instead.
70
Minister may request referral of proposal
(1) If the Minister believes a person
proposes to take an action that the Minister thinks may be or is a controlled
action, the Minister may request:
(a) the person; or
(b) a State, self‑governing
Territory or agency of a State or self‑governing Territory that the
Minister believes has administrative responsibilities relating to the action;
to refer the proposal to the Minister within 15 business
days or a longer period agreed by the Minister and the requested person, State,
Territory or agency (as appropriate).
Note 1: If the proposal to take the action is not
referred, the person cannot get an approval under Part 9 to take the
action. If taking the action without approval contravenes Part 3, an
injunction could be sought to prevent or stop the action, or the person could
be ordered to pay a pecuniary penalty.
Note 2: Section 156 sets out rules about time
limits.
(2) In making a request, the Minister must
act in accordance with the regulations (if any).
Deemed referral of proposal
(3) If:
(a) the Minister has made a request
under subsection (1); and
(b) the period for compliance with the
request has ended; and
(c) the requested person has not
referred the proposal to the Minister in accordance with the request;
the Minister may, within 20 business days after the end of
that period, determine in writing that this Act has effect as if:
(d) if paragraph (1)(a)
applies—the requested person had referred the proposal to the Minister under
subsection 68(1) at the time the determination was made; or
(e) if paragraph (1)(b)
applies—the requested person had referred the proposal to the Minister under
subsection 69(1) at the time the determination was made.
(4) A determination under subsection (3)
has effect accordingly.
(5) A copy of a determination under subsection (3)
is to be given to the requested person.
(6) Subsection 68(3) and section 72 do
not apply to a referral covered by subsection (3) of this section.
(8) Subsection 74(3) applies to a referral
covered by subsection (3) of this section as if the reference in paragraph
74(3)(a) to the referral were a reference to the determination concerned.
71
Commonwealth agency may refer proposal to Minister
(1) A Commonwealth agency that is aware of a
proposal by a person to take an action may refer the proposal to the Minister
for a decision whether or not the action is a controlled action, if the agency
has administrative responsibilities relating to the action.
(2) This section does not apply in relation
to a proposal by the Commonwealth or a Commonwealth agency to take an action.
Note: Section 68 applies instead.
72 Form
and content of referrals
(1) A referral of a proposal to take an
action must be made in a way prescribed by the regulations.
(2) A referral of a proposal to take an
action must include the information prescribed by the regulations.
(3) A referral of a proposal to take an
action may include alternative proposals relating to any of the following:
(a) the location where the action is
to be taken;
(b) the time frames within which the
action is to be taken;
(c) the activities that are to be
carried out in taking the action.
73
Informing person proposing to take action of referral
As soon as practicable after receiving a
referral under section 69 or 71 of a proposal by a person to take an
action, the Minister must:
(a) inform the person of the referral;
and
(b) invite the person to give the
Minister relevant information about whether the action is a controlled action,
within 10 business days.
74
Inviting provision of information on referred proposal
Inviting other Commonwealth Ministers to provide information
(1) As soon as practicable after receiving a
referral of a proposal to take an action, the Minister (the Environment
Minister) must:
(a) inform any other Minister whom the
Environment Minister believes has administrative responsibilities relating to
the proposal; and
(b) invite each other Minister
informed to give the Environment Minister within 10 business days information
that relates to the proposed action and is relevant to deciding whether or not
the proposed action is a controlled action.
Inviting comments from the Australian Heritage Council
(1A) If the Minister thinks, in relation to an
action that is the subject of a proposal referred to the Minister, that section 15B
or 15C could be a controlling provision for the proposed action because of
National Heritage values of a National Heritage place, the Minister may invite
the Australian Heritage Council to give the Minister comments, within 10
business days (measured in Canberra), on whether the proposed action is a
controlled action.
Note: Sections 15B and 15C protect the National
Heritage values of National Heritage places.
(1B) If the Minister thinks, in relation to an
action that is the subject of a proposal referred to the Minister, that section 23,
24A, 26, 27A, 27B, 27C or 28 could be a controlling provision for the proposed
action because of heritage values of a place, the Minister may invite the
Australian Heritage Council to give the Minister comments, within 10 business
days (measured in Canberra), on whether the proposed action is a controlled
action.
Note: Sections 23, 24A, 26, 27A, 27B, 27C and
28 protect the environment, which includes the heritage values of places. See
the definition of environment in section 528.
Inviting comments from appropriate State or Territory
Minister
(2) As soon as practicable after receiving,
from the person proposing to take an action or from a Commonwealth agency, a
referral of a proposal to take an action in a State or self‑governing
Territory, the Environment Minister must, if he or she thinks the action may
have an impact on a matter protected by a provision of Division 1 of Part 3
(about matters of national environmental significance):
(a) inform the appropriate Minister of
the State or Territory; and
(b) invite that Minister to give the
Environment Minister within 10 business days:
(i) comments on whether
the proposed action is a controlled action; and
(ii) information relevant
to deciding which approach would be appropriate to assess the relevant impacts
of the action (including if the action could be assessed under a bilateral
agreement).
Note: Subsection (2) also applies in relation
to actions to be taken in an area offshore from a State or the Northern
Territory. See section 157.
Inviting public comment
(3) As soon as practicable after receiving a
referral of a proposal to take an action, the Environment Minister must cause
to be published on the Internet:
(a) the referral; and
(b) an invitation for anyone to give
the Minister comments within 10 business days (measured in Canberra) on whether
the action is a controlled action.
Note: If the action is also the subject of a permit
application under section 200, 215, 237 or 257 and the application is made
at the same time as the referral, the referral and invitation for comments that
must be published under this subsection may be published together with the
application and invitation for comments that must be published under section 200,
215, 237 or 257.
Non‑disclosure of commercial‑in‑confidence
information
(3A) The Environment Minister may refuse to
cause to be published on the Internet, under subsection (3), so much of
the information included in a referral as the Minister is satisfied is
commercial‑in‑confidence.
(3B) The Environment Minister must not be
satisfied that particular information included in a referral is commercial‑in‑confidence
unless a person demonstrates to the Minister that:
(a) release of the information would
cause competitive detriment to the person; and
(b) the information is not in the
public domain; and
(c) the information is not required to
be disclosed under another law of the Commonwealth, a State or a Territory; and
(d) the information is not readily
discoverable.
74A
Minister may request referral of a larger action
(1) If the Minister receives a referral in
relation to a proposal to take an action by a person, and the Minister is
satisfied the action that is the subject of the referral is a component of a
larger action the person proposes to take, the Minister may decide to not
accept the referral.
(2) If the Minister decides to not accept a
referral under subsection (1), the Minister:
(a) must give written notice of the
decision to the person who referred the proposal to the Minister; and
(b) must give written notice of the
decision to the person who is proposing to take the action that was the subject
of the referral; and
(c) may, under section 70,
request of the person proposing to take the action that was the subject of the
referral, that they refer the proposal, to take the larger action, to the Minister.
(3) To avoid doubt, sections 73 and 74
do not apply to a referral that has not been accepted in accordance with subsection (1).
(4) If the Minister decides to accept a
referral under subsection (1), the Minister must, at the time of making a
decision under section 75:
(a) give written notice of the
decision to the person who referred the proposal to the Minister;
(b) publish in accordance with the
regulations (if any), a copy or summary of the decision.
74AA
Offence of taking action before decision made in relation to referral etc.
Referral made: taking action while decision making
process still going on
(1) A person commits an offence if:
(a) the person takes an action; and
(b) either:
(i) a proposal to take the
action (or a larger action of which the action is a component) has been
referred to the Minister by the person under section 68; or
(ii) a proposal to take the
action (or a larger action of which the action is a component) has been
referred to the Minister under section 69 or 71 and the person has been
informed of the referral under section 73; and
(c) the referral has not been
withdrawn under section 170C; and
(d) the Minister has not decided under
subsection 74A(1) not to accept the referral; and
(e) provisions of this Chapter are not
stopped by Division 1A from applying in relation to the referral; and
(f) provisions of this Chapter are
not stopped by section 155 from applying because of the referral in
relation to the action (or a larger action of which the action is a component);
and
(g) no decision that the action (or a
larger action of which the action is a component) is not a controlled action is
in operation under section 75 in relation to the referral; and
(h) no decision is in operation under
Part 9 in relation to the referral approving, or not approving, the taking
of the action (or a larger action of which the action is a component).
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
(2) Subsection (1) does not apply to the
taking of an action by a person if:
(a) the taking of the action is
reasonably necessary in order to comply with a requirement or request made
under this Part or Part 8 or 9 in relation to the action (or a
larger action of which the action is a component); and
(b) before taking the action, the
person gave the Minister written notice of the taking of the action; and
(c) the notice was given in accordance
with any applicable requirements of the regulations.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal
Code.
Referral requested: taking action before requested
referral is made
(3) A person commits an offence if:
(a) the person takes an action; and
(b) the Minister, under section 70,
has requested the referral by the person of a proposal to take the
action (or a larger action of which the action is a component) to the Minister;
and
(c) the request has not been revoked;
and
(d) the referral has not been made.
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Division 1A—Decision that action is clearly unacceptable
74B
Application of this Division
(1) This Division applies to the referral of
a proposal to take an action if, within 20 business days after the Minister
receives the referral:
(a) the Minister considers, on the
basis of the information in the referral, that it is clear that the action
would have unacceptable impacts on a matter protected by a provision of Part 3;
and
(b) the Minister decides that this
Division should apply to the referral.
(2) If this Division applies to a referral,
any other provisions of this Chapter that would, apart from this subsection,
have applied to the referral cease to apply to the referral.
(3) Subsection (2) has effect subject to
paragraph 74D(6)(a).
74C
Informing person proposing to take action that action is clearly unacceptable
(1) As soon as practicable after making the
decision under paragraph 74B(1)(b) in relation to a referral, the Minister must
give written notice of the decision to:
(a) the person proposing to take the
action that is the subject of the referral; and
(b) the person who referred the
proposal to the Minister (if that person is not the person proposing to take
the action that is the subject of the referral).
(2) The notice must:
(a) state that the Minister considers
that the action would have unacceptable impacts on a matter protected by a
provision of Part 3; and
(b) set out the reasons for the
Minister’s decision.
(3) After receiving the notice under subsection (1),
the person proposing to take the action may:
(a) withdraw the referral and take no
further action in relation to the proposed action; or
(b) withdraw the referral and refer a
new proposal to take a modified action to the Minister in accordance with
Division 1; or
(c) request the Minister, in writing,
to reconsider the referral.
Note 1: Section 170C sets out the procedure for
withdrawing a referral.
Note 2: A referral of a proposal to take a modified
action will be a new referral for the purposes of this Chapter.
74D
Procedure if Minister is requested to reconsider referral
(1) This section applies if the Minister
receives a request under paragraph 74C(3)(c) to reconsider a referral.
Inviting public comment
(2) The Minister must, within 10 business
days after receiving the request, publish on the Internet:
(a) a notice stating that the Minister
proposes not to approve the taking of the action that is the subject of the
referral; and
(b) the reasons for the Minister’s
decision; and
(c) an invitation for anyone to give
the Secretary, within 10 business days (measured in Canberra), comments in
writing on:
(i) the impacts that the
action would have on a matter protected by a provision of Part 3; and
(ii) the Minister’s
proposal to refuse to approve the taking of the action.
Report about relevant impacts of action
(3) Within 10 business days after the end of
the period for comment under paragraph (2)(c), the Secretary must:
(a) prepare a written report about the
relevant impacts that the action has or will have, or is likely to have, on a
matter protected by a provision of Part 3; and
(b) give the Minister:
(i) the report; and
(ii) a copy of any comments
received by the Secretary within the period for comment.
In preparing the report, the Secretary must have regard to
the comments referred to in subparagraph (b)(ii).
Decision following reconsideration
(4) Within 20 business days after receiving
the report under subsection (3), the Minister must:
(a) if the Minister still considers
that it is clear that the action would have unacceptable impacts on a matter
protected by a provision of Part 3—decide to refuse to approve the taking
of the action; or
(b) decide that the referral is to be
dealt with under the provisions of this Chapter that, because of subsection
74B(2), have ceased to apply to the referral.
(5) If the Minister decides to refuse to
approve the taking of the action, the Minister must, within 10 business days
after making the decision, give notice of the decision to:
(a) the person proposing to take the
action; and
(b) the person who referred the
proposal to the Minister (if that person is not the person proposing to take the
action).
Note: The person proposing to take the action may
request reasons for the refusal and the Minister must give them. See section 13
of the Administrative Decisions (Judicial Review) Act 1977.
(6) If the Minister makes a decision under paragraph (4)(b):
(a) the provisions of this Chapter
that, because of subsection 74B(2), have ceased to apply to the referral start
to apply to the referral; and
(b) for the purposes of the
application of those provisions, a day is not to be counted as a business day
if it is:
(i) on or after the day
the Minister received the referral; and
(ii) on or before the day
the Minister makes the decision under paragraph (4)(b).
Note: If the Minister had already complied with
section 74 in relation to the referral before the Minister made the
decision under paragraph 74B(1)(b) in relation to the referral, the Minister is
not required to comply with section 74 again.
Division 2—Ministerial decision whether action needs approval
75
Does the proposed action need approval?
Is the action a controlled action?
(1) The Minister must decide:
(a) whether the action that is the
subject of a proposal referred to the Minister is a controlled action; and
(b) which provisions of Part 3
(if any) are controlling provisions for the action.
Note: The Minister may revoke a decision made under subsection (1)
about an action and substitute a new decision. See section 78.
(1AA) To avoid doubt, the Minister is not permitted
to make a decision under subsection (1) in relation to an action that was
the subject of a referral that was not accepted under subsection 74A(1).
Minister must consider public comment
(1A) In making a decision under subsection (1)
about the action, the Minister must consider the comments (if any) received:
(a) in response to the invitation
under subsection 74(3) for anyone to give the Minister comments on whether the
action is a controlled action; and
(b) within the period specified in the
invitation.
Considerations in decision
(2) If, when the Minister makes a decision
under subsection (1), it is relevant for the Minister to consider the
impacts of an action:
(a) the Minister must consider all
adverse impacts (if any) the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each
provision of Part 3; and
(b) must not consider any beneficial
impacts the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each
provision of Part 3.
Note: Impact is defined in section 527E.
(2A) For the purposes of subsection (2), if
the provision of Part 3 is subsection 15B(3), 15C(5), 15C(6), 23(1),
24A(1), 26(1) or 27A(1), then the impacts of the action on the matter protected
by that provision are only those impacts that the part of the action that is
taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or
Commonwealth land:
(a) has or will have; or
(b) is likely to have;
on the matter.
(2B) Without otherwise limiting any adverse
impacts that the Minister must consider under paragraph (2)(a), the
Minister must not consider any adverse impacts of:
(a) any RFA forestry operation to
which, under Division 4 of Part 4, Part 3 does not apply; or
(b) any forestry operations in an RFA
region that may, under Division 4 of Part 4, be undertaken without
approval under Part 9.
Designating a proponent of the action
(3) If the Minister decides that the action
is a controlled action, the Minister must designate a person as proponent of
the action.
Consent to designation
(4) The Minister may designate a person who
does not propose to take the action only if:
(a) the person agrees to being
designated; and
(b) the person proposing to take the
action agrees to the designation.
Timing of decision and designation
(5) The Minister must make the decisions
under subsection (1) and, if applicable, the designation under subsection (3),
within 20 business days after the Minister receives the referral of the
proposal to take the action.
Note: If the Minister decides, under subsection
75(1), that the action is a controlled action, the Minister must, unless the
Minister has requested more information under subsection 76(3) or section 89,
decide on the approach to be used for assessment of the relevant impacts of the
action on the same day as the Minister makes the decision under subsection
75(1)—see subsection 88(2).
Time does not run while further information being
sought
(6) If the Minister has requested more
information under subsection 76(1) or (2) for the purposes of making a
decision, a day is not to be counted as a business day for the purposes of subsection (5)
if it is:
(a) on or after the day the Minister
requested the information; and
(b) on or before the day on which the
Minister receives the last of the information requested.
Running of time may be suspended by agreement
(7) The Minister and the person proposing to
take the action may agree in writing that days within a period worked out in
accordance with the agreement are not to be counted as business days for the
purposes of subsection (5). If the agreement is made, those days are not
to be counted for the purposes of that subsection.
76
Minister may request more information for making decisions
(1) If the Minister believes on reasonable
grounds that the referral of a proposal to take an action does not include
enough information for the Minister to decide:
(a) whether the action is a controlled
action; or
(b) which provisions of Part 3
(if any) are controlling provisions for the action;
the Minister may request the person proposing to take the
action to provide specified information relevant to making the decision.
(2) Before the Minister makes the decisions
under subsection 75(1) in relation to the action, the Minister may request the
person proposing to take the action to provide information about whether or not
the action is a component of a larger action that is proposed to be taken by
the person.
(3) If the Minister believes on reasonable
grounds that the information given to the Minister in relation to the action is
not enough to allow the Minister to make an informed decision on the approach
to be used for assessment of the relevant impacts of the action, the Minister
may request the person proposing to take the action to provide specified
information relevant to making the decision.
(4) Without limiting subsection (3), if
the action is to be taken in a State or self‑governing Territory, the
Minister may request the person proposing to take the action to provide
information about:
(a) whether the relevant impacts of
the action have been, or are being, assessed by the State or Territory; and
(b) if so, the method of assessment
that was, or is being, used and what stage the assessment has reached.
(5) The Minister may make a request under subsection (3)
even if the Minister has not yet made the decisions under subsection 75(1) in
relation to the action.
77
Notice and reasons for decision
Giving notice
(1) Within 10 business days after deciding
whether an action that is the subject of a proposal referred to the Minister is
a controlled action or not, the Minister must:
(a) give written notice of the
decision to:
(i) the person proposing
to take the action; and
(ii) if the Minister has
designated as proponent of the action a person who does not propose to take the
action—that person; and
(iii) if the Minister
decided that the action is a controlled action because of Division 1 of
Part 3 (which deals with matters of national environmental
significance)—the appropriate Minister of each State or self‑governing
Territory in which the action is to be taken; and
(b) publish notice of the decision in
accordance with the regulations.
Note 1: Section 156 sets out rules about time
limits.
Note 2: Subparagraph (1)(a)(iii) also applies to
actions to be taken in an area offshore from a State or the Northern Territory.
See section 157.
Notice must identify any applicable controlling
provisions
(2) If the decision is that the action is a
controlled action, the notice must identify each of the controlling provisions.
Reasons for decision
(4) The Minister must give reasons for the
decision to a person who:
(a) has been given the notice; and
(b) within 28 days of being given the
notice, has requested the Minister to provide reasons.
The Minister must do so as soon as practicable, and in any
case within 28 days of receiving the request.
77A
Action to be taken in a particular manner
(1) If, in deciding whether the action is a
controlled action or not, the Minister has made a decision (the component
decision) that a particular provision of Part 3 is not a controlling
provision for the action because the Minister believes it will be taken in a
particular manner, the notice, to be provided under section 77, must set
out the component decision, identifying the provision and the manner.
Note: The Minister may decide that a provision of
Part 3 is not a controlling provision for an action because he or she
believes that the action will be taken in a manner that will ensure the action
will not have (and is not likely to have) an adverse impact on the matter
protected by the provision.
(1A) For the purposes of subsection (1), it
does not matter whether or not the Minister believes that the action will be
taken in accordance with:
(a) an accredited management
arrangement or an accredited authorisation process for the purposes of a
declaration under section 33; or
(b) a bioregional plan to which a
declaration made under section 37A relates; or
(c) a bilaterally accredited
management arrangement or a bilaterally accredited authorisation process for
the purposes of a bilateral agreement.
(2) A person must not take an action, that is
the subject of a notice that includes a particular manner under subsection (1),
in a way that is inconsistent with the manner specified in the notice.
Civil penalty:
(a) for an individual—1,000 penalty
units, or such lower amount as is prescribed by the regulations;
(b) for a body corporate—10,000
penalty units, or such lower amount as is prescribed by the regulations.
Division 3—Reconsideration of decisions
78
Reconsideration of decision
Limited power to vary or substitute decisions
(1) The Minister may revoke a decision (the first
decision) made under subsection 75(1) about an action and substitute a
new decision under that subsection for the first decision, but only if:
(a) the Minister is satisfied that the
revocation and substitution is warranted by the availability of substantial new
information about the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a
provision of Part 3; or
(aa) the Minister is satisfied that the
revocation and substitution is warranted by a substantial change in
circumstances that was not foreseen at the time of the first decision and
relates to the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a
provision of Part 3; or
(b) the following requirements are
met:
(i) the first decision was
that the action was not a controlled action because the Minister believed the
action would be taken in the manner identified under subsection 77A(1) in the
notice given under section 77;
(ii) the Minister is
satisfied that the action is not being, or will not be, taken in the manner
identified; or
(ba) the following requirements are
met:
(i) the first decision was
that the action was not a controlled action because of a provision of a
bilateral agreement and a management arrangement or an authorisation process
that is a bilaterally accredited management arrangement or a bilaterally
accredited authorisation process for the purposes of the agreement;
(ii) the provision of the
agreement no longer operates in relation to the action, or the management
arrangement or authorisation process is no longer in force under, or set out
in, a law of a State or a self‑governing Territory identified in or under
the agreement; or
(c) the following requirements are
met:
(i) the first decision was
that the action was not a controlled action because of a declaration under
section 33 and a management arrangement or an authorisation process that
is an accredited management arrangement or an accredited authorisation process
for the purposes of the declaration;
(ii) the declaration no
longer operates in relation to the action, or the management arrangement or
authorisation process is no longer in operation under, or set out in, a law of
the Commonwealth identified in or under the declaration; or
(ca) the following requirements are
met:
(i) the first decision was
that the action was not a controlled action because of a declaration under
section 37A and a bioregional plan to which the declaration relates;
(ii) the declaration no
longer operates in relation to the action, or the bioregional plan is no longer
in force; or
(d) the Minister is requested under
section 79 to reconsider the decision.
Note 1: Subsection 75(1) provides for decisions about
whether an action is a controlled action and what the controlling provisions
for the action are.
Note 2: A person (other than a Minister of a State or
self‑governing Territory) may request the Minister to reconsider a
decision made under subsection 75(1) about an action on the basis of a matter
referred to in any of paragraphs 78(1)(a) to (ca). See section 78A.
Note 3: If the Minister decides to revoke a decision
under subsection (1) and substitute a new decision for it, the Minister is
not required to carry out the processes referred to in sections 73 and 74
again before making the new decision.
Reversing decision that provision of Part 3 is not
controlling provision
(2) A provision of Part 3 letting an
action be taken if the Minister has decided that a particular provision (the prohibiting
provision) of that Part is not a controlling provision for the action
does not prevent the Minister from acting under subsection (1) to revoke a
decision that the prohibiting provision is not a controlling provision for an
action and substitute a decision that the prohibiting provision is a
controlling provision for the action.
Decision not to be revoked after approval granted or
refused or action taken
(3) The Minister must not revoke the first
decision after:
(a) the Minister has granted or
refused an approval of the taking of the action; or
(b) the action is taken.
General effect of change of decision
(4) When the first decision is revoked and a
new decision is substituted for it:
(a) any provisions of this Chapter
that applied in relation to the action because of the first decision cease to
apply in relation to the action; and
(b) any provisions of this Chapter
that are relevant because of the new decision apply in relation to the action.
Change of designation of proponent
(5) If the Minister believes a person (the first
proponent) designated under section 75 as proponent of an action
is no longer an appropriate person to be the designated proponent of the action,
the Minister may revoke the designation and designate another person (the later
proponent) as proponent of the action.
Consent to designation
(6) The Minister may designate the other
person as proponent of the action only if:
(a) he or she consents to it and the
person proposing to take the action agrees to it; or
(b) the other person is the person
proposing to take the action.
Effect of change of designated proponent
(7) If the Minister revokes the designation
of the first proponent and designates the later proponent:
(a) the provisions of this Chapter
that applied to the first proponent cease to apply to the first proponent in
relation to the action but apply to the later proponent; and
(b) for the purposes of those
provisions the later proponent is taken to have done anything the first
proponent did in relation to the action; and
(c) for the purposes of those
provisions anything done in relation to the first proponent in relation to the
action is taken to have been done in relation to the later proponent.
78A
Request for reconsideration of decision by person other than State or Territory
Minister
(1) A person (other than a Minister of a
State or self‑governing Territory) may request the Minister to reconsider
a decision made under subsection 75(1) about an action on the basis of a matter
referred to in any of paragraphs 78(1)(a) to (ca).
Note: Section 79 deals with requests for
reconsideration by a Minister of a State or self‑governing Territory.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) set out the basis on which the
person thinks the decision should be reconsidered; and
(c) if the regulations specify other
requirements for requests under subsection (1)—comply with those
requirements.
(3) If a request is made under subsection (1)
in relation to a decision that an action is a controlled action, or that
particular provisions are controlling provisions for an action, then:
(a) if the request is made by the
designated proponent of the action—Part 8 ceases to apply in relation to
the action until the Minister makes a decision in relation to the request; but
(b) if the request is made by another
person—the application of Part 8 in relation to the action is not affected
by the making of the request (subject to the outcome of the reconsideration).
(4) If:
(a) because of paragraph (3)(a),
Part 8 has ceased to apply in relation to an action; and
(b) the Minister confirms the decision
that is the subject of the request under subsection (1);
then:
(c) the application of Part 8 in
relation to the action resumes (as does any assessment process under that Part
that had previously commenced in relation to the action); and
(d) for the purposes of the resumed
application of Part 8, a day is not to be counted as a business day if it
is:
(i) on or after the day
the Minister received the request; and
(ii) on or before the day
the Minister confirms the decision.
78B
Minister must inform interested persons of request and invite comments
(1) The Minister (the Environment
Minister) must comply with this section if he or she receives a request
under section 78A to reconsider a decision made under subsection 75(1)
about an action.
Informing designated proponent of request and inviting
comments
(2) If the request is made by a person other
than the designated proponent of the action, the Environment Minister must:
(a) inform the designated proponent of
the request in accordance with subsection (3); and
(b) invite the designated proponent to
give the Environment Minister, within 10 business days, comments on the
request.
(3) For the purpose of paragraph (2)(a),
the Environment Minister must inform the designated proponent of the request by
giving the designated proponent such information relating to the request as the
Minister considers appropriate. The Minister need not (for example) reveal the
identity of the person who made the request.
Inviting other Commonwealth Ministers to provide
information
(4) The Environment Minister must:
(a) inform any other Minister who the
Environment Minister believes has administrative responsibilities relating to
the action of the request; and
(b) invite each Minister informed to
give the Environment Minister, within 10 business days, information about
whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is
applicable in relation to the action.
Inviting comments from appropriate State or Territory
Minister
(5) If the request relates to an action
proposed to be taken in a State or self‑governing Territory and the
Environment Minister thinks the action may have an impact on a matter protected
by a provision of Division 1 of Part 3 (about matters of national
environmental significance), the Environment Minister must:
(a) inform the appropriate Minister of
the State or Territory of the request; and
(b) invite that Minister to give the
Environment Minister, within 10 business days:
(i) comments on whether a
matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in
relation to the action; and
(ii) any other information
that the Minister of the State or Territory considers relevant to the
reconsideration.
Note: Subsection (5) also applies in relation
to a request that relates to an action that is to be taken in an area offshore
from a State or the Northern Territory. See section 157.
Inviting public comment
(6) The Environment Minister must publish on
the Internet:
(a) the request; and
(b) an invitation for anyone to give
the Environment Minister, within 10 business days (measured in Canberra),
comments in writing on whether a matter referred to in any of paragraphs
78(1)(a) to (ca) is applicable in relation to the action.
78C
Minister must reconsider decision and give notice of outcome
Reconsideration of decision
(1) As soon as practicable after the end of
the time within which information or comments may be given under section 78B
in relation to a request under section 78A to reconsider a decision about
an action, the Minister must:
(a) reconsider the decision; and
(b) either:
(i) confirm the decision;
or
(ii) revoke the decision in
accordance with subsection 78(1), and substitute a new decision for it.
Notice of outcome of reconsideration
(2) The Minister must give written notice of
the outcome of the reconsideration to:
(a) the person who requested the
reconsideration; and
(b) the person proposing to take the
action (if that person is not the person referred to in paragraph (a));
and
(c) the designated proponent of the
action (if the designated proponent is not the person referred to in paragraph (a)
or (b)); and
(d) if the reconsideration relates to
an action referred to in subsection 78B(5)—the appropriate Minister of the
State or Territory.
(3) After giving notice as described in subsection (2),
the Minister must publish notice of the outcome of the reconsideration. The
regulations may specify how the publication is to be made. Subject to any such
regulations, the publication must be made in a way the Minister considers
appropriate.
Reasons for outcome of reconsideration
(4) The Minister must give reasons for the
outcome of the reconsideration to a person who:
(a) has been given notice of the
outcome of the reconsideration under paragraph (2)(a), (b) or (c); and
(b) within 28 days after being given
the notice, has requested the Minister to provide reasons.
The Minister must do so as soon as practicable, and in any
case within 28 days after receiving the request.
79
Reconsideration of decision on request by a State or Territory
(1) This section applies if the Minister (the
Environment Minister) has made a decision under subsection 75(1)
about whether a provision of Division 1 of Part 3 is a controlling
provision for an action proposed to be taken in a State or a self‑governing
Territory.
Note 1: Division 1 of Part 3 deals with
requirements for approvals for actions involving matters of national
environmental significance.
Note 2: This section also applies to actions to be
taken in an area offshore from a State or the Northern Territory. See section 157.
(2) Within 10 business days after the
appropriate Minister of the State or Territory is notified of the decision
under subparagraph 77(1)(a)(iii), that Minister may request the Environment
Minister to reconsider the Environment Minister’s decisions made under
subsection 75(1).
(3) Within 20 business days after receiving a
request to reconsider a decision, the Environment Minister must:
(a) reconsider the decision; and
(b) either confirm it or revoke it and
substitute a new decision for it; and
(c) give written notice of the outcome
of the reconsideration and reasons for the outcome to:
(i) the Minister who
requested the reconsideration; and
(ii) the person proposing
to take the action; and
(iii) the designated
proponent of the action; and
(d) after giving notice as described
in paragraph (c), publish notice of the outcome and the reasons for it in
accordance with the regulations.
Note: Section 156 sets out rules about time
limits.
Part 8—Assessing impacts of controlled actions
Division 1—Simplified outline of this Part
80
Simplified outline of this Part
The following is a simplified outline of
this Part:
This Part provides for the assessment
of impacts of controlled actions, to provide information for decisions whether
or not to approve the taking of the actions. However, this Part does not apply
to actions that a bilateral agreement or Ministerial declaration says are to be
assessed in another way.
For actions that are to be assessed
under this Part, the Minister must choose one of the following methods of
assessment:
(a) an
accredited assessment process;
(aa) an assessment
on referral information (see Division 3A);
(b) an
assessment on preliminary documentation (see Division 4);
(c) a public
environment report (see Division 5);
(d) an
environmental impact statement (see Division 6);
(e) a public inquiry
(see Division 7).
Division 2—Application of this Part
81
Application
(1) This Part applies to the assessment of
the relevant impacts of an action that the Minister has decided under Division 2
of Part 7 is a controlled action.
(2) This section has effect subject to
sections 83 and 84.
(3) This section does not limit section 82.
82
What are the relevant impacts of an action?
If the Minister has decided the action is a controlled
action
(1) If the Minister has decided under
Division 2 of Part 7 that an action is a controlled action, the relevant
impacts of the action are the impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3
that the Minister has decided under that Division is a controlling provision
for the action.
If the Minister has not decided whether the action is
controlled
(2) If an action is a controlled action or
would be apart from Division 1, 2, 3 or 3A of Part 4 (which provide
that approval under Part 9 is not needed for an action covered by a
bilateral agreement or declaration)—the relevant impacts of the
action are impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3
that is a controlling provision for the action or would be apart from whichever
of those Divisions is relevant.
Relationship between subsections (1) and (2)
(3) Subsection (1)
has effect despite subsection (2).
(4) For the purposes of subsections (1)
and (2), if subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 26(1) or 27A(1)
is, or would be, a controlling provision for the action, then the impacts of
the action on the matter protected by that provision are only those impacts
that the part of the action that is taken in or on a Commonwealth area, a
Territory, a Commonwealth marine area or Commonwealth land:
(a) has or will have; or
(b) is likely to have;
on the matter.
83
This Part does not apply if action covered by bilateral agreement
(1) This Part does not apply in relation to
an action if:
(a) the action is to be taken in a
State or self‑governing Territory; and
(b) a bilateral agreement between the
Commonwealth and the State or Territory declares that actions in a class that
includes the action need not be assessed under this Part; and
(c) the provision of the bilateral
agreement making the declaration is in operation in relation to the action.
Note 1: Subsection (1) also applies to actions to
be taken in an area offshore from a State or the Northern Territory. See
section 157.
Note 2: Section 47 deals with bilateral agreements
making declarations described in paragraph (1)(b).
Note 2A: An action will be in a class of actions declared
not to need assessment under this Part only if the action has been assessed in
a manner specified in the bilateral agreement.
Note 3: Division 3 of Part 5 explains how the
operation of a bilateral agreement may be ended or suspended. Also, under
section 49, bilateral agreements do not operate in relation to actions in
Commonwealth areas, or actions taken by the Commonwealth or a Commonwealth
agency, unless they expressly provide that they do.
(2) If the action is to be taken in 2 or more
States or self‑governing Territories, this section does not operate
unless it operates in relation to each of those States or Territories.
84
This Part does not apply if action covered by declaration
When this Part does not apply
(1) This Part does not apply in relation to
an action if:
(a) the Minister has declared in
writing that actions in a class that includes the action need not be assessed
under this Part; and
(b) the
declaration is in operation.
Note: An action will be in a class of actions
declared not to need assessment under this Part only if the action has been
assessed in a manner specified in the declaration.
Declaration
(2) The Minister may declare in writing that
actions in a specified class of actions assessed by the Commonwealth or a
Commonwealth agency in a specified manner do not require assessment under this
Part.
Prerequisites for making a declaration
(3) The Minister may make a declaration only
if he or she is satisfied that:
(a) assessment of an action in the
specified manner will include assessment of the impacts the action:
(i) has or will have; or
(ii) is likely to have;
on each matter protected by a
provision of Part 3; and
(b) the specified manner of assessment
meets the standards (if any) prescribed by the regulations; and
(c) if the taking of an action
assessed in the specified manner must be approved under Part 9, he or she
will receive a report including, or accompanied by, enough information about
the relevant impacts of the action to let him or her make an informed decision
whether or not to approve under Part 9 (for the purpose of each
controlling provision) the taking of the action.
Further requirements for making a declaration
(3A) Sections 34A, 34B, 34BA, 34C, 34D, 34E
and 34F apply in relation to the making of a declaration under this section in
the same way that they apply to the making of a declaration under section 33.
Specified manner of assessment
(4) The manner of assessment that may be
specified in a declaration includes assessment by a Commonwealth agency under a
law of the Commonwealth. This does not limit subsection (2).
Publishing declaration
(5) The Minister must publish a declaration
in accordance with the regulations.
Revoking declaration
(6) The Minister may, by instrument in
writing published in accordance with the regulations, revoke a declaration.
Minister must not give preference
(7) In making or revoking a declaration
relating to an action taken:
(a) by a person for the purposes of
trade between Australia and another country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning
of section 99 of the Constitution) to one State or part of a State over
another State or part of a State.
Division 3—Decision on assessment approach
Subdivision A—Simplified outline of this Division
85
Simplified outline of this Division
The following is a simplified outline of
this Division:
The Minister must choose one of the
following ways of assessing the relevant impacts of an action the Minister has
decided is a controlled action:
(a) an
accredited assessment process;
(aa) an assessment
on referral information;
(b) an
assessment on preliminary documentation;
(c) a public
environment report;
(d) an
environmental impact statement;
(e) a public
inquiry.
Subdivision B—Deciding on approach for assessment
87
Minister must decide on approach for assessment
Minister must choose one assessment approach
(1) The Minister must decide which one of the
following approaches must be used for assessment of the relevant impacts of an
action that the Minister has decided is a controlled action:
(a) assessment by an accredited
assessment process;
(aa) assessment on referral information
under Division 3A;
(b) assessment on preliminary
documentation under Division 4;
(c) assessment by public environment
report under Division 5;
(d) assessment by environmental impact
statement under Division 6;
(e) assessment by inquiry under
Division 7.
Considerations in making choice
(3) In making the decision, the Minister must
consider:
(a) information relating to the action
given to the Minister in the referral of the proposal to take the action; and
(b) any other information available to
the Minister about the relevant impacts of the action that the Minister
considers relevant (including information in a report on the impacts of actions
under a policy, plan or program under which the action is to be taken that was
given to the Minister under an agreement under Part 10 (about strategic
assessments)); and
(c) any relevant information received
in response to an invitation under subparagraph 74(2)(b)(ii); and
(d) the matters (if any) prescribed by
the regulations; and
(e) the guidelines (if any) published
under subsection (6).
Accredited assessment process
(4) The Minister may decide on an assessment
by an accredited assessment process only if the Minister is satisfied that:
(a) the process is to be carried out
under a law of the Commonwealth, a State or a self‑governing Territory;
and
(b) the process and the law meet the
standards (if any) prescribed by the regulations; and
(c) the process will ensure that the
relevant impacts of the action are adequately assessed; and
(d) he or she will receive a report of
the outcome of the process that will provide enough information on the relevant
impacts of the action to let him or her make an informed decision whether or
not to approve under Part 9 (for the purposes of each controlling
provision) the taking of the action.
Assessment on referral information
(4A) The Minister may decide on an assessment on
referral information under Division 3A only if the Minister is satisfied
(after considering the matters in subsection (3)) that the action meets
the criteria prescribed in the regulations for the purposes of this subsection.
Assessment on preliminary documentation
(5) The Minister may decide on an assessment
on preliminary documentation under Division 4 only if the Minister is
satisfied (after considering the matters in subsection (3)) that that
approach will allow the Minister to make an informed decision whether or not to
approve under Part 9 (for the purposes of each controlling provision) the
taking of the action.
Guidelines for choosing assessment approach
(6) The Minister may publish in the Gazette
guidelines setting out criteria for deciding which approach must be used for
assessing the relevant impacts of an action.
88
Timing of decision on assessment approach
Initial decision
(1) The Minister must decide on the approach
to be used for assessment of the relevant impacts of the action within 20
business days after the Minister receives the referral of the proposal to take
the action.
Note: Section 156 sets out rules about time
limits.
When initial decision must be made
(2) The Minister must make the decision under
subsection (1) on the same day as the Minister has decided, under
subsection 75(1), that the action is a controlled action, unless the Minister
has requested more information under subsection 76(3) or section 89 for
the purposes of deciding on the approach to be used for assessment of the
relevant impacts of the action.
Time does not run while further information sought
(4) If the Minister has requested more
information in relation to the action under subsection 76(1), (2) or (3) or
section 89, a day is not to be counted as a business day for the purposes
of subsection (1) if it is:
(a) on or after the day the Minister
requested the information; and
(b) on or before the day on which the
Minister receives the last of the information requested.
Running of time may be suspended by agreement
(5) The Minister and the designated proponent
of the action may agree in writing that days within a period worked out in
accordance with the agreement are not to be counted as business days for the
purposes of subsection (1). If the agreement is made, those days are not
to be counted for the purposes of that subsection.
89
Minister may request more information for making decision
(1) If the Minister believes on reasonable
grounds that the information given to the Minister in relation to an action is
not enough to allow the Minister to make an informed decision on the approach
to be used for assessment of the relevant impacts of the action, the Minister
may request the designated proponent to provide specified information relevant
to making the decision.
(2) Without limiting subsection (1), if
the action is to be taken in a State or self‑governing Territory, the
Minister may request the designated proponent of the action to provide
information about:
(a) whether the relevant impacts of
the action have been, or are being, assessed by the State or Territory; and
(b) if so, the method of assessment
that was, or is being, used and what stage the assessment has reached.
(3) The Minister may make a request in
relation to an action under this section even if the Minister has made a
request under subsection 76(3) in relation to the action.
90
Directing an inquiry after starting an assessment
Application
(1) This section applies if:
(a) the Minister has made a decision
(the first decision) under section 87 that the relevant
impacts of an action must be assessed by:
(i) assessment by public
environment report under Division 5; or
(ii) assessment by
environmental impact statement under Division 6; and
(b) the designated proponent
publishes:
(i) a draft report under
section 98 (about public environment reports); or
(ii) a draft statement
under section 103 (about environmental impact statements).
Revoking and substituting decision
(2) The Minister may revoke the first
decision and make another decision (the new decision) under
section 87 (in substitution for the first decision) that the relevant
impacts of the action must be assessed by an inquiry under Division 7.
Effect of revocation and substitution
(3) When the first decision is revoked and
the new decision is substituted for it:
(a) whichever of Divisions 5 and
6 applied in relation to the action because of the first decision ceases to
apply in relation to the action; and
(b) Division 7 applies in
relation to the action.
91
Notice of decision on assessment approach
(1) Within 10 business days after making a
decision on the approach to be used for assessment of the relevant impacts of
an action, the Minister must:
(a) give written notice of the
decision to:
(i) the person proposing
to take the action; and
(ia) the designated
proponent of the action (if the designated proponent is not the person
proposing to take the action); and
(ii) if the action is to be
taken in a State or self‑governing Territory and a controlling provision
for the action is in Division 1 of Part 3 (which deals with matters
of national environmental significance)—the appropriate Minister of the State
or Territory; and
(b) publish notice of the decision in
accordance with the regulations.
Note 1: Section 156 sets out rules about time
limits.
Note 2: Subparagraph (1)(a)(ii) also applies to
actions to be taken in an area offshore from a State or the Northern Territory.
See section 157.
(2) If the Minister decided that the relevant
impacts of the action are to be assessed by an accredited assessment process,
the written notice and the published notice must specify the process.
Division 3A—Assessment on referral information
92
Application of this Division
This Division applies in relation to an
action if the Minister has decided under section 87 that the relevant
impacts of the action must be assessed by assessment on referral information
under this Division.
93
Recommendation report
(1) The Secretary must comply with this
section within 30 business days after the Minister makes the decision under
section 87.
(2) The Secretary must prepare a draft
recommendation report that includes recommendations on:
(a) whether the taking of the action
should be approved under Part 9; and
(b) if approval is recommended, any
conditions that should be attached to the approval.
(3) The Secretary must publish on the
Internet:
(a) the draft recommendation report;
and
(b) an invitation for anyone to give
the Secretary, within 10 business days (measured in Canberra), comments in
writing relating to the draft recommendation report or the action.
(3A) The Secretary may refuse to publish on the
Internet, under subsection (3), so much of the draft recommendation report
as:
(a) is an exempt document under the Freedom
of Information Act 1982 on the grounds of the security of the Commonwealth
or its providing advice to the Minister; or
(b) the Secretary is satisfied is
commercial‑in‑confidence.
(3B) The Secretary must not be satisfied that a
part of the draft recommendation report is commercial‑in‑confidence
unless a person demonstrates to the Secretary that:
(a) release of the information in that
part would cause competitive detriment to the person; and
(b) the information in that part is
not in the public domain; and
(c) the information in that part is
not required to be disclosed under another law of the Commonwealth, a State or
a Territory; and
(d) the information in that part is
not readily discoverable.
(4) After the end of the period for comment,
the Secretary must finalise the draft recommendation report, taking account of
any comments received within that period.
(5) As soon as practicable after finalising
the draft recommendation report, the Secretary must give the Minister:
(a) the finalised recommendation
report; and
(b) either:
(i) a copy of any comments
received within the period for comment; or
(ii) if no comments were
received within that period—a written statement to that effect.
Division 4—Assessment on preliminary documentation
94
Application of this Division
This Division applies in relation to an
action if the Minister has decided under section 87 that the relevant
impacts of the action must be assessed by assessment on preliminary
documentation under this Division.
95
Direction to publish referral information and invitation to comment—no further
information required
(1) This section applies if the Minister was
satisfied, at the time of making the decision (the assessment approach
decision) under section 87, that the Minister had enough
information in relation to the action to allow the Minister to assess the
relevant impacts of the action.
(2) At the same time as the Minister gives
notice of the assessment approach decision to the designated proponent of the
action under paragraph 91(1)(a), the Minister must give the designated
proponent a written direction to publish, within the period specified in the
direction (not being less than 10 business days), in accordance with the
regulations:
(a) specified information included in
the referral to the Minister of the proposal to take the action; and
(b) specified information relating to the
action that was given to the Minister after the referral but before the
Minister made the assessment approach decision; and
(c) an invitation for anyone to give
the designated proponent, within the period specified in the direction,
comments in writing relating to the information or the action.
(3) The designated proponent must comply with
the direction.
Note: If the designated proponent does not comply
with the direction, the Minister may take action under section 155.
(4) A direction given under subsection (2)
is not a legislative instrument.
95A
Direction to publish referral information and invitation to comment—further
information required
(1) This section applies if the Minister was
not satisfied, at the time of making the decision (the assessment
approach decision) under section 87, that the Minister had enough
information in relation to the action to allow the Minister to assess the
relevant impacts of the action.
(2) Within 10 business days after the
Minister gives notice of the assessment approach decision to the designated
proponent of the action under paragraph 91(1)(a), the Minister must request the
designated proponent to give the Minister specified information relevant to
assessing the relevant impacts of the action, including information about
strategies for mitigating any adverse impacts.
(3) Within 10 business days after receiving
the information requested under subsection (2), the Minister must give the
designated proponent a written direction to publish, within the period
specified in the direction (not being less than 10 business days), in
accordance with the regulations:
(a) specified information included in
the referral to the Minister of the proposal to take the action; and
(b) specified information relating to
the action that was given to the Minister after the referral but before the
Minister made the assessment approach decision; and
(c) specified information relating to
the action that was received in response to the Minister’s request under subsection (2);
and
(d) an invitation for anyone to give
the designated proponent, within the period specified in the direction,
comments in writing relating to the information or the action.
(4) The designated proponent must comply with
the direction.
Note: If the designated proponent does not comply
with the direction, the Minister may take action under section 155.
(5) A direction given under subsection (3)
is not a legislative instrument.
95B
Procedure after end of period for comment
Procedure if comments are received
(1) If comments are received by the
designated proponent within the period for comment, the designated proponent
must, as soon as practicable after the end of that period:
(a) prepare a document that:
(i) sets out the
information given to the Minister previously in relation to the action, with
any changes or additions needed to take account of the comments; and
(ii) contains a summary of
the comments received and how those comments have been addressed; and
(b) give the Minister:
(i) a copy of the document
prepared under paragraph (a); and
(ii) a copy of the comments
received.
(2) Within 10 business days after the
designated proponent has given the Minister the documents referred to in paragraph (1)(b),
the designated proponent must publish, in accordance with the regulations, a
copy of the document prepared under paragraph (1)(a).
Procedure if no comments are received
(3) If no comments are received by the
designated proponent within the period for comment, the designated proponent
must, as soon as practicable after the end of that period, give the Minister a
written statement to that effect.
(4) Within 10 business days after the
designated proponent has given the Minister the statement referred to in subsection (3),
the designated proponent must publish, in accordance with the regulations, a
copy of the information referred to in paragraphs 95(2)(a) and (b) or
95A(3)(a), (b) and (c), as the case requires.
Definition
(5) In this section:
period for comment means the period within
which comments may be given under 95(2)(c) or 95A(3)(d), as the case requires.
95C
Recommendation report
(1) The Secretary must prepare, and give to
the Minister, a recommendation report relating to the action. The report must
include recommendations on:
(a) whether the taking of the action
should be approved under Part 9; and
(b) if approval is recommended, any
conditions that should be attached to the approval.
(2) The recommendation report must be given
to the Minister after the Minister receives the documents under subsection 95B(1)
or the statement under subsection 95B(3), as the case requires, and before the
end of the period applicable under paragraph 130(1B)(c) in relation to the
action.
Note: This is the period within which the Minister
must decide whether or not to approve the taking of the action.
Division 5—Public environment reports
96
Application
This Division applies in relation to an
action if the Minister has decided under section 87 that the relevant
impacts of the action must be assessed by a public environment report under
this Division.
96A
Minister must give designated proponent written guidelines for preparation of
draft public environment report
(1) The Minister must give the designated
proponent of the action written guidelines for the preparation of a draft
public environment report about the relevant impacts of the action. The
guidelines so given are referred to as the PER guidelines.
(2) The PER guidelines must be:
(a) one or more sets of standard
guidelines prepared under section 96B that the Minister decides are
appropriate for the preparation of the draft report in relation to the action;
or
(b) if the Minister decides that
standard guidelines are not appropriate for the preparation of the draft report
in relation to the action—tailored guidelines prepared under section 97.
(3) In deciding whether one or more sets of
standard guidelines are appropriate for the preparation of the draft report in
relation to the action, the Minister must seek to ensure that the draft report,
if prepared in accordance with those guidelines, will:
(a) contain enough information about
the action and its relevant impacts to allow the Minister to make an informed
decision whether or not to approve under Part 9 (for the purposes of each
controlling provision) the taking of the action; and
(b) address the matters (if any)
prescribed by the regulations.
Note: Similar considerations apply in relation to
tailored guidelines: see subsection 97(2).
(4) The Minister must give the PER guidelines
to the designated proponent:
(a) within 20 business days after the
assessment approach decision was made under section 87; or
(b) if the Minister, under section 97,
invites a person to comment on a draft of tailored guidelines for the
preparation of the draft report within a specified period—within 20 business
days after:
(i) the end of that
period; or
(ii) if there is more than
one such period, the end of the later or latest of those periods.
96B
Standard guidelines
(1) The Minister may prepare one or more sets
of standard guidelines, in writing, for the preparation of draft public
environment reports about the relevant impacts of actions.
Note: See also subsection 96A(3).
(2) A set of standard guidelines must set out
requirements for the content and presentation of draft public environment
reports about the relevant impacts of actions.
(3) Without limiting subsections (1) and
(2), a set of standard guidelines may relate to:
(a) actions that are proposed to be
taken by a specified industry sector; or
(b) actions for which a specified
provision of Part 3 is a controlling provision.
(4) A set of standard guidelines made under
this section is not a legislative instrument.
97 Tailored
guidelines
(1) The Minister must prepare tailored
guidelines, in writing, for the preparation of a draft public environment
report about the relevant impacts of an action if the Minister decides that
standard guidelines are not appropriate for the preparation of the draft report
in relation to that action.
(1A) Tailored guidelines must set out requirements
for the content and presentation of the draft report in relation to the action.
(2) In preparing tailored guidelines, the
Minister must seek to ensure that the draft report will:
(a) contain enough information about
the action and its relevant impacts to allow the Minister to make an informed
decision whether or not to approve under Part 9 (for the purposes of each
controlling provision) the taking of the action; and
(b) address the matters (if any)
prescribed by the regulations.
(3) Tailored guidelines may also provide for
the draft report to include information about other certain and likely impacts
of the action if:
(a) the action is to be taken in a
State or self‑governing Territory; and
(b) the appropriate Minister of the
State or Territory has asked the Minister administering this section to ensure
that the draft report includes information about those other impacts to help
the State or Territory, or an agency of the State or Territory, make decisions
about the action; and
(c) the action:
(i) is to be taken by any
person for the purposes of trade or commerce between Australia and another
country, between 2 States, between a State and a Territory or between 2
Territories or by a constitutional corporation; or
(ii) is an action whose
regulation is appropriate and adapted to give effect to Australia’s obligations
under an agreement with one or more other countries.
Note: Paragraph (3)(a) also applies to actions
to be taken in an area offshore from a State or the Northern Territory. See
section 157.
(4) Division 2 does not limit:
(a) subsection (3); or
(b) section 98 so far as it
relates to tailored guidelines prepared in reliance on that subsection.
(5) In preparing tailored guidelines, the
Minister may:
(a) invite anyone to comment on a draft
of tailored guidelines within a period specified by the Minister; and
(b) take account of the comments
received (if any).
(6) Tailored guidelines made under this
section are not a legislative instrument.
98
Designated proponent must invite comment on draft public environment report
Designated proponent’s obligations
(1) The designated proponent of the action
must:
(a) prepare a draft public environment
report in accordance with the PER guidelines about:
(i) the relevant impacts
of the action; and
(ii) if the PER guidelines
are tailored guidelines that require the draft report to include information
about other impacts—those other impacts; and
(ab) give the draft report to the
Minister; and
(b) obtain the Minister’s approval for
publication of the draft report; and
(c) publish in accordance with the
regulations:
(i) the draft report; and
(ii) an invitation for
anyone to give the designated proponent comments in writing relating to the
draft report or the action within the period specified in the invitation.
Approval of publication of draft report
(2) The Minister may only approve the
publication of the draft report if he or she is satisfied that the draft report
is in accordance with the PER guidelines.
Period for comment
(3) The period specified in the invitation to
comment must be the period specified in writing given by the Minister to the
designated proponent. The Minister must not specify a period of less than 20
business days.
99
Finalising public environment report
(1) After the end of the period specified in
the invitation to comment under section 98, the designated proponent must
finalise the draft public environment report.
(2) The
finalised report must:
(a) take account of any comments
received within the period for comment; and
(b) contain a summary of any such
comments and how those comments have been addressed.
(3) As soon as practicable after finalising
the draft report, the designated proponent must give the Minister:
(a) the finalised report; and
(b) either:
(i) a copy of any comments
received within the period for comment; or
(ii) if no comments were
received within that period—a written statement to that effect.
(4) Within 10 business days after the
designated proponent has given the Minister the documents required under subsection (3),
the designated proponent must publish the finalised report in accordance with
the regulations.
100
Recommendation report
(1) The Secretary must prepare, and give to
the Minister, a recommendation report relating to the action. The report must
include recommendations on:
(a) whether the taking of the action
should be approved under Part 9; and
(b) if approval is recommended, any
conditions that should be attached to the approval.
(2) The recommendation report must be given
to the Minister after the Minister receives the finalised public environment
report under section 99 and before the end of the period applicable under
paragraph 130(1B)(d) in relation to the action.
Note: This is the period within which the Minister
must decide whether or not to approve the taking of the action.
Division 6—Environmental impact statements
101
Application
This Division applies in relation to an
action if the Minister has decided under section 87 that the relevant
impacts of the action must be assessed by an environmental impact statement
under this Division.
101A
Minister must give designated proponent written guidelines for preparation of
draft environmental impact statement
(1) The Minister must give the designated
proponent of the action written guidelines for the preparation of a draft
environmental impact statement about the relevant impacts of the action. The
guidelines so given are referred to as the EIS guidelines.
(2) The EIS guidelines must be:
(a) one or more sets of standard
guidelines prepared under section 101B that the Minister decides are
appropriate for the preparation of the draft statement in relation to the
action; or
(b) if the Minister decides that
standard guidelines are not appropriate for the preparation of the draft statement
in relation to the action—tailored guidelines prepared under section 102.
(3) In deciding whether one or more sets of
standard guidelines are appropriate for the preparation of the draft statement
in relation to the action, the Minister must seek to ensure that the draft
statement, if prepared in accordance with those guidelines, will:
(a) contain enough information about
the action and its relevant impacts to allow the Minister to make an informed
decision whether or not to approve under Part 9 (for the purposes of each
controlling provision) the taking of the action; and
(b) address the matters (if any)
prescribed by the regulations.
Note: Similar considerations apply in relation to
tailored guidelines: see subsection 102(2).
(4) The Minister must give the EIS guidelines
to the designated proponent:
(a) within 20 business days after the
assessment approach decision was made under section 87; or
(b) if the Minister, under section 102,
invites a person to comment on a draft of tailored guidelines for the
preparation of the draft statement within a specified period—within 20 business
days after:
(i) the end of that
period; or
(ii) if there is more than
one such period, the end of the later or latest of those periods.
101B
Standard guidelines
(1) The Minister may prepare one or more sets
of standard guidelines, in writing, for the preparation of draft environmental
impact statements about the relevant impacts of actions.
Note: See also subsection 101A(3).
(2) A set of standard guidelines must set out
requirements for the content and presentation of draft environmental impact
statements about the relevant impacts of actions.
(3) Without limiting subsections (1) and
(2), a set of standard guidelines may relate to:
(a) actions that are proposed to be
taken by a specified industry sector; or
(b) actions for which a specified
provision of Part 3 is a controlling provision.
(4) A set of standard guidelines made under
this section is not a legislative instrument.
102 Tailored
guidelines
(1) The Minister must prepare tailored
guidelines, in writing, for the preparation of a draft environmental impact
statement about the relevant impacts of an action if the Minister decides that
standard guidelines are not appropriate for the preparation of the draft statement
in relation to that action.
(1A) Tailored guidelines must set out
requirements for the content and presentation of the draft statement in
relation to the action.
(2) In preparing tailored guidelines, the
Minister must seek to ensure that the draft statement will:
(a) contain enough information about
the action and its relevant impacts to allow the Minister to make an informed
decision whether or not to approve under Part 9 (for the purposes of each
controlling provision) the taking of the action; and
(b) address any matters specified by
the regulations.
(3) Tailored guidelines may also provide for
the draft statement to include information about other certain and likely
impacts of an action if:
(a) the action is to be taken in a
State or self‑governing Territory; and
(b) the appropriate Minister of the
State or Territory has asked the Minister administering this section to ensure
that the draft statement includes information about those other impacts to help
the State or Territory, or an agency of the State or Territory, make decisions
about the action; and
(c) the action:
(i) is to be taken by any
person for the purposes of trade or commerce between Australia and another
country, between 2 States, between a State and a Territory or between 2
Territories or by a constitutional corporation; or
(ii) is an action whose
regulation is appropriate and adapted to give effect to Australia’s obligations
under an agreement with one or more other countries.
Note: Paragraph (3)(a) also applies to actions
to be taken in an area offshore from a State or the Northern Territory. See
section 157.
(4) Division 2 does not limit:
(a) subsection (3); or
(b) section 103 so far as it
relates to tailored guidelines prepared in reliance on that subsection.
(5) In preparing tailored guidelines, the
Minister may:
(a) invite anyone to comment on a
draft of tailored guidelines within a period specified by the Minister; and
(b) take account of the comments (if
any) received.
(6) Tailored guidelines made under this section
are not a legislative instrument.
103
Designated proponent must invite comment on draft environmental impact
statement
Designated proponent’s obligations
(1) The designated proponent of the action
must:
(a) prepare a draft environmental
impact statement in accordance with the EIS guidelines about:
(i) the relevant impacts
of the action; and
(ii) if the EIS guidelines
are tailored guidelines that require the draft statement to include information
about other impacts—those other impacts; and
(ab) give the draft statement to the
Minister; and
(b) obtain the Minister’s approval for
publication of the draft statement; and
(c) publish in accordance with the
regulations:
(i) the draft statement;
and
(ii) an invitation for
anyone to give the designated proponent comments in writing relating to the
draft statement or the action within the period specified in the invitation.
Approval of publication of draft statement
(2) The Minister may only approve the
publication of the draft statement if he or she is satisfied that the draft
statement is in accordance with the EIS guidelines.
Period for comment
(3) The period specified in the invitation to
comment must be the period specified in writing given by the Minister to the
designated proponent. The Minister must not specify a period of less than 20
business days.
104
Finalising environmental impact statement
(1) After the end of the period specified in
the invitation to comment under section 103, the designated proponent must
finalise the draft environmental impact statement.
(2) The finalised statement must:
(a) take account of any comments
received within the period for comment; and
(b) contain a summary of any such
comments and how those comments have been addressed.
(3) As soon as practicable after finalising
the draft statement, the designated proponent must give the Minister:
(a) the finalised statement; and
(b) either:
(i) a copy of any comments
received within the period for comment; or
(ii) if no comments were
received within that period—a written statement to that effect.
(4) Within 10 business days after the
designated proponent has given the Minister the documents required under subsection (3),
the designated proponent must publish the finalised statement in accordance
with the regulations.
105
Recommendation report
(1) The Secretary must prepare, and give to
the Minister, a recommendation report relating to the action. The report must
include recommendations on:
(a) whether the taking of the action
should be approved under Part 9; and
(b) if approval is recommended, any
conditions that should be attached to the approval.
(2) The recommendation report must be given
to the Minister after the Minister receives the finalised environmental impact
statement under section 104 and before the end of the period applicable
under paragraph 130(1B)(d) in relation to the action.
Note: This is the period within which the Minister
must decide whether or not to approve the taking of the action.
Division 7—Inquiries
Subdivision A—Preliminary
106 Simplified
outline
The following is a simplified outline of
this Division:
This Division provides for the
Minister to appoint commissions to carry out inquiries in a flexible way into
the impacts of actions.
Commissioners have powers to call
witnesses, obtain documents and inspect places for the purposes of their
inquiries.
Commissioners must report to the
Minister and publish their reports.
Subdivision B—Establishment of inquiries
107
Appointing commissioners and setting terms of reference
(1) If the Minister decides that the relevant
impacts of an action must be assessed by inquiry under this Division, the
Minister must:
(a) appoint in writing one or more
persons (the commissioners) as a commission to conduct the
inquiry and report to the Minister in relation to the action; and
(b) specify in writing (the terms
of reference):
(i) the matters relating
to the action that are to be the subject of the inquiry and report; and
(ii) the period within
which the commission must report to the Minister.
Note 1: The Minister may revoke an appointment and
amend terms of reference. See subsection 33(3) of the Acts Interpretation
Act 1901.
Note 2: Subdivision E contains more provisions about
the basis on which a commissioner holds office.
(2) If the Minister appoints 2 or more
commissioners for an inquiry, the Minister must appoint one of them to preside
at the inquiry.
(3) In specifying in the terms of reference
the matters relating to the action that are to be the subject of the inquiry
and report, the Minister:
(a) must specify the relevant impacts
of the action; and
(b) may specify other certain or
likely impacts of the action.
(4) However, the Minister may specify other
certain or likely impacts of the action only if:
(a) the action is to be taken in a
State or self‑governing Territory; and
(b) the appropriate Minister of the
State or Territory has asked the Minister administering this section to ensure
that the inquiry reports on those other impacts to help the State or Territory,
or an agency of the State or Territory, make decisions about the action; and
(c) the action:
(i) is to be taken by any
person for the purposes of trade or commerce between Australia and another
country, between 2 States, between a State and a Territory or between 2
Territories or by a constitutional corporation; or
(ii) is an action whose
regulation is appropriate and adapted to give effect to Australia’s obligations
under an agreement with one or more other countries.
Note: Paragraph (4)(a) also applies to actions
to be taken in an area offshore from a State or the Northern Territory. See
section 157.
(5) The Minister may also specify in the
terms of reference the manner in which the commission is to carry out the
inquiry.
108
Publicising inquiry
(1) As soon as practicable, the commission
must publish in accordance with the regulations and in any other way it thinks
fit:
(a) the terms of reference; and
(b) the information relating to the
action given to the Minister under this Chapter before the Minister made the
decision under Division 3 to use an inquiry to assess the relevant impacts
of the action.
(2) The commission need not publish the
information described in paragraph (1)(b) if, before the Minister
appointed the commission, the designated proponent of the action published:
(a) a draft report under section 98
(which deals with draft public environment reports); or
(b) a draft statement under section 103
(which deals with draft environmental impact statements).
However, in this case the commission must publish as
described in subsection (1) notice of the fact that the draft report or
draft statement has already been published.
Subdivision C—Conduct of inquiries
109
Procedure of inquiries
(1) A commission must comply with the terms
of reference in conducting its inquiry.
(2) Subject to this Division, a commission:
(a) may determine the procedure to be
followed in its inquiry; and
(b) is not subject to any directions
by an employee of the Commonwealth or by a Commonwealth agency; and
(c) is not bound by the rules of evidence.
110
Inquiry to be public
(1) A hearing held as part of an inquiry must
be conducted in public, except so far as the commission directs otherwise.
(2) The commission must make publicly
available (in any way the commission thinks fit) the content of any submission
or evidence given to the commission in writing, except so far as the commission
directs otherwise.
(3) If the commission believes that it is
desirable in the public interest, the commission may:
(a) give directions that all or part
of the inquiry be held in private, specifying the persons who may be present;
and
(b) give directions prohibiting or
restricting the publication of all or specified passages of submissions or
evidence given to the commission orally or in writing.
111
Calling witnesses
Summoning witnesses
(1) A commissioner may, by writing signed by
the commissioner, summon a person to appear before the commission at a time and
place specified in the summons to give evidence and produce any documents
mentioned in the summons.
Failure of witness to attend
(2) A person served with a summons to appear
as a witness at an inquiry by a commission must not:
(a) fail to attend as required by the
summons; or
(b) fail to appear and report from day
to day unless excused or released from further attendance by or on behalf of
the commission.
Note: A defendant bears an evidential burden in
relation to the excuse or release from further attendance mentioned in paragraph (2)(b).
See subsection 13.3(3) of the Criminal Code.
Offence
(3) A person who contravenes subsection (2)
is guilty of an offence punishable on conviction by imprisonment for not more
than 6 months, a fine of not more than 30 penalty units, or both.
Allowances for witnesses
(4) A person summoned by a commission to
appear as a witness at an inquiry is entitled to be paid by the Commonwealth
such allowances for travelling and other expenses as are prescribed by the
regulations.
112
Dealing with witnesses
Power to administer oath or affirmation
(1) A commissioner may administer an oath or
affirmation to a person appearing as a witness before the commission.
Note: This means that proceedings before the
commission are judicial proceedings for the purposes of Part III
of the Crimes Act 1914, which creates various offences relating to
judicial proceedings.
Refusal to be sworn or to answer questions
(2) A person appearing as a witness at an
inquiry by a commission must not:
(a) refuse or fail to be sworn or to
make an affirmation; or
(b) refuse or fail to answer a
question that the person is required to answer by the commissioner (or the
commissioner presiding at the inquiry if there is more than one commissioner
for the inquiry); or
(c) refuse or fail to produce a
document that the person was required to produce by a summons served on the
person.
Offence
(3) A person who contravenes subsection (2)
is guilty of an offence punishable on conviction by imprisonment for not more
than 6 months, a fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
No privilege against self‑incrimination
(4) An individual is not excused from
answering a question or producing a document on the ground that answering the
question or producing the document would tend to incriminate the individual or
to expose the individual to a penalty.
Answers and documents cannot be used in criminal
proceedings
(5) However, none of the following is
admissible in evidence in criminal proceedings against the individual (except
proceedings under section 491):
(a) the answer to the question;
(b) the production of the document;
(c) any information, document or thing
obtained as a direct or indirect consequence of answering the question or
producing the document.
Sworn witnesses may also give written evidence on oath
(6) A commission may permit a person who is
appearing as a witness before the commission and has been sworn or has made an
affirmation to give evidence by tendering a written statement and verifying it
by oath or affirmation.
113
Dealing with documents given to commission
Inspecting and copying documents produced or given at
inquiry
(1) A commissioner, or a person assisting a
commission and authorised by a commissioner to do so, may:
(a) inspect a document produced or
given to the commission; and
(b) make a copy of, or take an extract
from, the document.
Keeping documents produced or given at inquiry
(2) A commission may keep for a reasonable period
a document produced or given to the commission.
114
Inspections of land, buildings and places
(1) If a commissioner, or a person authorised
by a commissioner, enters any land, building or place by consent as described
in section 115 or under a warrant issued under section 116, the
commissioner or person may:
(a) inspect the land, building or
place; and
(b) inspect any material on the land,
or on or in the building or place.
(2) However, the commissioner or authorised
person may not make the inspection if:
(a) the person occupying or in charge
of the land, building or place asks the commissioner or authorised person to
produce his or her identity card or other written evidence of his or her
identity; and
(b) the commissioner or person does
not produce it.
(3) A person (the offender) is
guilty of an offence punishable on conviction by imprisonment for not more than
6 months if:
(a) the offender obstructs or hinders
another person; and
(b) the offender knows the other
person is a commissioner, or a person authorised by a commissioner, acting
under subsection (1) or a warrant issued under section 116.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
lets a court that convicts an individual of an offence impose a fine instead
of, or as well as, imprisonment. The maximum fine (in penalty units) the court
can impose is 5 times the maximum term of imprisonment (in months).
115
Entering premises by consent
(1) A commissioner, or a person authorised by
a commissioner, may enter land, a building or a place at any reasonable time
for any reasonable purpose of an inquiry, if the person (the occupant)
occupying or in charge of the land, building or place consents.
(2) Before obtaining the consent, the
commissioner or authorised person must inform the occupant that the occupant
may refuse to give consent.
(3) The commissioner or authorised person may
not enter the land, building or place if:
(a) the occupant asks the commissioner
or authorised person to produce his or her identity card or other written
evidence of his or her identity; and
(b) the commissioner or authorised
person does not produce it.
(4) An entry by a commissioner or authorised
person with the occupant’s consent is not lawful if the occupant’s consent was
not voluntary.
116
Entering premises under warrant
(1) A commissioner may apply to a magistrate
for a warrant authorising the commissioner or a person authorised by the
commissioner to enter any land, building or place if the commissioner has
reason to believe that it is necessary or desirable for the purposes of an
inquiry for the commissioner or person to enter the land, building or place for
the purposes of the inquiry.
Note: Section 117 allows applications for
warrants to be made by telephone.
(2) If the magistrate is satisfied by
information on oath or affirmation that the issue of the warrant is reasonably
required for the purposes of the inquiry, he or she may grant a warrant
authorising the person named in the warrant to enter the land, building or
place for the purposes specified in the warrant.
(3) The magistrate must specify in the
warrant the date after which the warrant ceases to have effect.
(4) The person named in a warrant may not
enter the land, building or place if:
(a) the person occupying or in charge
of the land, building or place asks the person named in the warrant to produce
his or her identity card or other written evidence of his or her identity; and
(b) the person named in the warrant
does not produce it.
117
Warrants by telephone or other electronic means
Application
(1) A commissioner may apply to a magistrate
for a warrant by telephone, telex, facsimile or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if
an application were made in person would frustrate the effective execution of
the warrant.
Voice communication
(2) The magistrate may require communication
by voice to the extent that is practicable in the circumstances.
Information
(3) An application under this section must
include all information required to be provided in an ordinary application for
a warrant, but the application may, if necessary, be made before the
information is sworn or affirmed.
Issue of warrant
(4) The magistrate may complete and sign the
same form of warrant that would be issued under section 116 if, after
considering the information and having received and considered any further
information he or she required, the magistrate is satisfied that:
(a) a warrant in the terms of the
application should be issued urgently; or
(b) the delay that would occur if an
application were made in person would frustrate the effective execution of the
warrant.
Notification
(5) If the magistrate decides to issue the
warrant, the magistrate must inform the applicant, by telephone, telex,
facsimile or other electronic means, of the terms of the warrant and the day on
which and the time at which it was signed.
Form of warrant
(6) The applicant must then complete a form
of warrant in terms substantially corresponding to those given by the
magistrate, stating on the form the name of the magistrate and the day on which
and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must, not later than the
day after the day of expiry of the warrant or the day after the day on which
the warrant was executed, whichever is the earlier, give or transmit to the
magistrate:
(a) the form of warrant completed by
the applicant; and
(b) if the information referred to in subsection (3)
was not sworn or affirmed—that information duly sworn or affirmed.
Attachment
(8) The magistrate must attach to the
documents provided under subsection (7) the form of warrant completed by
the magistrate.
Presumption
(9) If:
(a) it is material, in any
proceedings, for a court to be satisfied that the exercise of a power under a
warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the
magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved,
that the exercise of the power was not duly authorised.
118
Identity cards
(1) The Minister may cause to be issued to a
commissioner or a person authorised by a commissioner an identity card:
(a) in a form approved by the
Minister; and
(b) containing a recent photograph of
the person to whom it is issued.
(2) As soon as practicable after the
commission to which the commissioner was appointed has reported to the Minister
on its inquiry, the commissioner or authorised person must return his or her
identity card to the Minister.
(3) A person must not contravene subsection (2).
Penalty: 1 penalty unit.
119
Contempt
(1) A person is guilty of an offence
punishable on conviction by a fine of not more than 30 penalty units if:
(a) the person insults, disturbs or
uses insulting language towards another person; and
(b) the person knows the other person
is a commissioner exercising the powers or performing the functions or duties
of a commissioner.
(2) A person is guilty of an offence
punishable on conviction by a fine of not more than 30 penalty units if:
(a) the person creates a disturbance,
or takes part in creating or continuing a disturbance, in or near a place; and
(b) the person knows the place is a
place where a commission is holding an inquiry.
(3) A person must not:
(a) interrupt an inquiry by a
commission; or
(b) do any other act or thing that
would, if a commission were a court of record, constitute a contempt of that
court.
Penalty: 30 penalty units.
120
Protection of commissioners and witnesses
Protection of commissioners
(1) In performing his or her duties as a
commissioner, a commissioner has the same protection and immunity as a Justice
of the High Court.
Rights and obligations of witnesses
(2) A person appearing before a commission as
a witness at an inquiry:
(a) has the same protection as a
witness in proceedings in the High Court; and
(b) is subject to the same liabilities
in any civil or criminal proceedings as such a witness (in addition to the
penalties provided by this Division).
Interfering with witness is an offence
(3) A person must not:
(a) use violence to or inflict injury
on; or
(b) cause or procure violence, damage,
loss or disadvantage to; or
(c) cause or procure the punishment
of;
another person (the witness) because the
witness will appear or did appear as a witness at an inquiry or because of any
submission or evidence the witness gave to a commission.
Interference with a witness’ employment
(4) An employer must not dismiss an employee,
or prejudice an employee in his or her employment, because the employee
appeared as a witness or gave any submission or evidence at an inquiry by a
commission.
Interference with employee who proposes to give evidence
(5) An employer must not dismiss or threaten
to dismiss an employee or prejudice, or threaten to prejudice, an employee in
his or her employment, because the employee proposes to appear as a witness or
to give a submission or evidence at an inquiry by a commission.
Offences
(6) A person who contravenes subsection (3),
(4) or (5) is guilty of an offence punishable on conviction by imprisonment for
not more than 6 months, a fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Burden of proof in proceedings relating to witness
(7) In proceedings arising out of subsection (4),
the employer has the burden of proving that the employee was not dismissed or
prejudiced because the employee appeared as a witness or gave a submission or
evidence at an inquiry by a commission, if it is established that:
(a) the employee was dismissed from,
or prejudiced in, his or her employment; and
(b) before the employee was dismissed
or prejudiced, the employee appeared as a witness, or gave any submission or
evidence, at an inquiry by a commission.
Burden of proof in proceedings relating to employee
proposing to give evidence
(8) In any proceedings arising out of subsection (5),
the employer has the burden of proving that the employee was not dismissed,
prejudiced in his or her employment or threatened with dismissal or prejudice
because the employee proposed to appear as a witness or give evidence at an
inquiry by a commission, if it is established that:
(a) the employee was dismissed,
prejudiced or threatened; and
(b) the employee made the proposal
before the employee was dismissed, prejudiced or threatened.
Relationship of subsections (3), (4) and (5)
(9) Subsections (4) and (5) do not limit
subsection (3).
Subdivision D—Inquiry reports
121
Timing of report
The commission must report to the
Minister on the inquiry within the period specified by the Minister in the
terms of reference.
122
Publication of report
(1) After reporting to the Minister, the
commission must publish the report in accordance with the regulations.
(2) However, the commission must not publish
the report so far as it sets out any submission or evidence whose publication
the commission prohibited or restricted by a direction under paragraph
110(3)(b).
Subdivision E—Commissioners’ terms and conditions
123
Basis of appointment
(1) A commissioner is to be appointed on a
full‑time basis or a part‑time basis.
(2) A commissioner appointed on a full‑time
basis must not engage in paid employment outside the duties of the
commissioner’s office without the Minister’s approval.
(3) A commissioner appointed on a part‑time
basis must not engage in any paid employment that, in the Minister’s opinion,
conflicts or may conflict with the proper performance of the commissioner’s
duties.
124
Remuneration
(1) A commissioner who is not appointed or
engaged under the Public Service Act 1999 is to be paid the remuneration
that is determined by the Remuneration Tribunal. If no determination of that
remuneration is in operation, the commissioner is to be paid the remuneration
that is prescribed.
(2) A commissioner is to be paid the
allowances that are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
125
Leave of absence
(1) A commissioner appointed on a full‑time
basis has the recreation leave entitlements that are determined by the
Remuneration Tribunal.
(2) The Minister may grant a commissioner
appointed on a full‑time basis leave of absence, other than recreation
leave, on the terms and conditions as to remuneration or otherwise that the
Minister determines.
(3) The commissioner (the presiding
commissioner) appointed to preside at an inquiry may grant leave of
absence to any other commissioner for the inquiry on the terms and conditions
that the presiding commissioner determines, if the other commissioner has been
appointed on a part‑time basis.
126
Resignation
A commissioner may resign his or her
appointment by giving the Minister a written resignation.
127
Termination of appointment
(1) The Minister may terminate a
commissioner’s appointment for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the
appointment of a commissioner if:
(a) the commissioner:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the commissioner fails, without
reasonable excuse, to comply with section 128 (about disclosure of
interests); or
(c) the Minister becomes aware that
the commissioner has a pecuniary or other interest in the subject‑matter
of the inquiry and the Minister considers that the commissioner should not
continue to participate in the conduct of the inquiry.
(3) The Minister must terminate the
appointment of a commissioner on a full‑time basis if:
(a) the commissioner is absent, except
on leave of absence, for 14 consecutive days or for 28 days in any 12 months;
or
(b) the commissioner engages, except
with the Minister’s approval, in paid employment outside the duties of his or
her office.
(4) The Minister must terminate the
appointment of a commissioner on a part‑time basis if:
(a) the commissioner is absent, except
on leave of absence, from 3 consecutive meetings of his or her commission (if
it consists of 2 or more commissioners); or
(b) the commissioner engages in paid
employment that, in the Minister’s opinion, conflicts or could conflict with
the proper performance of the duties of his or her office.
128
Disclosure of interests
(1) A commissioner must give written notice
to the Minister of all direct and indirect pecuniary interests that he or she
has or acquires in a business or in a body corporate carrying on a business.
(2) If a commissioner has or acquires an
interest, pecuniary or otherwise, that could conflict with the proper
performance of his or her duties, he or she must:
(a) inform the Minister of the
interest; and
(b) ensure that the interest is
disclosed in the report of his or her inquiry.
129
Other terms and conditions
A commissioner holds office on the terms
and conditions (if any) in relation to matters not covered by this Act that are
determined by the Minister.
Part 9—Approval of actions
Division 1—Decisions on approval and conditions
Subdivision A—General
130
Timing of decision on approval
Basic rule
(1) The Minister must decide whether or not
to approve, for the purposes of each controlling provision for a controlled
action, the taking of the action.
(1A) The Minister must make the decision within
the relevant period specified in subsection (1B) that relates to the
controlled action, or such longer period as the Minister specifies in writing.
(1B) The relevant period, in
relation to a controlled action, is as follows:
(a) if the action is the subject of an
assessment report—the period of 30 business days beginning on the first
business day after the Minister receives the assessment report;
(b) if Division 3A of Part 8
(assessment on referral information) applies to the action—the period of 20
business days beginning on the first business day after the Minister receives
the finalised recommendation report under subsection 93(5);
(c) if Division 4 of Part 8
(assessment on preliminary documentation) applies to the action—the period of
40 business days beginning on the first business day after the Minister
receives the documents under subsection 95B(1) or the statement under
subsection 95B(3), as the case requires;
(d) if Division 5 (public
environment reports) or Division 6 (environmental impact statements) of
Part 8 applies to the action—the period of 40 business days beginning on
the first business day after the Minister receives the finalised public
environment report or the finalised environmental impact statement, as the case
requires;
(e) if a commission has conducted an
inquiry relating to the action—the period of 40 business days beginning on the
first business day after the Minister receives the report of the commission.
What is an assessment report?
(2) An assessment report is a
report given to the Minister as described in:
(a) subsection 47(4) (about
assessments under a bilateral agreement); or
(b) subsection 84(3) (about
assessments in a manner specified in a declaration); or
(c) subsection 87(4) (about
assessments by accredited assessment processes).
Notice of extension of time
(4) If the Minister specifies a longer period
for the purposes of subsection (1A), he or she must:
(a) give a copy of the specification
to the person proposing to take the action; and
(b) publish the specification in
accordance with the regulations.
Time does not run while further information is sought
(5) If, under section 132, the Minister
has requested more information for the purposes of making a decision whether or
not to approve the taking of an action, a day is not to be counted as a business
day for the purposes of subsection (1B) if it is:
(a) on or after the day the Minister
requested the information; and
(b) on or before the day on which the
Minister receives the last of the information requested.
131
Inviting comments from other Ministers before decision
(1) Before the Minister (the Environment
Minister) decides whether or not to approve, for the purposes of a
controlling provision, the taking of an action, and what conditions (if any) to
attach to an approval, he or she must:
(a) inform any other Minister whom the
Environment Minister believes has administrative responsibilities relating to
the action of the decision the Environment Minister proposes to make; and
(b) invite the other Minister to give
the Environment Minister comments on the proposed decision within 10 business
days.
(2) A Minister invited to comment may make
comments that:
(a) relate to economic and social
matters relating to the action; and
(b) may be considered by the
Environment Minister consistently with the principles of ecologically
sustainable development.
This does not limit the comments such a Minister may give.
131AA
Inviting comments before decision from person proposing to take action and
designated proponent
(1) Before the Minister decides whether or
not to approve, for the purposes of a controlling provision, the taking of an
action, and what conditions (if any) to attach to an approval, he or she must:
(a) inform the person proposing to
take the action, and the designated proponent of the action (if the designated
proponent is not the person proposing to take the action), of:
(i) the decision the
Minister proposes to make; and
(ii) if the Minister
proposes to approve the taking of the action—any conditions the Minister
proposes to attach to the approval; and
(b) invite each person informed under paragraph (a)
to give the Minister, within 10 business days (measured in Canberra), comments
in writing on the proposed decision and any conditions.
(2) If the Minister proposes not to approve,
for the purposes of a controlling provision, the taking of the action, the
Minister must provide to each person informed under paragraph (1)(a), with
the invitation given under paragraph (1)(b):
(a) a copy of whichever of the
following documents applies to the action:
(i) an assessment report;
(ii) a finalised
recommendation report given to the Minister under subsection 93(5);
(iii) a recommendation
report given to the Minister under section 95C, 100 or 105; and
(b) any information relating to
economic and social matters that the Minister has considered; and
(c) any information relating to the
history of a person in relation to environmental matters that the Minister has
considered under subsection 136(4); and
(d) a copy of any document, or part of
a document, containing information of a kind referred to in paragraph 136(2)(e)
that the Minister has considered.
(3) The Minister is not required to provide
under subsection (2):
(a) information that is in the public
domain; or
(b) a copy of so much of a document as
in the public domain; or
(c) in the case of information
referred to in paragraph (2)(b) or (c)—any conclusions or recommendations
relating to that information included in documents or other material prepared
by the Secretary for the Minister.
(4) The Minister must not provide under subsection (2):
(a) a copy of so much of a document
as:
(i) is an exempt document
under the Freedom of Information Act 1982 on the grounds of the security
of the Commonwealth or its providing advice to the Minister; or
(ii) the Minister is
satisfied contains information that is commercial‑in‑confidence; or
(b) information that:
(i) is of such a nature
that its inclusion in a document would cause that document to be an exempt
document of the kind referred to in subparagraph (a)(i); or
(ii) the Minister is
satisfied is commercial‑in‑confidence.
(5) The Minister must not be satisfied that
information (including information in a document) is commercial‑in‑confidence
unless a person demonstrates to the Minister that:
(a) release of the information would
cause competitive detriment to the person; and
(b) the information is not in the
public domain; and
(c) the information is not required to
be disclosed under another law of the Commonwealth, a State or a Territory; and
(d) the information is not readily
discoverable.
(6) In deciding whether or not to approve,
for the purposes of a controlling provision, the taking of the action, the
Minister must take into account any relevant comments given to the Minister in
response to an invitation given under paragraph (1)(b).
(7) This section is taken to be an exhaustive
statement of the requirements of the natural justice hearing rule in relation
to:
(a) the Minister’s decision under
section 133 whether or not to approve, for the purposes of a controlling
provision, the taking of the action; and
(b) if the decision is to approve, for
the purposes of a controlling provision, the taking of the action, and the
Minister decides, under section 134, to attach conditions to the approval—the
Minister’s decision under section 134 to attach those conditions to the
approval.
131A
Inviting public comment before decision
Before the Minister decides whether or
not to approve, for the purposes of a controlling provision, the taking of an
action, and what conditions (if any) to attach to an approval, he or she may
publish on the Internet:
(a) the proposed decision and, if the
proposed decision is to approve the taking of the action, any conditions that
the Minister proposes to attach to the approval; and
(b) an invitation for anyone to give
the Minister, within 10 business days (measured in Canberra), comments in
writing on the proposed decision and any conditions.
132
Requesting further information for approval decision
If the Minister believes on reasonable
grounds that he or she does not have enough information to make an informed
decision whether or not to approve for the purposes of a controlling provision
the taking of an action, the Minister may request any of the following to
provide specified information relevant to making the decision:
(a) the person proposing to take the
action;
(b) the designated proponent of the
action;
(c) if a commission has conducted an
inquiry under Division 7 of Part 8 relating to the action—the
commission;
(d) if:
(i) the action is to be
taken in a State or self‑governing Territory; and
(ii) a controlling
provision for the action is in Division 1 of Part 3 (about matters of
national environmental significance); and
(iii) the relevant impacts
of the action have been assessed under a law of the State or Territory;
the appropriate Minister of that
State or Territory;
(e) any other person the Minister
considers appropriate.
132A
Requesting notice from appropriate State or Territory Minister about certain
actions
(1) This section applies to an action that is
to be taken in a State or self‑governing Territory only if the action:
(a) is to be taken by a person for the
purposes of trade or commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and a
Territory; or
(iv) between 2 Territories;
or
(b) is to be taken by a constitutional
corporation; or
(c) is an action whose regulation is
appropriate and adapted to give effect to Australia’s obligations under an
agreement with one or more other countries.
Note: This section also applies in relation to
actions to be taken in an area offshore from a State or the Northern Territory.
See section 157.
(2) However, this section does not apply to
an action if:
(a) the action:
(i) is a nuclear action;
or
(ii) is to be taken
entirely in a Commonwealth marine area; or
(iii) is to be taken
entirely on Commonwealth land; or
(iv) is to be taken by the
Commonwealth or a Commonwealth agency; and
(b) the relevant impacts of the action
have been assessed under Part 8.
(3) Before the Minister (the Environment
Minister) decides whether or not to approve for the purposes of a
controlling provision the taking of the action, and what conditions (if any) to
attach to an approval, the Environment Minister may request the appropriate
Minister of the State or Territory to give the Environment Minister a notice
stating the method that has been used to assess the certain and likely impacts
of the action on things other than matters protected by the controlling
provisions for the action.
133
Grant of approval
Approval
(1) After receiving the assessment
documentation relating to a controlled action, or the report of a commission
that has conducted an inquiry relating to a controlled action, the Minister may
approve for the purposes of a controlling provision the taking of the action by
a person.
(1A) If the referral of the proposal to take the
action included alternative proposals relating to any of the matters referred
to in subsection 72(3), the Minister may approve, for the purposes of subsection (1),
one or more of the alternative proposals in relation to the taking of the
action.
Content of approval
(2) An approval must:
(a) be in writing; and
(b) specify the action (including any
alternative proposals approved under subsection (1A)) that may be taken;
and
(c) name the person to whom the
approval is granted; and
(d) specify each provision of Part 3
for which the approval has effect; and
(e) specify the period for which the approval
has effect; and
(f) set out the conditions attached
to the approval.
Note: The period for which the approval has effect
may be extended. See Division 5.
Persons who may take action covered by approval
(2A) An approval granted under this section is
an approval of the taking of the action specified in the approval by any of the
following persons:
(a) the holder of the approval;
(b) a person who is authorised,
permitted or requested by the holder of the approval, or by another person with
the consent or agreement of the holder of the approval, to take the action.
Notice of approval
(3) The Minister must:
(a) give a copy of the approval to the
person named in the approval under paragraph 133(2)(c); and
(b) provide a copy of the approval to
a person who asks for it (either free or for a reasonable charge determined by
the Minister).
Limit on publication of approval
(4) However, the Minister must not provide
under subsection (3) a copy of so much of the approval as:
(a) is an exempt document under the Freedom
of Information Act 1982 on the grounds of commercial confidence; or
(b) the Minister believes it is in the
national interest not to provide.
The Minister may consider the defence or security of the
Commonwealth when determining what is in the national interest. This does not
limit the matters the Minister may consider.
Notice of refusal of approval
(7) If the Minister refuses to approve for
the purposes of a controlling provision the taking of an action by the person
who proposed to take the action, the Minister must give the person notice of
the refusal.
Note: Under section 13 of the Administrative
Decisions (Judicial Review) Act 1977, the person may request reasons for
the refusal, and the Minister must give them.
Definition
(8) In this section:
assessment documentation, in relation to a
controlled action, means:
(a) if the action is the subject of an
assessment report—that report; or
(b) if Division 3A of Part 8
(assessment on referral information) applies to the action:
(i) the referral of the
proposal to take the action; and
(ii) the finalised
recommendation report relating to the action given to the Minister under
subsection 93(5); or
(c) if Division 4 of Part 8
(assessment on preliminary documentation) applies to the action:
(i) the documents given to
the Minister under subsection 95B(1), or the statement given to the Minister
under subsection 95B(3), as the case requires, relating to the action; and
(ii) the recommendation
report relating to the action given to the Minister under section 95C; or
(d) if Division 5 of Part 8
(public environment reports) applies to the action:
(i) the finalised public
environment report relating to the action given to the Minister under section 99;
and
(ii) the recommendation
report relating to the action given to the Minister under section 100; or
(e) if Division 6 of Part 8
(environmental impact statements) applies to the action:
(i) the finalised
environmental impact statement relating to the action given to the Minister
under section 104; and
(ii) the recommendation
report relating to the action given to the Minister under section 105.
134 Conditions
of approval
Condition to inform persons taking action of conditions
attached to approval
(1A) An approval of the taking of an action by a
person (the first person) is subject to the condition that, if
the first person authorises, permits or requests another person to undertake
any part of the action, the first person must take all reasonable steps to
ensure:
(a) that the other person is informed
of any condition attached to the approval that restricts or regulates the way
in which that part of the action may be taken; and
(b) that the other person complies
with any such condition.
For the purposes of this Chapter, the condition imposed by
this subsection is attached to the approval.
Generally
(1) The Minister may attach a condition to
the approval of the action if he or she is satisfied that the condition is
necessary or convenient for:
(a) protecting a matter protected by a
provision of Part 3 for which the approval has effect (whether or not the
protection is protection from the action); or
(b) repairing or mitigating damage to
a matter protected by a provision of Part 3 for which the approval has
effect (whether or not the damage has been, will be or is likely to be caused
by the action).
Conditions to protect matters from the approved action
(2) The Minister may attach a condition to
the approval of the action if he or she is satisfied that the condition is
necessary or convenient for:
(a) protecting from the action any
matter protected by a provision of Part 3 for which the approval has
effect; or
(b) repairing or mitigating damage
that may or will be, or has been, caused by the action to any matter protected
by a provision of Part 3 for which the approval has effect.
This subsection does not limit subsection (1).
Examples of kinds of conditions that may be attached
(3) The conditions that may be attached to an
approval include:
(aa) conditions requiring specified
activities to be undertaken for:
(i) protecting a matter
protected by a provision of Part 3 for which the approval has effect
(whether or not the protection is protection from the action); or
(ii) repairing or
mitigating damage to a matter protected by a provision of Part 3 for which
the approval has effect (whether or not the damage may or will be, or has been,
caused by the action); and
(ab) conditions requiring a specified
financial contribution to be made to a person for the purpose of supporting
activities of a kind mentioned in paragraph (aa); and
(a) conditions relating to any
security to be given by the holder of the approval by bond, guarantee or cash
deposit:
(i) to comply with this
Act and the regulations; and
(ii) not to contravene a
condition attached to the approval; and
(iii) to meet any liability
of a person whose taking of the action is approved to the Commonwealth for
measures taken by the Commonwealth under section 499 (which lets the
Commonwealth repair and mitigate damage caused by a contravention of this Act)
in relation to the action; and
(b) conditions requiring the holder of
the approval to insure against any specified liability of the holder to the
Commonwealth for measures taken by the Commonwealth under section 499 in
relation to the approved action; and
(c) conditions requiring a person
taking the action to comply with conditions specified in an instrument
(including any kind of authorisation) made or granted under a law of a State or
self‑governing Territory or another law of the Commonwealth; and
(d) conditions requiring an
environmental audit of the action to be carried out periodically by a person
who can be regarded as being independent from any person whose taking of the
action is approved; and
(e) conditions requiring the
preparation, submission for approval by the Minister, and implementation of a
plan for managing the impacts of the approved action on a matter protected by a
provision of Part 3 for which the approval has effect such as a plan for
conserving habitat of a species or ecological community; and
(f) conditions requiring specified
environmental monitoring or testing to be carried out; and
(g) conditions requiring compliance
with a specified industry standard or code of practice; and
(h) conditions relating to any
alternative proposals in relation to the taking of the action covered by the
approval (as permitted by subsection 133(1A)).
This subsection does not limit the kinds of conditions
that may be attached to an approval.
Certain conditions require consent of holder of approval
(3A) The following kinds of condition cannot be
attached to the approval of an action unless the holder of the approval has
consented to the attachment of the condition:
(a) a condition referred to in paragraph (3)(aa),
if the activities specified in the condition are not reasonably related to the
action;
(b) a condition referred to in paragraph (3)(ab).
(3B) If the holder of the approval has given
consent, for the purposes of subsection (3A), to the attachment of a
condition:
(a) the holder cannot withdraw that
consent after the condition has been attached to the approval; and
(b) any person to whom the approval is
later transferred under section 145B is taken to have consented to the
attachment of the condition, and cannot withdraw that consent.
Conditions attached under paragraph (3)(c)
(3C) A condition attached to an approval under paragraph (3)(c)
may require a person taking the action to comply with conditions specified in
an instrument of a kind referred to in that paragraph:
(a) as in force at a particular time;
or
(b) as is in force or existing from
time to time;
even if the instrument does not yet exist at the time the
approval takes effect.
Considerations in deciding on condition
(4) In deciding whether to attach a condition
to an approval, the Minister must consider:
(a) any relevant conditions that have
been imposed, or the Minister considers are likely to be imposed, under a law
of a State or self‑governing Territory or another law of the Commonwealth
on the taking of the action; and
(aa) information provided by the person
proposing to take the action or by the designated proponent of the action; and
(b) the desirability of ensuring as
far as practicable that the condition is a cost‑effective means for the
Commonwealth and a person taking the action to achieve the object of the
condition.
Effect of conditions requiring compliance with
conditions specified in another instrument
(4A) If:
(a) a condition (the principal
condition) attached to an approval under paragraph (3)(c) requires
a person taking the action to comply with conditions (the other
conditions) specified in an instrument of a kind referred to in that
paragraph; and
(b) the other conditions are in excess
of the power conferred by subsection (1);
the principal condition is taken to require the person to
comply with the other conditions only to the extent that they are not in excess
of that power.
Validity of decision
(5) A failure to consider information as
required by paragraph (4)(aa) does not invalidate a decision about
attaching a condition to the approval.
135
Certain approvals and conditions must not give preference
(1) This
section deals with the approval:
(a) for
the purposes of section 21 or 22A of a nuclear action:
(i) by a person for the
purposes of trade or commerce between Australia and another country or between
2 States; or
(ii) by a constitutional
corporation; or
(b) for the purposes of section 25
of an action that is prescribed for the purposes of subsection 25(1) and is
taken:
(i) by a person for the
purposes of trade or commerce between Australia and another country or between
2 States; or
(ii) by a constitutional
corporation.
(2) The Minister must not grant the approval,
or attach a condition to the approval, that has the effect of giving preference
(within the meaning of section 99 of the Constitution) to one State or
part of a State over another State or part of a State.
135A
Publication of recommendation reports
(1) This section applies in relation to the
following reports:
(a) a finalised recommendation report
given to the Minister under subsection 93(5);
(b) a recommendation report given to
the Minister under section 95C, 100 or 105.
(2) Subject to subsections (3) and (4),
the Secretary must provide a copy of a report to which this section applies to
a person who asks for it (either at no charge or at a reasonable charge
determined by the Secretary).
(3) The Secretary is not required to provide
a copy of the report under subsection (2) to anyone until after the
Minister has decided, for the purposes of each controlling provision, whether
or not to approve the taking of the action concerned.
(4) The Secretary may refuse to provide,
under subsection (2), a copy of so much of the report as:
(a) is an exempt document under the Freedom
of Information Act 1982 on the grounds of the security of the Commonwealth
or its providing advice to the Minister; or
(b) the Secretary is satisfied is
commercial‑in‑confidence.
(5) The Secretary must not be satisfied that
a part of the report is commercial‑in‑confidence unless a person
demonstrates to the Secretary that:
(a) release of the information in that
part would cause competitive detriment to the person; and
(b) the information in that part is
not in the public domain; and
(c) the information in that part is
not required to be disclosed under another law of the Commonwealth, a State or
a Territory; and
(d) the information in that part is
not readily discoverable.
Subdivision B—Considerations for approvals and conditions
136
General considerations
Mandatory considerations
(1) In deciding whether or not to approve the
taking of an action, and what conditions to attach to an approval, the Minister
must consider the following, so far as they are not inconsistent with any other
requirement of this Subdivision:
(a) matters relevant to any matter
protected by a provision of Part 3 that the Minister has decided is a
controlling provision for the action;
(b) economic and social matters.
Factors to be taken into account
(2) In considering those matters, the
Minister must take into account:
(a) the principles of ecologically
sustainable development; and
(b) the assessment report (if any)
relating to the action; and
(ba) if Division 3A of Part 8
(assessment on referral information) applies to the action—the finalised
recommendation report relating to the action given to the Minister under
subsection 93(5); and
(bc) if Division 4 of Part 8
(assessment on preliminary documentation) applies to the action:
(i) the documents given to
the Minister under subsection 95B(1), or the statement given to the Minister
under subsection 95B(3), as the case requires, relating to the action; and
(ii) the recommendation
report relating to the action given to the Minister under section 95C; and
(c) if Division 5 (public environment
reports) of Part 8 applies to the action:
(i) the finalised public
environment report relating to the action given to the Minister under section 99;
and
(ii) the recommendation
report relating to the action given to the Minister under section 100;
and
(ca) if Division 6 (environmental
impact statements) of Part 8 applies to the action:
(i) the finalised
environmental impact statement relating to the action given to the Minister
under section 104; and
(ii) the recommendation
report relating to the action given to the Minister under section 105;
and
(d) if an inquiry was conducted under
Division 7 of Part 8 in relation to the action—the report of the
commissioners; and
(e) any other information the Minister
has on the relevant impacts of the action (including information in a report on
the impacts of actions taken under a policy, plan or program under which the
action is to be taken that was given to the Minister under an agreement under
Part 10 (about strategic assessments)); and
(f) any relevant comments given to
the Minister in accordance with an invitation under section 131 or 131A;
and
(g) if a notice relating to the action
was given to the Minister under subsection 132A(3)—the information in the
notice.
Note: The Minister must also take into account any
relevant comments given to the Minister in response to an invitation under
paragraph 131AA(1)(b). See subsection 131AA(6).
Person’s environmental history
(4) In deciding whether or not to approve the
taking of an action by a person, and what conditions to attach to an approval,
the Minister may consider whether the person is a suitable person to be granted
an approval, having regard to:
(a) the person’s history in relation
to environmental matters; and
(b) if the person is a body corporate—the
history of its executive officers in relation to environmental matters; and
(c) if the person is a body corporate
that is a subsidiary of another body or company (the parent body)—the
history in relation to environmental matters of the parent body and its
executive officers.
Minister not to consider other matters
(5) In deciding whether or not to approve the
taking of an action, and what conditions to attach to an approval, the Minister
must not consider any matters that the Minister is not required or permitted by
this Division to consider.
137
Requirements for decisions about World Heritage
In deciding whether or not to approve,
for the purposes of section 12 or 15A, the taking of an action and what
conditions to attach to such an approval, the Minister must not act
inconsistently with:
(a) Australia’s obligations under the
World Heritage Convention; or
(b) the Australian World Heritage
management principles; or
(c) a plan that has been prepared for
the management of a declared World Heritage property under section 316 or
as described in section 321.
137A
Requirements for decisions about National Heritage places
In deciding whether or not to approve
for the purposes of section 15B or 15C the taking of an action, and what
conditions to attach to such an approval, the Minister must not act
inconsistently with:
(a) the National Heritage management
principles; or
(b) an agreement to which the
Commonwealth is party in relation to a National Heritage place; or
(c) a plan that has been prepared for
the management of a National Heritage place under section 324S or as
described in section 324X.
138
Requirements for decisions about Ramsar wetlands
In deciding whether or not to approve
for the purposes of section 16 or 17B the taking of an action, and what
conditions to attach to such an approval, the Minister must not act
inconsistently with Australia’s obligations under the Ramsar Convention.
139
Requirements for decisions about threatened species and endangered communities
(1) In deciding whether or not to approve for
the purposes of a subsection of section 18 or section 18A the taking
of an action, and what conditions to attach to such an approval, the Minister
must not act inconsistently with:
(a) Australia’s obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; or
(b) a recovery plan or threat
abatement plan.
(2) If:
(a) the Minister is considering
whether to approve, for the purposes of a subsection of section 18 or
section 18A, the taking of an action; and
(b) the action has or will have, or is
likely to have, a significant impact on a particular listed threatened species
or a particular listed threatened ecological community;
the Minister must, in deciding whether to so approve the
taking of the action, have regard to any approved conservation advice for the
species or community.
140
Requirements for decisions about migratory species
In deciding whether or not to approve
for the purposes of section 20 or 20A the taking of an action relating to
a listed migratory species, and what conditions to attach to such an approval,
the Minister must not act inconsistently with Australia’s obligations under
whichever of the following conventions and agreements because of which the
species is listed:
(a) the Bonn Convention;
(b) CAMBA;
(c) JAMBA;
(d) an international agreement
approved under subsection 209(4).
140A
No approval for certain nuclear installations
The Minister must not approve an action
consisting of or involving the construction or operation of any of the
following nuclear installations:
(a) a
nuclear fuel fabrication plant;
(b) a nuclear power plant;
(c) an enrichment plant;
(d) a reprocessing facility.
Division 2—Requirement to comply with conditions
142
Compliance with conditions on approval
(1) A person whose taking of an action has
been approved under this Part must not contravene any condition attached to the
approval.
Civil penalty:
(a) for an individual—1,000 penalty
units, or such lower amount as is prescribed by the regulations;
(b) for a body corporate—10,000
penalty units, or such lower amount as is prescribed by the regulations.
(1A) Subsection (1) does not apply to a
person who is not the holder of the approval if:
(a) the person was not informed of the
condition; and
(b) the person could not reasonably
have been expected to be aware of the condition.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal
Code.
(2) A contravention of a condition attached
to an approval under this Part does not invalidate the approval.
142A
Offence of breaching conditions on approval
(1) A person whose taking of an action has
been approved under this Part is guilty of an offence if:
(a) the person takes an action or
omits to take an action; and
(b) the action or omission contravenes
a condition attached to the approval and the person is reckless as to that
fact; and
(c) the action or omission results or
will result in a significant impact on a matter protected by a provision of
Part 3.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) A person whose taking of an action has
been approved under this Part is guilty of an offence if:
(a) the person takes an action or
omits to take an action; and
(b) the action or omission contravenes
a condition attached to the approval and the person is reckless as to that
fact; and
(c) the
action or omission is likely to have a significant impact on a matter protected
by a provision of Part 3 and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4) An offence against subsection (1) or
(3) is punishable on conviction by imprisonment for a term not more than 2
years, a fine not more than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 2: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 3: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
142B
Strict liability offence for breach of approval condition
(1) A person whose taking of an action has
been approved under this Part is guilty of an offence if:
(a) the person takes an action or
omits to take an action; and
(b) the action or omission contravenes
a condition attached to the approval.
Penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
Note 3: An executive officer of a body corporate
convicted of an offence against this section may also be guilty of an offence
against section 495.
Note 4: If a person takes an action on land that
contravenes this section, a landholder may be guilty of an offence against
section 496C.
(2) Subsection (1) does not apply to a
person who is not the holder of the approval if:
(a) the person was not informed of the
condition; and
(b) the person could not reasonably
have been expected to be aware of the condition.
Note: The defendant bears an evidential burden in
relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 3—Variation of conditions and suspension and revocation of
approvals
143
Variation of conditions attached to approval
(1) The Minister may, by written instrument,
revoke, vary or add to any conditions (other than the condition referred to in
subsection 134(1A)) attached to an approval under this Part of an action if:
(a) any condition attached to the
approval has been contravened; or
(b) both of the following conditions
are satisfied:
(i) the action has had a
significant impact that was not identified in assessing the action on any
matter protected by a provision of Part 3 for which the approval has
effect, or the Minister believes the action will have such an impact;
(ii) the Minister believes
it is necessary to revoke, vary or add a condition to protect the matter from
the impact; or
(ba) all of the following conditions
are satisfied:
(i) the action has had a
significant impact on a matter protected by a provision of Part 3 for
which the approval has effect, or the Minister believes the action will have
such an impact;
(ii) the Minister is
satisfied that the impact is substantially greater than the impact that was
identified in assessing the action;
(iii) the Minister believes
it is necessary to revoke, vary or add a condition to protect the matter from
the impact; or
(c) the holder of the approval agrees
to the proposed revocation, variation or addition, or the Minister has extended
the period for which the approval has effect under section 145D, and the
Minister is satisfied that any conditions attached to the approval after the
proposed revocation, variation or addition are necessary or convenient for:
(i) protecting a matter
protected by any provision of Part 3 for which the approval has effect; or
(ii) repairing or
mitigating damage to a matter protected by a provision of Part 3 for which
the approval has effect (whether or not the damage has been, will be or is
likely to be caused by the action).
(2) The Minister may, by written instrument,
revoke any condition (other than the condition referred to in subsection
134(1A)) attached to an approval under this Part of an action if the Minister
is satisfied that the condition is not needed to protect any matter protected
by a provision of Part 3 for which the approval has effect.
(3) In deciding whether or not to revoke,
vary or add to any conditions attached to the approval of the taking of an
action by a person, the Minister may have regard to:
(a) the person’s history in relation
to environmental matters; and
(b) if the person is a body corporate—the
history of its executive officers in relation to environmental matters; and
(c) if the person is a body corporate
that is a subsidiary of another body or company (the parent body)—the
history in relation to environmental matters of the parent body and its
executive officers.
(4) The revocation, variation or addition
takes effect on the day specified in the instrument. The Minister must not
specify a day earlier than the day the instrument is made.
(5) As soon as possible after making the
instrument, the Minister must:
(a) give a copy of it to the holder of
the approval; and
(b) publish the instrument in
accordance with the regulations.
Note: If the holder is not satisfied with changed
conditions attached to the approval of the holder’s action, he or she can ask
the Minister to reverse the change by making another change to the conditions
under this section.
(6) However, the Minister must not publish so
much of the instrument as:
(a) is an exempt document under the Freedom
of Information Act 1982 on the grounds of commercial confidence; or
(b) the Minister believes it is in the
national interest not to publish.
The Minister may consider the defence or security of the
Commonwealth when determining what is in the national interest. This does not
limit the matters the Minister may consider.
144
Suspension of approval
(1) The Minister may, by written instrument,
suspend the effect of an approval under this Part for the purposes of a
specified provision of Part 3 for a specified period (which must not start
before the day on which the instrument is made) if the Minister believes on
reasonable grounds that:
(a) a significant impact on the matter
protected by the provision has occurred because of the contravention of a
condition attached to the approval; or
(b) the conditions specified in subsection (2)
are satisfied.
(2) The conditions are that:
(a) the action has had, or the
Minister believes that the action will have, a significant impact that was not
identified in assessing the action on a matter protected by a provision of Part 3
for which the approval has effect; and
(b) the approval would not have been
granted if information that the Minister has about that impact had been
available when the decision to approve the action was made.
(2A) The Minister may, by written instrument,
suspend the effect of an approval under this Part for the purposes of a
specified provision of Part 3 for a specified period (which must not start
before the day on which the instrument is made) if:
(a) either:
(i) the Minister believes
on reasonable grounds that there has been a contravention of a condition
attached to the approval; or
(ii) if a condition
attached to the approval is to the effect that the approval is subject to a
thing being done within a particular time—the Minister believes on reasonable
grounds that the thing has not been done within that time; and
(b) the Minister is satisfied that:
(i) the approval would not
have been granted without that condition being attached; or
(ii) because of the failure
to comply with the requirement, the suspension is reasonably necessary to
protect a matter protected by a provision of Part 3 for which the approval
has effect.
(3) In deciding whether or not to suspend an
approval of the taking of an action by a person, the Minister may have regard
to:
(a) the person’s history in relation
to environmental matters; and
(b) if the person is a body
corporate—the history of its executive officers in relation to environmental
matters; and
(c) if the person is a body corporate
that is a subsidiary of another body or company (the parent body)—the
history in relation to environmental matters of the parent body and its
executive officers.
(4) During the specified period, the
specified provision of Part 3 applies as if the Minister had not given the
approval.
(5) As soon as possible after making the
instrument, the Minister must:
(a) give a copy of it to the holder of
the approval; and
(b) publish the instrument in
accordance with the regulations.
145
Revocation of approval
(1) The Minister may, by written instrument,
revoke an approval under this Part for the purposes of a specified provision of
Part 3 if:
(a) a significant impact on the matter
protected by the provision has occurred because of the contravention of a condition
attached to the approval; or
(b) the conditions specified in subsection (2)
are satisfied.
(2) The conditions are that:
(a) the action has had, or the
Minister believes that the action will have, a significant impact that was not
identified in assessing the action on a matter protected by a provision of Part 3
for which the approval has effect; and
(b) the approval would not have been
granted if information that the Minister has about that impact had been
available when the decision to approve the action was made.
(2A) The Minister may, by written instrument,
revoke an approval under this Part of an action for the purposes of a specified
provision of Part 3 if he or she believes that:
(a) the impacts that the action has
had, will have or is likely to have were not accurately identified in
information available to the Minister when the approval was given; and
(b) the information did not accurately
identify those impacts because of negligence or a deliberate act or omission by
the person proposing to take the action or the designated proponent of the
action.
(2B) The Minister may, by written instrument,
revoke an approval under this Part for the purposes of a specified provision of
Part 3 if:
(a) either:
(i) the Minister believes
on reasonable grounds that there has been a contravention of a condition
attached to the approval; or
(ii) if a condition
attached to the approval is to the effect that the approval is subject to a
thing being done within a particular time—the Minister believes on reasonable
grounds that the thing has not been done within that time; and
(b) the Minister is satisfied that:
(i) the approval would not
have been granted without that condition being attached; or
(ii) because of the failure
to comply with the requirement, the revocation is reasonably necessary to
protect a matter protected by a provision of Part 3 for which the approval
has effect.
(3) In deciding whether or not to revoke an
approval of the taking of an action by a person, the Minister may have regard
to:
(a) the person’s history in relation
to environmental matters; and
(b) if the person is a body
corporate—the history of its executive officers in relation to environmental
matters; and
(c) if the person is a body corporate
that is a subsidiary of another body or company (the parent body)—the
history in relation to environmental matters of the parent body and its
executive officers.
(4) The revocation takes effect on the day
specified in the instrument. The Minister must not specify a day earlier than
the day the instrument is made.
(5) As soon as possible after making the
instrument, the Minister must:
(a) give a copy of it to the person
who was the holder of the approval; and
(b) publish the instrument in
accordance with the regulations.
145A
Reinstating suspended or revoked approval
Application
(1) This section applies if the Minister has,
by written instrument:
(a) suspended an approval under this
Part of the taking of an action by a person; or
(b) revoked an approval under this
Part of the taking of an action by a person.
Requesting reinstatement of approval
(2) Within 2 months after receiving a copy of
the instrument under this Division, the person who was the holder of the
approval may request the Minister to reinstate the approval.
Deciding whether to reinstate approval
(3) Within 20 business days of receiving the
request, the Minister must decide whether or not to reinstate the approval.
Considerations for decision
(4) Subdivision B of Division 1 applies
to the decision whether or not to reinstate the approval in the same way as it
applies to a decision whether or not to approve the taking of an action.
Extra time for decision
(5) A day is not to be counted for the
purposes of subsection (3) if:
(a) the Minister and the person who
was the holder of the approval agree in writing that it should not be counted;
or
(b) the Minister has requested the
person to provide information under subsection (6) and the day is on or
before the day on which the Minister receives the last of the information
requested.
Requesting information for decision
(6) If the Minister believes on reasonable
grounds that he or she does not have enough information to make an informed
decision whether or not to reinstate the approval, the Minister may request the
person who was the holder of the approval to provide specified information
relevant to making the decision.
Reversal of decision to suspend or revoke approval
(7) If the Minister decides to reinstate the
approval, it and any conditions attached to it immediately before the
suspension or revocation have effect on and after the day of the decision
(subject to any future suspension or revocation under this Division).
Notice of decision about reversal
(8) The Minister must:
(a) give the person who was the holder
of the approval written notice of the Minister’s decision; and
(b) publish notice of the decision in
accordance with the regulations.
Division 4—Transfer of approvals
145B
Transfer with Minister’s consent
Transfer by written agreement
(1) A person (the transferor) who
is the holder of an approval under this Part for the purposes of a provision of
Part 3 may transfer the approval to another person (the transferee)
by written agreement, subject to the Minister’s consent.
Transfer ineffective until Minister consents
(2) The transfer does not have effect for the
purposes of this Act until the Minister consents in writing to the transfer. To
avoid doubt, the Minister’s consent to a transfer cannot take effect before the
Minister gives the consent.
Effect of consent
(3) If the Minister consents to the transfer:
(a) this Act (except Division 3)
operates in relation to the transferor as if the Minister had revoked the
approval when the Minister’s consent took effect; and
(b) this Act operates in relation to
the transferee as if, when the Minister’s consent to the transfer took effect,
he or she:
(i) had approved under
this Part for the purposes of the provision of Part 3 the taking of the
action by the transferee; and
(ii) had attached to the
approval the conditions that were attached to the approval of the taking of the
action by the transferor.
Considerations in deciding whether to consent
(4) In deciding whether or not to consent to
the transfer, the Minister may consider:
(a) whether the transferee would be a
suitable person to be granted the approval, having regard to:
(i) the transferee’s
history in relation to environmental matters; and
(ii) if the transferee is a
body corporate—the history of its executive officers in relation to
environmental matters; and
(iii) if the transferee is a
body corporate that is a subsidiary of another body or company (the parent
body)—the history in relation to environmental matters of the parent
body and its executive officers; and
(b) whether the transferee can comply
with the conditions attached to the approval.
Giving copies of consents to transferor and transferee
(5) The Minister must give the transferor and
the transferee a copy of the consent each.
Division 5—Extension of period of effect of approval
145C
Application to Minister to extend period of effect of approval
(1) Subject to subsection (2), the
holder of an approval under this Part may apply, in writing, to the Minister to
extend the period (the approval period) for which the approval
has effect.
(2) Subsection (1) does not apply if:
(a) the approval has been suspended or
revoked under this Part and has not been reinstated; or
(b) the approval has otherwise ceased
to have effect.
(3) An application under subsection (1)
must include the information (if any) prescribed by the regulations.
145D
Minister must decide whether or not to extend approval period
(1) Within 20 business days after receiving
an application under subsection 145C(1), the Minister must decide, in writing,
whether or not to extend the approval period.
Note: The Minister may request further information
for the purpose of making a decision under this subsection. See section 145E.
(2) The Minister may decide to extend the
approval period only if the Minister is satisfied that the extension will not
result in a substantial increase in, or substantial change in the nature of,
the adverse impacts (if any) the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3
for which the approval has effect.
(3) In considering the matter referred to in subsection (2),
the Minister must consider the following, so far as they are not inconsistent
with any other requirement of this Division:
(a) matters relevant to any matter
protected by a provision of Part 3 for which the approval has effect;
(b) economic and social matters.
(4) As soon as possible after deciding
whether or not to extend the approval period, the Minister must:
(a) give a copy of the decision to the
holder of the approval; and
(b) if the decision is to extend the
approval period—publish the decision in accordance with the regulations.
145E
Minister may request further information for making decision
(1) If the Minister believes on reasonable
grounds that he or she does not have enough information to decide whether or
not to extend the approval period, the Minister may request the holder of the
approval to provide specified information relevant to making the decision.
(2) If the Minister has requested more
information under subsection (1), a day is not to be counted as a business
day for the purposes of subsection 145D(1) if it is:
(a) on or after the day the Minister
requested the information; and
(b) on or before the day on which the
Minister receives the last of the information requested.
Part 10—Strategic assessments
Division 1—Strategic assessments generally
Subdivision A—Assessment of actions to be taken in accordance with policy,
plan or program
146
Minister may agree on strategic assessment
(1) The
Minister may agree in writing with a person responsible for the adoption or
implementation of a policy, plan or program that an assessment be made of the
impacts of actions under the policy, plan or program on a matter protected by a
provision of Part 3.
(1A) The agreement may also provide for the
assessment of other certain and likely impacts of actions under the policy,
plan or program if:
(a) the actions are to be taken in a
State or self‑governing Territory; and
(b) the appropriate Minister of the
State or Territory has asked the Minister administering this section to ensure
that the assessment deal with those other impacts to help the State or
Territory, or an agency of the State or Territory, make decisions about the
actions; and
(c) the actions:
(i) are to be taken by any
person for the purposes of trade or commerce between Australia and another
country, between 2 States, between a State and a Territory or between 2
Territories or by a constitutional corporation; or
(ii) are actions whose
regulation is appropriate and adapted to give effect to Australia’s obligation
under an agreement with one or more other countries.
Note: Paragraph (1A)(a) also applies to actions
to be taken in an area offshore from a State or the Northern Territory. See
section 157.
(1B) The agreement must provide for:
(a) the preparation of terms of
reference for a report on the impacts to which the agreement relates; or
(b) all of the following:
(i) the preparation of
draft terms of reference for a report on the impacts to which the agreement
relates;
(ii) the publication of the
draft terms of reference for public comment for a period of at least 28 days
that is specified by the Minister;
(iii) the finalisation of
the terms of reference, to the Minister’s satisfaction, taking into account the
comments (if any) received on the draft terms of reference.
(2) The agreement must provide for:
(a) the preparation of a draft of a
report on the impacts to which the agreement relates; and
(b) the publication of the draft
report for public comment for a period of at least 28 days that is specified by
the Minister; and
(c) the finalisation of the report,
taking into account the comments (if any) received after publication of the
draft report; and
(d) the provision of the report to the
Minister; and
(e) the making of recommendations by
the Minister to the person about the policy, plan or program (including
recommendations for modification of the policy, plan or program); and
(f) the endorsement of the policy,
plan or program by the Minister if he or she is satisfied that:
(i) the report adequately
addresses the impacts to which the agreement relates; and
(ii) either the recommended
modifications of the policy, plan or program (if any) have been made or any
modifications having the same effect have been made; and
(g) any other matter prescribed by the
regulations.
Note 1: If the impacts of actions under a policy, plan
or program are assessed under an agreement under this Part, the Minister may
decide on a less onerous approach for an assessment relating to an individual
action under the policy, plan or program. See section 87.
Note 2: If the Minister endorses a policy, plan or
program embodied in a management arrangement or an authorisation process, the
Minister may declare under section 33, or make a bilateral agreement
declaring, that actions approved in accordance with the management arrangement
or authorisation process do not need approval for the purposes of a specified
provision of Part 3.
(3) If the agreement relates to actions to be
taken in a State or self‑governing Territory, the Minister must tell the
appropriate Minister of the State or Territory:
(a) that the agreement has been made;
and
(b) what those actions are (in general
terms).
Subdivision B—Approval of taking of actions in accordance with endorsed
policy, plan or program
146A
Definition
In this Subdivision and Subdivision C:
endorsed policy, plan or program means a
policy, plan or program that has been endorsed by the Minister in accordance
with an agreement as mentioned in paragraph 146(2)(f).
146B
Minister may approve taking of actions in accordance with endorsed policy, plan
or program
(1) Subject to Subdivision C, the Minister
may approve the taking of an action or a class of actions in accordance with an
endorsed policy, plan or program.
Note: Subdivision C sets out matters that the
Minister must take into account in deciding whether or not to approve the
taking of an action or a class of actions in accordance with an endorsed
policy, plan or program.
(2) An approval of the taking of an action or
a class of actions in accordance with an endorsed policy, plan or program must:
(a) be in writing; and
(b) specify the action or class of
actions that may be taken in accordance with the endorsed policy, plan or
program; and
(c) specify each provision of Part 3
for which the approval has effect; and
(d) specify the period for which the
approval has effect; and
(e) set out the conditions attached to
the approval.
(2A) An approval of the taking of an action or a
class of actions in accordance with an endorsed policy, plan or program may
specify the person or persons who may take the action or an action in the class
of actions.
(3) The Minister must:
(a) give a copy of the approval to the
person responsible for the adoption or implementation of the endorsed policy,
plan or program; and
(b) provide a copy of the approval to
a person who asks for it (either at no charge or for a reasonable charge
determined by the Minister).
(4) However, the Minister must not provide
under subsection (3) a copy of so much of the approval as:
(a) is an exempt document under the Freedom
of Information Act 1982 on the grounds of commercial confidence; or
(b) the Minister believes it is in the
national interest not to provide.
The Minister may consider the defence or security of the
Commonwealth when determining what is in the national interest. This does not
limit the matters the Minister may consider.
(5) An approval given under subsection (1)
is not a legislative instrument.
146C
Inviting comments from other Ministers before deciding whether or not to
approve taking of actions in accordance with endorsed policy, plan or program
(1) Before the Minister (the Environment
Minister) decides whether or not to approve the taking of an action or
a class of actions in accordance with an endorsed policy, plan or program, he
or she must:
(a) inform any other Minister whom the
Environment Minister believes has administrative responsibilities relating to
the action or class of actions of the decision the Environment Minister
proposes to make; and
(b) invite each Minister informed to
give the Environment Minister, within 10 business days, comments on the
proposed decision.
(2) A Minister
who is invited to comment may make comments:
(a) that relate to economic and social
matters relating to the action or class of actions to which the proposed
decision relates; and
(b) that may be considered by the
Environment Minister consistently with the principles of ecologically
sustainable development.
This does not limit the comments such a Minister may give.
146D
Effect of approval of taking of actions in accordance with endorsed policy,
plan or program
(1) If an approval under section 146B is
in force, the following provisions have effect:
(a) the Minister is taken to have
decided under Division 2 of Part 7 that:
(i) each action specified
in the approval under paragraph 146B(2)(b), or each action in a class of
actions specified in the approval under that paragraph, is a controlled action;
and
(ii) each provision of Part 3
specified in the approval under paragraph 146B(2)(c) is a controlling provision
for each such controlled action;
(b) the Minister is taken to have
approved under Part 9, for the purposes of each controlling provision for
each controlled action, the taking of the action by any of the following:
(i) the person or persons
(if any) specified in the approval under subsection 146B(2A) as the person or
persons who may take the action;
(ii) any other person who
may take the action in accordance with the endorsed policy, plan or program.
(2) Parts 7 and 8 and paragraph 170A(c)
do not apply in relation to an action if an approval of the taking of the
action, or an approval of the taking of a class of actions that includes the
action, in accordance with an endorsed policy, plan or program is in force
under section 146B.
(3) Subject to subsection (4), section 134
and Divisions 2, 3 and 4 of Part 9 apply in relation to an approval
of the taking of an action that is taken to have been given under Part 9 because
of paragraph (1)(b).
Note: Section 134 deals with conditions of
approvals, Division 2 of Part 9 deals with compliance with
conditions, Division 3 of Part 9 deals with variation of conditions
and suspension and revocation of approvals and Division 4 of Part 9
deals with transfer of approvals.
(4) Subsection 145A(4) applies in relation to
a decision whether or not to reinstate an approval of the taking of an action
that is taken to have been given under Part 9 because of paragraph (1)(b),
as if:
(a) the reference to Subdivision B of
Division 1 of Part 9 were a reference to Subdivision C of this
Division; and
(b) the reference to a decision
whether or not to approve the taking of an action were a reference to a
decision whether or not to approve, under this Subdivision, the taking of an
action in accordance with an endorsed policy, plan or program.
Subdivision C—Considerations for approving taking of actions in accordance
with endorsed policy, plan or program
146E
Minister must comply with this Subdivision
The Minister must comply with this
Subdivision in deciding:
(a) whether or not to approve, under
section 146B, the taking of an action or a class of actions in accordance
with an endorsed policy, plan or program; and
(b) in the case of a decision to
approve the taking of such an action or class of actions, what conditions (if
any) to attach to the approval.
Note: For the meaning of endorsed policy, plan
or program, see section 146A.
146F
General considerations
(1) The Minister must consider the following,
so far as they are not inconsistent with any other requirements of this
Subdivision:
(a) matters relevant to any matter
protected by a provision of Part 3 that the Minister considers is relevant
to the approval;
(b) economic and social matters.
(2) In considering those matters, the
Minister must take into account the principles of ecologically sustainable
development.
146G
Approvals relating to declared World Heritage properties
If the approval relates to a declared
World Heritage property, the Minister must not act inconsistently with:
(a) Australia’s obligations under the
World Heritage Convention; or
(b) the Australian World Heritage
management principles; or
(c) a plan that has been prepared for
the management of the declared World Heritage property under section 316
or as described in section 321.
146H
Approvals relating to National Heritage places
If the approval relates to a National
Heritage place, the Minister must not act inconsistently with:
(a) the National Heritage management
principles; or
(b) an agreement to which the
Commonwealth is party in relation to the National Heritage place; or
(c) a plan that has been prepared for
the management of the National Heritage place under section 324S or as
described in section 324X.
146J
Approvals relating to declared Ramsar wetlands
If the approval relates to a declared
Ramsar wetland, the Minister must not act inconsistently with Australia’s
obligations under the Ramsar Convention.
146K
Approvals relating to listed threatened species and ecological communities
(1) This section applies if the approval
relates to a listed threatened species or a listed threatened ecological
community.
(2) The Minister must not act inconsistently
with:
(a) Australia’s obligations under:
(i) the Biodiversity
Convention; or
(ii) the Apia Convention;
or
(iii) CITES; or
(b) a recovery plan for the species or
community or a threat abatement plan.
(3) The Minister must have regard to any
approved conservation advice for the species or community.
146L
Approvals relating to listed migratory species
If the approval relates to a listed
migratory species, the Minister must not act inconsistently with whichever of
the following conventions or agreements because of which the species is listed:
(a) the Bonn Convention;
(b) CAMBA;
(c) JAMBA;
(d) an international agreement
approved under subsection 209(4).
146M
No approvals relating to nuclear actions
The Minister must not approve the taking
of an action or a class of actions in accordance with an endorsed policy, plan
or program if the action, or an action in the class of actions, consists of, or
involves the construction or operation of, any of the following nuclear
installations:
(a) a nuclear fuel fabrication plant;
(b) a nuclear power plant;
(c) an enrichment plant;
(d) a reprocessing facility.
Division 2—Assessment of Commonwealth‑managed fisheries
147
Simplified outline of this Division
The following is a simplified outline of
this Division:
The Australian Fisheries Management
Authority must make agreements under Division 1 for the assessment of
actions in fisheries managed under the Fisheries Management Act 1991. An
agreement must be made whenever it is proposed to make a management plan or a
determination not to have a plan. An agreement must be made within 5 years of
the commencement of this Act for all fisheries that did not have plans at that
commencement.
The Minister administering the Torres
Strait Fisheries Act 1984 must make agreements under Division 1
for the assessment of actions permitted by policies or plans for managing
fishing in Torres Strait. All policies or plans must be covered by an agreement
within 5 years after the commencement of this Act.
A further agreement for assessment
must be made if the impact of the actions is significantly greater than
assessed under an earlier agreement.
If the Minister endorses a policy or
plan assessed under an agreement under Division 1, the Minister must make
a declaration that actions under the policy or plan do not need approval under Part 9
for the purposes of section 23 or 24A (which protect the marine
environment).
148
Assessment before management plan is determined
Plans under the Fisheries Management Act 1991
(1) Before the Australian Fisheries
Management Authority determines a plan of management for a fishery under
section 17 of the Fisheries Management Act 1991, the Authority
must:
(a) make
an agreement with the Minister under section 146 for assessment of the
impacts of actions under the plan on each matter protected by a provision of
Part 3; and
(b) consider any recommendations made
by the Minister under the agreement.
Plans under the Torres Strait Fisheries Act 1984
(2) Before the Minister administering the Torres
Strait Fisheries Act 1984 determines a plan of management for a
fishery under section 15A of that Act, he or she must:
(a) make
an agreement under section 146 with the Minister (the Environment
Minister) administering this section for assessment of the impacts of
actions under the plan on each matter protected by a provision of Part 3;
and
(b) consider any recommendations made
by the Environment Minister under the agreement.
149
Assessment before determination that no plan required
Before the Australian Fisheries
Management Authority determines under subsection 17(1A) of the Fisheries
Management Act 1991 that a plan of management is not warranted for a
fishery, the Authority must:
(a) make an agreement with the Minister under section 146 for assessment
of the impacts of actions on each matter protected by a provision of Part 3,
being actions permitted under the Authority’s policy for managing the fishery;
and
(b) consider any recommendations made
by the Minister under the agreement.
150
Assessment of all fisheries without plans must be started within 5 years
Fisheries managed under the Fisheries Management Act
1991
(1) This section applies to fisheries (as
defined in the Fisheries Management Act 1991):
(a) that are managed under that Act
(whether as a result of arrangements under section 71 or 72 of that Act or
not); and
(b) for which there were not plans of
management in force under that Act when this Act commenced.
Two‑thirds of
fisheries to be covered by agreements in 3 years
(2) Before
the day that is the third anniversary of this Act commencing, the Australian
Fisheries Management Authority must make agreements with the Minister under
section 146 for assessment of the impacts of actions on each matter
protected by a provision of Part 3, being actions that are permitted under
the Authority’s policies for managing at least 2/3 of the fisheries.
All fisheries to be
covered by agreements in 5 years
(3) Before
the day that is the fifth anniversary of this Act commencing, the Australian
Fisheries Management Authority must make agreements with the Minister under
section 146 for assessment of the impacts of actions on each matter
protected by a provision of Part 3, being actions that are permitted
under the Authority’s policies for managing the fisheries.
Agreement not needed if fishery already subject to agreement
(4) However, subsection (3) does not
require another agreement to be made in relation to a fishery if an agreement
relating to the fishery has been made, before the day mentioned in that
subsection, by the Authority and the Minister under section 146 because of
subsection 148(1) or section 149.
151
Assessment of all Torres Strait fisheries to be started within 5 years
Fisheries managed under the Torres Strait Fisheries Act
1984
(1) This section applies to actions that:
(a) are involved in fishing (as
defined in the Torres Strait Fisheries Act 1984) in an area of
Australian jurisdiction (as defined in that Act); and
(b) were not covered by a plan of
management in force under section 15A of that Act when this Act commenced.
Policies for all
actions to be covered by agreements in 5 years
(2) Before
the day that is the fifth anniversary of this Act commencing, the Minister
administering the Torres Strait Fisheries Act 1984 must make agreements
under section 146 with the Minister administering this section for
assessment of the impacts of the actions on each matter protected by a
provision of Part 3, being actions that are permitted by policies under
that Act.
Agreement not needed if fishery already subject to
agreement
(3) However, subsection (2) does not
require another agreement to be made in relation to actions if an agreement
covering them has been made under section 146, before the day mentioned in
that subsection, by the Ministers mentioned in that subsection because of
subsection 148(2).
152 Further
assessment if impacts greater than previously assessed
Application
(1) This section applies if the Minister (the
Environment Minister) and the Minister administering the Fisheries
Management Act 1991 agree that the impacts that actions:
(a) included in a fishery managed
under that Act; or
(b) permitted under a policy or plan
for managing fishing (as defined in the Torres Strait Fisheries Act
1984) in an area of Australian jurisdiction (as defined in that Act);
have, will have or are likely to have on a matter
protected by a provision of Part 3 are significantly greater than the
impacts identified in the most recent report provided to the Environment
Minister under an agreement made under section 146 relating to the
fishery, policy or plan.
Further assessment for management arrangements under
the Fisheries Management Act 1991
(2) The Australian Fisheries Management
Authority must make another agreement with the Minister under section 146
in relation to the Authority’s policy for managing the fishery.
Further assessment for policy or plan for Torres Strait
fishing
(3) The Minister administering the Torres
Strait Fisheries Act 1984 must make another agreement under section 146
in relation to the policy or plan for managing fishing (as defined in the Torres
Strait Fisheries Act 1984) in an area of Australian jurisdiction
(as defined in that Act).
153
Minister must make declaration if he or she endorses plan or policy
(1) This section applies if:
(a) the Minister makes an agreement
under section 146 as required by this Division and endorses under the
agreement:
(i) a plan of management
under the Fisheries Management Act 1991 for a fishery; or
(ii) policies of the
Australian Fisheries Management Authority for managing a fishery for which
there is not a plan of management under the Fisheries Management Act 1991;
or
(iii) a plan of management
under the Torres Strait Fisheries Act 1984 for a fishery; or
(iv) policies for managing
fishing under the Torres Strait Fisheries Act 1984; and
(b) the Minister accredits, under
subsection 33(3) of this Act, as an accredited arrangement a management plan or
regime consisting of the endorsed plan or policies.
(2) The Minister must make a declaration
under section 33 that actions approved in accordance with the accredited
arrangement do not require an approval under Part 9 for the purposes of
subsection 23(1), (2) or (3) or subsection 24A(1), (2), (3), (4), (5) or (6).
Note: The declaration and accreditation will allow
actions that would otherwise be prohibited by sections 23 and 24A to be
taken without approval if they are taken in accordance with the accredited
arrangement. See section 32.
154
This Division does not limit Division 1
This Division does not limit Division 1.
Part 11—Miscellaneous rules about assessments and approvals
Division 1—Rules about timing
155
This Chapter ceases to apply to lapsed proposals
(1) If:
(a) a person who proposes to take a
controlled action or is the designated proponent of an action is required or
requested under this Chapter to do something; and
(b) the person does not do the thing
within a period that the Minister believes is a reasonable period;
the Minister may give the person a written notice inviting
the person to satisfy the Minister within a specified reasonable period that
assessment of the action should continue or that the Minister should make a
decision about approving the action.
Note: Sections 28A and 29 of the Acts
Interpretation Act 1901 explain how documents may be served and when they
are taken to be served.
(2) If, by the end of the specified period,
the person fails to satisfy the Minister that assessment of the action should
continue or that the Minister should make a decision about approving the
action, the Minister may declare in writing that this Chapter no longer applies
to the action.
(3) This Chapter (apart from this section)
ceases to apply in relation to the action on the date specified in the
declaration. The Minister must not specify a date earlier than the date of
making of the declaration.
(4) The Minister must:
(a) give a copy of the declaration to
the person and to the Secretary; and
(b) publish the declaration in
accordance with the regulations.
156
General rules about time limits
(1) If this Chapter specifies a time limit in
business days in relation to a controlled action (or an action that the
Minister believes may be or is a controlled action), the limit is to be worked
out by reference to what is a business day in the place where the action is to
be taken.
(2) A day is not to be counted as a business
day for the purposes of subsection (1) if it is not a business day in all
the places in which the action is to be taken.
(3) Failure to comply with a time limit set
in this Chapter does not affect the validity of:
(a) a decision under this Chapter; or
(b) an assessment or approval under
this Chapter.
Note: The Minister must make a statement to
Parliament about some failures to comply with time limits. See section 518.
Division 1A—Variation of proposals to take actions
156A
Request to vary proposal to take an action
(1) If:
(a) a proposal (the original
proposal) by a person to take an action has been referred to the
Minister under Division 1 of Part 7; and
(b) after the referral is made, the
person wishes to change the original proposal;
the person may, subject to subsection (2), request
the Minister to accept a variation (a varied proposal) of the
original proposal.
(2) Subsection (1) does not apply if:
(a) the Minister has made a decision
under section 74A to not accept the referral of the original proposal; or
(b) the Minister has made a decision
under section 75 that the proposed action is not a controlled action; or
(c) a particular manner for taking the
proposed action is identified under subsection 77A(1) in the notice given under
section 77 in relation to the action; or
(d) the Minister has made a decision
under section 133 approving or refusing to approve the taking of the
proposed action; or
(e) the referral of the original
proposal has been withdrawn under section 170C.
(3) A request under subsection (1) must:
(a) be made in a way prescribed by the
regulations; and
(b) include the information prescribed
by the regulations.
(4) If a request is made under subsection (1),
any provisions of this Chapter that would, apart from this subsection, have
applied in relation to the original proposal cease to apply to that proposal.
Note: Provisions that have ceased to apply in
relation to the original proposal under subsection (4) will start to apply
to that proposal, or to the varied proposal, after the Minister has decided
whether or not to accept the varied proposal. See section 156D.
156B
Minister must decide whether or not to accept a varied proposal
(1) Within 20 business days after receiving a
request under subsection 156A(1) to accept a varied proposal to take an action,
the Minister must decide whether or not to accept the varied proposal.
Note: The Minister may request further information
for the purpose of making a decision under this subsection. See section 156C.
(2) The Minister must not decide to accept
the varied proposal unless the Minister is satisfied that the character of the
varied proposal is substantially the same as the character of the original
proposal. This subsection does not limit the matters the Minister may consider
in deciding whether or not to accept the varied proposal.
(3) In considering, for the purposes of subsection (2),
whether or not the character of the varied proposal is substantially the same
as the character of the original proposal, the Minister must have regard to the
change (if any) in:
(a) the nature of the activities
proposed to be carried out in taking the action; and
(b) the nature and extent of the
impacts (if any) the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each
provision of Part 3.
156C
Minister may request further information in relation to a varied proposal
(1) If the Minister believes on reasonable
grounds that a request under subsection 156A(1) to accept a varied proposal to
take an action does not include enough information for the Minister to decide
whether or not to accept the varied proposal, the Minister may request the
person proposing to take the action to provide specified information relevant
to making the decision.
(2) If the Minister has requested more
information under subsection (1), a day is not to be counted as a business
day for the purposes of subsection 156B(1) if it is:
(a) on or after the day the Minister
requested the information; and
(b) on or before the day on which the
Minister receives the last of the information requested.
156D
Effect of Minister’s decision to accept or not accept a varied proposal
(1) If the Minister decides to accept a
varied proposal to take an action:
(a) any provisions of this Chapter
that, because of subsection 156A(4), have ceased to apply in relation to the
original proposal start to apply in relation to the varied proposal; and
(b) for the purpose of the application
of those provisions, anything done in relation to the original proposal is
taken to have been done in relation to the varied proposal.
(2) If the Minister decides not to accept a
varied proposal to take an action, any provisions of this Chapter that, because
of subsection 156A(4), have ceased to apply in relation to the original
proposal start to apply in relation to that proposal.
(3) For the purpose of the application of the
provisions of this Chapter in relation to the varied proposal under subsection (1),
or in relation to the original proposal under subsection (2), a day is not
to be counted as a business day if it is:
(a) on or after the day the Minister
received the request under subsection 156A(1) to accept the varied proposal;
and
(b) on or before the day the Minister
made the decision under subsection 156B(1).
156E
Notice of decision
(1) Within 10 business days after deciding
under subsection 156B(1) whether or not to accept a varied proposal to take an
action, the Minister must give written notice of the decision to:
(a) the person proposing to take the
action; and
(b) the designated proponent of the
action (if the designated proponent of the action is not the person proposing
to take the action).
(2) If:
(a) the request to accept the varied
proposal related to an action that is to be taken in a State or self‑governing
Territory; and
(b) a controlling provision for the
action is in Division 1 of Part 3 (which deals with matters of
national environmental significance); and
(c) the Minister decided to accept the
varied proposal;
the Minister must also, within the period referred to in subsection (1),
give written notice of the decision to the appropriate Minister of the State or
Territory.
(3) If the Minister decided to accept the
varied proposal, the Minister must, within the period referred to in subsection (1),
publish the request to accept the varied proposal and notice of the decision in
accordance with the regulations.
Division 1B—Change of person proposing to take action
156F
Change of person proposing to take action
Notice of change of person proposing to take action
(1) At any time:
(a) after a proposal by a person to
take an action has been referred to the Minister under Division 1 of Part 7;
and
(b) before the Minister has approved,
or refused to approve, the taking of the action under section 133;
the person (the first person) proposing to
take the action and another person (the second person) may notify
the Minister, in writing, that:
(c) the first person no longer
proposes to take the action; and
(d) the second person proposes to take
the action instead.
Note: A person who is the holder of an approval
under Part 9 may transfer the approval to another person under
section 145B.
When notice cannot be given
(2) Subsection (1) does not apply if:
(a) the Minister has made a decision
under section 74A to not accept the referral of the proposal to take the
action; or
(b) the Minister has made a decision
under section 75 that the action is not a controlled action; or
(c) a particular manner for taking the
action is identified under subsection 77A(1) in the notice given under section 77
in relation to the action.
Notice must include prescribed information
(3) A notice under subsection (1) must
include the information (if any) prescribed by the regulations.
Effect of notice
(4) If a notice is given to the Minister
under subsection (1):
(a) any provisions of this Chapter
that, apart from this paragraph, would have applied to the first person in
relation to the action cease to apply to that person and start to apply to the
second person; and
(b) for the purposes of the
application of those provisions:
(i) the second person is
taken to be named in the referral of the proposal to take the action as the
person proposing to take the action; and
(ii) the second person is
taken to have done anything the first person did in relation to the action; and
(iii) anything done in
relation to the first person in relation to the action is taken to have been
done in relation to the second person.
Publication of notice
(5) Within 10 business days after receiving a
notice under subsection (1), the Minister must publish a copy of the
notice in accordance with the regulations.
Division 2—Actions in area offshore from a State or the Northern Territory
157
Actions treated as though they were in a State or the Northern Territory
(1) A provision of this Chapter that is
expressed to apply in relation to actions taken or to be taken in a State also
applies in the same way to actions taken or to be taken on, under or over the
seabed vested in the State by section 4 of the Coastal Waters (State
Title) Act 1980.
(2) So far as a provision of this Chapter
that is expressed to apply in relation to actions taken or to be taken in a
self‑governing Territory relates to the Northern Territory, the provision
also applies in the same way to actions taken or to be taken on, under or over
the seabed vested in the Northern Territory by section 4 of the Coastal
Waters (Northern Territory Title) Act 1980.
Division 3—Exemptions
158
Exemptions from Part 3 and this Chapter
(1) A person proposing to take a controlled
action, or the designated proponent of an action, may apply in writing to the
Minister for an exemption from a specified provision of Part 3 or of this
Chapter.
(2) The Minister must decide within 20 business
days of receiving the application whether or not to grant the exemption.
(3) The Minister may, by written notice,
exempt a specified person from the application of a specified provision of Part 3
or of this Chapter in relation to a specified action.
(4) The Minister may do so only if he or she
is satisfied that it is in the national interest that the provision not apply
in relation to the person or the action.
(5) In determining the national interest, the
Minister may consider Australia’s defence or security or a national emergency.
This does not limit the matters the Minister may consider.
(6) A provision specified in the notice does
not apply in relation to the specified person or action on or after the day
specified in the notice. The Minister must not specify a day earlier than the
day the notice is made.
(7) Within 10 business days after making the
notice, the Minister must:
(a) publish a copy of the notice and
his or her reasons for granting the exemption in accordance with the
regulations; and
(b) give a copy of the notice to the
person specified in the notice.
Division 3A—Approval process decisions not affected by listing events
that happen after section 75 decision made
158A
Approval process decisions not affected by listing events that happen after
section 75 decision made
(1) In this section:
approval process decision means any of the
following decisions:
(a) a decision under section 75
whether an action is a controlled action;
(b) a decision under section 75
whether a provision of Part 3 is a controlling provision for an action;
(c) a decision under section 78
in relation to a decision referred to in paragraph (a) or (b) of this
definition;
(d) a decision under section 87
on the approach for the assessment of the impacts of an action;
(e) a decision under section 133
whether to approve an action;
(f) a decision under section 134
to attach conditions to an approval of an action;
(g) a decision under section 143
to revoke, vary or add to conditions attached to an approval of an action;
(h) any other decision made under a
provision of this Chapter that is specified in the regulations.
listing event means any of the following
events:
(a) a property becoming a declared
World Heritage property;
(b) a change in the world heritage values
of a declared World Heritage property;
(c) a place becoming a National
Heritage place;
(d) a change in the National Heritage
values included in the National Heritage List for a National Heritage place;
(e) a place becoming a Commonwealth
Heritage place;
(f) a change in the Commonwealth
Heritage values included in the Commonwealth Heritage List for a Commonwealth
Heritage place;
(g) a wetland becoming a declared
Ramsar wetland;
(h) a change in the boundaries of any
of the following:
(i) a World Heritage
property;
(ii) a National Heritage
place;
(iii) a Commonwealth
Heritage place;
(iv) a declared Ramsar
wetland;
(i) a species becoming a listed
threatened species;
(j) an ecological community becoming
a listed threatened ecological community;
(k) a listed threatened species or a
listed threatened ecological community becoming listed in another category
representing a higher degree of endangerment;
(l) a species becoming a listed
migratory species;
(m) any other event of a kind specified
in the regulations.
(2) This section applies if:
(a) the Minister has, before or after
the commencement of this section, decided under section 75 (the primary
decision) whether an action (the relevant action) is a
controlled action (whether the decision is that the action is a controlled
action, or that the action is not a controlled action); and
(b) at a time that is after the
commencement of this section and after the primary decision was made, a listing
event occurs.
(3) The validity of the primary decision, or
any other approval process decision made in relation to the relevant action
before the listing event occurred, is not affected by the listing event, nor
can it be revoked, varied, suspended, challenged, reviewed, set aside or called
in question because of, or for reasons relating to, the listing event.
(4) After the listing event occurs, the
listing event is to be disregarded:
(a) in making any further approval
process decision in relation to the relevant action; and
(b) in doing anything under this
Chapter, in relation to the relevant action, because of the making of an
approval process decision in relation to the relevant action (whether that
approval process decision is or was made before or after the listing event
occurred).
(5) This section has effect despite any other
provision of this Act and despite any other law.
Division 4—Application of Chapter to actions that are not controlled
actions
Subdivision A—Minister’s advice on authorising actions
159
Simplified outline of this Subdivision
The following is a simplified outline of
this Subdivision:
A Commonwealth agency or employee must
consider advice from the Minister before authorising one of the following
actions with a significant impact on the environment:
(a) providing
foreign aid;
(b) managing
aircraft operations in airspace;
(c) adopting or
implementing a major development plan for an airport;
(d) an action
prescribed by the regulations.
The agency or employee must inform the
Minister of the proposal to authorise the action.
The environmental impacts of the
action must be assessed in accordance with a declaration made by the Minister
accrediting a Commonwealth assessment process, or by one of the following
methods chosen by the Minister:
(a) a specially
accredited process;
(aa) an assessment
on referral information under Division 3A;
(b) an
assessment on preliminary documentation under Division 4 of Part 8;
(c) a public
environment report under Division 5 of Part 8;
(d) an
environmental impact statement under Division 6 of Part 8;
(e) an inquiry
under Division 7 of Part 8.
The Minister must give the agency or
employee advice on protecting the environment from the action, within 30 days
of receiving the report of the assessment.
160
Requirement to take account of Minister’s advice
Requirement
(1) Before a Commonwealth agency or employee
of the Commonwealth gives an authorisation (however described) of an action
described in subsection (2), the agency or employee must obtain and
consider advice from the Minister in accordance with this Subdivision.
Note: The giving of an authorisation for an action
may be constituted by the renewal of an authorisation of the action or the
variation of an authorisation for a different action.
Minister may decide advice is not required
(1A) Subsection (1) does not apply in
relation to an authorisation of an action if:
(a) the agency or employee has
referred a proposal to give the authorisation to the Minister under subsection
161(1); and
(b) the Minister has decided under
subsection 161A(1) that this Subdivision does not apply in relation to the
referral or the action.
Relevant actions
(2) Subsection (1) applies in relation
to:
(a) the entry by the Commonwealth,
under Australia’s foreign aid program, into a contract, agreement or
arrangement for the implementation of a project that has, will have or is
likely to have a significant impact on the environment anywhere in the world;
and
(b) the adoption or implementation of
a plan for aviation airspace management involving aircraft operations that have,
will have or are likely to have a significant impact on the environment; and
(c) the adoption or implementation of
a major development plan (as defined in the Airports Act 1996); and
(d) any other action prescribed by the
regulations for the purposes of this paragraph.
(2A) Regulations may prescribe an action for the
purposes of paragraph (2)(d):
(a) partly by reference to the
action’s having, or being likely to have, a significant impact on the
environment; or
(b) partly by reference to a specified
person believing that the action has, will have or is likely to have a
significant impact on the environment; or
(c) wholly or partly by reference to
legislation under which the authorisation of the action is to be granted.
This does not limit the ways in which regulations may
prescribe an action.
This section does not apply to actions like those
already assessed
(3) Subsection (1) does not apply in
relation to a particular authorisation (the later authorisation)
if the agency or employee has complied with, or is complying with, this
Subdivision in relation to another authorisation or proposed authorisation and
is satisfied of one or both of the matters in subsection (4).
Which actions are like actions?
(4) For the purposes of subsection (3),
the agency or employee must be satisfied that:
(a) the Minister’s advice relating to
the other authorisation deals or will deal with all the impacts that the action
to which the later authorisation relates has, will have or is likely to have on
the environment; or
(b) the impacts that the action to
which the later authorisation relates has, will have or is likely to have on
the environment:
(i) are an extension of
the corresponding impacts of the action to which the other authorisation
relates; and
(ii) are not significantly
different in nature from those corresponding impacts; and
(iii) do not significantly
add to those corresponding impacts.
State law excluded in relation to aviation
(5) A law of a State or Territory does not
apply in relation to the assessment of the certain or likely environmental
impacts of an action described in paragraph (2)(b) if subsection (1)
applies in relation to authorisation of the action, or would apply apart from subsection (3).
161
Seeking the Minister’s advice
Requirement for referral
(1) If a Commonwealth agency or employee of
the Commonwealth proposing to give an authorisation (however described) of an
action thinks the agency or employee is required by section 160 (disregarding
subsection 160(1A)) to obtain and consider the Minister’s advice before giving
the authorisation, the agency or employee must:
(a) refer the proposal to the
Minister; and
(b) nominate a person to act as
designated proponent of the action.
Minister may request referral
(2) The Minister may request a Commonwealth
agency or employee of the Commonwealth to:
(a) refer to the Minister a proposal
to give an authorisation (however described) of an action; and
(b) nominate a person to act as
designated proponent of the action;
if the Minister thinks the agency or employee is required
by section 160 (disregarding subsection 160(1A)) to obtain and consider
the Minister’s advice before giving the authorisation.
Complying with Minister’s request
(3) The Commonwealth agency or employee must
comply with the Minister’s request.
Content of referral
(4) A referral must include the information
prescribed by the regulations.
161A
Minister may decide that advice is not required
(1) If:
(a) the Minister receives a referral
under subsection 161(1) of a proposal by a Commonwealth agency or employee of
the Commonwealth to give an authorisation of an action; and
(b) the Minister is satisfied, on the
basis of the information in the referral, that the action does not have, will
not have or is not likely to have a significant impact on the environment;
the Minister may decide, in writing, that this Subdivision
does not apply in relation to the referral or the action.
(2) If the Minister decides that this
Subdivision does not apply in relation to the referral or the action, this Act
(other than Divisions 2 and 3 of Part 7) applies as if the Minister
had decided under Division 2 of Part 7 that the action is not a
controlled action.
(3) If the Minister decides that this
Subdivision does not apply in relation to the referral or the action, the
Minister must:
(a) give written notice of the
decision to the agency or employee who referred the proposal to give an
authorisation of the action; and
(b) publish notice of the decision in
accordance with the regulations.
161B
Certain provisions of other Acts not to apply if Minister decides that advice
is not required
(1) This section applies in relation to a
provision of another Act that is expressed to apply if:
(a) the advice of the Minister is
sought under this Subdivision in relation to a proposal to give an
authorisation (however described) of an action; or
(b) a proposal to give an
authorisation (however described) of an action is referred to the Minister
under this Subdivision.
(2) The provision does not apply in relation
to an action if:
(a) a proposal to give an
authorisation (however described) of the action has been referred to the
Minister under section 161; and
(b) the Minister has decided under
section 161A that this Subdivision does not apply in relation to the referral
or the action.
Note: See, for example, subsections 94(6A) and
95(3A) of the Airports Act 1996 and subsections 16(5) and 29(5) of the Hazardous
Waste (Regulation of Exports and Imports) Act 1989.
162
Assessment of the action
Part 8 (except sections 82, 83
and 84) and the other provisions of this Act (so far as they relate to that
Part) apply in relation to the action proposed to be authorised as if:
(a) the referral of the proposal to
give the authorisation were a referral of a proposal to take the action; and
(b) the Minister had decided under
Division 2 of Part 7 that the action was a controlled action when the
proposal to give the authorisation was referred to the Minister; and
(c) the person nominated to act as the
designated proponent had been designated as the proponent of the action by the
Minister under section 75; and
(d) a reference in Part 8 or
those provisions to the relevant impacts of the action were a reference to the
impact that the action has, will have or is likely to have on the environment;
and
(e) a reference in Part 8 or
those provisions to making an informed decision on approving under Part 9
(for the purposes of each controlling provision) the taking of the action were
a reference to giving informed advice about the proposal to give an
authorisation of the action.
163
Providing advice
(1) The Minister must give advice on the
following matters to the Commonwealth agency or employee of the Commonwealth
who referred the proposal to give an authorisation of the action:
(a) whether the agency or employee
should give the authorisation;
(b) what conditions (if any) should be
attached to the authorisation (if possible) to protect the environment;
(c) any other matter relating to
protection of the environment from the action.
(2) The Minister must give the advice within 30
business days of receiving:
(a) a report mentioned in subsection
84(3) relating to the action; or
(aa) a finalised recommendation report
under Division 3A of Part 8 (as applied by section 162) relating
to the action; or
(ab) the documents given to the
Minister under subsection 95B(1) (as applied by section 162), or the
statement given to the Minister under subsection 95B(3) (as applied by section 162),
as the case requires, relating to the action; or
(ac) a finalised public environment
report under Division 5 of Part 8 (as applied by section 162)
relating to the action; or
(ad) a finalised environmental impact
statement under Division 6 of Part 8 (as applied by section 162)
relating to the action; or
(b) a report of an inquiry under
Division 7 of Part 8 (as applied by section 162) relating to the
action.
164
Reporting on response to advice
As soon as practicable after considering
the Minister’s advice, the Commonwealth agency or employee of the Commonwealth
must give the Minister a report stating:
(a) what action has been taken in
relation to the Minister’s advice; and
(b) if the agency or employee did not
give effect to some or all of the Minister’s advice—why the agency or employee
did not do so.
Subdivision C—Assessment under agreement with State or Territory
166
This Subdivision applies if Ministers agree it should
(1) This Subdivision applies if the Minister
and a Minister of a State or self‑governing Territory agree that it
should apply in relation to an action that:
(a) is to be taken in the State or
Territory by a constitutional corporation; or
(b) if the agreement is with a
Minister of a Territory—is to be taken in the Territory; or
(c) is to be taken in the State or
Territory by a person for the purposes of trade or commerce:
(i) between Australia and
another country; or
(ii) between 2 States; or
(iii) between a State and a
Territory; or
(iv) between 2 Territories;
or
(d) is to be taken in the State or
Territory and is an action whose assessment under this Subdivision is an
appropriate means of giving effect to Australia’s obligations under an
agreement with one or more other countries.
(2) This section applies to the adoption or
implementation of a policy, plan or program in the same way as it applies to
any other action.
(3) Despite subsection (1), this
Subdivision does not apply in relation to an action to be taken in 2 or more
States or self‑governing Territories unless there is an agreement between
the Minister and a Minister of each of those States and Territories that this
Subdivision should apply in relation to the action.
167
Making an agreement
Power to make agreement
(1) The Minister may make a written agreement
with a Minister of a State or self‑governing Territory to apply this
Subdivision in relation to an action to be taken in the State or Territory.
Prerequisites for making agreement
(2) The Minister may agree only if he or she
is satisfied that the action is not a controlled action.
Minister must not make an agreement that gives
preference
(3) The Minister must not enter into an
agreement that has the effect of giving preference (within the meaning of
section 99 of the Constitution) to one State or part of a State over
another State or part of a State, in relation to the taking of the action:
(a) by a constitutional corporation;
or
(b) by a person for the purposes of
trade or commerce between Australia and another country or between 2 States.
168
Content of an agreement
Generally
(1) An agreement to apply this Subdivision in
relation to an action must:
(a) specify that one of the following
is to apply in relation to the action:
(i) Division 3A of
Part 8;
(ii) Division 4 of
Part 8;
(iii) Division 5 of
Part 8;
(iv) Division 6 of Part 8;
(v) Division 7 of Part 8;
(vi) Subdivision A of
Division 1 of Part 10; and
(b) if it specifies that Division 3A,
4, 5 or 6 of Part 8 is to apply in relation to the action—specify the
person who is taken to be the designated proponent of the action for the
purposes of that Division.
Agreement applying Division 5 of Part 8
(3) An agreement that specifies that Division 5
of Part 8 (about public environment reports) is to apply in relation to an
action may deal with how the Minister will exercise his or her power:
(a) under section 97 to prepare tailored
guidelines for the preparation of a draft report; or
(b) under section 98 to approve
publication of a draft report or specify a period for comment.
Agreement applying Division 6 of Part 8
(4) An agreement that specifies that Division 6
of Part 8 (about environmental impact statements) is to apply in relation
to an action may deal with how the Minister will exercise his or her power:
(a) under section 102 to prepare tailored
guidelines for the preparation of a draft statement; or
(b) under section 103 to approve
publication of a draft statement or specify a period for comment.
Agreement applying Division 7 of Part 8
(5) An agreement that specifies that Division 7
of Part 8 (about inquiries) is to apply in relation to an action may deal
with how the Minister will exercise his or her power under section 107:
(a) to appoint one or more persons as
commissioners, and to appoint a person to preside; or
(b) to specify the matters relating to
the action that are to be the subject of the inquiry and report; or
(c) to specify the time within which
the commission must report to the Minister; or
(d) to specify the manner in which the
commission is to carry out the inquiry.
Agreement applying Part 10
(6) An agreement that specifies that Subdivision
A of Division 1 of Part 10 is to apply may:
(a) be in the same document as an
agreement mentioned in that Subdivision; or
(b) specify the manner in which an
agreement the Minister makes under that Subdivision is to provide for matters
that that Subdivision requires that agreement to provide for.
169
Application of a Division of Part 8
Provisions that apply
(1) If the agreement states that a particular
Division of Part 8 is to apply in relation to the assessment of an action,
the following provisions of this Act (the applied provisions)
apply in relation to the action as set out in subsection (2):
(a) that Division;
(b) the other provisions of this Act
(except Part 9), so far as they relate to that Division.
Modification of applied provisions
(2) The applied provisions apply in relation
to the action as if:
(a) the Minister had decided under
Division 2 of Part 7 that the action was a controlled action; and
(b) the Minister had decided that the
relevant impacts of the action must be assessed under the Division specified in
the agreement applying the Division; and
(c) the person specified in the
agreement as the person who is taken to be the designated proponent of the
action for the purposes of that Division had been designated as the proponent of
the action by the Minister under section 75; and
(d) a reference in the applied
provisions to the relevant impacts of the action were a reference to the impact
that the action has, will have or is likely to have on the environment; and
(e) a reference in the applied
provisions to making an informed decision on approving under Part 9 (for
the purposes of each controlling provision) the taking of the action were a
reference to making an informed report and recommendations relating to the
action.
Modification of Division 4 of Part 8
(3) Also, if the agreement states that
Division 4 of Part 8 is to apply in relation to the action, that
Division applies in relation to the action as if paragraphs 95(2)(a) and (b)
and 95A(3)(a), (b) and (c) merely referred to specified information relating to
the action.
Minister must give copy of report to State or Territory
Minister
(4) The Minister must give a copy of the
report he or she receives from the Secretary or commission of inquiry under the
applied provisions in relation to the action to each Minister of a State or
Territory who is party to the agreement.
170
Application of Subdivision A of Division 1 of Part 10
If an agreement to apply this
Subdivision states that Subdivision A of Division 1 of Part 10 is to
apply:
(a) that Subdivision applies as if:
(i) the reference in
subsection 146(1) to relevant impacts of actions were a reference to the
impacts the actions have, will have or are likely to have on the environment;
and
(ii) paragraph 146(2)(f)
were omitted; and
(b) the Minister must give a copy of
the report provided to the Minister under the agreement made under section 146,
and of any recommendations made by the Minister under the agreement, to each
Minister of a State or Territory who is party to the agreement to apply this
Subdivision.
Division 5—Publication of information relating to assessments
170A
Publication of information relating to assessments
The Secretary must publish on the
Internet every week notice of the following:
(a) the publication in the immediately
preceding week by the Minister under section 45 of a notice of the
Minister’s intention to develop a draft bilateral agreement;
(b) each referral (if any) of an
action received by the Minister under Division 1 of Part 7 in the
immediately preceding week;
(c) each decision (if any) in the
immediately preceding week under Division 2 of Part 7 that an action
is a controlled action;
(d) each decision (if any) in the
immediately preceding week under Division 3 of Part 8 about which
approach is to be used for assessment of the relevant impacts of an action;
(da) each draft recommendation report
and invitation (if any) published in the immediately preceding week under
Division 3A of Part 8 (about assessment on referral information);
(e) the information and invitations
(if any) published in the immediately preceding week under Division 4 of
Part 8 (about assessment on preliminary documentation);
(f) each set of guidelines (if any)
prepared in the immediately preceding week by the Minister under Division 5
or 6 of Part 8 for a report or statement;
(g) each public invitation (if any)
issued in the immediately preceding week by the Minister to comment on a draft
of guidelines under Division 5 or 6 of Part 8 for a report or
statement;
(h) each draft or finalised report or
statement published in the immediately preceding week under Division 5 or
6 of Part 8 by a designated proponent;
(i) each finalised recommendation
report given to the Minister under Division 3A of Part 8 in the
immediately preceding week;
(ia) each recommendation report given
to the Minister in the immediately preceding week under section 95C, 100
or 105;
(j) any other matter prescribed by
the regulations.
170B
Information critical to protecting matters of national environmental
significance not to be disclosed
(1) The Minister may, by notice in writing to
a person, direct the person not to disclose specified information when
publishing a document or material as required or permitted by a specified
provision of this Chapter, if the Minister considers that the information is
critical to the protection of a matter protected by a provision of Division 1
of Part 3 (about matters of national environmental significance).
(2) A provision of this Chapter that is
specified in a direction under subsection (1) has effect as if it did not
require or permit the publication of the information specified in the
direction.
(3) A person who is given a direction under subsection (1)
must not contravene the direction.
Civil penalty: 100 penalty units.
170BA
Designated proponent may request Minister to permit commercial‑in‑confidence
information not to be disclosed
(1) This section applies in relation to the
assessment documentation that must be published by the designated proponent of
an action to which Division 4, 5 or 6 of Part 8 applies.
(2) The designated proponent may request the
Minister, in writing, to permit the designated proponent not to publish so much
of the assessment documentation relating to the action as the designated proponent
considers is commercial‑in‑confidence.
(3) A request under subsection (2) must
include the information prescribed by the regulations.
(4) If the Minister is satisfied that a part
of the assessment documentation relating to the action is commercial‑in‑confidence,
the Minister may, by written notice to the designated proponent, permit the
designated proponent not to publish that part of the assessment documentation.
(5) The Minister must not be satisfied that a
part of the assessment documentation relating to the action is commercial‑in‑confidence
unless a person demonstrates to the Minister that:
(a) release of the information in that
part would cause competitive detriment to the person; and
(b) the information in that part is
not in the public domain; and
(c) the information in that part is
not required to be disclosed under another law of the Commonwealth, a State or
a Territory; and
(d) the information in that part is
not readily discoverable.
(6) If the Minister permits the designated
proponent not to publish a part of the assessment documentation that the
Minister considers is commercial‑in‑confidence, the provision of
Division 4, 5 or 6 of Part 8 that requires the designated proponent
to publish the assessment documentation has effect as if it did not require the
publication of that part of the assessment documentation.
(7) In this section:
assessment documentation, in relation to an
action to which Division 4, 5 or 6 of Part 8 applies, means:
(a) if Division 4 of Part 8
(assessment on preliminary documentation) applies to the action:
(i) the information
referred to in paragraphs 95(2)(a) and (b) or 95A(3)(a), (b) and (c), as the
case requires; and
(ii) the document prepared
under paragraph 95B(1)(a) or the information referred to in subsection 95B(4),
as the case requires; or
(b) if Division 5 of Part 8
(public environment reports) applies to the action:
(i) the draft public
environment report relating to the action given to the Minister under paragraph
98(1)(ab); and
(ii) the finalised public
environment report relating to the action given to the Minister under section 99;
or
(c) if Division 6 of Part 8
(environmental impact statements) applies to the action:
(i) the draft
environmental impact statement relating to the action given to the Minister
under paragraph 103(1)(ab); and
(ii) the finalised
environmental impact statement relating to the action given to the Minister
under section 104.
Division 6—Withdrawal of referrals
170C
Withdrawal of referral of proposal to take an action
(1) Subject to subsection (2), a person
who:
(a) has referred a proposal to take an
action to the Minister under section 68; or
(b) is named as the person proposing
to take an action in a proposal that is referred to the Minister under section 69
or 71;
may withdraw the referral, by written notice to the
Minister.
(2) The referral cannot be withdrawn after
the Minister has decided, under Part 9, whether or not to approve the
taking of the action.
(3) If the Minister receives a notice
withdrawing the referral, the Minister must publish notice of the withdrawal of
the referral in accordance with the regulations.
(4) If the referral is withdrawn, the
provisions of this Chapter that would, apart from this subsection, have applied
to the action cease to apply to the action.
Chapter 5—Conservation of biodiversity and heritage
Part 11A—Interpretation
170D
References to business days are references to Canberra business days
A reference in this Chapter to a
business day is a reference to a day that is a business day (as defined in
section 528) in Canberra.
Part 12—Identifying and monitoring biodiversity and making
bioregional plans
Division 1—Identifying and monitoring biodiversity
171
Identifying and monitoring biodiversity
(1) The Minister may, on behalf of the
Commonwealth, co‑operate with, and give financial or other assistance to,
any person for the purpose of identifying and monitoring components of
biodiversity.
(2) Without limiting subsection (1), the
co‑operation and assistance may include co‑operation and assistance
in relation to all or any of the following:
(a) identifying and monitoring
components of biodiversity that are important for its conservation and
ecologically sustainable use;
(b) identifying components of
biodiversity that are inadequately understood;
(c) collecting and analysing
information about the conservation status of components of biodiversity;
(d) collecting and analysing
information about processes or activities that are likely to have a significant
impact on the conservation and ecologically sustainable use of biodiversity;
(e) assessing strategies and
techniques for the conservation and ecologically sustainable use of
biodiversity;
(f) systematically determining
biodiversity conservation needs and priorities.
(3) In this Act:
components of biodiversity includes species,
habitats, ecological communities, genes, ecosystems and ecological processes.
(4) For the purposes of this section, the
components of biological diversity that are important for its conservation and
ecologically sustainable use are to be identified having regard to the matters
set out in Annex I to the Biodiversity Convention.
(5) The giving of assistance may be made
subject to such conditions as the Minister thinks fit.
172
Inventories of listed threatened species etc. on Commonwealth land
(1) The Minister may prepare an inventory
covering an area of Commonwealth land that identifies, and states the
abundance of, the listed threatened species, listed threatened ecological
communities, listed migratory species and listed marine species on the area of
land if:
(a) the Minister is satisfied that the
area of land is of importance for the conservation of biodiversity; and
(b) the area of land is not covered by
a plan that:
(i) has an object (whether
express or implied) of either protecting the environment or promoting the
conservation of biodiversity; and
(ii) is in force under a
law of the Commonwealth.
(2) A Commonwealth agency must provide all
reasonable assistance in connection with the preparation of an inventory if:
(a) the inventory is to cover an area
of Commonwealth land; and
(b) the agency has an interest in the
area of land.
(3) For the purposes of paragraph (2)(b),
a Commonwealth agency has an interest in an area of Commonwealth land if the
agency:
(a) has a legal or equitable interest
in the area; or
(b) occupies the area; or
(c) has administrative
responsibilities relating to the area or to actions taken in the area.
173
Surveys of cetaceans, listed threatened species etc. in Commonwealth marine
areas
(1) The Minister may prepare a survey
covering a Commonwealth marine area that identifies, and states the
extent of the range of, cetaceans, listed threatened species, listed threatened
ecological communities, listed migratory species and listed marine species in
the area if:
(a) the Minister is satisfied that the
area is of importance for the conservation of biodiversity; and
(b) the area is not covered by a plan
that:
(i) has an object (whether
express or implied) of either protecting the environment or promoting the
conservation of biodiversity; and
(ii) is in force under a
law of the Commonwealth.
(2) A Commonwealth agency must provide all
reasonable assistance in connection with the preparation of a survey if:
(a) the survey is to cover a
Commonwealth marine area; and
(b) the agency has an interest in the
area.
(3) For the purposes of paragraph (2)(b),
a Commonwealth agency has an interest in a Commonwealth marine area if the
agency:
(a) has a legal or equitable interest
in the area; or
(b) occupies the area; or
(c) has administrative
responsibilities relating to the area or to actions taken in the area.
174
Inventories and surveys to be updated
The Minister must take reasonable steps
to ensure that the inventories and surveys prepared under this Division are
maintained in an up‑to‑date form.
Division 2—Bioregional plans
176
Bioregional plans
(1) The Minister may prepare a bioregional
plan for a bioregion that is within a Commonwealth area. In preparing the plan,
the Minister must carry out public consultation on a draft of the plan in
accordance with the regulations.
(2) The Minister may, on behalf of the
Commonwealth, co‑operate with a State or a self‑governing
Territory, an agency of a State or of a self‑governing Territory, or any
other person in the preparation of a bioregional plan for a bioregion that is
not wholly within a Commonwealth area.
(3) The co‑operation may include giving
financial or other assistance.
(4) A bioregional plan may include provisions
about all or any of the following:
(a) the components of biodiversity,
their distribution and conservation status;
(b) important economic and social
values;
(ba) heritage values of places;
(c) objectives relating to
biodiversity and other values;
(d) priorities, strategies and actions
to achieve the objectives;
(e) mechanisms for community
involvement in implementing the plan;
(f) measures for monitoring and
reviewing the plan.
(4A) A bioregional plan prepared under subsection (1)
or (2) is not a legislative instrument.
(5) Subject to this Act, the Minister must
have regard to a bioregional plan in making any decision under this Act to
which the plan is relevant.
177
Obligations under this Act unaffected by lack of bioregional plans
Obligations imposed by this Act are not
affected, in their application in relation to Commonwealth areas, by a lack of
bioregional plans for those areas.
Part 13—Species and communities
Division 1—Listed threatened species and ecological communities
Subdivision A—Listing
178
Listing of threatened species
(1) The Minister must, by instrument
published in the Gazette, establish a list of threatened species divided
into the following categories:
(a) extinct;
(b) extinct in the wild;
(c) critically endangered;
(d) endangered;
(e) vulnerable;
(f) conservation dependent.
(2) The list, as first established, must
contain only the species contained in Schedule 1 to the Endangered
Species Protection Act 1992, as in force immediately before the
commencement of this Act.
(3) The Minister must include:
(a) in the extinct category of the
list, as first established, only the species mentioned in subsection (2)
that were listed as presumed extinct; and
(b) in the endangered category of the
list, as first established, only the native species mentioned in subsection (2)
that were listed as endangered; and
(c) in the vulnerable category of the
list, as first established, only the species mentioned in subsection (2)
that were listed as vulnerable.
(4) If the Minister is satisfied that a
species included in the list, as first established, in:
(a) the extinct category; or
(b) the endangered category; or
(c) the vulnerable category;
is not eligible to be included in that or any other
category, or is eligible to be, or under subsection 186(3), (4) or (5) can be,
included in another category, the Minister must, within 6 months after the
commencement of this Act, amend the list accordingly in accordance with this
Subdivision.
179
Categories of threatened species
(1) A native species is eligible to be
included in the extinct category at a particular time if, at that
time, there is no reasonable doubt that the last member of the species has
died.
(2) A native species is eligible to be
included in the extinct in the wild category at a particular time
if, at that time:
(a) it is known only to survive in
cultivation, in captivity or as a naturalised population well outside its past
range; or
(b) it has not been recorded in its
known and/or expected habitat, at appropriate seasons, anywhere in its past
range, despite exhaustive surveys over a time frame appropriate to its life
cycle and form.
(3) A native species is eligible to be
included in the critically endangered category at a particular
time if, at that time, it is facing an extremely high risk of extinction in the
wild in the immediate future, as determined in accordance with the prescribed
criteria.
(4) A native species is eligible to be
included in the endangered category at a particular time if, at
that time:
(a) it is not critically endangered;
and
(b) it is facing a very high risk of
extinction in the wild in the near future, as determined in accordance with the
prescribed criteria.
(5) A native species is eligible to be
included in the vulnerable category at a particular time if, at
that time:
(a) it is not critically endangered or
endangered; and
(b) it is facing a high risk of
extinction in the wild in the medium‑term future, as determined in
accordance with the prescribed criteria.
(6) A native species is eligible to be
included in the conservation dependent category at a particular
time if, at that time:
(a) the species is the focus of a
specific conservation program the cessation of which would result in the
species becoming vulnerable, endangered or critically endangered; or
(b) the following subparagraphs are
satisfied:
(i) the species is a
species of fish;
(ii) the species is the
focus of a plan of management that provides for management actions necessary to
stop the decline of, and support the recovery of, the species so that its
chances of long term survival in nature are maximised;
(iii) the plan of management
is in force under a law of the Commonwealth or of a State or Territory;
(iv) cessation of the plan
of management would adversely affect the conservation status of the species.
(7) In subsection (6):
fish includes all species of bony fish,
sharks, rays, crustaceans, molluscs and other marine organisms, but does not
include marine mammals or marine reptiles.
180
Native species of marine fish
(1) A native species of marine fish is
eligible to be included in a category mentioned in a paragraph of subsection
178(1) at a particular time if, at that time, the species meets the prescribed
criteria for that category.
(2) A subsection of section 179 referring
to a category (the relevant category) does not apply to a native
species of marine fish if regulations are in force for the purposes of subsection (1)
of this section prescribing criteria for the relevant category.
181
Listing of threatened ecological communities
(1) The Minister must, by instrument
published in the Gazette, establish a list of threatened ecological
communities divided into the following categories:
(a) critically endangered;
(b) endangered;
(c) vulnerable.
(2) Subject to subsection (3), the
Minister must not include an ecological community in a particular category of
the list, as first established, unless satisfied that the ecological community
is eligible to be included in that category when the list is first published.
(3) The list, as first established, must
contain only the ecological communities listed in Schedule 2 to the Endangered
Species Protection Act 1992 immediately before the commencement of this
Act, and they must be listed in the endangered category.
(4) If the Minister is satisfied that an
ecological community included in the endangered category of the list, as first
established under subsection (3), is not eligible to be included in that
or any other category, or is eligible to be included in another category, the
Minister must, within 6 months after the commencement of this Act, amend the
list accordingly in accordance with this Subdivision.
(5) An instrument (other than an instrument
establishing the list mentioned in subsection (3)) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
182
Critically endangered, endangered and vulnerable communities
(1) An ecological community is eligible to be
included in the critically endangered category at a particular
time if, at that time, it is facing an extremely high risk of extinction in the
wild in the immediate future, as determined in accordance with the prescribed
criteria.
(2) An ecological community is eligible to be
included in the endangered category at a particular time if, at
that time:
(a) it is not critically endangered;
and
(b) it is facing a very high risk of
extinction in the wild in the near future, as determined in accordance with the
prescribed criteria.
(3) An ecological community is eligible to be
included in the vulnerable category at a particular time if, at
that time:
(a) it is not critically endangered
nor endangered; and
(b) it is facing a high risk of
extinction in the wild in the medium‑term future, as determined in
accordance with the prescribed criteria.
183
Listing of key threatening processes
(1) The Minister must, by instrument
published in the Gazette, establish a list of threatening processes that
are key threatening processes.
(2) The list, as first established, must
contain only the key threatening processes contained in Schedule 3 to the Endangered
Species Protection Act 1992, as in force immediately before the
commencement of this Act.
184
Minister may amend lists
(1) Subject to this Subdivision, the Minister
may, by legislative instrument, amend a list referred to in section 178,
181 or 183 by:
(a) including items in the list in
accordance with Subdivision AA; or
(aa) including items in the list in
accordance with subsection 186(3), (4) or (5); or
(b) deleting items from the list;
or
(c) in the case of the list referred
to in section 178 or 181—transferring items from one category in the list
to another category in the list in accordance with Subdivision AA; or
(d) correcting an inaccuracy or
updating the name of a listed threatened species or listed threatened
ecological community.
(2) Part 6 of the Legislative
Instruments Act 2003 does not apply to an instrument made under subsection (1).
186
Amending list of threatened native species
Including native species in a category
(1) Subject to subsections (3), (4) and
(5), the Minister must not include (whether as a result of a transfer or
otherwise) a native species in a particular category unless satisfied that the
native species is eligible to be included in that category.
(2) In deciding whether to include a native
species in a particular category (whether as a result of a transfer or
otherwise), the only matters the Minister may consider are matters relating to:
(a) whether the native species is
eligible to be included in that category; or
(b) the effect that including the
native species in that category could have on the survival of the native
species.
Deleting native species from a category
(2A) The Minister must not delete (whether as a
result of a transfer or otherwise) a native species from a particular category
unless satisfied that:
(a) the native species is no longer
eligible to be included in that category; or
(b) the inclusion of the native
species in that category is not contributing, or will not contribute, to the
survival of the native species.
(2B) In deciding whether to delete a native
species from a particular category (whether as a result of a transfer or
otherwise), the only matters the Minister may consider are matters relating to:
(a) whether the native species is
eligible to be included in that category; or
(b) the effect that the inclusion of
the native species in that category is having, or could have, on the survival
of the native species.
Including similar species to an eligible species
(3) The Minister may include a native species
in the critically endangered category if satisfied that:
(a) it so closely resembles in
appearance, at any stage of its biological development, a species that is
eligible to be included in that category (see subsection 179(3)) that it is
difficult to differentiate between the 2 species; and
(b) this difficulty poses an
additional threat to the last‑mentioned species; and
(c) it would substantially promote the
objects of this Act if the first‑mentioned species were regarded as
critically endangered.
(4) The Minister may include a native species
in the endangered category if satisfied that:
(a) it so closely resembles in
appearance, at any stage of its biological development, a species that is
eligible to be included in that category (see subsection 179(4)) that it is
difficult to differentiate between the 2 species; and
(b) this difficulty poses an
additional threat to the last‑mentioned species; and
(c) it would substantially promote the
objects of this Act if the first‑mentioned species were regarded as
endangered.
(5) The Minister may include a native species
in the vulnerable category if satisfied that:
(a) it so closely resembles in
appearance, at any stage of its biological development, a species that is eligible
to be included in that category (see subsection 179(5)) that it is difficult to
differentiate between the 2 species; and
(b) this difficulty poses an
additional threat to the last‑mentioned species; and
(c) it would substantially promote the
objects of this Act if the first‑mentioned species were regarded as
vulnerable.
187
Amending list of ecological communities
Including ecological communities in a category
(1) The Minister must not include (whether as
a result of a transfer or otherwise) an ecological community in a particular
category unless satisfied that the ecological community is eligible to be
included in that category.
(2) In deciding whether to include an
ecological community in a particular category (whether as a result of a
transfer or otherwise), the only matters the Minister may consider are matters
relating to:
(a) whether the ecological community
is eligible to be included in that category; or
(b) the effect that including the
ecological community in that category could have on the survival of the
ecological community.
Deleting ecological communities from a category
(3) The Minister must not delete (whether as
a result of a transfer or otherwise) an ecological community from a particular
category unless satisfied that:
(a) the ecological community is no
longer eligible to be included in that category; or
(b) the inclusion of the ecological
community in that category is not contributing, or will not contribute, to the
survival of the ecological community.
(4) In deciding whether to delete an
ecological community from a particular category (whether as a result of a
transfer or otherwise), the only matters the Minister may consider are matters
relating to:
(a) whether the ecological community
is eligible to be included in that category; or
(b) the effect that the inclusion of
the ecological community in that category is having, or could have, on the
survival of the ecological community.
188
Amending list of key threatening processes
(1) The Minister must not add a threatening process
to the list unless satisfied that it is eligible to be treated as a key
threatening process.
(2) The Minister must not delete a
threatening process from the list unless satisfied that it is no longer
eligible to be treated as a key threatening process.
(3) A process is a threatening process if
it threatens, or may threaten, the survival, abundance or evolutionary
development of a native species or ecological community.
(4) A threatening process is eligible to be
treated as a key threatening process if:
(a) it could cause a native species or
an ecological community to become eligible for listing in any category, other
than conservation dependent; or
(b) it could cause a listed threatened
species or a listed threatened ecological community to become eligible to be
listed in another category representing a higher degree of endangerment; or
(c) it adversely affects 2 or more
listed threatened species (other than conservation dependent species) or 2 or
more listed threatened ecological communities.
189
Minister must consider advice from Scientific Committee
(1) In deciding whether to make an amendment
covered by paragraph 184(1)(aa), (b) or (d), the Minister must, in accordance
with the regulations (if any), obtain and consider advice from the Scientific
Committee on the proposed amendment.
(1A) Subsection (1) has effect subject to
section 192.
(1B) If advice from the Scientific Committee for
the purposes of subsection (1) is to the effect that a particular native
species, or a particular ecological community, is eligible to be included in
the relevant list in a particular category, the advice must also contain:
(a) a statement that sets out:
(i) the grounds on which
the species or community is eligible to be included in the category; and
(ii) the main factors that
are the cause of it being so eligible; and
(b) either:
(i) information about what
could appropriately be done to stop the decline of, or support the recovery of,
the species or community; or
(ii) a statement to the
effect that there is nothing that could appropriately be done to stop the
decline of, or support the recovery of, the species or community; and
(c) a recommendation on the question
whether there should be a recovery plan for the species or community.
(2) In preparing advice under subsection (1),
the Scientific Committee may obtain advice from a person with expertise
relevant to the subject matter of the proposed amendment.
(3) In preparing advice for a proposed
amendment to delete an item:
(a) included in a category of a list
referred to in section 178 or 181; and
(b) that had not been included in that
category in accordance with subsection 186(3), (4) or (5);
the only matters the Scientific Committee may consider are
matters relating to:
(c) the survival of the native species
or ecological community concerned; or
(d) the effect that the inclusion in
the list of the native species or ecological community concerned is having, or
could have, on the survival of that native species or ecological community.
(3A) In preparing advice for a proposed
amendment to:
(a) include a native species in a
category of the list referred to in section 178 in accordance with
subsection 186(3), (4) or (5) because of the species’ resemblance to another
species; or
(b) delete a native species from a
category of the list referred to in section 178 that had been included in
that category in accordance with subsection 186(3), (4) or (5) because of the
species’ resemblance to another species;
the only matters the Scientific Committee may consider are
matters relating to:
(c) the survival of either species; or
(d) the effect that the inclusion in
the list of the first‑mentioned species is having, or could have, on the
survival of either species.
189A
Certain information may be kept confidential
(1) This section applies if the Minister
considers that the survival of a native species or ecological community could
be threatened by the disclosure of some or all of the following information, or
by the presence or actions of persons if some or all of the following
information were disclosed publicly:
(a) the precise location of the
species in the wild, or of the community;
(b) any other information about the
species or community.
(2) It is sufficient compliance with this Act
if only a general description of the location of the species or community is
included in an instrument or other document created for the purposes of this
Act.
189B
Disclosure of Scientific Committee’s assessments and advice
(1) A member of the Scientific Committee has
a duty not to disclose the following to a person other than the Minister, an
employee in the Department whose duties relate to the Committee or another
member of the Committee:
(a) an assessment under section 194N
in relation to whether an item is eligible for inclusion (whether as a result
of a transfer or otherwise) in a list referred to in section 178, 181 or
183, any information relating to the assessment or any information about the
nomination (if any) that led to the making of the assessment;
(b) advice under section 189
concerning an amendment covered by subsection 189(1) or any information
relating to the advice.
(2) However:
(a) the duty not to disclose a thing
described in paragraph (1)(a) in relation to an item does not exist after:
(i) registration under
Division 3 of Part 4 of the Legislative Instruments Act 2003
of an instrument made under section 189 in relation to the item; or
(ii) the Minister decides
under paragraph 194Q(1)(b) not to include the item in a list referred to in
section 178, 181 or 183; and
(b) the duty not to disclose a thing
described in paragraph (1)(b) in relation to an amendment does not exist
after:
(i) registration under
Division 3 of Part 4 of the Legislative Instruments Act 2003
of an instrument made under section 189 relating to the amendment; or
(ii) the Minister decides
under this Subdivision not to remove the item from a list referred to in
section 178, 181 or 183.
(3) Subsection (1) does not apply to a
disclosure of particular information if:
(a) the Chair of the Scientific
Committee requests the Minister to give permission to disclose that information
to a particular person (or persons within a particular group of persons); and
(b) the Minister gives that
permission; and
(c) the disclosure is made to that
person (or a person within that group).
(4) After a member of the Scientific
Committee has ceased under subsection (2) to have a duty not to disclose:
(a) an assessment under section 194N
in relation to whether an item is eligible for inclusion (whether as a result
of a transfer or otherwise) in a list referred to in section 178, 181 or
183; or
(b) advice under section 189
concerning an amendment covered by subsection 189(1);
the member must give a copy of the assessment or advice to
anyone who asks for it.
(5) If:
(a) a member of the Scientific
Committee proposes to give a person under subsection (4):
(i) a copy of an
assessment relating to an item concerning a native species or ecological
community; or
(ii) a copy of advice
relating to an amendment concerning a native species or ecological community;
and
(b) the member is aware that, under
section 189A, it would be sufficient compliance with this Act if the copy
included only a general location of the species or community;
the member must take reasonable steps to ensure that the
copy given to the person does not include a more detailed description than is
necessary for sufficient compliance with this Act under that section.
190
Scientific Committee may provide advice about species or communities becoming threatened
(1) If the Scientific Committee is of the
opinion that a native species or ecological community is not eligible to be
included in any category of the list mentioned in section 178 or 181, the
Committee may give advice to the Minister concerning any action that is
necessary to prevent the species or community becoming threatened.
(2) The Minister is to have regard to any
advice given under subsection (1) in performing any function, or
exercising any power, under this Act relevant to the species or community.
192
Rediscovery of threatened species that were extinct
(1) If the Minister is satisfied that a
native species that is listed in the extinct category has been definitely
located in nature since it was last listed as extinct, the Minister may, under
section 184, transfer the species from the extinct category to another
category without considering advice from the Scientific Committee.
(2) Subsection (1) does not prevent the
Minister from making such an amendment after having considered advice from the
Scientific Committee.
193
Species posing a serious threat to human health
(1) If the Minister is satisfied that a
native species poses a serious threat to human health, the Minister may, by
instrument published in the Gazette, determine that the species is not
appropriate for inclusion in any of the categories of the list referred to in
section 178.
(2) While the determination is in force, the
species is not to be added to that list.
(3) A determination is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(4) The Minister must cause a notice
summarising the information contained in an instrument to be published in
accordance with the regulations (if any).
194
Lists must be publicly available
The Minister must ensure that:
(a) up‑to‑date copies of
the lists referred to in sections 178, 181 and 183 are available for free
to the public on request; and
(b) an up‑to‑date copy of
the lists are available on the Internet.
Note: The copies of the lists made publicly
available may not contain certain information kept confidential under section 189A.
Subdivision AA—The nomination and listing process
194A
Simplified outline
The following is a simplified outline of
this Subdivision:
This Subdivision sets out the usual
process for including an item in a list referred to in section 178, 181 or
183, or transferring an item from one category in one of those lists to another
category in the list.
The usual process involves an annual
cycle that revolves around 12‑month periods known as assessment periods.
The Minister determines the start of the first assessment period (see section 194C).
The usual process involves the
following steps for each assessment period for a list:
(a) the Minister
may determine conservation themes (this step is optional) (see section 194D);
(b) the Minister
invites people to nominate items for inclusion in the list referred to in
section 178, 181 or 183, and gives the nominations to the Scientific
Committee (see sections 194E and 194F);
(c) the
Scientific Committee prepares, and gives to the Minister, a list of items
(which will mostly be items that have been nominated) that it thinks should be
assessed (see sections 194G to 194J);
(d) the Minister
finalises the list of items that are to be assessed (see sections 194K and
194L);
(e) the
Scientific Committee invites people to make comments about the item in the
finalised list (see section 194M);
(f) the
Scientific Committee assesses the item in the finalised list, and gives the
assessments to the Minister (see sections 194N and 194P);
(g) the Minister
decides whether an item that has been assessed should be included in the list
referred to in section 178, 181 or 183 (see section 194Q).
The steps mentioned in paragraphs (a)
to (d) will generally be completed before the start of the assessment period.
194B
Definitions
(1) In this Subdivision:
assessment period has the meaning given by
subsection 194C(1).
eligible for assessment consideration, in
relation to an assessment period, has the meaning given by subsection 194G(3).
finalised priority assessment list for an
assessment period has the meaning given by subsection 194K(4).
includes has a meaning affected by subsection (2).
proposed priority assessment list for an
assessment period has the meaning given by subsection 194G(1).
Subdivision A List means a list referred to
in section 178, 181 or 183.
(2) A reference in this Subdivision to
including an item in a list referred to in section 178 or 181 includes a
reference to transferring the item from one category in the list to another
category in the list.
194C
Meaning of assessment period
(1) For the purposes of this Subdivision,
each of the following is an assessment period for a Subdivision A
List:
(a) the period of 12 months starting on
the day determined in writing by the Minister for the purposes of this
paragraph in relation to the Subdivision A List;
(b) each period of 12 months starting
on an anniversary of the day so determined.
(2) The Minister must make a determination
under paragraph (1)(a) within 3 months after the commencement of this
section. The day so determined must not be more than 12 months after that
commencement.
(3) A determination under paragraph (1)(a)
is a legislative instrument, but neither section 42 nor Part 6 of the
Legislative Instruments Act 2003 applies to the determination.
194D
Minister may determine conservation themes for an assessment period
(1) Before the Minister invites nominations
for an assessment period for a Subdivision A List under section 194E, the
Minister may determine one or more conservation themes that the Minister
considers should be given priority in relation to the assessment period for the
Subdivision A List.
(2) Without limiting subsection (1), the
Minister may determine as a conservation theme that priority should be given to
the conservation of:
(a) particular groups of species; or
(b) particular species; or
(c) particular regions of Australia.
(3) The Minister may request advice from the
Scientific Committee for the purpose of making a determination under subsection (1),
and may have regard to any advice the Committee provides in response to the
request.
(4) A determination under subsection (1)
is a legislative instrument, but section 42 of the Legislative
Instruments Act 2003 does not apply to the determination.
194E
Minister to invite nominations for each assessment period
(1) Before the start of each assessment
period for a Subdivision A List, the Minister must publish a notice inviting
people to nominate items for inclusion in the Subdivision A List.
Note: Nominations can be for the transfer of an item
already on a list covered by section 178 or 181 from one category in the
list to another category in the list (see subsection 194B(2)).
(2) A notice under subsection (1):
(a) must be published in accordance
with the regulations referred to in paragraph (3)(a); and
(b) must invite people to nominate, to
the Minister, items for inclusion in the Subdivision A List; and
(c) must identify the assessment
period to which the notice relates; and
(d) must specify a date (the cut‑off
date) by which nominations must be received, which must be at least 40
business days after the notice has been published as required by paragraph (a);
and
(e) must specify, or refer to, the
information requirements, and the manner and form requirements, that, under
regulations referred to in paragraphs (3)(b) and (c), apply to making
nominations; and
(f) may also include:
(i) information related to
any conservation themes that the Minister has determined under section 194D
should be given priority in relation to the assessment period for the
Subdivision A List; and
(ii) any other information
that the Minister considers appropriate.
(3) The regulations must provide for the
following:
(a) how a notice under subsection (1)
is to be published;
(b) the manner and form for making
nominations;
(c) what information is to be included
in a nomination.
194F
Minister to give nominations to Scientific Committee
Nominations in relation to first assessment period
(1) Within 30 business days after the cut‑off
date specified in the notice under subsection 194E(1) for the first assessment
period, the Minister must give the Scientific Committee the nominations that
the Minister:
(a) had received before the end of
that cut‑off date; and
(b) had not already forwarded to the
Scientific Committee, under section 191 (as in force before the
commencement of this section), to assess; and
(c) had not already rejected under
section 191 (as in force before the commencement of this section); and
(d) does not reject under subsection (3).
Nominations in relation to later assessment periods
(2) Within 30 business days after the cut‑off
date (the current cut‑off date) specified in the notice
under subsection 194E(1) for an assessment period (other than the first) for a
Subdivision A List, the Minister must give the Scientific Committee the
nominations that were received by the Minister in the period:
(a) starting immediately after the end
of the cut‑off date specified in the notice under subsection 194E(1) for
the immediately preceding assessment period for the Subdivision A List; and
(b) ending at the end of the current
cut‑off date for the Subdivision A List;
other than any such nominations that the Minister has
rejected under subsection (3).
Minister may reject nominations
(3) The Minister may, in writing, reject a
nomination if the Minister considers that:
(a) the nomination is vexatious,
frivolous or not made in good faith; or
(b) the Minister considers that
regulations referred to in paragraph 194E(3)(b) or (c) have not been complied
with in relation to the nomination.
(4) If a nomination is rejected under paragraph (3)(b),
the Minister must, if practicable, notify the person who made the nomination of
the rejection of the nomination and the reason for the rejection.
Definition
(5) In this
section:
nomination means a nomination of an item for
inclusion in a Subdivision A List.
194G
Scientific Committee to prepare proposed priority assessment list
(1) Within 40 business days after the
Scientific Committee receives the nominations as required by subsection 194F(1)
in relation to an assessment period for a Subdivision A List, the Committee
must prepare and give to the Minister a list (the proposed priority
assessment list) for the assessment period for the Subdivision A List.
(2) The proposed priority assessment list for
the Subdivision A List is to consist of such of the items that are eligible for
assessment consideration in relation to the assessment period for the Subdivision
A List as the Scientific Committee considers it appropriate to include in the
proposed priority assessment list, having regard to:
(a) any conservation themes determined
by the Minister under section 194D in relation to the assessment period for
the Subdivision A List; and
(b) the Committee’s own views about
what should be given priority in relation to the assessment period for the
Subdivision A List; and
(c) the Committee’s capacity to make
assessments under this Division while still performing its other functions; and
(d) any other matters that the
Committee considers appropriate.
(3) An item is eligible for assessment
consideration in relation to the assessment period for a Subdivision A
List if:
(a) the item has been nominated by a
nomination referred to in subsection (1); or
(b) the Committee itself wishes to
nominate the item for inclusion in the Subdivision A List; or
(c) the item was eligible for
assessment consideration, otherwise than because of this paragraph, in relation
to the immediately preceding assessment period (if any) for the Subdivision A
List but was not included in the finalised priority assessment list for that
assessment period for the Subdivision A List.
(4) Without limiting the generality of the
Scientific Committee’s discretion under subsection (2), the Committee does
not have to include in the proposed priority assessment list an item that has
been nominated if the Committee considers that:
(a) if the item is not on the
Subdivision A List concerned—it is unlikely that the item is eligible to be
included in the Subdivision A List; or
(b) if the nomination is for the
transfer of the item to another category in the Subdivision A List concerned—it
is unlikely that the item is eligible to be included in that other category of
the Subdivision A List.
(5) For the purposes of subsection (4),
the Committee is not required to have regard to any information beyond the
information that was included in the nomination.
(6) The proposed priority assessment list is
not a legislative instrument.
194H
Matters to be included in proposed priority assessment list
(1) The proposed priority assessment list for
an assessment period for a Subdivision A List is to include, for each item in
the proposed priority assessment list:
(a) a description of the item; and
(b) an assessment completion time; and
(c) any other information required by
the regulations.
(2) The assessment completion time for an
item must be either:
(a) a time that is at or before the
end of the assessment period for the proposed priority assessment list; or
(b) if the Scientific Committee
considers it likely that making an assessment in relation to the item will take
a period that is longer than 12 months—the end of that longer period
(calculated from the start of the assessment period for the proposed priority
assessment list).
194J
Statement to be given to Minister with proposed priority assessment list
(1) When the Scientific Committee gives the
Minister the proposed priority assessment list for an assessment period for a
Subdivision A List, the Committee must also give the Minister a statement
setting out such information as the Committee considers appropriate relating
to:
(a) for each item that is included in
the proposed priority assessment list—why the Committee included the item in
the list; and
(b) for each item that is not included
in the proposed priority assessment list but that was eligible for assessment
consideration because of paragraph 194G(3)(a) or (c)—why the Committee did not
include the item in the proposed priority assessment list.
(2) The statement must also identify, as
items nominated by the Scientific Committee, any items that are included in the
proposed priority assessment list because the Committee itself wishes to
nominate them (see paragraph 194G(3)(b)).
194K
The finalised priority assessment list
(1) Within 20 business days after the
Minister, under section 194G, receives the proposed priority assessment
list for an assessment period for a Subdivision A List, the Minister may, in
writing, make changes to the proposed priority assessment list as mentioned in subsection (2).
(2) The changes the Minister may make are as
follows:
(a) including an item in the proposed
priority assessment list (and also including the matters referred to in
subsection 194H(1));
(b) omitting an item from the proposed
priority assessment list (and also omitting the matters referred to in
subsection 194H(1));
(c) changing the assessment completion
time for an item in the proposed priority assessment list;
(d) any other changes of a kind
permitted by the regulations.
(3) In exercising the power to make changes,
the Minister may have regard to any matters that the Minister considers
appropriate.
(4) At the end of the period of 20 business
days referred to in subsection (1), the proposed priority assessment list,
as changed (if at all) by the Minister, becomes the finalised priority
assessment list for the assessment period for the Subdivision A List.
(5) The Minister must notify the Scientific
Committee of all changes that the Minister makes to the proposed priority
assessment list.
(6) The finalised priority assessment list is
not a legislative instrument.
194L
Publication of finalised priority assessment list
(1) The Scientific Committee must publish the
finalised priority assessment list for an assessment period for a Subdivision A
List on the Internet.
(2) The Scientific Committee must also
publish the finalised priority assessment list in accordance with any
requirements of the regulations.
194M Scientific
Committee to invite comments on items in finalised priority assessment list
(1) In relation to each item included in the
finalised priority assessment list for an assessment period for a Subdivision A
List, the Scientific Committee must publish a notice inviting people to make
comments on the item.
(2) The Scientific Committee may, under subsection (1),
publish a single notice relating to all of the items on the finalised priority
assessment list, or may publish a number of separate notices, each of which
relates to one or more of the items.
(3) A notice under subsection (1), in
relation to an item or items:
(a) must be published in accordance
with the regulations referred to in paragraph (4)(a); and
(b) must identify the item or items to
which the notice relates; and
(c) if the Subdivision A List is the
list referred to in section 178 or 181—must identify the category of the
Subdivision A List in which the item or items are proposed to be included; and
(d) must invite people to make comments,
to the Scientific Committee, setting out:
(i) if the Subdivision A
List is the list referred to in section 178 or 181—views about whether the
item or items are eligible for inclusion in that category of the Subdivision A
List; and
(ii) if the Subdivision A
List is the list referred to in section 183—views whether the item or
items are eligible for inclusion in the Subdivision A List; and
(iii) reasons supporting
those views; and
(e) must specify the date (the cut‑off
date) by which comments must be received, which must be at least 30
business days after the notice has been published as required by paragraph (a);
and
(f) must specify, or refer to, the
manner and form requirements that, under regulations referred to in paragraph (4)(b),
apply to making comments; and
(g) may also invite people to comment
on other matters that the Scientific Committee considers appropriate; and
(h) may also include any other
information that the Scientific Committee considers appropriate.
(4) The regulations must provide for the
following:
(a) how a notice under subsection (1)
is to be published;
(b) the manner and form for making
comments.
194N
Scientific Committee to assess items on finalised priority assessment list and
give assessments to Minister
(1) In relation to each item included in the
finalised priority assessment list for an assessment period for a Subdivision A
List, the Scientific Committee must (by the time required by section 194P):
(a) make a written assessment of:
(i) whether the item is
eligible for inclusion in the Subdivision A List; and
(ii) if the Subdivision A
List is the list referred to in section 178 or 181—the category of that
List in which the item is eligible to be included; and
(b) give to the Minister:
(i) the written assessment
(or a copy of it); and
(ii) a copy of the comments
referred to in paragraphs (2)(a) and (b) (whether or not they have all
been taken into account under subsection (2)).
(2) In making an assessment in relation to an
item, the Scientific Committee, subject to subsections (3) and (4):
(a) must take into account the
comments the Committee receives in response to the notice under subsection
194M(1) in relation to the item; and
(b) may seek, and have regard to,
information or advice from any source.
(3) The Scientific Committee is not required
to take a comment referred to in paragraph (2)(a) into account if:
(a) the Committee does not receive the
comment until after the cut‑off date specified in the notice under
subsection 194M(1) in relation to the item; or
(b) the Committee considers that
regulations referred to in paragraph 194M(4)(b) have not been complied with in
relation to the comment.
(4) In making an assessment, the only matters
the Scientific Committee may consider are matters relating to:
(a) whether the item is eligible for
inclusion in the Subdivision A List; or
(b) the effect that including the item
in that List could have on the survival of the native species or ecological
community concerned.
194P
Time by which assessments to be provided to Minister
(1) Subsection 194N(1) must be complied with,
in relation to an item included in the finalised priority assessment list for
an assessment period for a Subdivision A List, by the assessment completion
time specified in the finalised priority assessment list for the item, or by
that time as extended under this section.
(2) The Scientific Committee may request the
Minister to extend the assessment completion time (or that time as previously
extended) if the Committee considers that it needs more time to make the
assessment.
(3) The Minister may, in response to a
request under subsection (2), extend the assessment completion time (or
that time as previously extended) by such period (if any) as the Minister
considers appropriate. However, the total length of all extensions of the
assessment completion time must not be more than 5 years.
(4) An extension under subsection (3)
must be made in writing.
(5) If the Minister grants an extension under
this section, the Minister must publish particulars of the extension in a way
that the Minister considers appropriate.
194Q
Decision about inclusion of an item in the Subdivision A List
Minister to decide whether or not to include item
(1) After receiving from the Scientific
Committee an assessment under section 194N of an item, the Minister must:
(a) include the item in the
Subdivision A List concerned; or
(b) in writing, decide not to include
the item in the Subdivision A List concerned.
Note 1: Under this subsection the Minister can transfer
an item already on a Subdivision A List to a different category in the List
(see subsection 194B(1)).
Note 2: Sections 186, 187 and 188 contain rules
about including items in a Subdivision A List.
(2) If, under subsection (1), the
Minister transfers an item to a category of the Subdivision A List, the
Minister must at the same time delete the item from the category in which it
was included before the transfer.
(3) Subject to subsection (4), the
Minister must comply with subsection (1) within 90 business days after the
day on which the Minister receives the assessment.
(4) The Minister may, in writing, extend or
further extend the period for complying with subsection (1).
(5) Particulars of an extension or further
extension under subsection (4) must be published on the Internet and in
any other way required by regulations.
(6) For the purpose of deciding what action
to take under subsection (1) in relation to the item:
(a) the Minister must have regard to:
(i) the Scientific
Committee’s assessment of the item; and
(ii) the comments (if any),
a copy of which were given to the Minister under subsection 194N(1) with the
assessment; and
(b) the Minister may seek, and have
regard to, information or advice from any source.
Additional requirements if Minister decides to include item
(7) If the Minister includes the item in the
Subdivision A List, he or she must, within a reasonable time:
(a) if the item was nominated by a
person in response to a notice under subsection 194E(1)—advise the person that
the item has been included in the Subdivision A List; and
(b) publish a copy of the instrument
referred to in paragraph (1)(a) on the Internet; and
(c) publish a copy or summary of that
instrument in accordance with any other requirements specified in the
regulations.
Additional requirements if Minister decides not to
include item
(8) If the Minister decides not to include
the item in the Subdivision A List, the Minister must, within 10 business days
after making the decision:
(a) publish the decision on the
Internet; and
(b) if the item was nominated by a
person in response to a notice under subsection 194E(1)—advise the person of
the decision, and of the reasons for the decision.
194R
Scientific Committee may obtain advice
In performing its functions under this
Subdivision, the Scientific Committee may obtain advice from a person with
expertise relevant to the inclusion of an item in a Subdivision A List.
194S
Co‑ordination with Australian Heritage Council—Committee undertaking
assessment
(1) This section applies if:
(a) the Scientific Committee
undertakes an assessment under this Subdivision; and
(b) before giving the assessment to
the Minister, the Committee becomes aware that:
(i) the Australian
Heritage Council is undertaking, or has undertaken, an assessment of a place
under Subdivision BA or BB of Division 1A of Part 15 or under
Subdivision BA or BB of Division 3A of Part 15; and
(ii) there is a matter that
is relevant to both the assessment referred to in paragraph (a) and the
assessment referred to in subparagraph (i).
(2) A member of the Scientific Committee may
discuss the matter with a member of the Australian Heritage Council.
(3) Before the Scientific Committee gives an
assessment to the Minister under this Subdivision, the Committee must comply
with subsection (4) or (6).
(4) If the Australian Heritage Council has
not yet given the Minister an assessment that deals with that matter, the
Scientific Committee must:
(a) give the Council a copy of the
assessment that the Committee proposes to give to the Minister; and
(b) invite the Council to give the
Committee its comments in relation to that matter; and
(c) take into account, in finalising
the assessment that the Committee gives the Minister, any comments that the
Council makes in relation to that matter in response to that invitation within
14 days, or such longer period as is specified in the invitation, after being
given the invitation.
(5) If the Scientific Committee gives the
Australian Heritage Council a copy of a proposed assessment under paragraph (4)(a),
the Committee must also give the Council a copy of the assessment that the
Committee gives the Minister.
(6) If:
(a) the Australian Heritage Council
has already given the Minister an assessment that deals with that matter; and
(b) the Scientific Committee has been
given a copy of that assessment;
the Committee must take that assessment into account in
finalising the assessment that the Committee gives the Minister.
(7) If, under section 324JR, 324JS,
341JQ or 341JR, the Australian Heritage Council gives the Scientific Committee
a proposed assessment, or an assessment, that deals with a particular matter
because the Committee is undertaking an assessment that deals with that matter,
a member of the Committee may discuss that matter with a member of the Council.
(8) Subsection (2), paragraph (4)(a)
and subsections (5) and (7) have effect despite section 189B.
194T
Co‑ordination with Australian Heritage Council—Committee given assessment
to Minister
(1) This section applies if:
(a) the Scientific Committee has given
to the Minister an assessment under this Subdivision; and
(b) the Committee is or becomes aware
that:
(i) the Australian
Heritage Council is undertaking an assessment of a place under Subdivision BA
or BB of Division 1A of Part 15 or under Subdivision BA or BB of
Division 3A of Part 15; and
(ii) there is a matter that
is relevant to both the assessment referred to in paragraph (a) and the
assessment referred to in subparagraph (i).
(2) The Scientific Committee must, within 7 days
after giving the assessment to the Minister, or becoming aware, as referred to
in paragraph (1)(b):
(a) ensure the Australian Heritage
Council is aware of the existence of the paragraph (1)(a) assessment
dealing with the matter; and
(b) give the Council a copy of the
assessment.
(3) A member of the Scientific Committee may
discuss the matter with a member of the Australian Heritage Council.
(4) Subsections (2) and (3) have effect
despite section 189B.
Subdivision B—Permit system
195
Subdivision does not apply to cetaceans
This Subdivision does not apply to a
member of a listed threatened species that is a cetacean.
196 Killing
or injuring member of listed threatened species or community
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a member of a species or a member of an ecological community; and
(c) the member is a member of a listed
threatened species (except a conservation dependent species) or of a listed
threatened ecological community; and
(d) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(c)
and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
196A
Strict liability for killing or injuring member of listed threatened species or
community
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a member of a native species or a member of an ecological community;
and
(c) the member is a member of a listed
threatened species (except a conservation dependent species) or of a listed
threatened ecological community; and
(d) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b), (c) and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
196B Taking
etc. member of listed threatened species or community
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or
moves a member of a species or a member of an ecological community; and
(b) the member is a member of a listed
threatened species (except a conservation dependent species) or a listed
threatened ecological community; and
(c) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
196C
Strict liability for taking etc. member of listed threatened species or
community
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or
moves a member of a native species or a member of an ecological community; and
(b) the member is a member of a listed
threatened species (except a conservation dependent species) or a listed
threatened ecological community; and
(c) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential burden
in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
196D
Trading etc. member of listed threatened species or community taken in
Commonwealth area
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves
a member of a species or a member of an ecological community; and
(b) the member is a member of a listed
threatened species (except a conservation dependent species) or a listed
threatened ecological community; and
(c) the member has been taken in or on
a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
196E
Strict liability for trading etc. member of listed threatened species or
community taken in Commonwealth area
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves
a member of a native species or a member of an ecological community; and
(b) the member is a member of a listed
threatened species (except a conservation dependent species) or a listed
threatened ecological community; and
(c) the member has been taken in or on
a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
197
Certain actions are not offences
Sections 196, 196A, 196B, 196C,
196D, 196E and 207B do not apply to:
(a) an action authorised by a permit
that was issued under section 201 and is in force; or
(b) an action provided for by, and
done in accordance with, a recovery plan in force under Division 5; or
(c) an action that is covered by an
approval in operation under Part 9 for the purposes of subsection 18(1),
(2), (3), (4), (5) or (6) or 18A(1) or (2); or
(d) an action that:
(i) is one of a class of
actions declared by the Minister under section 33 not to require an
approval under Part 9 for the purposes of subsection 18(1), (2), (3), (4),
(5), or (6) or 18A(1) or (2); and
(ii) is taken in accordance
with a management arrangement or authorisation process that is an accredited
management arrangement or an accredited authorisation process for the purposes
of the declaration; or
(da) an action that:
(i) is an action, or one
of a class of actions, declared by the Minister under section 37A not to
require an approval under Part 9 for the purposes of subsection 18(1),
(2), (3), (4), (5), or (6) or 18A(1) or (2); and
(ii) is taken in accordance
with the bioregional plan to which the declaration relates; or
(db) in the case of sections 196B,
196C, 196D and 196E—an action that is trading, keeping or moving a member of a
listed threatened species or a listed ecological community, if:
(i) when the member of the
species or community was taken, the species or community was not a listed
threatened species or a listed threatened ecological community, as the case
requires; and
(ii) the trading, keeping
or moving of the member of the species or community occurs during the period of
6 months that started when the species or community became a listed threatened
species or a listed threatened ecological community, as the case requires; or
(e) an action that is taken in a
humane manner and is reasonably necessary to relieve or prevent suffering by a
member of a listed threatened species or listed threatened ecological
community; or
(f) an action that is reasonably
necessary to prevent a risk to human health; or
(g) an action by a Commonwealth
agency, or an agency of a State or of a self‑governing Territory, that is
reasonably necessary for the purposes of law enforcement; or
(h) an action that is reasonably
necessary to deal with an emergency involving a serious threat to human life or
property; or
(i) an action that occurs as a result
of an unavoidable accident, other than an accident caused by negligent or
reckless behaviour; or
(j) an action that is taken in
accordance with a permit issued under regulations made under the Great
Barrier Reef Marine Park Act 1975 and in force; or
(k) an action provided for by, and
taken in accordance with, a plan or regime that is accredited under section 208A;
or
(l) an action, to the extent that it
is covered by subsection 517A(7); or
(m) an action provided for by, and done
in accordance with, a conservation agreement in force under Part 14; or
(n) an action taken in a Commonwealth
reserve in accordance with a management plan made under Part 15 and in
operation for the reserve; or
(o) an action provided for by, and
taken in accordance with, a traditional use of marine resources agreement that:
(i) was made and
accredited in accordance with regulations made under the Great Barrier Reef
Marine Park Act 1975; and
(ii) is in force; or
(p) an action that is taken in
accordance with a permit that:
(i) was issued under the Antarctic
Treaty (Environment Protection) Act 1980 or under regulations made under
that Act; and
(ii) is in force; or
(q) an action that consists of the
transit of a member through a Commonwealth area in circumstances where the
member was:
(i) obtained from an area
that is not a Commonwealth area; or
(ii) taken from a
Commonwealth area in circumstances covered by paragraph (a), (c), (d),
(da), (db), (j), (k), (m), (n), (o) or (p).
Note: A defendant bears an evidential burden in
relation to the matters in this section. See subsection 13.3(3) of the Criminal
Code.
198
Operation of sections 18 and 18A not affected
To avoid doubt, sections 196, 196A,
196B, 196C, 196D, 196E and 197 do not affect the operation of section 18
or 18A.
199
Failing to notify taking of listed threatened species or listed ecological
community
(1) This section applies to an action taken
by a person if all of the following conditions are met:
(a) the person’s action either:
(i) results in the death
or injury of a member of a listed threatened species (except a conservation
dependent species), or a member of a listed threatened ecological community,
that is in or on a Commonwealth area; or
(ii) consists of, or
involves, trading, taking, keeping or moving a member of a listed threatened
species (except a conservation dependent species), or a member of a listed
threatened ecological community, that is in or on a Commonwealth area;
(b) the person’s action does not
constitute an offence against section 196, 196A, 196B, 196C, 196D or 196E,
otherwise than because of paragraph 197(db);
(c) the person’s action is not an
action that the person was authorised by a permit to take.
Note 1: Section 197 sets out most of the
circumstances in which an action described in paragraph (1)(a) will not be
an offence against section 196, 196A, 196B, 196C, 196D or 196E.
Note 2: A person is authorised by a permit to take an
action if the person is the holder of the permit or the person is given an
authority under section 204 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the
holder of the permit to give certain notices.
(2) Within 7 days of becoming aware of the
action, the person must notify the Secretary in writing, by telephone or by use
of any other electronic equipment:
(a) that the action was taken; and
(b) of other particulars (if any)
about the action that are prescribed by the regulations.
(3) An example of the particulars about the
action that the regulations may prescribe is the time and place of taking the
action. This does not limit the particulars the regulations may prescribe.
(4) Subsection (2)
does not apply if:
(a) the person, or any other person or
body, is required by or under a law of the Commonwealth to notify the Secretary
of the action; or
(b) the action is in a class of
actions:
(i) that is specified in
an agreement or arrangement between the Secretary and a Commonwealth agency, or
an agency of a State or self‑governing Territory; and
(ii) that the agreement or
arrangement provides is to be notified to the Secretary by the agency.
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(5) A person is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units if the
person:
(a) fails to do an act; and
(b) the failing to do the act results
in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
200
Application for permits
(1) A person may, in accordance with the
regulations, apply to the Minister for a permit to be issued under section 201.
(2) The application must be accompanied by
the fee prescribed by the regulations (if any).
(3) As soon as practicable after receiving
the application, the Minister must cause to be published on the Internet:
(a) details of the application; and
(b) an invitation for anyone to give
the Minister comments within 10 business days (measured in Canberra) on whether
the permit should be issued.
Note: If the action is also the subject of a
referral under Division 1 of Part 7 and the referral is made at the
same time as the application, the application and invitation for comments that
must be published under this subsection may be published together with the
referral and invitation for comments that must be published under subsection
74(3).
201
Minister may issue permits
(1) Subject to subsections (3) and (3A),
the Minister may, on application by a person under section 200, issue a
permit to the person.
(2) A permit authorises its holder to take an
action specified in the permit without breaching section 196, 196A, 196B,
196C, 196D, 196E or 207B.
(3) The Minister must not issue the permit
unless satisfied that:
(a) the specified action will contribute
significantly to the conservation of the listed threatened species or listed
threatened ecological community concerned; or
(b) the impact of the specified action
on a member of the listed threatened species or listed threatened ecological
community concerned is incidental to, and not the purpose of, the taking of the
action and:
(i) the taking of the
action will not adversely affect the survival or recovery in nature of that
species or ecological community; and
(ii) the taking of the
action is not inconsistent with a recovery plan that is in force for that
species or ecological community; and
(iii) the holder of the
permit will take all reasonable steps to minimise the impact of the action on
that species or ecological community; or
(c) the specified action is of
particular significance to indigenous tradition and will not adversely affect
the survival or recovery in nature of the listed threatened species or listed
threatened ecological community concerned; or
(d) the specified action is necessary
in order to control pathogens and is conducted in a way that will, so far as is
practicable, keep to a minimum any impact on the listed threatened species or
listed threatened ecological community concerned.
(3A) The Minister must, in deciding whether to
issue the permit, have regard to any approved conservation advice for the
listed threatened species or listed threatened ecological community concerned.
(4) In this
Act:
indigenous tradition means the body of
traditions, observances, customs and beliefs of indigenous persons generally or
of a particular group of indigenous persons.
(5) In making a decision on the application,
the Minister must consider the comments (if any) received:
(a) in response to the invitation
under subsection 200(3) for anyone to give the Minister comments on whether the
permit should be issued; and
(b) within the period specified in the
invitation.
202
Conditions of permits
(1) A permit is subject to such conditions as
are specified in the permit or as are imposed under subsection (2).
(2) The Minister may, in accordance with the
regulations:
(a) vary or revoke a condition of a
permit; or
(b) impose further conditions of a
permit.
(3) Without limiting subsections (1) and
(2), conditions of a permit may include conditions stating the period within
which the action specified in the permit may be taken.
203
Contravening conditions of a permit
The holder of a permit is guilty of an
offence punishable on conviction by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an
act or thing; and
(b) doing, or failing to do, the act
or thing results in a contravention of a condition of the permit.
204
Authorities under permits
(1) Subject to subsection (2), the
holder of a permit may give to a person written authority to take for or on
behalf of the holder any action authorised by the permit. The authority may be
given generally or as otherwise provided by the instrument of authority.
(2) The holder
of a permit must not give an authority unless:
(a) the permit contains a condition
permitting the holder to do so; and
(b) the authority is given in
accordance with any requirements set out in the condition.
(3) A permit is, for the purposes of this
Act, taken to authorise the taking of a particular action by a person if the
taking of that action by the person is authorised by an authority given by the
holder of the permit.
(4) The giving of an authority does not
prevent the taking of any action by the holder of the permit.
(5) Except as provided in this section, a
permit does not authorise the taking of any action by a person for or on behalf
of the holder of the permit.
(6) A person who gives an authority must give
to the Minister written notice of it within 14 days after giving the authority.
205 Transfer
of permits
On the application, in accordance with
the regulations, of the holder of a permit, the Minister may, in accordance
with the regulations, transfer the permit to another person.
206
Suspension or cancellation of permits
The Minister may, in accordance with the
regulations:
(a) suspend a permit for a specified
period; or
(b) cancel a permit.
206A
Review of decisions about permits
(1) Subject to subsection (2), an
application may be made to the Administrative Appeals Tribunal for review of a
decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a
condition of a permit; or
(c) to impose a further condition of a
permit; or
(d) to transfer or refuse to transfer
a permit; or
(e) to suspend or cancel a permit.
(2) Subsection (1) does not apply to a
decision made personally by the Minister (but the subsection does apply to a
decision made by a delegate of the Minister).
207
Fees
Such fees as are prescribed (if any) are
payable in respect of the following:
(a) the grant or the transfer of a
permit;
(b) the variation or revocation of a
condition of a permit;
(c) the imposition of a further
condition of a permit.
Subdivision BA—Protecting critical habitat
207A
Register of critical habitat
(1) The Minister must cause to be kept in
accordance with the regulations (if any) a register in which the Minister may
list habitat identified by the Minister in accordance with the regulations as
being critical to the survival of a listed threatened species or listed threatened
ecological community.
(1A) In considering whether to list habitat, the
Minister must take into account the potential conservation benefit of listing
the habitat.
(1B) Subsection (1) does not limit the
matters:
(a) that the Minister may take into account
in considering whether to list habitat; or
(b) that the regulations may require
or permit the Minister to take into account in considering whether to list
habitat.
(2) The regulations must require the Minister
to consider scientific advice in identifying the habitat.
(3) The register must be made available for
public inspection in accordance with the regulations (if any).
(3A) Particular material included in the
register does not have to be made available for public inspection if the
Minister considers that the interests of relevant landholders could be impeded
or compromised by:
(a) the disclosure of the material; or
(b) without limiting paragraph (a)—the
presence or actions of persons if the material were disclosed.
(4) Habitat listed in the register in
relation to a species or ecological community is critical habitat
for the species or ecological community.
207B
Offence of knowingly damaging critical habitat
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the person knows that the action
significantly damages or will significantly damage critical habitat for a
listed threatened species (except a conservation dependent species) or of a
listed threatened ecological community; and
(c) the habitat is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 197. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
(4) To avoid doubt, this section does not
affect the operation of Division 2, 3 or 4.
207C Sale
or lease of Commonwealth land containing critical habitat
(1) This section applies to a Commonwealth
agency that executes a contract for the sale or lease to someone else of
Commonwealth land that includes critical habitat for a listed threatened
species or listed threatened ecological community. It does not matter whether
the Commonwealth agency executes the contract for the Commonwealth or on its
own behalf.
(2) The Commonwealth agency must ensure that
the contract includes a covenant the effect of which is to protect the critical
habitat.
(3) The Commonwealth agency must take
reasonable steps to ensure as far as practicable that the covenant binds the
successors in title of the buyer or lessee (as appropriate).
Subdivision C—Miscellaneous
208A
Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in writing,
accredit for the purposes of this Division:
(a) a plan of management within the
meaning of section 17 of the Fisheries Management Act 1991; or
(b) a plan of management within the
meaning of section 15A of the Torres Strait Fisheries Act 1984;
or
(c) a plan of management, or a policy,
regime or any other arrangement, for a fishery, that is:
(i) made by a State or
self‑governing Territory; and
(ii) in force under a law
of the State or self‑governing Territory; or
(d) a regime determined in writing by
the Australian Fisheries Management Authority under the Fisheries
Administration Act 1991 for managing a fishery for which a plan of
management (within the meaning of section 17 of the Fisheries
Management Act 1991) is not in force; or
(e) a policy formulated by the
Protected Zone Joint Authority under paragraph 34(b) of the Torres Strait
Fisheries Act 1984 for managing a fishery for which a plan of management
(within the meaning of section 15A of the Torres Strait Fisheries Act
1984) is not in force;
if the Minister is satisfied that:
(f) the plan, regime or policy
requires persons engaged in fishing under the plan, regime or policy to take
all reasonable steps to ensure that members of listed threatened species (other
than conservation dependent species) are not killed or injured as a result of
the fishing; and
(g) the fishery to which the plan,
regime or policy relates does not, or is not likely to, adversely affect the
survival or recovery in nature of the species.
Note 1: The Minister may accredit a plan, regime or
policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited
under this section is, or is proposed to be, amended, the Minister may
determine under section 303AB that the plan, regime or policy as amended
is, for the purposes of this Act, taken to be accredited under subsection (1)
of this section.
(2) An instrument under subsection (1)
is not a legislative instrument.
208
Regulations
The regulations may:
(a) provide for the transportation, treatment
and disposal of members of listed threatened species or listed threatened
ecological communities killed, injured or taken in contravention of this
Division; and
(b) provide for the methods or
equipment by which members of listed threatened species or listed threatened
ecological communities may be killed or taken otherwise than in contravention
of this Division; and
(c) provide for the gathering and
dissemination of information relating to listed threatened species or listed
threatened ecological communities; and
(d) provide for the protection and
conservation of listed threatened species or listed threatened ecological
communities; and
(e) provide for any matter incidental
to or connected with any of the above paragraphs.
Division 2—Migratory species
Subdivision A—Listing
209
Listed migratory species
(1) The Minister must:
(a) establish a list of migratory
species for the purposes of this Act; and
(b) amend the list, as necessary, so
that it includes all species required to be included in the list under subsection (3).
(2) The Minister must establish the list
within 30 days after the commencement of this Act.
(3) The list must include:
(a) all migratory species that are:
(i) native species; and
(ii) from time to time
included in the appendices to the Bonn Convention; and
(b) all migratory species from time to
time included in annexes established under JAMBA and CAMBA; and
(c) all native species from time to
time identified in a list established under, or an instrument made under, an international
agreement approved by the Minister under subsection (4).
The list must not include any other species.
(4) The Minister may, by legislative
instrument, approve an international agreement for the purposes of subsection (3)
if satisfied it is an agreement relevant to the conservation of migratory
species.
(6) The Minister may correct an inaccuracy or
update the name of a migratory species.
(7) The list of migratory species made under subsection (1),
and any amendments to the list made under paragraph (1)(b) or subsection (6),
are legislative instruments, but neither section 42 nor Part 6 of the
Legislative Instruments Act 2003 applies to the list or any amendments.
(8) In this Act:
migratory species has the meaning given by
Article I of the Bonn Convention.
Subdivision B—Permit system
210
Subdivision does not apply to members of listed threatened species or cetaceans
This Subdivision does not apply to a
member of a listed migratory species that is a member of a listed threatened
species or a cetacean.
211 Killing
or injuring member of listed migratory species
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a member of a species; and
(c) the member is a member of a listed
migratory species; and
(d) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 212. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(c)
and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
211A
Strict liability for killing or injuring member of listed migratory species
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a member of a migratory species; and
(c) the member is a member of a listed
migratory species; and
(d) the
member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 212. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b), (c) and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
211B Taking
etc. member of listed migratory species
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or
moves a member of a species; and
(b) the member is a member of a listed
migratory species; and
(c) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 212. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
211C
Strict liability for taking etc. member of listed migratory species
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or
moves a member of a migratory species; and
(b) the member is a member of a listed
migratory species; and
(c) the
member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 212. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
211D
Trading etc. member of listed migratory species taken in Commonwealth area
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves
a member of a species; and
(b) the member is a member of a listed
migratory species; and
(c) the member has been taken in or on
a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 212. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
211E
Strict liability for trading etc. member of listed migratory species taken in
Commonwealth area
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves
a member of a migratory species; and
(b) the member is a member of a listed
migratory species; and
(c) the member has been taken in or on
a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 212. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
212
Certain actions are not offences
Sections 211, 211A, 211B, 211C,
211D and 211E do not apply to:
(a) an action authorised by a permit
that was issued under section 216 and is in force; or
(b) an action provided for by, and
taken in accordance with, a wildlife conservation plan made or adopted under
Division 5 and in force; or
(c) an action that is covered by an
approval in operation under Part 9 for the purposes of subsection 20(1) or
20A(1) or (2); or
(d) an action that:
(i) is one of a class of
actions declared by the Minister under section 33 not to require an
approval under Part 9 for the purposes of subsection 20(1) or 20A(1) or
(2); and
(ii) is taken in accordance
with a management arrangement or an authorisation process that is an accredited
management arrangement or an accredited authorisation process for the purposes
of the declaration; or
(da) an action that:
(i) is an action, or one
of a class of actions, declared by the Minister under section 37A not to
require an approval under Part 9 for the purposes of subsection 20(1) or
20A(1) or (2); and
(ii) is taken in accordance
with the bioregional plan to which the declaration relates; or
(db) in the case of sections 211B,
211C, 211D and 211E—an action that is trading, keeping or moving a member of a
listed migratory species, if:
(i) when the member of the
species was taken, the species was not a listed migratory species; and
(ii) the trading, keeping
or moving of the member of the species occurs during the period of 6 months
that started when the species became a listed migratory species; or
(e) an action that is taken in a
humane manner and is reasonably necessary to relieve or prevent suffering by a
member of a listed migratory species; or
(f) an action that is reasonably
necessary to prevent a risk to human health; or
(g) an action by a Commonwealth
agency, or an agency of a State or of a self‑governing Territory, that is
reasonably necessary for the purposes of law enforcement; or
(h) an action that is reasonably
necessary to deal with an emergency involving a serious threat to human life or
property; or
(i) an action that occurs as a result
of an unavoidable accident, other than an accident caused by negligent or
reckless behaviour; or
(j) an action that is taken in
accordance with a permit issued under regulations made under the Great
Barrier Reef Marine Park Act 1975 and in force; or
(k) an action provided for by, and
taken in accordance with, a plan or regime that is accredited under section 222A;
or
(l) an action, to the extent that it
is covered by subsection 517A(7); or
(m) an action provided for by, and done
in accordance with, a conservation agreement in force under Part 14; or
(n) an action taken in a Commonwealth
reserve in accordance with a management plan made under Part 15 and in
operation for the reserve; or
(o) an action provided for by, and
taken in accordance with, a traditional use of marine resources agreement that:
(i) was made and
accredited in accordance with regulations made under the Great Barrier Reef
Marine Park Act 1975; and
(ii) is in force; or
(p) an action that is taken in
accordance with a permit that:
(i) was issued under the Antarctic
Treaty (Environment Protection) Act 1980 or under regulations made under
that Act; and
(ii) is in force; or
(q) an action that consists of the
transit of a member through a Commonwealth area in circumstances where the
member was:
(i) obtained from an area
that is not a Commonwealth area; or
(ii) taken from a
Commonwealth area in circumstances covered by paragraph (a), (c), (d),
(da), (db), (j), (k), (m), (n), (o) or (p).
Note: A defendant bears an evidential burden in
relation to the matters in this section. See subsection 13.3(3) of the Criminal
Code.
213
Operation of sections 20 and 20A not affected
To avoid doubt, sections 211, 211A,
211B, 211C, 211D, 211E and 212 do not affect the operation of section 20
or 20A.
214
Failing to notify taking etc. of listed migratory species
(1) This section applies to an action taken
by a person if all of the following conditions are met:
(a) the person’s action either:
(i) results in the death
or injury of a member of a listed migratory species that is in or on a Commonwealth
area; or
(ii) consists of, or
involves, trading, taking, keeping or moving a member of a listed migratory
species that is in or on a Commonwealth area;
(b) the person’s action does not
constitute an offence against section 211, 211A, 211B, 211C, 211D or 211E,
otherwise than because of paragraph 212(db);
(c) the person’s action is not an
action that the person was authorised by a permit to take.
Note 1: Section 212 sets out most of the
circumstances in which an action described in paragraph (1)(a) will not be
an offence against section 211, 211A, 211B, 211C, 211D or 211E.
Note 2: A person is authorised by a permit to take an
action if the person is the holder of the permit or the person is given an
authority under section 219 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the
holder of the permit to give certain notices.
(2) Within 7 days of becoming aware of the
action, the person must notify the Secretary in writing, by telephone or by use
of any other electronic equipment:
(a) that the action was taken; and
(b) of other particulars (if any)
about the action that are prescribed by the regulations.
(3) An example of the particulars about the
action that the regulations may prescribe is the time and place of taking the
action. This does not limit the particulars the regulations may prescribe.
(4) Subsection (2) does not apply if:
(a) the person, or any other person or
body, is required by or under a law of the Commonwealth to notify the Secretary
of the action; or
(b) the action is in a class of
actions:
(i) that is specified in
an agreement or arrangement between the Secretary and a Commonwealth agency, or
an agency of a State or self‑governing Territory; and
(ii) that the agreement or
arrangement provides is to be notified to the Secretary by the agency.
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(5) A person is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units if the
person:
(a) fails to do an act; and
(b) the failing to do the act results
in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
215
Application for permits
(1) A person may, in accordance with the
regulations, apply to the Minister for a permit to be issued under section 216.
(2) The application must be accompanied by
the fee prescribed by the regulations (if any).
(3) As soon as practicable after receiving
the application, the Minister must cause to be published on the Internet:
(a) details of the application; and
(b) an invitation for anyone to give
the Minister comments within 10 business days (measured in Canberra) on whether
the permit should be issued.
Note: If the action is also the subject of a
referral under Division 1 of Part 7 and the referral is made at the
same time as the application, the application and invitation for comments that
must be published under this subsection may be published together with the
referral and invitation for comments that must be published under subsection
74(3).
216
Minister may issue permits
(1) Subject to subsection (3), the
Minister may, on application by a person under section 215, issue a permit
to the person.
(2) A permit authorises its holder to take an
action specified in the permit without breaching section 211, 211A, 211B,
211C, 211D or 211E.
(3) The Minister must not issue the permit
unless satisfied that:
(a) the specified action will
contribute significantly to the conservation of the listed migratory species
concerned or other listed migratory species; or
(b) the impact of the specified action
on a member of the listed migratory species concerned is incidental to, and not
the purpose of, the taking of the action and:
(i) the taking of the
action will not adversely affect the conservation status of that species or a
population of that species; and
(ii) the taking of the
action is not inconsistent with a wildlife conservation plan for that species
that is in force; and
(iii) the holder of the
permit will take all reasonable steps to minimise the impact of the action on
that species; or
(c) the specified action is of
particular significance to indigenous tradition and will not adversely affect
the conservation status of the listed migratory species concerned, or a
population of that species; or
(d) the specified action is necessary
in order to control pathogens and is conducted in a way that will, so far as is
practicable, keep to a minimum any impact on the listed migratory species
concerned.
(4) In making a decision on the application,
the Minister must consider the comments (if any) received:
(a) in response to the invitation
under subsection 215(3) for anyone to give the Minister comments on whether the
permit should be issued; and
(b) within the period specified in the
invitation.
217
Conditions of permits
(1) A permit is subject to such conditions as
are specified in the permit or as are imposed under subsection (2).
(2) The Minister may, in accordance with the
regulations:
(a) vary or revoke a condition of a
permit; or
(b) impose further conditions of a
permit.
218
Contravening conditions of a permit
The holder of a permit is guilty of an
offence punishable on conviction by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an
act or thing; and
(b) doing, or failing to do, the act
or thing results in a contravention of a condition of the permit.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
219
Authorities under permits
(1) Subject to subsection (2), the
holder of a permit may give to a person written authority to take for or on
behalf of the holder any action authorised by the permit. The authority may be
given generally or as otherwise provided by the instrument of authority.
(2) The holder of a permit must not give an
authority unless:
(a) the permit contains a condition
permitting the holder to do so; and
(b) the authority is given in
accordance with any requirements set out in the condition.
(3) A permit is, for the purposes of this
Act, taken to authorise the taking of a particular action by a person if the
taking of that action by the person is authorised by an authority given by the
holder of the permit.
(4) The giving of an authority does not
prevent the taking of any action by the holder of the permit.
(5) Except as provided in this section, a
permit does not authorise the taking of any action by a person for or on behalf
of the holder of the permit.
(6) A person who gives an authority must give
to the Minister written notice of it within 14 days after giving the authority.
220
Transfer of permits
On the application, in accordance with
the regulations, of the holder of a permit, the Minister may, in accordance
with the regulations, transfer the permit to another person.
221
Suspension or cancellation of permits
The Minister may, in accordance with the
regulations:
(a) suspend a permit for a specified
period; or
(b) cancel a permit.
221A
Review of decisions about permits
(1) Subject to subsection (2), an
application may be made to the Administrative Appeals Tribunal for review of a
decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a
condition of a permit; or
(c) to impose a further condition of a
permit; or
(d) to transfer or refuse to transfer
a permit; or
(e) to suspend or cancel a permit.
(2) Subsection (1) does not apply to a
decision made personally by the Minister (but the subsection does apply to a
decision made by a delegate of the Minister).
222
Fees
Such fees as are prescribed (if any) are
payable in respect of the following:
(a) the grant or the transfer of a
permit;
(b) the variation or revocation of a
condition of a permit;
(c) the imposition of a further
condition of a permit.
Subdivision C—Miscellaneous
222A
Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in
writing, accredit for the purposes of this Division:
(a) a plan of management within the
meaning of section 17 of the Fisheries Management Act 1991; or
(b) a plan of management within the
meaning of section 15A of the Torres Strait Fisheries Act 1984;
or
(c) a plan of management, or a policy,
regime or any other arrangement, for a fishery, that is:
(i) made by a State or
self‑governing Territory; and
(ii) in force under a law
of the State or self‑governing Territory; or
(d) a regime determined in writing by
the Australian Fisheries Management Authority under the Fisheries
Administration Act 1991 for managing a fishery for which a plan of
management (within the meaning of section 17 of the Fisheries
Management Act 1991) is not in force; or
(e) a policy formulated by the
Protected Zone Joint Authority under paragraph 34(b) of the Torres Strait
Fisheries Act 1984 for managing a fishery for which a plan of management
(within the meaning of section 15A of the Torres Strait Fisheries Act
1984) is not in force;
if the Minister is satisfied that:
(f) the plan, regime or policy
requires persons engaged in fishing under the plan, regime or policy to take
all reasonable steps to ensure that members of listed migratory species are not
killed or injured as a result of the fishing; and
(g) the fishery to which the plan,
regime or policy relates does not, or is not likely to, adversely affect the
conservation status of a listed migratory species or a population of that
species.
Note 1: The Minister may accredit a plan, regime or
policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited
under this section is, or is proposed to be, amended, the Minister may
determine under section 303AB that the plan, regime or policy as amended
is, for the purposes of this Act, taken to be accredited under subsection (1)
of this section.
(2) An instrument under subsection (1)
is not a legislative instrument.
223
Regulations
The regulations may:
(a) provide for the transportation,
treatment and disposal of members of listed migratory species killed, injured
or taken in contravention of this Division; and
(b) provide for the methods or
equipment by which members of listed migratory species may be killed or taken
otherwise than in contravention of this Division; and
(c) provide for the gathering and
dissemination of information relating to listed migratory species; and
(d) provide for the protection and
conservation of listed migratory species; and
(e) provide for any matter incidental
to or connected with any of the above paragraphs.
Division 3—Whales and other cetaceans
Subdivision A—Application of Division
224
Application of Division
(1) This Division extends to acts, omissions,
matters and things outside Australia (whether in a foreign country or not),
except so far as the contrary intention appears.
(2) A provision of this Division that has
effect in relation to a place outside the outer limits of the Australian Whale
Sanctuary applies only in relation to:
(a) Australian citizens; and
(b) persons who:
(i) are not Australian
citizens; and
(ii) hold permanent visas
under the Migration Act 1958; and
(iii) are domiciled in Australia
or an external Territory; and
(c) corporations incorporated in Australia
or an external Territory; and
(d) the Commonwealth; and
(e) Commonwealth agencies; and
(f) Australian aircraft; and
(g) Australian vessels; and
(h) members of crews of Australian
aircraft and Australian vessels (including persons in charge of aircraft or
vessels).
(3) This Division applies to a vessel as if
it were an Australian vessel if:
(a) the vessel is a boat within the
meaning of the Fisheries Management Act 1991; and
(b) a declaration, under subsection
4(2) of that Act, that the vessel is taken to be an Australian boat is in
force.
Subdivision B—Australian Whale Sanctuary and important cetacean habitat
areas
225
Australian Whale Sanctuary
(1) The Australian Whale Sanctuary is
established in order to give formal recognition of the high level of protection
and management afforded to cetaceans in Commonwealth marine areas and
prescribed waters.
(2) The Australian Whale Sanctuary
comprises:
(a) any waters of the sea inside the
seaward boundary of the exclusive economic zone, except:
(i) waters, rights in
respect of which have been vested in a State by section 4 of the Coastal
Waters (State Title) Act 1980 or in the Northern Territory by section 4
of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the
limits of a State or the Northern Territory; and
(b) any waters over the continental
shelf, except:
(i) waters, rights in
respect of which have been vested in a State by section 4 of the Coastal
Waters (State Title) Act 1980 or in the Northern Territory by section 4
of the Coastal Waters (Northern Territory Title) Act 1980; and
(ii) waters within the
limits of a State or the Northern Territory; and
(iii) waters covered by paragraph (a);
and
(c) so much of the coastal waters of a
State or the Northern Territory as are prescribed waters.
Note: This subsection is subject to subsection 5(3).
226
Prescribed waters
(1) The regulations may declare the whole, or
a specified part, of the coastal waters of a State or the Northern Territory to
be prescribed waters.
(2) Before the Governor‑General makes a
regulation under subsection (1), the Minister must obtain the agreement of
the relevant Minister of the State or the Northern Territory.
227
Coastal waters
(1) Section 15B of the Acts
Interpretation Act 1901 does not apply in relation to this Division.
(2) The coastal waters of a
State or the Northern Territory are:
(a) the part or parts of the
territorial sea that are:
(i) within 3 nautical
miles of the baseline of the territorial sea; and
(ii) adjacent to that State
or Territory; and
(b) any marine or tidal waters that
are inside that baseline and are adjacent to that State or Territory but are
not within the limits of a State or that Territory.
Note: Generally the baseline is the lowest
astronomical tide along the coast but it also includes lines enclosing bays and
indentations that are not bays and straight baselines that depart from the
coast.
(3) Any part of the territorial sea that is
adjacent to the Jervis Bay Territory is, for the purposes of subsection (2),
taken to be adjacent to New South Wales.
228
Minister may make declaration for coastal waters
(1) If the Minister is satisfied that a law
of a State or the Northern Territory adequately protects cetaceans in the
coastal waters, or a part of the coastal waters, of the State or Territory, the
Minister may make a declaration accordingly, whether or not those coastal
waters or that part are prescribed waters.
(2) A declaration must be in writing.
228A
Important cetacean habitat areas
(1) The Minister may, by legislative
instrument, declare a specified area in the Australian Whale Sanctuary to be an
important cetacean habitat area.
(2) The regulations may specify criteria to
be applied by the Minister in determining whether to declare an area to be an
important cetacean habitat area. If regulations are made for the purposes of this
section, the Minister may declare an area to be an important cetacean habitat
area only if he or she is satisfied that the area meets the criteria prescribed
by the regulations.
Subdivision C—Offences
229 Killing
or injuring a cetacean
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a cetacean; and
(c) the cetacean is in:
(i) the Australian Whale
Sanctuary (but not the coastal waters, or a part of the coastal waters, of a
State or the Northern Territory for which a declaration under section 228
is in force); or
(ii) waters beyond the
outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 231. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
229A
Strict liability for killing or injuring a cetacean
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a cetacean; and
(c) the cetacean is in:
(i) the Australian Whale
Sanctuary (but not the coastal waters, or a part of the coastal waters, of a
State or the Northern Territory for which a declaration under section 228
is in force); or
(ii) waters beyond the
outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 231. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
229B
Intentionally taking etc. a cetacean
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps,
moves or interferes with a cetacean; and
(b) the cetacean is in:
(i) the Australian Whale
Sanctuary (but not the coastal waters, or a part of the coastal waters, of a
State or the Northern Territory for which a declaration under section 228
is in force); or
(ii) waters beyond the
outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 231. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
(4) In this Act:
interfere with a cetacean includes harass,
chase, herd, tag, mark or brand the cetacean.
trade a
cetacean:
(a) includes:
(i) buy the cetacean,
agree to receive it under an agreement to buy, agree to accept it under such an
agreement or acquire it by barter; or
(ii) sell the cetacean,
offer it for sale, agree to sell it, have it in possession for the purpose of
sale, deliver it for the purpose of sale, receive it for the purpose of sale or
dispose of it by barter for the purpose of gain or advancement; or
(iii) cause or allow any of
the acts referred to in subparagraph (i) or (ii) to be done; but
(b) does not include export the
cetacean from Australia or an external Territory or import it into Australia or
an external Territory.
Note: For provisions relating to export or import,
see Part 13A.
229C
Strict liability for taking etc. a cetacean
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps,
moves or interferes with a cetacean; and
(b) the cetacean is in:
(i) the Australian Whale
Sanctuary (but not the coastal waters, or a part of the coastal waters, of a
State or the Northern Territory for which a declaration under section 228
is in force); or
(ii) waters beyond the
outer limits of the Australian Whale Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 231. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a)
and (b).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
229D Treating
cetaceans
Treating unlawfully killed or taken cetaceans
(1) A person is guilty of an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been:
(i) killed in
contravention of section 229 or 229A; or
(ii) taken in contravention
of section 229B or 229C.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 231. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) An offence against subsection (1) is
punishable on conviction by imprisonment for not more than 2 years or a fine
not exceeding 1,000 penalty units, or both.
Treating unlawfully imported cetaceans
(2A) A person commits an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been unlawfully
imported.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
(2B) An offence against subsection (2A) is
punishable on conviction by imprisonment for not more than 5 years or a fine
not exceeding 1,000 penalty units, or both.
(3) In this Act:
treat a cetacean means divide or cut up, or
extract any product from, the cetacean.
230
Possession of cetaceans
Possession of unlawfully killed cetaceans
(1) A person is guilty of an offence if:
(a) the person has in his or her
possession:
(i) a cetacean; or
(ii) a part of a cetacean;
or
(iii) a product derived from
a cetacean; and
(b) the cetacean has been:
(i) killed in
contravention of section 229 or 229A; or
(ii) taken in contravention
of section 229B or 229C.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) An offence against subsection (1) is
punishable on conviction by imprisonment for not more than 2 years or a fine
not exceeding 1,000 penalty units, or both.
Possession of unlawfully imported cetaceans
(3) A person commits an offence if:
(a) the person has in his or her
possession:
(i) a cetacean; or
(ii) a part of a cetacean;
or
(iii) a product derived from
a cetacean; and
(b) the cetacean, part or product, as
the case may be, has been unlawfully imported.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: Subsection 4B(3) of the Crimes Act 1914
lets a court fine a body corporate up to 5 times the maximum amount the court
could fine a person under this subsection.
(4) An offence against subsection (3) is
punishable on conviction by imprisonment for not more than 5 years or a fine
not exceeding 1,000 penalty units, or both.
231
Certain actions are not offences
Sections 229,
229A, 229B, 229C, 229D and 230 do not apply to:
(a) an action authorised by a permit
that was issued under section 238 and is in force; or
(aa) an action that is whale watching
carried out in accordance with regulations referred to in paragraph 238(3)(c),
but only if:
(i) the whale watching is
not carried out for a commercial purpose; or
(ii) the whale watching is
carried out in an area that is not an important cetacean habitat area; or
(b) an action provided for by, and
taken in accordance with, a recovery plan, or a wildlife conservation plan,
made or adopted under Division 5 and in force; or
(ba) an action that is covered by an
approval in operation under Part 9 for the purposes of subsection 23(1) or
(2) or 24A(1), (2), (3) or (4); or
(bb) an action that:
(i) is one of a class of
actions declared by the Minister under section 33 not to require an
approval under Part 9 for the purposes of subsection 23(1) or (2) or
24A(1), (2), (3) or (4); and
(ii) is taken in accordance
with a management arrangement or an authorisation process that is an accredited
management arrangement or an accredited authorisation process for the purposes
of the declaration; or
(bc) an action that:
(i) is an action, or one
of a class of actions, declared by the Minister under section 37A not to
require an approval under Part 9 for the purposes of subsection 23(1) or
(2) or 24A(1), (2), (3) or (4); and
(ii) is taken in accordance
with the bioregional plan to which the declaration relates; or
(c) an action that is taken in a
humane manner and is reasonably necessary to relieve or prevent suffering of a
cetacean; or
(d) an action that is reasonably
necessary to prevent a risk to human health; or
(e) an action by a Commonwealth
agency, or an agency of a State or of a self‑governing Territory, that is
reasonably necessary for the purposes of law enforcement; or
(f) an action that is reasonably
necessary to deal with an emergency involving a serious threat to human life or
property; or
(g) an action that occurs as a result
of an unavoidable accident, other than an accident caused by negligent or
reckless behaviour; or
(ga) an action that is taken in
accordance with a permit issued under regulations made under the Great
Barrier Reef Marine Park Act 1975 and in force; or
(h) an action provided for by, and
taken in accordance with, a plan or regime that is accredited under section 245;
or
(i) an action provided for by, and
done in accordance with, a conservation agreement in force under Part 14;
or
(j) an action taken in a Commonwealth
reserve in accordance with a management plan made under Part 15 and in
operation for the reserve; or
(k) an action that consists of the
transit of a cetacean through a Commonwealth area in circumstances where the
cetacean was:
(i) obtained from an area
that is not a Commonwealth area; or
(ii) taken from a
Commonwealth area in circumstances covered by paragraph (a), (ba), (bb),
(bc), (ga), (h), (i) or (j).
Note: A defendant bears an evidential burden in
relation to the matters in this section. See subsection 13.3(3) of the Criminal
Code.
232
Action to be taken on killing etc. cetaceans
(1) This section applies to an action taken
by a person if all of the following conditions are met:
(a) the person’s action:
(i) results in the injury
or death of a cetacean, or consists of taking a cetacean, in the Australian
Whale Sanctuary (but not the coastal waters, or a part of the coastal waters of
a State or the Northern Territory for which a declaration under section 228
is in force) or in waters beyond the outer limits of the Australian Whale
Sanctuary; or
(ii) consists of treating a
cetacean killed, injured or taken in contravention of section 229, 229A,
229B or 229C;
(b) the person’s action does not
constitute an offence against section 229, 229A, 229B, 229C or 229D;
(c) the person’s action is not an
action that the person was authorised by a permit to take.
Note 1: Section 231 sets out most of the
circumstances in which an action described in paragraph (1)(a) will not be
an offence against section 229, 229A, 229B, 229C or 229D.
Note 2: A person is authorised by a permit to take an
action if the person is the holder of the permit or the person is given an
authority under section 241 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the
holder of the permit to give certain notices.
(2) Within 7 days of becoming aware of the
action, the person must notify the Secretary in writing, by telephone or by use
of any other electronic equipment:
(a) that the action was taken; and
(b) of other particulars (if any)
about the action that are prescribed by the regulations.
(3) An example of the particulars about the
action that the regulations may prescribe is the time and place of taking the
action. This does not limit the particulars the regulations may prescribe.
(4) Subsection (2) does not apply if:
(a) the person, or any other person or
body, is required by or under a law of the Commonwealth to notify the Secretary
of the action; or
(b) the action is in a class of
actions:
(i) that are specified in
an agreement or arrangement between the Secretary and a Commonwealth agency, or
an agency of a State or self‑governing Territory; and
(ii) that the agreement or
arrangement provides are to be notified to the Secretary by the agency.
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(5) A person is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units if the
person:
(a) fails to do an act; and
(b) the failing to do the act results
in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Subdivision E—Miscellaneous offences
236
Offences relating to foreign whaling vessels
(1) The master of a foreign whaling vessel is
guilty of an offence if the vessel is brought into a port in Australia or an
external Territory and the master has not obtained the written permission of
the Minister for the vessel to be brought into the port.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) An offence against subsection (1) is
punishable on conviction by a fine not exceeding 500 penalty units.
(4) Subsection (1) does not apply if:
(a) the vessel is brought into the
port in accordance with a prescribed agreement between Australia and any other
country or countries; or
(b) the vessel is brought into the
port under the direction of a person exercising powers under a law of the
Commonwealth or of a State; or
(c) an unforeseen emergency renders it
necessary to bring the vessel into the port in order to secure the safety of
the vessel or human life.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal
Code.
(5) In this Act:
foreign whaling vessel means a vessel, other
than an Australian vessel, designed, equipped or used for:
(a) killing, taking, treating or
carrying cetaceans; or
(b) supporting the operations of a
vessel or vessels designed, equipped or used for killing, taking, treating or
carrying cetaceans.
master, in relation to a foreign whaling
vessel, means the person (other than a ship’s pilot) in charge or command of
the vessel.
Subdivision F—Permit system
237
Application for permits
(1) A person may, in accordance with the
regulations, apply to the Minister for a permit to be issued under section 238.
(2) The application must be accompanied by
the fee prescribed by the regulations (if any).
(3) As soon as practicable after receiving
the application, the Minister must cause to be published on the Internet:
(a) details of the application; and
(b) an invitation for anyone to give
the Minister comments within 10 business days (measured in Canberra) on whether
the permit should be issued.
Note: If the action is also the subject of a
referral under Division 1 of Part 7 and the referral is made at the
same time as the application, the application and invitation for comments that
must be published under this subsection may be published together with the referral
and invitation for comments that must be published under subsection 74(3).
238
Minister may issue permits
(1) Subject to subsections (3) to (4), the Minister may, on application by a person under section 237, issue a
permit to the person.
(2) A permit authorises its holder to take an
action specified in the permit without breaching sections 229, 229A, 229B,
229C, 229D and 230.
(3) The Minister must not issue the permit
unless satisfied that:
(a) the specified action will
contribute significantly to the conservation of cetaceans; or
(b) if the specified action will
interfere with cetaceans, the interference is incidental to, and not the
purpose of, the taking of the action and:
(i) the taking of the
action will not adversely affect the conservation status of a species of
cetacean or a population of that species; and
(ii) the taking of the
action is not inconsistent with a recovery plan or wildlife conservation plan
that is in force for a species of cetacean; and
(iii) the holder of the
permit will take all reasonable steps to minimise the interference with
cetaceans; or
(c) the specified action is whale
watching (other than whale watching covered by paragraph 231(aa)) and:
(i) the whale watching is
carried out in accordance with the regulations (if any) made for the purposes
of this section; or
(ii) the whale watching
will not adversely affect the conservation status of a species of cetacean or a
population of that species, and is not inconsistent with a recovery plan or
wildlife conservation plan that is in force for a species of cetacean.
(3AA) If the specified action would or could relate
to a species of cetacean that is a listed threatened species, the Minister
must, in deciding whether to issue the permit, have regard to any approved conservation
advice for the species of cetacean.
(3A) In making a decision on the application,
the Minister must consider the comments (if any) received:
(a) in response to the invitation
under subsection 237(3) for anyone to give the Minister comments on whether the
permit should be issued; and
(b) within the period specified in the
invitation.
(4) The Minister must not grant a permit
authorising its holder to kill a cetacean or to take a cetacean for live
display.
(5) In this Act:
whale watching means any activity conducted
for the purpose of observing a cetacean, including but not limited to being in
the water for the purposes of observing or swimming with a cetacean, or
otherwise interacting with a cetacean.
239
Conditions of permits
(1) A permit is subject to such conditions as
are specified in the permit or as are imposed under subsection (2).
(2) The Minister may, in accordance with the
regulations:
(a) vary or revoke a condition of a
permit; or
(b) impose further conditions of a
permit.
240 Contravening
conditions of a permit
The holder of a permit is guilty of an
offence punishable upon conviction by a fine not exceeding 300 penalty units
if:
(a) he or she does, or fails to do, an
act or thing; and
(b) doing, or failing to do, the act
or thing results in a contravention of a condition of the permit.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
241
Authorities under permits
(1) Subject to subsection (2), the
holder of a permit may give to a person written authority to take for or on
behalf of the holder any action authorised by the permit. The authority may be
given generally or as otherwise provided by the instrument of authority.
(2) The holder of a permit must not give an
authority unless:
(a) the permit contains a condition
permitting the holder to do so; and
(b) the authority is given in
accordance with any requirements set out in the condition.
(3) A permit is, for the purposes of this
Act, taken to authorise the taking of a particular action by a person if the
taking of that action by the person is authorised by an authority given by the
holder of the permit.
(4) The giving of an authority does not
prevent the taking of any action by the holder of the permit.
(5) Except as provided in this section, a
permit does not authorise the taking of any action by a person for or on behalf
of the holder of the permit.
(6) A person who gives an authority must give
to the Minister written notice of it within 14 days after giving the authority.
242
Transfer of permits
On the application, in accordance with
the regulations, of the holder of a permit, the Minister may, in accordance
with the regulations, transfer the permit to another person.
243
Suspension or cancellation of permits
The Minister may, in accordance with the
regulations:
(a) suspend a permit for a specified
period; or
(b) cancel a permit.
243A
Review of decisions about permits
(1) Subject to subsection (2), an
application may be made to the Administrative Appeals Tribunal for review of a
decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a
condition of a permit; or
(c) to impose a further condition of a
permit; or
(d) to transfer or refuse to transfer
a permit; or
(e) to suspend or cancel a permit.
(2) Subsection (1) does not apply to a
decision made personally by the Minister (but the subsection does apply to a
decision made by a delegate of the Minister).
244
Fees
Such fees as are prescribed (if any) are
payable in respect of the following:
(a) the grant or the transfer of a
permit;
(b) the variation or revocation of a
condition of a permit;
(c) the imposition of a further
condition of a permit.
Subdivision G—Miscellaneous
245
Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in
writing, accredit for the purposes of this Division:
(a) a plan of management within the
meaning of section 17 of the Fisheries Management Act 1991; or
(b) a plan of management within the
meaning of section 15A of the Torres Strait Fisheries Act 1984;
or
(c) a plan of management, or a policy,
regime or any other arrangement, for a fishery, that is:
(i) made by a State or
self‑governing Territory; and
(ii) in force under a law
of the State or self‑governing Territory; or
(d) a regime determined in writing by
the Australian Fisheries Management Authority under the Fisheries
Administration Act 1991 for managing a fishery for which a plan of
management (within the meaning of section 17 of the Fisheries
Management Act 1991) is not in force; or
(e) a policy formulated by the
Protected Zone Joint Authority under paragraph 34(b) of the Torres Strait
Fisheries Act 1984 for managing a fishery for which a plan of management
(within the meaning of section 15A of the Torres Strait Fisheries Act
1984) is not in force;
if the Minister is satisfied that:
(f) the plan, regime or policy
requires persons engaged in fishing under the plan, regime or policy to take
all reasonable steps to ensure that cetaceans are not killed or injured as a
result of the fishing; and
(g) the fishery to which the plan,
regime or policy relates does not, or is not likely to, adversely affect the
conservation status of a species of cetacean or a population of that species.
Note 1: The Minister may accredit a plan, regime or
policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited
under this section is, or is proposed to be, amended, the Minister may
determine under section 303AB that the plan, regime or policy as amended
is, for the purposes of this Act, taken to be accredited under subsection (1)
of this section.
(2) An instrument under subsection (1)
is not a legislative instrument.
246
Vesting of whales in Commonwealth
(1) If:
(a) a cetacean is:
(i) in the Australian
Whale Sanctuary, other than the coastal waters, or a part of the coastal
waters, of a State or the Northern Territory for which a declaration under
section 228 is in force; or
(ii) in waters beyond the
outer limits of the Australian Whale Sanctuary; and
(a) a person kills, injures or takes
the cetacean, whether or not in contravention of this Division;
the cetacean vests, by force of this section, in the
Commonwealth.
(2) The Commonwealth is not liable in any
action, suit or proceedings in respect of any matter relating to a cetacean at
any time before the taking of possession of the cetacean by the Commonwealth.
247
Regulations
The regulations may:
(a) provide for the transportation,
treatment and disposal of cetaceans killed, injured or taken in contravention
of this Division; and
(b) provide for the methods or
equipment by which cetaceans may be killed, taken or interfered with otherwise
than in contravention of this Division; and
(c) provide for the gathering and
dissemination of information relating to cetaceans; and
(d) provide for the protection and
conservation of cetaceans; and
(e) provide for any matter incidental
to or connected with any of the above paragraphs.
Division 4—Listed marine species
Subdivision A—Listing
248 Listed
marine species
(1) The Minister must, by instrument
published in the Gazette, establish a list of marine species for the
purposes of this Part.
(2) The list, as first established, must
contain only the following:
(a) all species in the Family Hydrophiidae
(sea‑snakes);
(b) all species in the Family
Laticaudidae (sea‑snakes);
(c) all species in the Family
Otariidae (eared seals);
(d) all species in the Family Phocidae
(“true” seals);
(e) all species in the Genus Crocodylus
(crocodiles);
(f) all species in the Genus Dugong
(dugong);
(g) all species in the Family
Cheloniidae (marine turtles);
(h) the species Dermochelys
coriacea (leatherback turtles);
(i) all species in the Family
Syngnathidae (seahorses, sea‑dragons and pipefish);
(j) all species in the Family
Solenostomidae (ghost pipefish);
(k) all species in the Class Aves
(birds) that occur naturally in Commonwealth marine areas.
(3) The Minister must establish the list
within 30 days after the commencement of this Act.
(4) The Minister must cause a notice
summarising the information contained in the instrument to be published in
accordance with the regulations (if any).
249
Minister may amend list
(1) Subject to this Subdivision, the Minister
may, by instrument published in the Gazette, amend the list:
(a) by including items in the list; or
(b) by deleting items from the list;
or
(c) by correcting an inaccuracy or
updating the name of a marine species.
(2) An instrument mentioned in paragraph (1)(a)
or (b) is a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901.
(3) Despite section 48 of the Acts
Interpretation Act 1901 as it applies in relation to an instrument because
of section 46A of that Act, amendments of a list that delete items from the
list take effect on the first day on which they are no longer liable to be
disallowed, or to be taken to have been disallowed, under section 48 of
that Act as it so applies.
(4) When an instrument is laid before each
House of the Parliament in accordance with section 48 of the Acts
Interpretation Act 1901, the Minister must cause a statement to be laid
before each House with the instrument explaining:
(a) in the case of an item that has
been included in the list by the instrument—why the item was so included; or
(b) in the case of an item that has
been deleted from the list by the instrument—why the item was so deleted.
(5) The Minister must cause a notice
summarising the information contained in an instrument to be published in
accordance with the regulations (if any).
250
Adding marine species to the list
(1) The Minister must not add a marine
species to the list unless:
(a) the Minister is satisfied that it
is necessary to include the species in the list in order to ensure the long‑term
conservation of the species; and
(b) the species occurs naturally in a
Commonwealth marine area.
(2) Before adding a marine species to the
list, the Minister must consult with each Minister who has an interest in a
Commonwealth marine area where the species occurs naturally.
251
Minister must consider advice from Scientific Committee
(1) In deciding whether to add an item to, or
delete an item from, the list, the Minister must, in accordance with the
regulations (if any), obtain and consider advice from the Scientific Committee
on the scientific aspects of the addition or deletion of the item concerned.
(2) The Minister must:
(a) decide whether to add an item to,
or delete an item from, the list; and
(b) if the Minister decides to add or
delete the item—cause the necessary instrument to be published in the Gazette;
within 90 days after receiving the Scientific Committee’s
advice on the addition or deletion of the item.
(3) A member of the Scientific Committee has
a duty not to disclose to any other person the advice, or any information
relating to the advice, before the end of that period of 90 days unless the
disclosure:
(a) is for the official purposes of
the Scientific Committee; or
(b) if an instrument is published in
the Gazette relating to an addition or deletion to which the advice
relates—occurred after the publication.
252
Minister to make lists available to the public
The Minister must, in accordance with
the regulations (if any), make copies of up‑to‑date lists available
for purchase, for a reasonable price, at a prescribed place in each State and
self‑governing Territory.
Subdivision B—Permit system
253
Subdivision does not apply to members of certain species and cetaceans
This Subdivision does not apply to a
member of a listed marine species that is a member of a listed migratory
species, a member of a listed threatened species or a cetacean.
254 Killing
or injuring member of listed marine species
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a member of a species; and
(c) the member is a member of a listed
marine species; and
(d) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 255. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(c)
and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
254A
Strict liability for killing or injuring member of listed marine species
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or
injury of a member of a marine species; and
(c) the member is a member of a listed
marine species; and
(d) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 255. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b), (c) and (d).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
254B Taking
etc. member of listed marine species
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or
moves a member of a species; and
(b) the member is a member of a listed
marine species; and
(c) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 255. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
254C
Strict liability for taking etc. member of listed marine species
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or
moves a member of a marine species; and
(b) the member is a member of a listed
marine species; and
(c) the member is in or on a
Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 255. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
254D
Trading etc. member of listed marine species taken in Commonwealth area
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves
a member of a species; and
(b) the member is a member of a listed
marine species; and
(c) the member has been taken in or on
a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 255. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(b)
and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
254E
Strict liability for trading etc. member of listed marine species taken in
Commonwealth area
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves
a member of a marine species; and
(b) the member is a member of a listed
marine species; and
(c) the member has been taken in or on
a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
Note 2: This section does not apply in the
circumstances described in section 255. A defendant bears an evidential
burden in relation to those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a),
(b) and (c).
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction
by a fine not exceeding 500 penalty units.
255
Certain actions are not offences
Sections 254, 254A, 254B, 254C,
254D and 254E do not apply to:
(a) an action authorised by a permit
that was issued under section 258 and is in force; or
(b) an action provided for by, and
taken in accordance with, a wildlife conservation plan made under Division 5
and in force; or
(c) an action that is covered by an approval
in operation under Part 9 for the purposes of subsection 23(1) or (2),
24A(1), (2), (3) or (4), 26(1) or (2) or 27A(1), (2), (3) or (4); or
(d) an action that:
(i) is one of a class of
actions declared by the Minister under section 33 not to require an
approval under Part 9 for the purposes of subsection 23(1) or (2), 24A(1),
(2), (3) or (4), 26(1) or (2) or 27A(1), (2), (3) or (4); and
(ii) is taken in accordance
with a management arrangement or an authorisation process that is an accredited
management arrangement or an accredited authorisation process for the purposes
of the declaration; or
(da) an action that:
(i) is an action, or one
of a class of actions, declared by the Minister under section 37A not to
require an approval under Part 9 for the purposes of subsection 23(1) or
(2), 24A(1), (2), (3) or (4), 26(1) or (2) or 27A(1), (2), (3) or (4); and
(ii) is taken in accordance
with the bioregional plan to which the declaration relates; or
(db) in the case of sections 254B,
254C, 254D and 254E—an action that is trading, keeping or moving a member of a
listed marine species, if:
(i) when the member of the
species was taken, the species was not a listed marine species; and
(ii) the trading, keeping
or moving of the member of the species occurs during the period of 6 months
that started when the species became a listed marine species; or
(e) an action that is taken in a
humane manner and is reasonably necessary to relieve or prevent suffering by an
animal; or
(f) an action that is reasonably
necessary to prevent a risk to human health; or
(g) an action by a Commonwealth
agency, or an agency of a State or of a self‑governing Territory, that is
reasonably necessary for the purposes of law enforcement; or
(h) an action that is reasonably necessary
to deal with an emergency involving a serious threat to human life or property;
or
(i) an action that occurs as a result
of an unavoidable accident, other than an accident caused by negligent or
reckless behaviour; or
(j) an action taken in accordance
with a permit issued under regulations made under the Great Barrier Reef
Marine Park Act 1975 and in force; or
(k) an action provided for by, and
taken in accordance with, a plan or regime that is accredited under section 265;
or
(l) an action, to the extent that it
is covered by subsection 517A(7); or
(m) an action provided for by, and done
in accordance with, a conservation agreement in force under Part 14; or
(n) an action taken in a Commonwealth
reserve in accordance with a management plan made under Part 15 and in
operation for the reserve; or
(o) an action provided for by, and
taken in accordance with, a traditional use of marine resources agreement that:
(i) was made and
accredited in accordance with regulations made under the Great Barrier Reef
Marine Park Act 1975; and
(ii) is in force; or
(p) an action that is taken in
accordance with a permit that:
(i) was issued under the Antarctic
Treaty (Environment Protection) Act 1980 or under regulations made under
that Act; and
(ii) is in force; or
(q) an action that consists of the
transit of a member through a Commonwealth area in circumstances where the
member was:
(i) obtained from an area
that is not a Commonwealth area; or
(ii) taken from a
Commonwealth area in circumstances covered by paragraph (a), (c), (d),
(da), (db), (j), (k), (l), (m), (n), (o) or (p).
Note: A defendant bears an evidential burden in
relation to the matters in this section. See subsection 13.3(3) of the Criminal
Code.
256
Failing to notify taking etc. of listed marine wildlife
(1) This section applies to an action taken
by a person if all of the following conditions are met:
(a) the person’s action either:
(i) results in the death
or injury of a member of a listed marine species that is in or on a
Commonwealth area; or
(ii) consists of, or
involves, trading, taking, keeping or moving a member of a listed marine
species that is in or on a Commonwealth area;
(b) the person’s action does not
constitute an offence against section 254, 254A, 254B, 254C, 254D or 254E,
otherwise than because of paragraph 255(db);
(c) the person’s action is not an
action that the person was authorised by a permit to take.
Note 1: Section 255 sets out most of the
circumstances in which an action described in paragraph (1)(a) will not be
an offence against section 254, 254A, 254B, 254C, 254D or 254E.
Note 2: A person is authorised by a permit to take an
action if the person is the holder of the permit or the person is given an
authority under section 261 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the
holder of the permit to give certain notices.
(2) Within 7 days of becoming aware of the
action, the person must notify the Secretary in writing, by telephone or by use
of any other electronic equipment:
(a) that the action was taken; and
(b) of other particulars (if any)
about the action that are prescribed by the regulations.
(3) An example of the particulars about the
action that the regulations may prescribe is the time and place of taking the
action. This does not limit the particulars the regulations may prescribe.
(4) Subsection (2) does not apply if:
(a) the person, or any other person or
body, is required by or under a law of the Commonwealth to notify the Secretary
of the action; or
(b) the action is in a class of
actions:
(i) that is specified in
an agreement or arrangement between the Secretary and a Commonwealth agency, or
an agency of a State or self‑governing Territory; and
(ii) that the agreement or
arrangement provides is to be notified to the Secretary by the agency.
Note: The defendant bears an evidential burden in
relation to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(5) A person is guilty of an offence
punishable on conviction by a fine not exceeding 100 penalty units if a person:
(a) fails to do an act; and
(b) the failing to do the act results
in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
257
Application for permits
(1) A person may, in accordance with the
regulations, apply to the Minister for a permit to be issued under section 258.
(2) The application must be accompanied by
the fee prescribed by the regulations (if any).
(3) As soon as practicable after receiving
the application, the Minister must cause to be published on the Internet:
(a) details of the application; and
(b) an invitation for anyone to give
the Minister comments within 10 business days (measured in Canberra) on whether
the permit should be issued.
Note: If the action is also the subject of a
referral under Division 1 of Part 7 and the referral is made at the
same time as the application, the application and invitation for comments that
must be published under this subsection may be published together with the
referral and invitation for comments that must be published under subsection
74(3).
258
Minister may issue permits
(1) Subject to subsection (3), the
Minister may, on application by a person under section 257, issue a permit
to the person.
(2) A permit authorises its holder to take
the actions specified in the permit without breaching section 254, 254A,
254B, 254C, 254D or 254E.
(3) The Minister must not issue the permit
unless satisfied that:
(a) the specified action will
significantly contribute to the conservation of the listed marine species
concerned or other listed marine species; or
(b) the impact of the specified action
on a member of the listed marine species concerned is incidental to, and not
the purpose of, the taking of the action and:
(i) the taking of the
action will not adversely affect the conservation status of that species or a
population of that species; and
(ii) the taking of the
action is not inconsistent with a wildlife conservation plan for that species
that is in force; and
(iii) the holder of the
permit will take all reasonable steps to minimise the impact of the action on
that species; or
(c) the specified action is of
particular significance to indigenous tradition and will not adversely affect
the conservation status of the listed marine species concerned; or
(d) the specified action is necessary
in order to control pathogens and are conducted in a way that will, so far as
is practicable, keep to a minimum any impact on the listed marine species
concerned.
(4) In making a decision on the application,
the Minister must consider the comments (if any) received:
(a) in response to the invitation
under subsection 257(3) for anyone to give the Minister comments on whether the
permit should be issued; and
(b) within the period specified in the
invitation.
259
Conditions of permits
(1) A permit is subject to such conditions as
are specified in the permit or as are imposed under subsection (2).
(2) The Minister may, in accordance with the
regulations:
(a) vary or revoke a condition of a
permit; or
(b) impose further conditions of a
permit.
260
Contravening conditions of a permit
The holder of a permit is guilty of an
offence punishable upon conviction by a fine not exceeding 300 penalty units
if:
(a) he or she does, or fails to do, an
act or thing; and
(b) doing, or failing to do, the act
or thing results in a contravention of a condition of the permit.
261
Authorities under permits
(1) Subject to subsection (2), the
holder of a permit may give to a person written authority to take for or on
behalf of the holder any action authorised by the permit. The authority may be
given generally or as otherwise provided by the instrument of authority.
(2) The holder of a permit must not give an
authority unless:
(a) the permit contains a condition
permitting the holder to do so; and
(b) the authority is given in
accordance with any requirements set out in the condition.
(3) A permit is, for the purposes of this
Act, taken to authorise the taking of a particular action by a person if the
taking of that action by the person is authorised by an authority given by the
holder of the permit.
(4) The giving of an authority does not
prevent the taking of any action by the holder of the permit.
(5) Except as provided in this section, a
permit does not authorise the taking of any action by a person for or on behalf
of the holder of the permit.
(6) A person who gives an authority must give
to the Minister written notice of it within 14 days after giving the authority.
262
Transfer of permits
On the application, in accordance with
the regulations, of the holder of a permit, the Minister may, in accordance
with the regulations, transfer the permit to another person.
263
Suspension or cancellation of permits
The Minister may, in accordance with the
regulations:
(a) suspend a permit for a specified
period; or
(b) cancel a permit.
263A
Review of decisions about permits
(1) Subject to subsection (2), an
application may be made to the Administrative Appeals Tribunal for review of a
decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a
condition of a permit; or
(c) to impose a further condition of a
permit; or
(d) to transfer or refuse to transfer
a permit; or
(e) to suspend or cancel a permit.
(2) Subsection (1) does not apply to a
decision made personally by the Minister (but the subsection does apply to a
decision made by a delegate of the Minister).
264
Fees
Such fees as are prescribed (if any) are
payable in respect of the following:
(a) the grant or the transfer of a
permit;
(b) the variation or revocation of a
condition of a permit;
(c) the imposition of a further
condition of a permit.
Subdivision C—Miscellaneous
265
Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in
writing, accredit for the purposes of this Division:
(a) a plan of management within the
meaning of section 17 of the Fisheries Management Act 1991; or
(b) a plan of management within the
meaning of section 15A of the Torres Strait Fisheries Act 1984;
or
(c) a plan of management, or a policy,
regime or any other arrangement, for a fishery, that is:
(i) made by a State or
self‑governing Territory; and
(ii) in force under a law
of the State or self‑governing Territory; or
(d) a
regime determined in writing by the Australian Fisheries Management Authority
under the Fisheries Administration Act 1991 for managing a fishery for
which a plan of management (within the meaning of section 17 of the Fisheries
Management Act 1991) is not in force; or
(e) a policy formulated by the
Protected Zone Joint Authority under paragraph 34(b) of the Torres Strait
Fisheries Act 1984 for managing a fishery for which a plan of management
(within the meaning of section 15A of the Torres Strait Fisheries Act
1984) is not in force;
if the Minister is satisfied that:
(f) the plan, regime or policy
requires persons engaged in fishing under the plan, regime or policy to take
all reasonable steps to ensure that members of listed marine species are not
killed or injured as a result of the fishing; and
(g) the fishery to which the plan,
regime or policy relates does not, or is not likely to, adversely affect the
conservation status of a listed marine species or a population of that species.
Note 1: The Minister may accredit a plan, regime or
policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited
under this section is, or is proposed to be, amended, the Minister may
determine under section 303AB that the plan, regime or policy as amended
is, for the purposes of this Act, taken to be accredited under subsection (1)
of this section.
(2) An instrument under subsection (1)
is not a legislative instrument.
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Regulations
The regulations may:
(a) provide for the transportation,
treatment and disposal of members of listed marine species killed, injured or
taken in contravention of this Division; and
(b) provide for the methods or
equipment by which members of listed marine species may be killed or taken
otherwise than in contravention of this Division; and
(c) provide for the gathering and
dissemination of information relating to listed marine species; and
(d) provide for the protection and
conservation of listed marine species; and
(e) provide
for any matter incidental to or connected with any of the above paragraphs.