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A Bill for an Act relating to the protection of the environment and the conservation of biodiversity, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced Senate 12 Nov 1998

1998

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Environment Protection and Biodiversity Conservation Bill 1998

 

No.      , 1998

 

(Environment and Heritage)

 

 

 

A Bill for an Act relating to the protection of the environment and the conservation of biodiversity, and for related purposes

  

  

ISBN:  0642 376964  


Contents

Chapter 1—Preliminary                                                                                          1

Part 1—Preliminary                                                                                                               1

1             Short title                                                                                             2

2             Commencement                                                                                   2

3             Objects of Act                                                                                     2

4             Act to bind Crown                                                                               3

5             Application of Act                                                                              4

6             Act to have effect subject to Australia’s international obligations      6

7             Application of the Criminal Code                                                       6

8             Native title rights not affected                                                             6

9             Relationship with other Acts                                                              6

10           Relationship with State law                                                                 7

Chapter 2—Protecting the environment                                                8

Part 2—Simplified outline of this Chapter                                                                8

11           Simplified outline of this Chapter                                                       8

Part 3—Requirements for environmental approvals                                          9

Division 1—Requirements relating to matters of national environmental significance                9

Subdivision A—World Heritage                                                                               9

12           Requirement for approval of activities with a significant impact on a declared World Heritage property             9

13           What is a declared World Heritage property?                                   10

14           Declaring a property to be a declared World Heritage property       10

15           Amending or revoking a declaration of a declared World Heritage property           12

Subdivision B—Wetlands of international importance                                      13

16           Requirement for approval of activities with a significant impact on a declared Ramsar wetland            13

17           What is a declared Ramsar wetland?                                                 14

Subdivision C—Listed threatened species and communities                            16

18           Actions with significant impact on listed threatened species or endangered community prohibited without approval                                                                                                           16

19           Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited 18

Subdivision D—Listed migratory species                                                            19

20           Requirement for approval of activities with a significant impact on a listed migratory species             19

Subdivision E—Protection of the environment from nuclear actions              20

21           Requirement for approval of nuclear actions                                     20

22           What is a nuclear action?                                                                   21

Subdivision F—Marine environment                                                                     22

23           Requirement for approval of activities involving the marine environment              22

24           What is a Commonwealth marine area?                                            24

Subdivision G—Additional matters of national environmental significance 25

25           Requirement for approval of prescribed actions                               25

Division 2—Protection of the environment from proposals involving the Commonwealth        28

Subdivision A—Protection of environment from actions involving Commonwealth land  28

26           Requirement for approval of activities involving Commonwealth land   28

27           What is Commonwealth land?                                                           29

Subdivision B—Protection of the environment from Commonwealth activities and decisions         30

28           Requirement for approval of activities of Commonwealth agencies significantly affecting the environment         30

Part 4—Cases in which environmental approvals are not needed            32

Division 1—Actions covered by bilateral agreements                             32

29           Actions declared by agreement not to need approval                        32

30           Extended operation in State and Northern Territory waters             32

31           Extended operation in non‑self‑governing Territories                       33

Division 2—Actions covered by Ministerial declarations                      34

32           Actions declared by Minister not to need approval                          34

33           Making declaration                                                                            34

34           What is matter protected by a provision of Part 3?                           35

35           Revoking declarations                                                                        37

36           Other rules about declarations                                                           37

Division 3—Actions covered by conservation agreements                   39

37           Actions specified as not needing approval                                        39

Division 4—Forestry operations in certain regions                                   40

Subdivision A—Regions covered by regional forest agreements                    40

38           Approval not needed for forestry operations permitted by regional forest agreements         40

Subdivision B—Regions subject to a process of negotiating a regional forest agreement               40

39           Object of this Subdivision                                                                 40

40           Forestry operations in regions not yet covered by regional forest agreements       41

41           What is an RFA region?                                                                     42

Subdivision C—Limits on application                                                                   43

42           This Division does not apply to some forestry operations              43

Division 5—Actions in the Great Barrier Reef Marine Park               45

43           Actions taken in accordance with permission                                   45

Chapter 3—Bilateral agreements                                                               46

Part 5—Bilateral agreements                                                                                        46

Division 1—Object of Part                                                                                       46

44           Object of this Part                                                                             46

Division 2—Making bilateral agreements                                                      47

Subdivision A—Power to make bilateral agreements                                        47

45           Minister may make agreement                                                           47

46           Agreement may declare actions do not need approval under Part 9  48

47           Agreement may declare classes of actions do not need assessment  50

48           Other provisions of bilateral agreements                                           51

49           Express provision needed to affect Commonwealth areas or actions 52

Subdivision B—Prerequisites for making bilateral agreements                    52

50           Minister may only enter into agreement if prescribed criteria are met 52

51           Agreements relating to declared World Heritage properties              53

52           Agreements relating to declared Ramsar wetlands                             53

53           Agreements relating to listed threatened species and ecological communities         53

54           Agreements relating to migratory species                                          54

55           Agreements relating to nuclear actions                                              54

56           Agreements relating to prescribed actions                                         55

Division 3—Suspending and ending the effect of bilateral agreements 56

Subdivision A—Suspension and cancellation of effect                                       56

57           Representations about suspension or cancellation                            56

58           Consultation before cancellation or suspension                                57

59           Suspension or cancellation                                                                 57

60           Emergency suspension of effect of bilateral agreement                     59

61           Cancellation during suspension                                                         60

62           Revocation of notice of suspension or cancellation                           60

63           Cancellation or suspension at request of other party                        61

64           Cancellation or suspension of bilateral agreement does not affect certain actions   62

Subdivision B—Expiry of bilateral agreements                                                   63

65           Expiry and review of bilateral agreements                                         63

Chapter 4—Environmental assessments and approvals     64

Part 6—Simplified outline of this Chapter                                                              64

66           Simplified outline of this Chapter                                                     64

Part 7—Deciding whether approval of actions is needed                               66

Division 1—Referral of proposals to take action                                         66

67           What is a controlled action?                                                               66

68           Referral by person proposing to take action                                     66

69           State or Territory may refer proposal to Minister                            66

70           Minister may request referral of proposal                                        67

71           Commonwealth agency may refer proposal to Minister                   67

72           Form and content of referrals                                                            68

73           Notifying person proposing to take action of referral                       68

74           Inviting provision of information on referred proposal                     68

Division 2—Ministerial decision whether action needs approval      70

75           Does the proposed action need approval?                                        70

76           Minister may request more information for making decision            71

77           Notice and reasons for decision                                                         72

78           Reconsideration of decision                                                               73

79           Reconsideration of decision on request by a State or Territory        76

Part 8—Assessing impacts of controlled actions                                                78

Division 1—Simplified outline of this Part                                                       78

80           Simplified outline of this Part                                                            78

Division 2—Application of this Part                                                                    79

81           Application                                                                                        79

82           What are the relevant impacts of an action?                                      79

83           This Part does not apply if action covered by bilateral agreement   80

84           This Part does not apply if action covered by declaration                80

Division 3—Decision on assessment approach                                            83

Subdivision A—Simplified outline of this Division                                             83

85           Simplified outline of this Division                                                     83

Subdivision B—Deciding on approach for assessment                                      83

86           Designated proponent must provide preliminary information for assessment       83

87           Minister must decide on approach for assessment                           84

88           Timing of decision on assessment approach                                     85

89           Minister may request more information for making decision            87

90           Directing an inquiry after trying another approach                           87

91           Notice of decision on assessment approach                                      88

Division 4—Assessment on preliminary documentation                         89

92           Application                                                                                        89

93           Public comment on information included in referral                          89

94           Revised documentation                                                                      90

95           Assessment report                                                                             90

Division 5—Public environment reports                                                          92

96           Application                                                                                        92

97           Minister must prepare guidelines for draft public environment report 92

98           Designated proponent must invite comment on draft public environment report  93

99           Finalising public environment report                                                 94

100         Assessment report                                                                             95

Division 6—Environmental impact statements                                            96

101         Application                                                                                        96

102         Minister must prepare guidelines for draft environmental impact statement          96

103         Designated proponent must invite comment on draft environmental impact statement         97

104         Finalising draft environmental impact statement                               98

105         Assessment report                                                                             99

Division 7—Inquiries                                                                                                100

Subdivision A—Preliminary                                                                                 100

106         Simplified outline                                                                             100

Subdivision B—Establishment of inquiries                                                        100

107         Appointing commissioners and setting terms of reference              100

108         Publicising inquiry                                                                           101

Subdivision C—Conduct of inquiries                                                                  102

109         Procedure of inquiries                                                                      102

110         Inquiry to be public                                                                         102

111         Calling witnesses                                                                             103

112         Dealing with witnesses                                                                    104

113         Dealing with documents given to commission                                 105

114         Inspections of land, buildings and places                                        106

115         Entering premises by consent                                                          107

116         Entering premises under warrant                                                     107

117         Warrants by telephone or other electronic means                           108

118         Identity cards                                                                                   110

119         Contempt                                                                                         110

120         Protection of commissioners and witnesses                                    111

Subdivision D—Inquiry reports                                                                            113

121         Timing of report                                                                              113

122         Publication of report                                                                        113

Subdivision E—Commissioners’ terms and conditions                                   114

123         Basis of appointment                                                                      114

124         Remuneration                                                                                   114

125         Leave of absence                                                                              114

126         Resignation                                                                                      115

127         Termination of appointment                                                           115

128         Disclosure of interests                                                                     116

129         Other terms and conditions                                                             116

Part 9—Approval of actions                                                                                          117

Division 1—Decisions on approval and conditions                                   117

Subdivision A—General                                                                                         117

130         Timing of decision on approval                                                       117

131         Inviting comments from other Ministers before decision                118

132         Requesting further information for approval decision                     119

133         Grant of approval                                                                            119

134         Attaching conditions to approval                                                    120

135         Certain approvals and conditions must not give preference            122

Subdivision B—Considerations for approvals and conditions                        123

136         General considerations                                                                     123

137         Requirements for decisions about World Heritage                          125

138         Requirements for decisions about Ramsar wetlands                       126

139         Requirements for decisions about threatened species and endangered communities               126

140         Requirements for decisions about migratory species                      126

141         Requirements for decisions about prescribed actions                      127

Division 2—Requirement to comply with conditions                              128

142         Compliance with conditions on approval                                        128

Division 3—Variation of conditions and suspension and revocation of approvals           129

143         Variation of conditions attached to approval                                  129

144         Suspension of approval                                                                   130

145         Revocation of approval                                                                   131

Part 10—Strategic assessments                                                                                 133

Division 1—Strategic assessments generally                                              133

146         Minister may agree on strategic assessment                                    133

Division 2—Assessment of Commonwealth‑managed fisheries       135

147         Simplified outline of this Division                                                   135

148         Assessment before management plan is determined                        136

149         Assessment before determination that no plan required                 136

150         Assessment of all fisheries without plans must be started within 5 years              137

151         Assessment of all Torres Strait fisheries to be started within 5 years 138

152         Further assessment if impacts greater than previously assessed    138

153         Minister must make declaration if he or she endorses plan or policy 139

154         This Division does not limit Division 1                                          140

Part 11—Miscellaneous rules about assessments and approvals          141

Division 1—Rules about timing                                                                          141

155         This Chapter ceases to apply to lapsed proposals                         141

156         General rules about time limits                                                        142

Division 2—Actions in area offshore from a State or the Northern Territory    143

157         Actions treated as though they were in a State or the Northern Territory              143

Division 3—Exemptions                                                                                         144

158         Exemptions from Part 3 and this Chapter                                       144

Division 4—Application of Chapter to actions that are not controlled actions  145

Subdivision A—Minister’s advice on authorising actions                              145

159         Simplified outline of this Subdivision                                              145

160         Requirement to take account of Minister’s advice                          146

161         Seeking the Minister’s advice                                                          147

162         Assessment of the action                                                                 148

163         Providing advice                                                                               149

164         Reporting on response to advice                                                     150

Subdivision B—Assessment of applications for permits relating to whales, dolphins and porpoises             150

165         Assessment of applications for permits relating to whales, dolphins and porpoises             150

Subdivision C—Assessment under agreement with State or Territory       151

166         This Subdivision applies if Ministers agree it should                     151

167         Making an agreement                                                                       152

168         Content of an agreement                                                                  153

169         Application of a Division of Part 8                                                 155

170         Application of Division 1 of Part 10                                               156

Chapter 5—Conservation of biodiversity                                          157

Part 12—Identifying and monitoring biodiversity and making bioregional plans   157

Division 1—Identifying and monitoring biodiversity                               157

171         Identifying and monitoring biodiversity                                          157

172         Inventories of listed threatened species etc. on Commonwealth land 158

173         Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas             158

174         Inventories and surveys to be updated                                            159

175         Obligations under this Act unaffected by lack of inventories or surveys                159

Division 2—Bioregional plans                                                                             160

176         Bioregional plans                                                                             160

177         Obligations under this Act unaffected by lack of bioregional plans 160

Part 13—Species and communities                                                                           161

Division 1—Listed threatened species and ecological communities 161

Subdivision A—Listing                                                                                          161

178         Listing of threatened species                                                           161

179         Categories of threatened species                                                      162

180         Native species of marine fish                                                           163

181         Listing of threatened ecological communities                                  163

182         Critically endangered, endangered and vulnerable communities      164

183         Listing of key threatening processes                                               165

184         Minister may amend lists                                                                165

185         Maintaining the lists in up‑to‑date condition                                  166

186         Amending list of threatened native species                                     166

187         Amending list of ecological communities                                         168

188         Amending list of key threatening processes                                    168

189         Minister must consider advice from Scientific Committee              169

190         Scientific Committee may provide advice about species or communities becoming threatened              170

191         Nomination of threatened species etc.                                             171

192         Rediscovery of threatened species that were extinct                       172

193         Species posing a serious threat to human health                             172

194         Minister to make lists available to the public                                  173

Subdivision B—Permit system                                                                             173

195         Subdivision does not apply to cetaceans                                         173

196         Taking etc. certain listed threatened species or listed ecological communities        173

197         Section 196 does not apply to certain actions                                 174

198         Operation of section 18 not affected                                               175

199         Failing to notify taking of listed threatened species or listed ecological community               175

200         Application for permits                                                                   176

201         Minister may issue permits                                                             176

202         Conditions of permits                                                                      177

203         Contravening conditions of a permit                                               178

204         Authorities under permits                                                               178

205         Transfer of permits                                                                          179

206         Suspension or cancellation of permits                                             179

207         Fees                                                                                                  179

Subdivision C—Miscellaneous                                                                             179

208         Regulations                                                                                      179

Division 2—Migratory species                                                                            181

Subdivision A—Listing                                                                                          181

209         Listed migratory species                                                                  181

Subdivision B—Permit system                                                                             182

210         Subdivision does not apply to members of listed threatened species or cetaceans 182

211         Taking etc. listed migratory species                                                182

212         Section 211 does not apply to certain actions                                 183

213         Operation of section 20 not affected                                               184

214         Failing to notify taking etc. of listed migratory species                  184

215         Application for permits                                                                   185

216         Minister may issue permits                                                             185

217         Conditions of permits                                                                      186

218         Contravening conditions of a permit                                               186

219         Authorities under permits                                                               186

220         Transfer of permits                                                                          187

221         Suspension or cancellation of permits                                             187

222         Fees                                                                                                  187

Subdivision C—Miscellaneous                                                                             187

223         Regulations                                                                                      187

Division 3—Whales and other cetaceans                                                       189

Subdivision A—Application of Division                                                              189

224         Application of Division                                                                   189

Subdivision B—Australian Whale Sanctuary                                                   190

225         Australian Whale Sanctuary                                                            190

226         Prescribed waters                                                                             190

227         Coastal waters                                                                                 190

228         Minister may make declaration for coastal waters                          191

Subdivision C—Offences                                                                                       191

229         Killing etc. cetaceans                                                                        191

230         Possession of cetaceans                                                                   192

231         Sections 229 and 230 do not apply to certain actions                     193

232         Action to be taken on killing etc. cetaceans                                     193

Subdivision D—Offences relating to unlawful importation                            195

233         Possession of unlawfully imported cetaceans                                 195

234         Treating unlawfully imported cetaceans                                          195

235         Sections 233 and 234 do not apply to certain actions                     195

Subdivision E—Miscellaneous offences                                                              196

236         Offences relating to foreign whaling vessels                                    196

Subdivision F—Permit system                                                                              197

237         Application for permits                                                                   197

238         Minister may issue permits                                                             197

239         Conditions of permits                                                                      198

240         Contravening conditions of a permit                                               199

241         Authorities under permits                                                               199

242         Transfer of permits                                                                          200

243         Suspension or cancellation of permits                                             200

244         Fees                                                                                                  200

Subdivision G—Miscellaneous                                                                             200

245         Minister may accredit plans of management                                   200

246         Vesting of whales in Commonwealth                                              201

247         Regulations                                                                                      201

Division 4—Listed marine species                                                                   202

Subdivision A—Listing                                                                                          202

248         Listed marine species                                                                       202

249         Minister may amend list                                                                  202

250         Adding marine species to the list                                                     203

251         Minister must consider advice from Scientific Committee              204

252         Minister to make lists available to the public                                  204

Subdivision B—Permit system                                                                             205

253         Subdivision does not apply to members of certain species and cetaceans              205

254         Taking etc. listed marine species                                                     205

255         Section 254 does not apply to certain actions                                 205

256         Failing to notify unintended taking of listed marine wildlife           207

257         Application for permits                                                                   207

258         Minister may issue permits                                                             208

259         Conditions of permits                                                                      209

260         Contravening conditions of a permit                                               209

261         Authorities under permits                                                               209

262         Transfer of permits                                                                          210

263         Suspension or cancellation of permits                                             210

264         Fees                                                                                                  210

Subdivision C—Miscellaneous                                                                             210

265         Minister may accredit plans of management                                   210

266         Regulations                                                                                      211

Division 5—Plans                                                                                                        212

Subdivision A—Recovery plans and threat abatement plans                           212

267         Recovery plans and threat abatement plans                                    212

268         Compliance with recovery plans and threat abatement plans         213

269         Implementing recovery and threat abatement plans                        213

270         Content of recovery plans                                                               214

271         Content of threat abatement plans                                                  215

272         Eradication of non‑native species                                                    216

273         Deadlines for preparing plans                                                          216

274         Scientific Committee to advise on plans                                          219

275         Consultation on plans                                                                      219

276         Consideration of comments                                                             220

277         Adoption of State plans                                                                  221

278         Publication, review and variation of plans                                       221

279         Variation of plans by the Minister                                                  222

280         Variation by a State or Territory of joint plans and plans adopted by the Minister              222

281         Commonwealth assistance                                                               223

282         Scientific Committee to advise on assistance                                  224

283         Plans may cover more than one species etc.                                    224

284         Reports on preparation and implementation of plans                     225

Subdivision B—Wildlife conservation plans                                                      225

285         Wildlife conservation plans                                                             225

286         Acting in accordance with wildlife conservation plans                    226

287         Content of wildlife conservation plans                                            226

288         Eradication of non‑native species                                                    227

289         Scientific Committee to advise on scheduling of plans                    228

290         Consultation on plans                                                                      228

291         Consideration of comments                                                             229

292         Adoption of State plans                                                                  229

293         Publication, review and variation of plans                                       229

294         Variation of plans by the Minister                                                  230

295         Variation by a State or Territory of joint plans and plans adopted by the Minister              231

296         Commonwealth assistance                                                               231

297         Plans may cover more than one species etc.                                    232

298         Reports on preparation and implementation of plans                     232

Subdivision C—Miscellaneous                                                                             232

299         Wildlife conservation plans cease to have effect                             232

300         Document may contain more than one plan                                    233

Division 6—Access to biological resources                                                 234

301         Control of access to biological resources                                         234

Division 7—Aid for conservation of species in foreign countries    235

302         Aid for conservation of species in foreign countries                       235

Division 8—Miscellaneous                                                                                    236

303         Regulations                                                                                      236

Part 14—Conservation agreements                                                                         237

304         Object of this Part                                                                           237

305         Minister may enter into conservation agreements                           237

306         Content of conservation agreements                                                238

307         Conservation agreements to be legally binding                                239

308         Variation and termination of conservation agreements                    239

309         Publication of conservation agreements                                           240

310         List of conservation agreements                                                      241

311         Commonwealth, State and Territory laws                                       241

312         Minister must not give preference                                                   242

Part 15—Protected areas                                                                                               243

Division 1—Managing World Heritage properties                                  243

Subdivision A—Simplified outline of this Division                                           243

313         Simplified outline of this Division                                                   243

Subdivision B—Seeking agreement on World Heritage listing                    244

314         Special provisions relating to World Heritage nominations             244

Subdivision C—Notice of submission of property for listing                          244

315         Minister must give notice of submission of property for listing etc. 244

Subdivision D—Plans for listed World Heritage properties in Commonwealth areas      245

316         Making plans                                                                                   245

317         Notice of plans                                                                                247

318         Compliance with plans                                                                    247

319         Review of plans every 5 years                                                        247

Subdivision E—Managing World Heritage properties in States and self‑governing Territories   248

320         Application                                                                                      248

321         Co‑operating to prepare and implement plans                                248

322         Commonwealth responsibilities                                                      248

Subdivision F—Australian World Heritage management principles           249

323         Australian World Heritage management principles                         249

Subdivision G—Assistance for protecting World Heritage properties        249

324         Commonwealth assistance for protecting declared World Heritage properties       249

Division 2—Managing wetlands of international importance              250

Subdivision A—Simplified outline of this Division                                           250

325         Simplified outline of this Division                                                   250

Subdivision B—Seeking agreement on Ramsar designation                         251

326         Commonwealth must seek agreement before designation                251

Subdivision C—Notice of designation of wetland                                              251

327         Minister must give notice of designation of wetland etc.                251

Subdivision D—Plans for listed wetlands in Commonwealth areas               252

328         Making plans                                                                                   252

329         Notice of plans                                                                                254

330         Compliance with plans                                                                    254

331         Review of plans every 5 years                                                        254

Subdivision E—Management of wetlands in States and self‑governing Territories           254

332         Application                                                                                      254

333         Co‑operating to prepare and implement plans                                255

334         Commonwealth responsibilities                                                      255

Subdivision F—Australian Ramsar management principles                          256

335         Australian Ramsar management principles                                      256

Subdivision G—Assistance for protecting wetlands                                         256

336         Commonwealth assistance for protecting declared Ramsar wetlands 256

Division 3—Managing Biosphere reserves                                                 257

337         Definition of Biosphere reserve                                                      257

338         Planning for management of Biosphere reserves                             257

339         Commonwealth activities in Biosphere reserves                             257

340         Australian Biosphere reserve management principles                     258

341         Commonwealth assistance for protecting Biosphere reserves        258

Division 4—Commonwealth reserves                                                             259

Subdivision A—Simplified outline of this Division                                           259

342         Simplified outline of this Division                                                   259

Subdivision B—Declaring and revoking Commonwealth reserves               260

343         Simplified outline of this Subdivision                                              260

344         Declaring Commonwealth reserves                                                  260

345         Extent of Commonwealth reserve                                                    262

346         Content of Proclamation declaring Commonwealth reserve            262

347         Assigning Commonwealth reserves and zones to IUCN categories 263

348         Australian IUCN reserve management principles                           265

349         Proclamations assigning reserve or zone to wilderness area category may affect management               265

350         Revocation and alteration of Commonwealth reserves                    266

351         Report before making Proclamation                                                267

352         What happens to Commonwealth leasehold interest when Commonwealth reserve is revoked             269

Subdivision C—Activities in Commonwealth reserves                                    269

353         Simplified outline of this Subdivision                                              269

354         Activities that may be carried on only under management plan      270

355         Limits on mining operations in Commonwealth reserves                271

356         Regulations controlling activities relating to Commonwealth reserves 272

357         Managing Commonwealth reserves while a management plan is not in operation  275

358         Restriction on disposal of Commonwealth’s interests in Commonwealth reserves                276

359         Prior usage rights relating to Commonwealth reserves continue to have effect       276

360         Activities in wilderness areas                                                          277

Subdivision D—Complying with management plans for Commonwealth reserves             279

361         Simplified outline of this Subdivision                                              279

362         Commonwealth and Commonwealth agencies to comply with management plan for Commonwealth reserve      279

363         Resolving disagreement between land council and Secretary over implementation of plan     280

364         Resolving disagreement between Secretary and Board over implementation of plan              281

Subdivision E—Approving management plans for Commonwealth reserves 282

365         Simplified outline of this Subdivision                                              282

366         Obligation to prepare management plans for Commonwealth reserves   283

367         Content of a management plan for a Commonwealth reserve         284

368         Steps in preparing management plans for Commonwealth reserves 286

369         Resolving disagreements between Secretary and Board in planning process           289

370         Approval of management plans for Commonwealth reserves         290

371         Approved management plans are disallowable instruments            292

372         Amendment and revocation of management plans for Commonwealth reserves     292

373         Expiry of management plans for Commonwealth reserves             292

Subdivision F—Boards for Commonwealth reserves on indigenous people’s land             293

374         Simplified outline of this Subdivision                                              293

375         Application                                                                                      293

376         Functions of a Board for a Commonwealth reserve                        293

377         Minister must establish Board if land council or traditional owners agree              294

378         Altering the constitution of a Board or abolishing a Board             295

379         Appointment of Board members                                                     296

380         Terms and conditions                                                                      297

381         Remuneration                                                                                   297

382         Termination of appointments of Board members                           298

383         Procedure of a Board                                                                       299

Subdivision G—Special rules for some Commonwealth reserves in the Northern Territory or Jervis Bay Territory                                                                                                       300

384         Simplified outline of this Subdivision                                              300

385         Activities in Commonwealth reserve without management plan    300

386         What are the Kakadu region and the Uluru region?                       301

387         No mining operations in Kakadu National Park                              301

388         Establishment and development of townships in the Kakadu region and Uluru region          302

389         Planning for townships                                                                    303

390         Special rules to protect Aboriginal interests in planning process    304

Chapter 6—Administration                                                                              307

Part 16—Application of precautionary principle in decision‑making     307

391         Minister must consider precautionary principle in making decisions 307

Part 17—Enforcement                                                                                                      309

Division 1—Wardens, rangers and inspectors                                            309

Subdivision A—Wardens and rangers                                                                309

392         Appointment of wardens and rangers                                             309

393         Arrangements for certain officers or employees to exercise powers etc. of wardens or rangers             309

394         Wardens ex officio                                                                            310

395         Identity cards                                                                                   310

Subdivision B—Inspectors                                                                                    310

396         Appointment of inspectors                                                             310

397         Inspectors ex officio                                                                         311

398         Arrangements for State and Territory officers to be inspectors      311

399         Identity cards                                                                                   312

Subdivision C—Miscellaneous                                                                             312

400         Regulations may give wardens, rangers and inspectors extra powers, functions and duties   312

401         Impersonating authorised officers and rangers                                312

402         Offences against authorised officers and rangers                             313

Division 2—Boarding of vessels etc. and access to premises by consent           315

403         Boarding of vessels etc. by authorised officers                               315

404         Authorised officers to produce identification                                  317

405         Access to premises                                                                          318

406         Powers of authorised officers                                                          318

Division 3—Monitoring of compliance                                                            320

407         Monitoring powers                                                                          320

408         Monitoring searches with occupier’s consent                                 320

409         Monitoring warrants                                                                        322

410         Details of monitoring warrant to be given to occupier etc.              323

411         Occupier entitled to be present during search                                 323

412         Announcement before entry                                                            324

Division 4—Search warrants                                                                                 325

413         When search warrants can be issued                                                325

414         Statements in warrants                                                                    326

415         Powers of magistrate                                                                       328

416         Warrants by telephone or other electronic means                           328

417         The things that are authorised by a search warrant                         330

418         Availability of assistance, and use of force, in executing a warrant 332

419         Details of warrant to be given to occupier etc.                                333

420         Specific powers available to person executing warrant                   334

421         Use of equipment to examine or process things                              334

422         Use of electronic equipment at premises                                         335

423         Compensation for damage to electronic equipment                         337

424         Copies of seized things to be provided                                           338

425         Occupier entitled to be present during search                                 339

426         Receipts for things seized under warrant                                        339

427         Restrictions on personal searches                                                    339

428         When a thing is in the possession of a person                                 339

Division 5—Stopping and searching aircraft, vehicles or vessels    340

429         Searches of aircraft, vehicles or vessels without warrant in emergency situations  340

Division 6—Arrest and related matters                                                         342

430         Powers of arrest                                                                               342

431         Power to conduct a frisk search of an arrested person                    342

432         Power to conduct an ordinary search of an arrested person            343

433         Power to conduct search of arrested person’s premises                 343

Division 7—Miscellaneous provisions about searches, entry to premises, warrants etc.          344

434         Conduct of ordinary searches and frisk searches                             344

435         Announcement before entry                                                            344

436         Offence of making false statements in warrants                              344

437         Offences relating to telephone warrants                                          344

438         Retention of things which are seized                                               345

439         Magistrate may permit a thing to be retained                                  346

440         Law relating to legal professional privilege not affected                  347

441         Other laws about search, arrest etc. not affected                             347

442         Persons to assist authorised officers                                               348

Division 8—Power to search goods, baggage etc.                                    350

443         Power to search goods, baggage etc.                                                350

Division 9—Power to ask for names and addresses                                352

444         Authorised person may ask for person’s name and address           352

Division 10—Seizure and forfeiture etc.                                                         353

Subdivision A—Seizure of goods                                                                         353

445         Seizure of goods                                                                               353

446         Retention of goods that have been seized                                        353

447         Disposal of goods if there is no owner or owner cannot be located 354

448         Release of goods that have been seized                                           355

Subdivision B—Immediate disposal of seized items                                         355

449         Immediate disposal of seized items                                                 355

Subdivision C—Court‑ordered forfeiture                                                           356

450         Court‑ordered forfeiture                                                                  356

Subdivision D—Dealings in forfeited items                                                       357

451         Dealings in forfeited items                                                               357

Subdivision E—Delivery of forfeited items to the Commonwealth                 357

452         Delivery of forfeited items to the Commonwealth                          357

Subdivision F—Keeping of organisms that have been seized                          358

453         Keeping of organisms retained under this Part                                358

454         Recovery of costs of storing or keeping organisms                         358

Subdivision G—Rescuing goods                                                                           359

455         Rescuing goods                                                                                359

456         Breaking or destroying goods or documents to prevent seizure etc. 359

Division 11—Powers of pursuit                                                                           360

457         Power to pursue persons etc.                                                          360

Division 12—Environmental audits                                                                  361

458         Directed environmental audits                                                         361

459         Appointment of auditor and carrying out of audit                          362

460         Nature of directed environmental audit                                           362

461         Audit reports                                                                                   363

462         Directed environmental audits do not affect other audit obligations 364

Division 13—Conservation orders                                                                    365

Subdivision A—Simplified outline                                                                       365

463         Simplified outline of this Division                                                   365

Subdivision B—Making and reviewing conservation orders                          365

464         Minister may make conservation orders                                         365

465         Duration of conservation orders                                                      366

466         Reviews of conservation orders                                                       367

467         Publication of conservation orders                                                  367

468         Application for reconsideration of conservation orders or decisions on review      368

469         Reconsideration of conservation orders and decisions on review    369

Subdivision C—Complying with conservation orders                                      370

470         Contravening conservation orders is an offence                              370

471         Minister to consider proposed actions etc.                                     370

472         Contents of notices of advice                                                          371

473         Review by the Administrative Appeals Tribunal                           371

474         Assistance in complying with conservation orders                         371

Division 14—Injunctions                                                                                        373

475         Injunctions for contravention of the Act                                         373

476         Injunctions for contraventions of conservation agreements            375

477         Discharge of injunctions                                                                  376

478         No undertakings as to damages                                                        376

479         Certain considerations for granting injunctions not relevant           376

480         Powers conferred are in addition to other powers of the Court      377

Division 15—Civil penalties                                                                                 378

481         Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision    378

482         What is a civil penalty provision?                                                    379

483         Contravening a civil penalty provision is not an offence                379

484         Persons involved in contravening civil penalty provision               379

485         Recovery of a pecuniary penalty                                                    379

486         Gathering information for application for pecuniary penalty         380

Division 16—Review of administrative decisions                                     381

487         Extended standing for judicial review                                              381

488         Applications on behalf of unincorporated organisations                 382

Division 17—Duty to provide accurate information                                 383

489         Providing false or misleading information to obtain approval or permit 383

490         Providing false or misleading information in response to a condition on an approval or permit             384

491         Providing false or misleading information to authorised officer etc. 384

492         Defence of explanation of false or misleading information              385

Division 18—Liability of executive officers for corporations              386

493         Who is an executive officer of a body corporate?                            386

494         Civil penalties for executive officers of bodies corporate                386

495         Criminal liability of executive officers of bodies corporate             386

496         Did an executive officer take reasonable steps to prevent contravention?              387

Division 19—Infringement notices                                                                   389

497         Infringement notices                                                                        389

Division 20—Publicising contraventions                                                       390

498         Minister may publicise contraventions of this Act or the regulations 390

Part 18—Remedying environmental damage                                                     391

499         Commonwealth powers to remedy environmental damage             391

500         Liability for loss or damage caused by contravention                     392

501         Other powers not affected                                                               393

Part 19—Organisations                                                                                                   394

Division 1—Establishment and functions of the Threatened Species Scientific Committee      394

502         Establishment                                                                                  394

503         Functions of the Committee                                                            394

Division 2—Establishment and functions of the Biological Diversity Advisory Committee      395

504         Establishment                                                                                  395

505         Functions of the Committee                                                            396

Division 3—Members and procedures of Committees                          397

506         Application                                                                                      397

507         Terms and conditions                                                                      397

508         Remuneration                                                                                   397

509         Termination of appointments of Committee members                   398

510         Procedure of a Committee                                                               399

Division 4—Advisory committees                                                                     401

511         Minister may establish advisory committees                                  401

512         Appointments                                                                                 401

513         Members of advisory committees                                                   401

514         Committee procedure                                                                      402

Part 20—Delegation                                                                                                          403

515         Delegation                                                                                        403

Part 21—Reporting                                                                                                            404

516         Annual report on operation of Act                                                  404

Chapter 7—Miscellaneous                                                                               405

Part 22—Miscellaneous                                                                                                  405

517         Determinations of species                                                               405

518         Non‑compliance with time limits                                                    405

519         Compensation for acquisition of property                                      406

520         Regulations                                                                                      406

521         Fees and charges must not be taxes                                                 407

522         Financial assistance etc. to be paid out of appropriated money     408

Chapter 8—Definitions                                                                                         409

Part 23—Definitions                                                                                                          409

Division 1—Some definitions relating to particular topics                   409

Subdivision A—Actions                                                                                         409

523         Actions                                                                                            409

524         Things that are not actions                                                              409

Subdivision B—Areas                                                                                            410

525         Commonwealth areas                                                                       410

Subdivision C—Entities                                                                                         411

526         Subsidiaries of bodies corporate                                                      411

Subdivision D—Criminal law                                                                                412

527         Convictions                                                                                      412

Division 2—General list of definitions                                                             413

528         Definitions                                                                                       413

 


A Bill for an Act relating to the protection of the environment and the conservation of biodiversity, and for related purposes

The Parliament of Australia enacts:

Chapter 1Preliminary

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Environment Protection and Biodiversity Conservation Act 1998.

2  Commencement

             (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 6 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

                     (d)  to promote a co‑operative approach to the protection and management of the environment involving governments, the community and land‑holders; and

                     (e)  to assist in the co‑operative implementation of Australia’s international environmental responsibilities.

             (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

                     (g)  promotes a partnership approach to environmental protection and biodiversity conservation through bilateral agreements with States and Territories, conservation agreements with land‑holders and the involvement of the community in management planning.

4  Act to bind Crown

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence. However, the Crown must not do anything that would be an offence against this Act if done by anyone else.

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  Act to have effect subject to Australia’s international obligations

                   This Act has effect subject to Australia’s obligations under any agreement between Australia and one or more other countries.

7  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

8  Native title rights not affected

                   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.

9  Relationship with other Acts

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.

Australian Heritage Commission Act 1975 does not apply

             (3)  The making of a decision, or the giving of an approval, under this Act is not an action for the purposes of section 30 of the Australian Heritage Commission Act 1975.

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 2Protecting the environment

Part 2Simplified 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;

               (c)     a conservation agreement.

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 3Requirements for environmental approvals

Division 1Requirements relating to matters of national environmental significance

Subdivision AWorld 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but this section is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action.

             (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 Act:

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.

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.

Subdivision BWetlands 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but this section is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action.

             (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.

Threatened wetlands of international importance

             (3)  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.

When a declaration is in force

             (4)  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

             (5)  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 the Commonwealth needs to:

                     (a)  decide whether the wetland is of international significance in terms of ecology, botany, zoology, limnology or hydrology; and

                     (b)  designate the wetland for inclusion in the List of Wetlands of International Importance kept under Article 2 of the Ramsar Convention.

Revocation of declaration of threatened wetland

             (6)  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.

Subdivision CListed 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.

19  Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited

             (1)  A subsection of section 18 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 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 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but the subsection is not a controlling provision for the action; 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), or the giving of an authorisation (however described) of such an action.

Subdivision DListed 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but this section is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action.

Subdivision EProtection 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but this section is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action.

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 or a facility for storing spent nuclear fuel;

                     (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 fuel fabrication plant;

                     (b)  a nuclear reactor (including critical and subcritical assemblies);

                     (c)  a research reactor;

                     (d)  a nuclear power plant;

                     (e)  a nuclear fuel storage facility;

                      (f)  an enrichment plant;

                     (g)  a reprocessing facility.

nuclear reactor means a device in which a fission chain reaction can be initiated, maintained and controlled.

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.

Subdivision FMarine 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but the subsection is not a controlling provision for the action; 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), or the giving of an authorisation (however described) of such an action.

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 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.

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).

Subdivision GAdditional 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but this section is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action.

             (3)  Before the Governor‑General makes regulations prescribing an action for the purposes of subsection (1), the Minister must be satisfied that:

                     (a)  all the States, the Australian Capital Territory and the Northern Territory have been given a reasonable opportunity to comment on the proposal to prescribe:

                              (i)  the action for the purposes of subsection (1); and

                             (ii)  the things that are matter protected by this section (for the purposes of section 34) in relation to the action; and

                     (b)  the proposed regulations are not inconsistent with Australia’s obligations under an agreement with one or more other countries.

             (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 obligation under an agreement with one or more other countries.


 

Division 2Protection of the environment from proposals involving the Commonwealth

Subdivision AProtection 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

                     (c)  the action is one declared by the Minister in writing to be an action to which the subsection does not apply; or

                     (d)  there is in force a decision of the Minister under Division 2 of Part 7 that:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but the subsection is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action; or

                      (f)  the person taking the action is the Commonwealth or a Commonwealth agency.

Note:          Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.

Declarations of actions

             (4)  The Minister may make a written declaration that an action is an action to which subsection (1) or subsection (2) 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.

27  What is Commonwealth land?

                   Commonwealth land is so much of a Commonwealth area as is not a Commonwealth marine area.

Subdivision BProtection of the environment from Commonwealth activities and decisions

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:          This 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:

                              (i)  the action is not a controlled action; or

                             (ii)  the action is a controlled action but this section is not a controlling provision for the action; 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 the giving of an authorisation (however described) of such an action.

             (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, in taking the actions to which the declaration relates, the agency must comply with the law of a State or Territory dealing with environmental protection.


 

Part 4Cases in which environmental approvals are not needed

Division 1Actions 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; and

                     (c)  the provision of the bilateral agreement making the declaration is in operation in relation to the action.

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; 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.

Note:          Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended.


 

Division 2Actions covered by Ministerial 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; and

                     (b)  the declaration is in operation when the action is taken.

33  Making declaration

Declarations

             (1)  The Minister may declare in writing that actions in a class of actions identified wholly or partly by reference to the fact that their taking has been approved by the Commonwealth or a specified Commonwealth agency in a specified manner do not require approval under Part 9 for the purposes of a specified provision of Part 3.

Note:          Section 35 provides for revocation of declarations.

Prerequisite to making declaration

             (2)  The Minister may make a declaration relating to a provision of Part 3 only if he or she is satisfied that the Commonwealth or Commonwealth agency specified as approving the taking of actions in a specified class will, in deciding whether or not to approve an action in the class, consider the impacts the action:

                     (a)  has or will have; or

                     (b)  is likely to have;

on the matter protected by the provision.

Specified manner of approval

             (3)  A declaration may specify a manner of approving the taking of actions by reference to another instrument (whether or not it exists when the declaration is made), including:

                     (a)  a law of the Commonwealth that meets the standards (if any) prescribed by the regulations; and

                     (b)  an instrument (including a management plan or agreement) that is made under a law of the Commonwealth and that meets the standards (if any) prescribed by the regulations; and

                     (c)  a policy, plan or program that the Minister has endorsed under an agreement made under Part 10 (which deals with strategic assessment).

This does not limit the ways in which a declaration may specify a manner of approving the taking of an action or a manner of taking an action.

Strategic assessments

             (4)  The Minister may declare a class of actions approved in accordance with a policy, plan or program endorsed under an agreement made under Part 10 not to require approval under Part 9 for the purposes of a provision of Part 3 only if he or she is satisfied that the report under the agreement adequately addresses the impacts all the actions in the class:

                     (a)  have or will have; or

                     (b)  are likely to have;

on the matter protected by the provision.

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

2   

section 16

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

9   

section 20

a listed migratory species

10 

section 21

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

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

17 

section 28

the environment

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)  before the revocation of a declaration made under section 33, an action could be taken without approval under Part 9 because its taking had been approved by the Commonwealth or a Commonwealth agency in a particular manner as specified in the declaration; and

                     (b)  the declaration is revoked;

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 or revoking a declaration under section 33 or 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, or an instrument under section 35 revoking a declaration, in accordance with the regulations.


 

Division 3Actions covered by conservation agreements

37  Actions specified as not needing 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 specified in a conservation agreement as not requiring approval under Part 9 for the purposes of that provision; and

                     (b)  the agreement is in operation when the action is taken; and

                     (c)  the person is:

                              (i)  a party to the agreement; or

                             (ii)  a successor to all or part of a usage right that a party to the agreement had in relation to an area that was subject to the agreement.


 

Division 4Forestry operations in certain regions

Subdivision ARegions covered by regional forest agreements

38  Approval not needed for forestry operations permitted by regional forest agreements

             (1)  A person may undertake RFA forestry operations without approval under Part 9 for the purposes of a provision of Part 3 if they are undertaken in accordance with a regional forest agreement.

Note:          This section does not apply to some forestry operations. See section 42.

             (2)  In this Act:

regional forest agreement has the same meaning as in the Regional Forest Agreements Act 1998.

RFA forestry operations has the same meaning as in the Regional Forest Agreements Act 1998.

Subdivision BRegions 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 1998.

             (2)  In this Act:

forestry operations has the same meaning as in the Regional Forest Agreements Act 1998.

             (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 of forest called the Eden Management Area in the report entitled “Towards an Eden Regional Forest Agreement”, published by the Commonwealth and New South Wales and dated May 1998;

                     (b)  the area delineated as the Lower North East Region in Attachment 3 to the Scoping Agreement for New South Wales Regional Forest Agreements, made by the Commonwealth and New South Wales and dated January 1996;

                     (c)  the area delineated as the Upper North East Region in Attachment 3 to the Scoping Agreement for New South Wales Regional Forest Agreements, made by the Commonwealth and New South Wales and dated January 1996;

                     (d)  the area delineated as the Southern Region in Attachment 3 to the Scoping Agreement for New South Wales Regional Forest Agreements, made by the Commonwealth and New South Wales and dated January 1996;

                     (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 Victorian Department of Natural Resources and Environment;

                      (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 Victorian Department of Natural Resources and Environment;

                     (g)  the area of Victoria within the boundary formed by:

                              (i)  the road between Frances and Natimuk; and

                             (ii)  the Wimmera Highway between Natimuk and Rupanyup; and

                            (iii)  the road between Stawell and Warracknabeal; and

                            (iv)  the Western Highway to Ararat;

                             (v)  the Pyrenees Highway; and

                            (vi)  the southern boundaries of the areas known as the Bendigo and Midlands Forest Management Areas; and

                           (vii)  the Hume Freeway between Avenel and the northern edge of the Melbourne metropolitan area;

                            excluding the metropolitan areas of Melbourne and Geelong and built‑up areas of major rural cities or towns;

                     (h)  the area delineated as the South‑East Region in Attachment 3 to the Scoping Agreement for Queensland Regional Forest Agreements, made by the Commonwealth and Queensland and dated January 1997;

                      (i)  the area shown as the South‑West Region in Map 1 of the report “Towards a Regional Forest Agreement for the South‑West Forest Region of Western Australia”, published by the Joint Commonwealth and Western Australia RFA Steering Committee.

Regulations may amend list of regions

             (2)  The regulations may amend subsection (3).

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 CLimits on application

42  This Division does not apply to some forestry operations

                   Subdivisions A and B do not apply to forestry operations:

                     (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)  that are incidental to another action whose primary purpose does not relate to forestry.


 

Division 5Actions 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.


 

Chapter 3Bilateral agreements

Part 5Bilateral agreements

Division 1Object 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 2Making bilateral agreements

Subdivision APower 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 with 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 bilateral agreements

             (3)  As soon as practicable after entering into a bilateral agreement, the Minister must publish it in accordance with the regulations.

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:

                     (a)  their taking has been approved by the State or self‑governing Territory that is party to the agreement, or a specified agency of the State or Territory, in a specified manner; or

                     (b)  their taking has been approved by the Commonwealth or a Commonwealth agency in a specified manner; or

                     (c)  they are taken in a specified manner;

do not require approval under Part 9 for the purposes of a specified provision of Part 3.

Note:          A declaration identifying actions in the way described in paragraph (1)(a) or (c) can accredit practices, procedures, systems or management plans of the State or self‑governing Territory.

Specified class of actions

             (2)  The Minister may enter into a bilateral agreement declaring that actions approved in a specified manner do not require approval under Part 9 for the purposes of a provision of Part 3 only if he or she is satisfied that each person approving an action in that manner will, in deciding whether to approve the action, adequately consider the impacts that the action:

                     (a)  has or will have; or

                     (b)  is likely to have;

on the matter protected by the provision.

Specified manner of approval

             (3)  A bilateral agreement between the Commonwealth and a State or Territory may specify a manner of approving the taking of an action, or a manner of taking an action, by reference to:

                     (a)  an instrument that exists when the agreement is made, including:

                              (i)  a law of the State or Territory; or

                             (ii)  an instrument (including a management plan or agreement) that is made under a law of the State or Territory; or

                     (b)  an instrument made by agreement between the Commonwealth and the State under the bilateral agreement; or

                     (c)  a policy, plan or program that the Minister has endorsed under an agreement made under Part 10 (about strategic assessment).

This does not limit the ways in which a bilateral agreement may specify a manner of approving the taking of an action or of taking an action.

Strategic assessments

             (4)  The Minister may enter into a bilateral agreement that declares actions approved in accordance with a policy, plan or program endorsed under an agreement made under Part 10 do not require approval under Part 9 for the purposes of a provision of Part 3 only if he or she is satisfied that the report under the agreement adequately addresses the impacts the actions:

                     (a)  have or will have; or

                     (b)  are likely to have;

on the matter protected by the provision.

Actions taken in a specified manner

             (5)  The Minister may enter into a bilateral agreement declaring that actions taken in a specified manner do not require approval under Part 9 for the purposes of a specified provision of Part 3 only if he or she is satisfied that taking an action in that manner will reduce to acceptable levels the impacts the action:

                     (a)  has or will have; or

                     (b)  is likely to have;

on the matter protected by the provision.

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.

49  Express provision needed to affect Commonwealth areas or actions

                   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.

Subdivision BPrerequisites for making bilateral agreements

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

                   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 (if any); and

                     (c)  the provision meets the requirements (if any) prescribed by the regulations.

52  Agreements relating to declared Ramsar wetlands

                   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 (if any); and

                     (c)  the provision meets the requirements (if any) prescribed by the regulations.

53  Agreements relating to listed threatened species and ecological communities

                   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

                     (d)  the provision meets the requirements (if any) prescribed by the regulations.

54  Agreements relating to migratory species

                   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.

55  Agreements relating to nuclear actions

                   The Minister must not enter into a bilateral agreement 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

             (1)  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.

             (2)  The Minister may enter into a bilateral agreement containing a provision relating to an action prescribed for the purposes of subsection 25(1) only if the Minister is satisfied that the provision is not inconsistent with Australia’s obligations under an agreement with one or more other countries.


 

Division 3Suspending and ending the effect of bilateral agreements

Subdivision ASuspension 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:

                     (a)  for the period specified in the notice; or

                     (b)  until the occurrence of an event specified in the notice.

             (4)  Subsection (3) has effect subject to section 62.

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 may 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 may 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 may give notice of cancellation or suspension

             (1)  The Minister may 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 a manner specified in the agreement, this Act continues to operate in relation to the action as if the suspension or cancellation had not occurred.

Actions taken in specified manner may be continued

             (3)  If:

                     (a)  the person was already taking the action when the operation of the provision of the agreement was suspended or cancelled; and

                     (b)  the action was able to be taken without approval under Part 9 because the person was taking the action in the manner specified in the bilateral agreement;

this Act continues to operate in relation to the action as if the suspension or cancellation had not occurred.

Subdivision BExpiry of bilateral agreements

65  Expiry and review of bilateral agreements

             (1)  A bilateral agreement ceases to have effect for the purposes of this Act:

                     (a)  5 years after it is entered into; or

                     (b)  at an earlier time when the agreement provides for it to cease to have effect for the purposes of this Act.

Note:          The parties to a bilateral agreement may also agree to revoke it.

             (2)  The Minister must:

                     (a)  cause a review of the operation of a bilateral agreement to be carried out; and

                     (b)  give a report of the review to the appropriate Minister of the State or Territory that is party to the agreement;

before the agreement ceases to have effect as a result of this section.

Note:          A bilateral agreement may also provide for review of its operation.

             (3)  The Minister must publish the report in accordance with the regulations.


 

Chapter 4Environmental assessments and approvals

Part 6Simplified 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 specially accredited by the Minister; 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 7Deciding whether approval of actions is needed

Division 1Referral 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 prohibited by the provision. The provision is a controlling provision for the action.

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.

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.

Note 1:       If the person does not refer the proposal to take the action, he or she 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).

71  Commonwealth agency may refer proposal to Minister

             (1)  A Commonwealth agency (except the Minister) may refer to the Minister a proposal by a person to take an action (for the Minister’s decision whether or not the action is a controlled action) if the agency:

                     (a)  thinks the action may be or is a controlled action; and

                     (b)  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.

73  Notifying person proposing to take action of referral

                   If a proposal by a person to take an action is referred to the Minister under section 69 or 71, the Minister must inform the person of the referral.

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 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:

                     (a)  inform the appropriate Minister of the State or Territory; and

                     (b)  invite that Minister to give the Environment Minister comments within 10 business days on whether the proposed action is a controlled action;

if 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).

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 person proposing to take action to give information

             (3)  As soon as practicable after receiving a referral under section 69 or 71 of a proposal by a person to take an action, the Environment Minister must invite the person to give the Environment Minister relevant information about whether the proposed action is a controlled action, within 10 business days.

Section does not apply if proponent says action is controlled action

             (4)  This section does not apply in relation to a referral of a proposal to take an action by the person proposing to take the action if the person states in the referral that the person thinks the action is a controlled action.


 

Division 2Ministerial 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.

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.

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 and designation:

                     (a)  within 20 business days of the referral; or

                     (b)  if the person proposing to take the action referred the proposal and stated in the referral that the person thought the action was a controlled action—within 10 business days of the referral.

Note:          Section 156 sets out rules about time limits.

Time does not run while further information being sought

             (6)  If the Minister has requested more information under section 76 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 decision

                   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.

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.

Notice must identify specified manner of taking action

             (3)  If the decision is that the action is not a controlled action because the Minister believes the action will be taken in a particular manner (whether specified in a bilateral agreement or a declaration under section 33 or not), the notice must identify the manner.

Note:          The Minister may decide an action is not a controlled action because he or she believes 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 any of the matters protected by a provision of Part 3, even if the manner is not specified in a bilateral agreement or declaration.

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.

Reasons need not be given in some cases

             (5)  Subsection (4) does not apply in relation to a decision whether or not an action is a controlled action if the person proposing to take the action:

                     (a)  referred the proposal to the Minister; and

                     (b)  stated in the referral that the person thought the action was a controlled action.

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) 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:

                              (i)  the availability of substantial new information relating to the action about which the decision was made; or

                             (ii)  a substantial change in circumstances that was not foreseen at the time of the first decision; or

                     (b)  if 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 in the notice under subsection 77(3)—the Minister is satisfied that the action is not being, or will not be, taken in the manner identified; or

                     (c)  if the first decision was that the action was not a controlled action because of a provision of a bilateral agreement or declaration under section 33—the provision of the agreement or declaration no longer operates in relation to the action; or

                     (d)  the Minister is requested under section 79 to reconsider the decision.

Reversing decision that action is not a controlled action

             (2)  Subject to subsection (1), the Minister may:

                     (a)  revoke a decision that an action is not a controlled action and substitute a decision that the action is a controlled action; or

                     (b)  revoke a decision (the earlier decision) identifying one or more provisions of Part 3 as controlling provisions for an action and substitute a decision identifying as a controlling provision a provision of Part 3 not identified by the earlier decision as a controlling provision;

despite paragraphs 12(2)(c), 16(2)(c), 19(3)(b), 20(2)(c), 21(4)(c), 23(4)(c), 25(2)(c), 26(3)(d) and 28(2)(d). This does not limit the decisions that the Minister may revoke and substitute under subsection (1).

Note:          Those paragraphs let an action be taken without approval for the purposes of a particular provision of Part 3 if the Minister has decided that the action is not a controlled action or that the action is a controlled action but the provision is not a controlling provision.

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.

79  Reconsideration of decision on request by a State or Territory

             (1)  This section applies if:

                     (a)  the Minister (the Environment Minister) makes a decision 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 self‑governing Territory; and

                     (b)  the person proposing to take the action did not refer the proposal to the Minister with a statement that the person thought the action was a controlled action.

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 5 business days of being notified of the decision, a Minister of the State or Territory may request the Environment Minister to reconsider the Environment Minister’s decisions made under subsection 75(1).

Note:          Subsection 75(1) provides for decisions about whether the action is a controlled action and what the controlling provisions for the action are.

             (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 8Assessing impacts of controlled actions

Division 1Simplified 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)     a specially accredited process;

               (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 2Application 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 or 2 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).

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 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.

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 declaration

             (3)  The Minister may only make a declaration if he or she is satisfied that:

                     (a)  the specified manner of assessment meets the standards (if any) prescribed by the regulations; and

                     (b)  he or she will receive a report of each assessment that is made, in the specified manner, of the relevant impacts of an action he or she has decided under Division 2 of Part 7 is a controlled action; and

                     (c)  the report will contain enough information to allow him or her 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.

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 3Decision on assessment approach

Subdivision ASimplified 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)     a specially accredited process;

               (b)     an assessment on preliminary documentation;

               (c)     a public environment report;

               (d)     an environmental impact statement;

               (e)     a public inquiry.

Subdivision BDeciding on approach for assessment

86  Designated proponent must provide preliminary information for assessment

                   The designated proponent of an action, or a person proposing to take an action, must give the Minister in the prescribed way the prescribed information relating to the action.

Note:          The Minister must not decide on an approach for assessment until he or she receives information under this section. See subsection 88(1).

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 the action:

                     (a)  assessment by a specially accredited process;

                     (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.

Minister must consult before making decision

             (2)  If:

                     (a)  the action 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 (about matters of national environmental significance);

the Minister must invite the appropriate Minister of the State or Territory to provide information relevant to deciding which approach is appropriate, before deciding on the approach to be used for assessment of the relevant impacts of the action.

Note:          Subsection (2) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.

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 or under section 86; 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 subsection (2); and

                     (d)  the matters (if any) prescribed by the regulations.

Assessment by specially accredited process

             (4)  The Minister may decide on an assessment by a specially accredited process only if the Minister is satisfied that:

                     (a)  the process meets the standards (if any) prescribed by the regulations; and

                     (b)  the process will adequately assess the relevant impacts of the action; and

                     (c)  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 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.

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 whichever of the following days is later (or either of them if they are the same):

                     (a)  the day the Minister decides under Division 2 of Part 7 that the action is a controlled action;

                     (b)  the day the Minister is given information relating to the action as required by section 86.

Note:          Section 156 sets out rules about time limits.

Extended time if difference of opinion with State or Territory

             (2)  However, subsection (1) has effect as if it referred to 30 business days (instead of 20 business days) if the Minister believes that information provided in response to an invitation under subsection 87(2) cannot be considered adequately to make the decision in the time allowed by subsection (1) apart from this subsection.

Subsection (2) does not require decision to be delayed

             (3)  To avoid doubt, subsection (2) does not require the Minister to delay making a decision:

                     (a)  until information is received in response to an invitation under subsection 87(2); or

                     (b)  until 20 business days after the Minister is given information relating to the action under section 86.

Time does not run while further information sought

             (4)  If the Minister has requested more information under section 89 for the purposes of deciding on the approach to be used for the relevant impacts of the action, 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

                   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.

90  Directing an inquiry after trying another approach

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 4, 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 designated proponent of 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 a specially accredited process, the written notice and the published notice must specify the process.


 

Division 4Assessment on preliminary documentation

92  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 assessment on preliminary documentation under this Division.

93  Public comment on information included in referral

             (1)  If the Minister directs the designated proponent of the action to do so, the designated proponent must:

                     (a)  publish in accordance with the regulations:

                              (i)  specified information included in the referral to the Minister of the proposal to take the action; and

                             (ii)  specified information that was given to the Minister under section 86; and

                            (iii)  specified information relating to the action that was given to the Minister after the referral but before the Minister made the decision under section 87; and

                            (iv)  an invitation for anyone to give the designated proponent comments relating to the information or the action within a period of the length specified in the Minister’s direction; and

                     (b)  give to the Minister a copy and summary of any comments received within the period specified in the invitation.

             (2)  The Minister may only give the designated proponent a direction within 10 business days after deciding under section 87 that the relevant impacts of the action must be assessed by assessment on preliminary documentation under this Division.

94  Revised documentation

             (1)  After the period for comment, the designated proponent must give the Minister:

                     (a)  a document that sets out the information provided to the Minister previously in relation to the action, with any changes or additions needed to take account of any comments received by the designated proponent; or

                     (b)  if the designated proponent did not receive any comments—a written statement to that effect.

             (2)  The Minister may refuse to accept a document referred to in paragraph (1)(a) if he or she believes on reasonable grounds that it is inadequate for the purposes of making an informed decision on approving under Part 9 (for the purposes of each controlling provision) the taking of the action.

95  Assessment report

Preparation

             (1)  The Secretary must prepare, and give to the Minister, a report relating to the action within 20 business days after:

                     (a)  the day on which the Minister decided under section 87 that the relevant impacts of the action must be assessed by assessment on preliminary documentation under this Division; or

                     (b)  if the designated proponent was required under section 93 to invite comments on the action and has received comments—the day the Minister accepted from the designated proponent the document described in paragraph 94(1)(a); or

                     (c)  if the designated proponent was required under section 93 to invite comments on the action and did not receive any comments—the day the designated proponent gave the Minister the statement to that effect under paragraph 94(1)(b).

Publication

             (2)  The Secretary must provide to a person who asks for the report a copy of it (either free or at a reasonable charge determined by the Secretary).

Limits on publication

             (3)  However, the Secretary must not provide under subsection (2) so much of the report as is an exempt document under the Freedom of Information Act 1982 on the grounds of:

                     (a)  commercial confidence; or

                     (b)  the security of the Commonwealth; or

                     (c)  its providing advice to the Minister.


 

Division 5Public 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.

97  Minister must prepare guidelines for draft public environment report

             (1)  The Minister must prepare written guidelines for the content of a draft report about the relevant impacts of the action.

             (2)  In preparing the 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)  The 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:

                              (i)  by a constitutional corporation; or

                             (ii)  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; 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.

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 guidelines prepared in reliance on that subsection.

             (5)  In preparing the guidelines, the Minister may:

                     (a)  invite anyone to comment on a draft of the guidelines within a period specified by the Minister; and

                     (b)  take account of the comments received (if any).

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 report about the relevant impacts of the action (and any other impacts mentioned under subsection 97(3) in the guidelines for the content of the draft report); 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 relating to the draft report or the action within the period specified in the invitation; and

                     (d)  give the Minister a copy and summary of the comments (if any) received 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 adequately addresses the guidelines for the content of the draft report.

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

Designated proponent must finalise report

             (1)  After the end of the period specified in the invitation to comment under section 98, the designated proponent must finalise the draft report, taking account of the comments received (if any), and give the finalised report to the Minister.

Form of finalised report

             (2)  The designated proponent may give the finalised report to the Minister in the form of:

                     (a)  a revised version of the draft report; or

                     (b)  the draft report and a supplement to the draft report.

Refusal to accept finalised report

             (3)  The Minister may refuse to accept the finalised report if he or she is satisfied on reasonable grounds that the finalised report is inadequate for the purposes of making an informed decision on approving under Part 9 (for the purposes of each controlling provision) the taking of the action.

Publication of finalised report

             (4)  After the Minister has accepted the finalised report, the designated proponent must publish it in accordance with the regulations.

100  Assessment report

Preparation

             (1)  The Secretary must prepare, and give to the Minister, a report relating to the action within 20 business days after the day on which the Minister accepted the finalised report from the designated proponent.

Publication

             (2)  The Secretary must provide to a person who asks for the report a copy of it (either free or at a reasonable charge determined by the Secretary).

Limits on publication

             (3)  However, the Secretary must not provide under subsection (2) so much of the report as is an exempt document under the Freedom of Information Act 1982 on the grounds of:

                     (a)  commercial confidence; or

                     (b)  the security of the Commonwealth; or

                     (c)  its providing advice to the Minister.


 

Division 6Environmental 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.

102  Minister must prepare guidelines for draft environmental impact statement

             (1)  The Minister must prepare written guidelines for the content of a draft statement about the action and its relevant impacts.

             (2)  In preparing the 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)  The 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:

                              (i)  by a constitutional corporation; or

                             (ii)  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; 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.

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 guidelines prepared in reliance on that subsection.

             (5)  In preparing the guidelines, the Minister may:

                     (a)  invite anyone to comment on a draft of the guidelines within a period specified by the Minister; and

                     (b)  take account of the comments (if any) received.

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 statement about the relevant impacts of the action (and any other impacts mentioned under subsection 102(3) in the guidelines for the content of the draft statement); 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 relating to the draft statement or the action within the period specified in the invitation; and

                     (d)  give the Minister a copy and summary of the comments (if any) received 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 adequately addresses the guidelines for the content of the draft statement.

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 draft environmental impact statement

Designated proponent must finalise statement

             (1)  After the period specified in the invitation to comment under section 103, the designated proponent must:

                     (a)  finalise the draft statement, taking account of the comments (if any) received in response to the invitation; and

                     (b)  give the finalised statement to the Minister.

Form of finalised statement

             (2)  The designated proponent may give the finalised statement to the Minister in the form of:

                     (a)  a revised version of the draft statement; or

                     (b)  the draft statement and a supplement to the draft statement.

Refusal to accept finalised statement

             (3)  The Minister may refuse to accept the finalised statement if he or she is satisfied on reasonable grounds that it is inadequate for the purposes of making an informed decision on approving under Part 9 (for the purposes of each controlling provision) the taking of the action.

Publication of finalised statement

             (4)  After the Minister has accepted the finalised statement, the designated proponent must publish it in accordance with the regulations.

105  Assessment report

Preparation

             (1)  The Secretary must prepare, and give to the Minister, a report relating to the action within 30 business days after the day on which the Minister accepted from the designated proponent the finalised statement.

Publication

             (2)  The Secretary must provide to a person who asks for the report a copy of it (either free or at a reasonable charge determined by the Secretary).

Limits on publication

             (3)  However, the Secretary must not provide under subsection (2) so much of the report as is an exempt document under the Freedom of Information Act 1982 on the grounds of:

                     (a)  commercial confidence; or

                     (b)  the security of the Commonwealth; or

                     (c)  its providing advice to the Minister.


 

Division 7Inquiries

Subdivision APreliminary

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 BEstablishment 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:

                              (i)  by a constitutional corporation; or

                             (ii)  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; 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.

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 information, draft report or draft statement has already been published.

Subdivision CConduct 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 DInquiry 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 ECommissioners’ 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 employed under the Public Service Act 1922 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)  Subject to section 87E of the Public Service Act 1922, 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 9Approval of actions

Division 1Decisions on approval and conditions

Subdivision AGeneral

130  Timing of decision on approval

Basic rule

             (1)  The Minister must decide within whichever of the following periods is relevant whether or not to approve the taking of a controlled action:

                     (a)  30 business days, or such longer period as the Minister specifies in writing, starting on the first business day after the Minister receives an assessment report relating to the action;

                     (b)  40 business days, or such longer period as the Minister specifies in writing, starting on the first business day after the Minister receives a report of a commission that has conducted an inquiry relating to the action.

Note:          Section 156 sets out rules about time limits.

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 specially accredited processes); or

                     (d)  subsection 95(1) (about assessments on preliminary documentation); or

                     (e)  subsection 100(1) (about public environment reports); or

                      (f)  subsection 105(1) (about environmental impact statements).

Time may be extended only to consider other Ministers’ comments

             (3)  The Minister may specify a longer period for the purposes of paragraph (1)(a) or (b) only if:

                     (a)  the Minister has received comments about a proposed decision from another Minister in accordance with an invitation under section 131; and

                     (b)  the Minister is satisfied that it would not be practicable to consider them adequately and make a decision within the period that would apply if the longer period were not specified.

Notice of extension of time

             (4)  If the Minister specifies a longer period for the purposes of paragraph (1)(a) or (b), 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 (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.

131  Inviting comments from other Ministers before decision

             (1)  Before the Minister (the Environment Minister) decides whether or not to approve 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.

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.

133  Grant of approval

Approval

             (1)  The Minister may approve for the purposes of a controlling provision the taking of a controlled action by a person.

Content of approval

             (2)  An approval must:

                     (a)  be in writing; and

                     (b)  specify the action that may be taken; and

                     (c)  name the person who may take the action; 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 any conditions attached to the approval.

Notice of approval

             (3)  The Minister must:

                     (a)  give a copy of the approval to the person; 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.

134  Attaching conditions to 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; 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).

Other conditions that may be attached to approval

             (3)  The conditions that may be attached to an approval include:

                     (a)  conditions relating to any security to be given by the person 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 the 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 person to insure against any specified liability of the person to the Commonwealth for measures taken by the Commonwealth under section 499 in relation to the approved action; and

                     (c)  conditions requiring the 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 the 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 or of 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.

This subsection does not limit the kinds of conditions that may be attached to an approval.

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 under a law of a State or self‑governing Territory or another law of the Commonwealth on the taking 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 the person taking the action to achieve the object of the condition.

135  Certain approvals and conditions must not give preference

             (1)  This section deals with the approval:

                     (a)  for the purposes of section 21 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.

Subdivision BConsiderations 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 relating to the action; and

                     (c)  if the action was assessed under Division 5 or 6 of Part 8 (which deal with public environment reports and environmental impact statements)—the report or statement about the action finalised by the designated proponent; 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 by another Minister in accordance with an invitation under section 131.

Principles of ecologically sustainable development

             (3)  The principles of ecologically sustainable development consist of:

                     (a)  the following core objectives:

                              (i)  to enhance individual and community well‑being and welfare by following a path of economic development that safeguards the welfare of future generations;

                             (ii)  to provide for equity within and between generations;

                            (iii)  to protect biological diversity and maintain essential ecological processes and life‑support systems; and

                     (b)  the following guiding principles:

                              (i)  decision‑making processes should effectively integrate both long‑term and short‑term economic, environmental, social and equity considerations;

                             (ii)  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;

                            (iii)  the global dimension of environmental impacts of actions and policy should be recognised and considered;

                            (iv)  the need to develop a strong, growing and diversified economy that can enhance the capacity for environmental protection should be recognised;

                             (v)  the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised;

                            (vi)  cost‑effective and flexible measures should be adopted;

                           (vii)  decisions and actions should provide for broad community involvement on issues which affect the community.

Note:          The principles of ecologically sustainable development that are set out in this subsection are based on the core objectives and guiding principles that were endorsed by the Council of Australian Governments in December 1992.

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 the person’s history in relation to environmental matters.

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 Subdivision to consider.

137  Requirements for decisions about World Heritage

                   In deciding whether or not to approve for the purposes of section 12 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 World Heritage Convention.

138  Requirements for decisions about Ramsar wetlands

                   In deciding whether or not to approve for the purposes of section 16 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

                   In deciding whether or not to approve for the purposes of a subsection of section 18 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.

140  Requirements for decisions about migratory species

                   In deciding whether or not to approve for the purposes of section 20 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).

141  Requirements for decisions about prescribed actions

                   In deciding whether or not to approve for the purposes of section 25 the taking of an action prescribed by the regulations for the purposes of that section, the Minister must not act inconsistently with Australia’s obligations under any agreement between Australia and one or more other countries that is relevant to actions of that kind.


 

Division 2Requirement 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.

             (2)  A contravention of a condition attached to an approval under this Part does not invalidate the approval.


 

Division 3Variation 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 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

                     (c)  the person whose taking of the action was approved agrees to the proposed revocation, variation or addition 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 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 the person’s history in relation to environmental matters.

             (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 person to whose action the approval relates; and

                     (b)  publish the instrument in accordance with the regulations.

             (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 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.

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.

             (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 the person’s history in relation to environmental matters.

             (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 person to whose action the approval relates; 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.

             (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 the person’s history in relation to environmental matters.

             (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 to whose action the approval related; and

                     (b)  publish the instrument in accordance with the regulations.


 

Part 10Strategic assessments

Division 1Strategic assessments generally

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 relevant impacts of actions under the policy, plan or program that are controlled actions or would be apart from Division 1 or 2 of Part 4.

             (2)  The agreement must provide for:

                     (a)  the preparation of a draft of a report on those impacts; and

                     (b)  the publication of the draft for public comment; and

                     (c)  the finalisation of the report, taking into account the comments (if any) received after publication of the draft; 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 those impacts; 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 relevant 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 the policy, plan or program, he or she may declare under section 33 that actions taken under the policy, plan or program do not need approval for the purposes of specified provisions of Part 3.


 

Division 2Assessment 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 (which protects 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 relevant impacts of actions under the plan; 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 relevant impacts of actions under the plan; 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 relevant impacts of 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 relevant impacts of actions 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 relevant impacts of actions 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 relevant impacts of the actions 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(1).

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, unless there is a plan of management in force for the fishery under the Fisheries Management Act 1991.

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 the Minister makes an agreement under section 146 as required by this Division and endorses under the agreement:

                     (a)  a plan of management under the Fisheries Management Act 1991 for a fishery; or

                     (b)  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

                     (c)  a plan of management under the Torres Strait Fisheries Act 1984 for a fishery; or

                     (d)  policies for managing fishing under the Torres Strait Fisheries Act 1984.

             (2)  The Minister must make a declaration under section 33 that actions approved under the endorsed plan or policies do not require approval under Part 9 for the purposes of subsection 23(1), (2) or (3).

Note:          The declaration will allow actions that would otherwise be prohibited by section 23 to be taken without approval. See section 32.

154  This Division does not limit Division 1

                   This Division does not limit Division 1.


 

Part 11Miscellaneous rules about assessments and approvals

Division 1Rules 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 2Actions 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 3Exemptions

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 4Application of Chapter to actions that are not controlled actions

Subdivision AMinister’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;

               (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.

Relevant actions

             (2)  Subsection (1) applies in relation to:

                     (a)  the provision of funding by the Commonwealth under Australia’s foreign aid program for 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.

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 (5).

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 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 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.

162  Assessment of the action

                   Part 8 (except sections 82 and 83) 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; 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 that Part 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 that Part 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 days of receiving:

                     (a)  a report mentioned in subsection 84(3) or section 95, 100 or 105 (as applied by section 162); 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 BAssessment of applications for permits relating to whales, dolphins and porpoises

165  Assessment of applications for permits relating to whales, dolphins and porpoises

Request for referral

             (1)  The Minister may request a person applying for a permit under Division 3 of Part 13 (about whales and other cetaceans) to refer to the Minister the proposal to take the action that is to be covered by the permit.

Person must comply with request

             (2)  The person must refer the proposal in accordance with Division 1 of Part 7 within 15 business days of the request.

Assessment of proposed action for which permit is sought

             (3)  The following provisions (the applied provisions) apply in the manner specified in subsection (4) in relation to the proposal to take the action:

                     (a)  section 74;

                     (b)  Division 2 of Part 7;

                     (c)  Part 8;

                     (d)  the other provisions of this Act, so far as they relate to the provisions mentioned in paragraphs (a), (b) and (c).

How the applied provisions apply to the proposed action

             (4)  The applied provisions apply in relation to the proposal to take the action as if:

                     (a)  a reference in the applied provisions to a controlled action were a reference to an action prohibited by Division 3 of Part 13 without a permit under that Division; and

                     (b)  a reference in the applied provisions to a controlling provision for the action were a reference to the provision of Division 3 of Part 13 that prohibits the taking of the action without a permit; and

                     (c)  a reference in the applied provisions to an approval under Part 9 of the taking of an action were a reference to the grant of a permit under Division 3 of Part 13 to allow the action to be taken; and

                     (d)  a reference in the applied provisions to the relevant impacts of an action were a reference to the impacts that the action:

                              (i)  has or will have; or

                             (ii)  is likely to have;

                            on a cetacean.

Assessment report must be considered in decision on permit

             (5)  The Minister must consider the assessment report relating to the action when deciding whether to grant the permit for the action.

Subdivision CAssessment 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 Environment 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)  either specify that one of Divisions 4, 5, 6 and 7 of Part 8 is to apply in relation to the action or specify that Division 1 of Part 10 is to apply in relation to the action; and

                     (b)  if it specifies that one of Divisions 4, 5 and 6 of Part 8 is to apply—specify the person who is taken to be the designated proponent of the action for the purposes of that Division.

Agreement applying Division 4 of Part 8

             (2)  An agreement that specifies that Division 4 of Part 8 (about assessment on preliminary documentation) is to apply in relation to an action may deal with how the Minister will exercise his or her power:

                     (a)  under section 93 to give a direction to publish information and specify the period for comment; or

                     (b)  under section 94 to refuse to accept a document.

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 guidelines for the content of a draft report; or

                     (b)  under section 98 to approve publication of a draft report or specify a period for comment; or

                     (c)  under section 99 to refuse a finalised report.

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 guidelines for the content of a draft statement; or

                     (b)  under section 103 to approve publication of a draft statement or specify a period for comment; or

                     (c)  under section 104 to refuse a finalised statement.

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 Division 1 of Part 10 is to apply may:

                     (a)  be in the same document as an agreement mentioned in that Division; or

                     (b)  specify the manner in which an agreement the Minister makes under that Division is to provide for matters that that Division 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 section 93

             (3)  Also, if the agreement states that Division 4 of Part 8 is to apply in relation to the assessment of an action, that Division applies in relation to the action as if subparagraphs 93(1)(a)(i), (ii) and (iii) 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 Division 1 of Part 10

                   If an agreement to apply this Subdivision states that Division 1 of Part 10 is to apply:

                     (a)  that Division 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.


 

Chapter 5Conservation of biodiversity

Part 12Identifying and monitoring biodiversity and making bioregional plans

Division 1Identifying 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 must prepare inventories that identify, and state the abundance of, the listed threatened species, listed threatened ecological communities, listed migratory species and listed marine species on Commonwealth land.

             (2)  Commonwealth land must be covered by an inventory:

                     (a)  within 5 years after the commencement of this Act; or

                     (b)  within 5 years after the land became Commonwealth land;

whichever is later.

             (3)  A Commonwealth agency that has an interest in Commonwealth land must provide all reasonable assistance in connection with the preparation under this section of an inventory that is to cover the land.

173  Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas

             (1)  The Minister must prepare surveys that identify, and state the extent of the range of:

                     (a)  cetaceans present in Commonwealth marine areas; and

                     (b)  the listed threatened species, listed threatened ecological communities, listed migratory species and listed marine species in Commonwealth marine areas.

             (2)  A Commonwealth marine area must be covered by a survey:

                     (a)  within 10 years after the commencement of this Act; or

                     (b)  within 10 years after the area became a Commonwealth marine area;

whichever is later.

             (3)  A Commonwealth agency that has an interest in a Commonwealth marine area is to provide all reasonable assistance in connection with the preparation under this section of a survey that is to cover 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.

175  Obligations under this Act unaffected by lack of inventories or surveys

                   Obligations imposed by this Act are not affected, in their application in relation to Commonwealth land or Commonwealth marine areas, by any lack of inventories or surveys for such land or areas.


 

Division 2Bioregional plans

176  Bioregional plans

             (1)  The Minister may prepare a bioregional plan for a bioregion that is within a Commonwealth area.

             (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;

                     (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.

             (5)  Subject to this Act, the Minister may 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 13Species and communities

Division 1Listed threatened species and ecological communities

Subdivision AListing

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, 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 within a period of 5 years.

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)  If one or more ecological communities are contained in Schedule 2 to the Endangered Species Protection Act 1992, as in force immediately before the commencement of this Act, the list, as first established, must contain only those communities, and they must be included 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 instrument published in the Gazette, amend a list referred to in section 178, 181 or 183 by:

                     (a)  including items in the list; 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; or

                     (d)  correcting an inaccuracy or updating the name of a listed threatened species or listed threatened ecological community.

             (2)  An instrument (other than an instrument mentioned in paragraph (1)(d)) 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 the kind mentioned in paragraphs (1)(b) and (c) 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 a list by the instrument—why the item was so included; or

                     (b)  in the case of an item that has been deleted from a list by the instrument—why the item was so deleted; or

                     (c)  in the case of an item that has been transferred by the instrument from one category in the list referred to in section 178 or 181 to another category in that list—why the item has been so transferred.

             (5)  The Minister must cause a notice summarising the information contained in an instrument to be published in accordance with the regulations (if any).

185  Maintaining the lists in up‑to‑date condition

                   The Minister must take all reasonably practical steps to amend as necessary:

                     (a)  the list referred to in section 178 so that it contains in each category all native species that are eligible to be, or under subsection 186(3), (4) or (5) can be, included in that category; and

                     (b)  the list referred to in section 181 so that it contains in each category all ecological communities that are eligible to be included in that category.

186  Amending list of threatened native species

             (1)  Subject to subsections (3), (4) and (5), the Minister must not:

                     (a)  include (whether as a result of a transfer or otherwise) a native species in a particular category; or

                     (b)  delete (whether as a result of a transfer or otherwise) a native species from a particular category;

unless satisfied that the native species is eligible, or is no longer eligible, as the case requires, to be included in that category.

             (2)  In deciding whether to include a native species in, or delete a native species from, a particular category (whether as a result of a transfer or otherwise), the Minister must not consider any matter that does not relate to the survival of the native species concerned.

             (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

             (1)  The Minister must not:

                     (a)  include (whether as a result of a transfer or otherwise) an ecological community in a particular category of the list; or

                     (b)  delete (whether as a result of a transfer or otherwise) an ecological community from a particular category;

unless satisfied that the ecological community is eligible, or is no longer eligible, as the case requires, to be included in that category.

             (2)  In deciding whether to include an ecological community in, or delete an ecological community from, a particular category (whether as a result of a transfer or otherwise), the Minister must not consider any matter that does not relate to the survival of the ecological community concerned.

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 species included in the conservation dependent category) or 2 or more listed threatened ecological communities;

and the preparation and implementation of a nationally co‑ordinated threat abatement plan is a feasible, effective and efficient way to abate the process.

             (5)  Before deciding whether a threatening process is eligible to be treated as a key threatening process, the Minister must take reasonable steps to consult with any Commonwealth agency, any State, any self‑governing Territory, and any agency of a State or self‑governing Territory, that would be affected by or interested in abatement of the process, on the feasibility, effectiveness or efficiency of preparing and implementing a nationally co‑ordinated threat abatement plan to abate the process.

             (6)  Nothing in subsection (5) is taken to prevent the Minister from consulting with any other person or body.

189  Minister must consider advice from Scientific Committee

             (1)  Subject to section 192, in deciding whether to amend:

                     (a)  the list referred to in section 178 or 181; or

                     (b)  the list referred to in section 183;

the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Scientific Committee on the proposed amendment.

             (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 of a list referred to in paragraph (1)(a), the Scientific Committee must not consider any matter that does not relate to the survival of the native species or ecological community concerned.

             (4)  If a native species or ecological community has been nominated under section 191 to be listed, the Scientific Committee must give its advice to the Minister within 12 months, or such longer period as the Minister specifies, after the Scientific Committee receives the nomination from the Minister under that section.

             (5)  The Minister must:

                     (a)  decide whether to amend the list; and

                     (b)  if the Minister decides to amend the list—cause the necessary instrument to be published in the Gazette;

within 90 days after receiving the Scientific Committee’s advice on the amendment.

             (6)  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 amendment of a list to which the advice relates—occurred after the publication.

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.

191  Nomination of threatened species etc.

             (1)  A person may, in accordance with the regulations (if any), nominate to the Minister:

                     (a)  a native species to be included in a particular category of the list referred to in section 178; or

                     (b)  an ecological community to be included a particular category of the list referred to in section 181; or

                     (c)  a threatening process to be included in the list referred to in section 183.

             (2)  Subject to subsection (6), the Minister must forward all nominations to the Scientific Committee.

             (3)  If the Minister decides that a nominated native species or ecological community is not eligible to be included in the nominated category, the Minister must, in accordance with the regulations (if any):

                     (a)  advise the person who made the nomination of the Minister’s decision; and

                     (b)  give to that person a statement of reasons why the native species or ecological community is not eligible to be included in the nominated category.

             (4)  If the Minister decides that a threatening process is not eligible to be listed, the Minister must, in accordance with the regulations (if any):

                     (a)  advise the person who made the nomination of the Minister’s decision; and

                     (b)  give to that person a statement of reasons why the threatening process is not eligible to be listed.

             (5)  The Minister may, at any time, request a person who has made a nomination to provide additional information about the subject of the nomination within such period as the Minister specifies.

             (6)  The Minister may reject a nomination if satisfied that:

                     (a)  the subject of the nomination has previously been nominated; or

                     (b)  the nomination is vexatious, frivolous or not made in good faith; or

                     (c)  the nomination has not been made in accordance with the regulations (if any); or

                     (d)  any additional information requested under subsection (5) has not been provided within the specified period, or the information that has been provided is incomplete.

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  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 BPermit 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  Taking etc. certain listed threatened species or listed ecological communities

             (1)  Subject to section 197, a person is guilty of an offence if:

                     (a)  the person kills, injures, takes, trades, keeps or moves a member of a native species or an ecological community; and

                     (b)  the member is a member of a listed threatened species (other than a species included in the conservation dependent category) or a listed threatened ecological community; and

                     (c)  the member is in or on a Commonwealth area.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Subject to section 197, a person is guilty of an offence if:

                     (a)  the person trades, keeps or moves a member of a native species or an ecological community; and

                     (b)  the member is a member of a listed threatened species (other than a species included in the conservation dependent category) or a listed threatened ecological community; and

                     (c)  the member has been taken in or on a Commonwealth area.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  Strict liability applies to paragraphs (1)(c) and (2)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

197  Section 196 does not apply to certain actions

                   Section 196 does not apply to:

                     (a)  an action authorised by a permit that is in force; or

                     (b)  an action provided for by, and done in accordance with, a recovery plan made or adopted under section 267 and that is in force; or

                     (c)  an action that is covered by an approval in operation under Part 9 for the purposes of a subsection of section 18; 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 a subsection of 18; and

                             (ii)  is taken when the declaration is in operation; 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 that is in force.

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 section 18 not affected

                   For the avoidance of doubt, sections 196 and 197 do not affect the operation of section 18.

199  Failing to notify taking of listed threatened species or listed ecological community

             (1)  Subject to subsection (2), this section applies to a person if:

                     (a)  the person kills, injures, takes, trades, keeps or moves a member of a listed threatened species (other than a species included in the conservation dependent category) or a listed threatened ecological community that is in or on a Commonwealth area; and

                     (b)  the person’s act does not constitute an offence under section 196.

             (2)  This section does not apply to a person who is the holder of a permit authorising the person’s act.

Note:          A person who is the holder of a permit may be required to give certain notices in accordance with the conditions of the permit.

             (3)  A person must, within 7 days after becoming aware of his or her act, notify the Secretary in writing or by telephone, or by use of any other electronic equipment:

                     (a)  that the act occurred; and

                     (b)  of such other particulars about the act (for example, the time and place of the taking) as are prescribed (if any).

             (4)  Subsection (3) does not apply to a person if the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the first‑mentioned person’s act.

             (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 (3).

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).

201  Minister may issue permits

             (1)  Subject to subsection (3), 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.

             (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.

             (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.

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 acts specified in the permit may be done.

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 do for, or on behalf of, the holder any act 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 doing of a particular act by a person if the doing of that act 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 doing of any act by the holder of the permit.

             (5)  Except as provided in this section, a permit does not authorise the doing of any act 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.

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 CMiscellaneous

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 2Migratory species

Subdivision AListing

209  Listed migratory species

             (1)  The Minister must, by instrument published in the Gazette:

                     (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 species from time to time included in appendices to the Bonn Convention and for which Australia is a Range State under the Convention; and

                     (b)  all species from time to time included in lists 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 instrument published in the Gazette, approve an international agreement for the purposes of subsection (3) if satisfied it is an agreement relevant to the conservation of migratory species.

             (5)  An instrument mentioned in subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (6)  The Minister may, by instrument published in the Gazette, correct an inaccuracy or update the name of a migratory species.

Subdivision BPermit 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  Taking etc. listed migratory species

             (1)  Subject to section 212, a person is guilty of an offence if:

                     (a)  the person kills, injures, 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:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Subject to section 212, 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:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  Strict liability applies to paragraphs (1)(c) and (2)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

212  Section 211 does not apply to certain actions

                   Section 211 does not apply to:

                     (a)  an action authorised by a permit that 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 that is 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

                     (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); and

                             (ii)  is taken when the declaration is in operation; 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 that is in force.

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 section 20 not affected

                   For the avoidance of doubt, sections 211 and 212 do not affect the operation of section 20.

214  Failing to notify taking etc. of listed migratory species

             (1)  Subject to subsection (2), this section applies to a person if:

                     (a)  the person kills, injures, takes, trades, keeps or moves a member of a listed migratory species that is in or on a Commonwealth area; and

                     (b)  the person’s act does not constitute an offence under section 211.

             (2)  This section does not apply to a person who is the holder of a permit authorising the person’s act.

Note:          A person who is the holder of a permit may be required to give certain notices in accordance with the conditions of the permit.

             (3)  A person must, within 7 days after becoming aware of his or her act, notify the Secretary in writing or by telephone or by use of any other electronic equipment:

                     (a)  that the act occurred; and

                     (b)  of such other particulars about the act (for example, the time and place of the taking) as are prescribed (if any).

             (4)  Subsection (3) does not apply to a person if the person, or any other person or body, is required or authorised by or under a law of the Commonwealth to notify the Secretary of the first‑mentioned person’s act.

             (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 (3).

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).

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.

             (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.

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 do for, or on behalf of, the holder any act 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 doing of a particular act by a person if the doing of that act 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 doing of any act by the holder of the permit.

             (5)  Except as provided in this section, a permit does not authorise the doing of any act 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.

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 CMiscellaneous

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 3Whales and other cetaceans

Subdivision AApplication 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 BAustralian Whale Sanctuary

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)  the waters of the exclusive economic zone (other than the coastal waters of a State or the Northern Territory); and

                     (b)  so much of the coastal waters of a State or the Northern Territory as are prescribed waters; and

                     (c)  any marine or tidal waters that are inside the baseline of the territorial sea adjacent to an external Territory, whether or not within the limits of an external 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.

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.

Subdivision COffences

229  Killing etc. cetaceans

             (1)  Subject to section 231, a person is guilty of an offence if:

                     (a)  the person kills, injures, takes, trades, keeps, moves or interferes with a cetacean; and

                     (b)  the 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.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Subject to section 231, a person is guilty of an offence if:

                     (a)  the person treats a cetacean; and

                     (b)  the cetacean has been killed or taken in contravention of subsection (1).

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  Strict liability applies to paragraph (1)(b).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

             (5)  In this Act:

interfere with a cetacean includes to harass, chase, herd, tag, mark or brand the cetacean.

treat a cetacean means to divide or cut up, or extract any product from, the cetacean.

230  Possession of cetaceans

             (1)  Subject to section 231, 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 killed, injured or taken in contravention of subsection 229(1).

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  An offence against this section is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

231  Sections 229 and 230 do not apply to certain actions

                   Sections 229 and 230 do not apply to:

                     (a)  an action authorised by a permit that is in force; 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 that is in force; 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

                     (h)  in the case of an action taken in relation to a cetacean that is not a member of a listed threatened species—the action was provided for by, and taken in accordance with, a plan of management that is accredited under section 245.

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)  Subject to subsection (2), this section applies to a person if:

                     (a)  the person:

                              (i)  kills, injures or takes a cetacean 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)  kills, injures or takes a cetacean in waters beyond the outer limits of the Australian Whale Sanctuary; or

                            (iii)  treats a cetacean that has been killed, injured or taken in contravention of subsection 229(1); and

                     (b)  the person’s act does not constitute an offence under section 229.

             (2)  This section does not apply to a person who is the holder of a permit authorising the person’s act.

Note:          A person who is the holder of a permit may be required to give certain notices in accordance with the conditions of the permit.

             (3)  A person must, within 7 days after becoming aware of his or her act, notify the Secretary in writing or by telephone or by use of any other electronic equipment:

                     (a)  that the act occurred; and

                     (b)  of such other particulars about the act (for example, when and where the act was done) as are prescribed.

             (4)  Subsection (3) does not apply to a person if the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the first‑mentioned person’s act.

             (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 (3).

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Subdivision DOffences relating to unlawful importation

233  Possession of unlawfully imported cetaceans

             (1)  Subject to section 235, 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 unlawfully imported.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  An offence against this section is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

234  Treating unlawfully imported cetaceans

             (1)  Subject to section 235, a person is guilty of an offence if:

                     (a)  the person treats a cetacean; and

                     (b)  the cetacean has been unlawfully imported.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  An offence against this section is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1000 penalty units, or both.

235  Sections 233 and 234 do not apply to certain actions

                   Sections 233 and 234 do not apply to:

                     (a)  an action authorised by a permit that is in force; 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 that is in force; or

                     (c)  an action that is taken in a humane manner and is reasonably necessary to relieve or prevent suffering by 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.

Note:          A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.

Subdivision EMiscellaneous 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 whales; or

                     (b)  supporting the operations of a vessel or vessels designed, equipped or used for killing, taking, treating or carrying whales.

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 FPermit 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).

238  Minister may issue permits

             (1)  Subject to subsections (3) and (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, 230, 233 and 234.

             (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 and is carried out in accordance with the regulations (if any) made for the purposes of this section.

             (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 whale, including but not limited to being in the water for the purposes of observing or swimming with a whale, or otherwise interacting with a whale.

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 do for or on behalf of the holder any act 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 doing of a particular act by a person if the doing of that act 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 doing of any act by the holder of the permit.

             (5)  Except as provided in this section, a permit does not authorise the doing of any act 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.

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 GMiscellaneous

245  Minister may accredit plans of management

                   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 for a fishery made by a State or self‑governing Territory and that is in force in the State or Territory;

if satisfied that:

                     (c)  the plan requires persons engaged in fishing under the plan to take all reasonable steps to ensure that cetaceans are not killed or injured as a result of the fishing; and

                     (d)  the fishery to which the plan relates does not, or is not likely to, adversely affect the conservation status of a species of cetacean or a population of that species.

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 4Listed marine species

Subdivision AListing

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 members of the Family Hydrophiidae;

                     (b)  all members of the Family Laticaudidae;

                     (c)  all members of the Order Pinnipedia;

                     (d)  all members of the Genus Crocodylus;

                     (e)  all members of the Genus Dugong;

                      (f)  all members of the Family Cheloniidae;

                     (g)  all members of the Species Dermochelys coriacea;

                     (h)  all members of the Family Syngnathidae;

                      (i)  all members of the Family Solenostomidae;

                      (j)  all members of the Class Aves 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 BPermit 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  Taking etc. listed marine species

             (1)  Subject to section 255, a person is guilty of an offence if:

                     (a)  the person kills, injures, 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:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (2)  Subject to section 255, 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:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

             (3)  Strict liability applies to paragraphs (1)(c) and (2)(c).

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  An offence against subsection (1) or (2) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.

255  Section 254 does not apply to certain actions

                   Section 254 does not apply to:

                     (a)  an action authorised by a permit that is in force; or

                     (b)  an action provided for by, and taken in accordance with, a wildlife conservation plan made under Division 5 and that is 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), or subsection 26(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 23(1) or (2), or subsection 26(1) or (2); and

                             (ii)  is taken when the declaration is in operation; 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.

                     (k)  an action provided for by, and taken in accordance with, a plan of management that is accredited under section 265.

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 unintended taking of listed marine wildlife

             (1)  Subject to subsection (2), this section applies to a person if:

                     (a)  the person kills, injures, takes, trades, keeps or moves a member of a listed marine species; and

                     (b)  the member is in or on a Commonwealth area; and

                     (c)  the person’s act does not constitute an offence under section 254.

             (2)  This section does not apply to the holder of a permit authorising the person’s act.

Note:          A person who is the holder of a permit may be required to give certain notices in accordance with the conditions of the permit.

             (3)  A person must, within 7 days after becoming aware of his or her act, notify the Secretary in writing or by telephone or by use of any other electronic equipment:

                     (a)  that the act has occurred; and

                     (b)  of such other particulars about the act (for example, the time and place of the taking) as are prescribed (if any).

             (4)  Subsection (3) does not apply to a person if the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the first‑mentioned person’s act.

             (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 (3).

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).

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.

             (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.

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 do for or on behalf of the holder any act 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 doing of a particular act by a person if the doing of that act 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 doing of any act by the holder of the permit.

             (5)  Except as provided in this section, a permit does not authorise the doing of any act 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.

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 CMiscellaneous

265  Minister may accredit plans of management

                   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 for a fishery made by a State or self‑governing Territory and that is in force in the State or Territory;

if satisfied that:

                     (c)  the plan requires persons engaged in fishing under the plan 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

                     (d)  the fishery to which the plan relates does not, or is not likely to, adversely affect the conservation status of a listed marine species or a population of that species.

266  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)  the protection and conservation of listed marine species; and

                     (e)  provide for any matter incidental to or connected with any of the above paragraphs.


 

Division 5Plans

Subdivision ARecovery plans and threat abatement plans

267  Recovery plans and threat abatement plans

             (1)  Subject to this section, the Minister must, by instrument in writing, make:

                     (a)  a recovery plan for the purposes of the protection, conservation and management of:

                              (i)  a listed threatened species (other than a species that is extinct or conservation dependent); or

                             (ii)  a listed threatened ecological community; and

                     (b)  a threat abatement plan for the purposes of reducing the effect of a key threatening process.

             (2)  Subject to section 277, the Minister may, by instrument in writing, adopt a plan that has been made by a State or a self‑governing Territory, or by an agency of a State or self‑governing Territory (whether or not the plan is in force in the State or self‑governing Territory) as a recovery plan or a threat abatement plan. The Minister may adopt a plan with such modifications as are specified in the instrument.

             (3)  A plan, as modified and adopted under subsection (2), has effect as if the plan had been made by the Minister under subsection (1).

             (4)  The Minister must seek the co‑operation of the States and self‑governing Territories in which:

                     (a)  a listed threatened species (other than a species that is extinct or conservation dependent) occurs; or

                     (b)  a listed threatened ecological community occurs; or

                     (c)  a key threatening process occurs;

with a view to making jointly with those States and Territories, or agencies of those States or Territories, a joint recovery plan or threat abatement plan unless the species, community or process occurs only in a Commonwealth area.

             (5)  The Minister must not make a recovery plan or threat abatement plan under subsection (1) or (4) unless the plan meets the requirements of section 270 or 271, as the case requires.

             (6)  Before making a recovery plan or a threat abatement plan under subsection (1) or (4), the Minister must:

                     (a)  consider the advice of the Scientific Committee given under section 274; and

                     (b)  consult about the plan in accordance with sections 275 and 276.

             (7)  A recovery plan or a threat abatement plan comes into force on the day on which it is made or adopted, or on such later day as the Minister specifies in writing.

             (8)  This section does not exclude or limit the concurrent operation of a law of a State or a self‑governing Territory.

268  Compliance with recovery plans and threat abatement plans

                   A Commonwealth agency must not take any action that contravenes a recovery plan or a threat abatement plan.

269  Implementing recovery and threat abatement plans

             (1)  Subject to subsection (2), the Commonwealth must implement a recovery plan or threat abatement plan to the extent to which it applies in Commonwealth areas.

             (2)  If a recovery plan or a threat abatement plan applies outside Commonwealth areas in a particular State or self‑governing Territory, the Commonwealth must seek the co‑operation of the State or Territory with a view to implementing the plan jointly with the State or Territory to the extent to which the plan applies in the State or Territory.

270  Content of recovery plans

             (1)  A recovery plan must provide for the research and management actions necessary to stop the decline of, and support the recovery of, the listed threatened species or listed threatened ecological community concerned so that its chances of long‑term survival in nature are maximised.

             (2)  In particular, a recovery plan must:

                     (a)  state the objectives to be achieved (for example, removing a species or community from a list, or indefinite protection of existing populations of a species or community); and

                     (b)  state criteria against which achievement of the objectives is to be measured (for example, a specified number and distribution of viable populations of a species or community, or the abatement of threats to a species or community); and

                     (c)  specify the actions needed to achieve the objectives; and

                     (d)  identify the habitats that are critical to the survival of the species or community concerned and the actions needed to protect those habitats; and

                     (e)  identify any populations of the species or community concerned that are under particular pressure of survival and the actions needed to protect those populations; and

                      (f)  state the estimated duration and cost of the recovery process; and

                     (g)  identify:

                              (i)  interests that will be affected by the plan’s implementation; and

                             (ii)  organisations or persons who will be involved in evaluating the performance of the recovery plan; and

                     (h)  specify any major benefits to native species or ecological communities (other than those to which the plan relates) that will be affected by the plan’s implementation; and

                      (i)  in the case of a plan for a listed threatened species that is also a listed migratory species, a listed marine species or a species of cetacean—satisfy the requirements of a wildlife conservation plan for that species; and

                      (j)  meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

             (3)  In making a recovery plan, regard must be had to:

                     (a)  the objects of this Act; and

                     (b)  the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and

                     (c)  minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and

                     (d)  meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community to which the plan relates.

271  Content of threat abatement plans

             (1)  A threat abatement plan must provide for the research, management and other actions necessary to reduce the key threatening process concerned to an acceptable level in order to maximise the chances of the long‑term survival in nature of native species and ecological communities affected by the process.

             (2)  In particular, a threat abatement plan must:

                     (a)  state the objectives to be achieved; and

                     (b)  state criteria against which achievement of the objectives is to be measured; and

                     (c)  specify the actions needed to achieve the objectives; and

                     (d)  state the estimated duration and cost of the threat abatement process; and

                     (e)  identify organisations or persons who will be involved in evaluating the performance of the threat abatement plan; and

                      (f)  specify any major ecological matters (other than the species or communities threatened by the key threatening process that is the subject of the plan) that will be affected by the plan’s implementation; and

                     (g)  meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

             (3)  In making a threat abatement plan, regard must be had to:

                     (a)  the objects of this Act; and

                     (b)  the most efficient and effective use of the resources that are allocated for the conservation of species and ecological communities; and

                     (c)  minimising any significant adverse social and economic impacts consistently with the principles of ecologically sustainable development; and

                     (d)  meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the species or ecological community threatened by the key threatening process that is the subject of the plan.

272  Eradication of non‑native species

                   If:

                     (a)  the actions specified under paragraph 270(2)(c) in a recovery plan, or under paragraph 271(2)(c) in a threat abatement plan, include the eradication of a non‑native species; and

                     (b)  the species is threatened in a country in which its native habitat occurs;

the recovery plan, or threat abatement plan, must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.

273  Deadlines for preparing plans

             (1)  A recovery plan for a listed threatened species or listed threatened ecological community that occurs only in Commonwealth areas must be made:

                     (a)  in the case of a native species listed in Schedule 1 to the Endangered Species Protection Act 1992, for which a recovery plan under that Act was not in force immediately before the commencement of this Act—within the remainder of the period allowed by section 36 of that Act for the preparation of the plan for that species; or

                     (b)  in the case of a listed threatened species (other than a native species mentioned in paragraph (a)) in:

                              (i)  the critically endangered category—within 2 years after the species in question became included in that category; or

                             (ii)  the endangered category or the extinct in the wild category—within 3 years after the species in question became included in that category; or

                            (iii)  the vulnerable category—within 5 years after the species in question became included in that category; or

                     (c)  in the case of an ecological community (if any) listed in Schedule 2 to the Endangered Species Protection Act 1992, for which a recovery plan under that Act was not in force immediately before the commencement of this Act—within the remainder of the period allowed by section 36 of that Act for the preparation of the plan for that community; or

                     (d)  in the case of a listed threatened ecological community (other than a community mentioned in paragraph (c)) in:

                              (i)  the critically endangered category—within 2 years after the community in question became included in that category; or

                             (ii)  the endangered category—within 3 years after the community in question became included in that category; or

                            (iii)  the vulnerable category—within 5 years after the community in question became included in that category.

             (2)  A recovery plan for a listed threatened species or a listed threatened ecological community that occurs in and outside a Commonwealth area must be made:

                     (a)  in the case of a listed threatened species in:

                              (i)  the critically endangered category—within 2 years after the species in question became included in that category; or

                             (ii)  the endangered category or the extinct in the wild category—within 3 years after the species in question became included in that category; or

                            (iii)  the vulnerable category—within 5 years after the species in question became included in that category; or

                     (b)  in the case of a listed threatened ecological community in:

                              (i)  the critically endangered category—within 2 years after the community in question became included in that category; or

                             (ii)  the endangered category—within 3 years after the community in question became included in that category; or

                            (iii)  the vulnerable category—within 5 years after the community in question became included in that category.

             (3)  A threat abatement plan for a key threatening process must be made:

                     (a)  in the case of a key threatening process listed in Schedule 3 to the Endangered Species Protection Act 1992, for which a threat abatement plan under that Act was not in force immediately before the commencement of this Act—within the remainder of the period allowed by section 36 of that Act for the preparation of the plan for that key threatening process; or

                     (b)  in any other case—within 3 years after the key threatening process became listed.

274  Scientific Committee to advise on plans

             (1)  The Minister must obtain and consider the advice of the Scientific Committee on:

                     (a)  the content of recovery and threat abatement plans; and

                     (b)  the times within which, and the order in which, such plans should be made.

             (2)  In giving advice about a recovery plan, the Scientific Committee must take into account the following matters:

                     (a)  the degree of threat to the survival in nature of the species or ecological community in question;

                     (b)  the potential for the species or community to recover;

                     (c)  the genetic distinctiveness of the species or community;

                     (d)  the importance of the species or community to the ecosystem;

                     (e)  the value to humanity of the species or community;

                      (f)  the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

             (3)  In giving advice about a threat abatement plan, the Scientific Committee must take into account the following matters:

                     (a)  the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;

                     (b)  the potential of species and ecological communities so threatened to recover;

                     (c)  the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

275  Consultation on plans

             (1)  Before making a recovery plan or threat abatement plan under subsection 267(1) or (4), the Minister must:

                     (a)  take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self‑governing territory; and

                     (b)  give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and

                     (c)  cause the notice to be published:

                              (i)  in the Gazette; and

                             (ii)  in a daily newspaper that circulates generally in each State, and self‑governing Territory, in which the relevant listed threatened native species, listed threatened ecological community or key threatening process occurs; and

                            (iii)  in any other way required by the regulations (if any).

             (2)  The notice must:

                     (a)  specify the places where copies of the proposed plan may be purchased; and

                     (b)  invite persons to make written comments about the proposed plan; and

                     (c)  specify:

                              (i)  an address for lodgment of comments; and

                             (ii)  a day by which comments must be made.

             (3)  The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.

276  Consideration of comments

                   The Minister:

                     (a)  must, in accordance with the regulations (if any), consider all comments on a proposed recovery plan or threat abatement plan made in response to an invitation under section 275; and

                     (b)  may revise the plan to take account of those comments.

277  Adoption of State plans

             (1)  The Minister must not adopt a plan as a recovery plan or a threat abatement plan under subsection 267(2) unless:

                     (a)  the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

                     (b)  the plan meets the requirements of section 270 or 271, as the case requires.

             (2)  Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

278  Publication, review and variation of plans

             (1)  As soon as practicable after the Minister makes or adopts a recovery plan or a threat abatement plan under section 267, the Minister must:

                     (a)  make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and

                     (b)  give notice of the making or adopting of each such plan; and

                     (c)  publish the notice:

                              (i)  in the Gazette; and

                             (ii)  in a daily newspaper that circulates generally in each State, and self‑governing Territory; and

                            (iii)  in any other way required by the regulations (if any).

             (2)  The notice must:

                     (a)  state that the Minister has made or adopted the plan; and

                     (b)  specify the day on which the plan comes into force; and

                     (c)  specify the places where copies of the plan may be purchased.

279  Variation of plans by the Minister

             (1)  The Minister may, at any time, review a recovery plan or threat abatement plan that has been made or adopted under section 267 and consider whether a variation of it is necessary.

             (2)  Each plan must be reviewed by the Minister at intervals of not longer than 5 years.

             (3)  If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7), vary the plan.

             (4)  The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.

             (5)  Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

             (6)  If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self‑governing Territory, or an agency of a State or self‑governing Territory, the Minister must seek the co‑operation of that State or Territory, or that agency, with a view to varying the plan.

             (7)  Sections 275, 276 and 278 apply to the variation of a plan in the same way that those sections apply to the making of a recovery plan or threat abatement plan.

280  Variation by a State or Territory of joint plans and plans adopted by the Minister

             (1)  If a State or self‑governing Territory varies a plan that:

                     (a)  the Minister has made jointly with the State or self‑governing Territory, or an agency of the State or Territory; or

                     (b)  has been adopted by the Minister as a recovery plan or a threat abatement plan;

the variation is of no effect for the purposes of this Act unless it is approved by the Minister.

             (2)  Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

             (3)  The Minister must not approve a variation unless satisfied that:

                     (a)  an appropriate level of consultation was undertaken in varying the plan; and

                     (b)  the plan, as so varied, continues to meet the requirements of section 270 or 271, as the case requires.

             (4)  If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.

             (5)  Section 278 applies to the variation of a plan in the same way that it applies to the making of a recovery plan or threat abatement plan.

281  Commonwealth assistance

             (1)  The Commonwealth may give to a State or self‑governing Territory, or to an agency of a State or a self‑governing Territory, financial assistance, and any other assistance, to make or implement a recovery plan or a threat abatement plan.

             (2)  The Commonwealth may give to a person (other than a State or a self‑governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a recovery plan or a threat abatement plan.

             (3)  The giving of assistance may be made subject to such conditions as the Minister thinks fit. The Minister is to have regard to the advice of the Scientific Committee under section 282 before determining those conditions.

282  Scientific Committee to advise on assistance

             (1)  The Scientific Committee is to advise the Minister on the conditions (if any) to which the giving of assistance under section 281 should be subject.

             (2)  In giving advice about assistance for making or implementing a recovery plan, the Scientific Committee must take into account the following matters:

                     (a)  the degree of threat to the survival in nature of the species or ecological community in question;

                     (b)  the potential for the species or community to recover;

                     (c)  the genetic distinctiveness of the species or community;

                     (d)  the importance of the species or community to the ecosystem;

                     (e)  the value to humanity of the species or community;

                      (f)  the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

             (3)  In giving advice about assistance for making or implementing threat abatement plan, the Scientific Committee must take into account the following matters:

                     (a)  the degree of threat that the key threatening process in question poses to the survival in nature of species and ecological communities;

                     (b)  the potential of species and ecological communities so threatened to recover;

                     (c)  the efficient and effective use of the resources allocated to the conservation of species and ecological communities.

283  Plans may cover more than one species etc.

             (1)  A recovery plan made or adopted under this Subdivision may deal with one or more listed threatened species and/or one or more listed ecological communities.

             (2)  A threat abatement plan made or adopted under this Subdivision may deal with one or more key threatening processes.

284  Reports on preparation and implementation of plans

                   The Secretary must include in each annual report a report on the making and adoption under section 267 of each recovery plan and threat abatement plan during the year to which the report relates.

Subdivision BWildlife conservation plans

285  Wildlife conservation plans

             (1)  Subject to this section, the Minister may make, by instrument in writing, and implement a wildlife conservation plan for the purposes of the protection, conservation and management of the following:

                     (a)  a listed migratory species that occurs in Australia or an external Territory;

                     (b)  a listed marine species that occurs in Australia or an external Territory;

                     (c)  a species of cetacean that occurs in the Australian Whale Sanctuary.

             (2)  The Minister must not make a plan for a listed migratory species, a listed marine species or a species of cetacean that is a listed threatened species.

             (3)  Subject to section 292, the Minister may, by instrument in writing, adopt a plan that has been made by a State or a self‑governing Territory, or by an agency of a State or self‑governing Territory, as a wildlife conservation plan. The Minister may adopt a plan with such modifications as are specified in the instrument.

             (4)  A plan, as modified and adopted under subsection (2), has effect as if the plan had been made by the Minister under subsection (1).

             (5)  The Minister must seek the co‑operation of the States and self‑governing Territories in which:

                     (a)  a listed migratory species occurs; or

                     (b)  a listed marine species occurs; or

                     (c)  a species of cetacean occurs;

with a view to making and implementing jointly with those States and Territories, or agencies of those States or Territories, a joint wildlife conservation plan unless the species occurs only in a Commonwealth area.

             (6)  Before making a wildlife conservation plan under subsection (1) or (5), the Minister must:

                     (a)  consider the advice of the Scientific Committee given under section 289; and

                     (b)  consult about the plan in accordance with sections 290 and 291.

             (7)  A wildlife conservation plan comes into force on the day on which it is made or adopted, or on such later day as the Minister specifies in writing.

             (8)  This section does not exclude or limit the concurrent operation of a law of a State or a self‑governing Territory.

286  Acting in accordance with wildlife conservation plans

                   A Commonwealth agency must take all reasonable steps to act in accordance with a wildlife conservation plan.

287  Content of wildlife conservation plans

             (1)  A wildlife conservation plan must provide for the research and management actions necessary to support survival of the migratory species, marine species or species of cetacean concerned.

             (2)  In particular, a wildlife conservation plan must:

                     (a)  state the objectives to be achieved; and

                     (b)  state criteria against which achievement of the objectives is to be measured; and

                     (c)  specify the actions needed to achieve the objectives; and

                     (d)  identify the habitats of the species concerned and the actions needed to protect those habitats; and

                     (e)  identify:

                              (i)  interests that will be affected by the plan’s implementation; and

                             (ii)  organisations or persons who will be involved in evaluating the performance of the plan; and

                      (f)  specify any major benefits to migratory species, marine species or species of cetacean (other than those to which the plan relates) that will be affected by the plan’s implementation; and

                     (g)  meet prescribed criteria (if any) and contain provisions of a prescribed kind (if any).

             (3)  In making a wildlife conservation plan, regard must be had to:

                     (a)  the objects of this Act; and

                     (b)  the most efficient and effective use of the resources that are allocated for the conservation of migratory species, marine species and species of cetacean; and

                     (c)  minimising any significant adverse social and economic impacts, consistently with the principles of ecologically sustainable development; and

                     (d)  meeting Australia’s obligations under international agreements between Australia and one or more countries relevant to the migratory species, marine species or species of cetacean to which the plan relates.

288  Eradication of non‑native species

                   If:

                     (a)  the actions specified under section 287 in a wildlife conservation plan include the eradication of a non‑native species; and

                     (b)  the species is threatened in a country in which its native habitat occurs;

the wildlife conservation plan must require the Commonwealth to offer to provide stock of the species to that country before the eradication proceeds.

289  Scientific Committee to advise on scheduling of plans

             (1)  The Minister may seek advice from the Scientific Committee on the need for wildlife conservation plans and the order in which they should be made.

             (2)  In giving advice under subsection (1), the Scientific Committee must take into account the resources available for making plans.

             (3)  Before making a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

290  Consultation on plans

             (1)  Before making a wildlife conservation plan under subsection 285(1) or (5), the Minister must:

                     (a)  take reasonable steps to ensure that copies of the proposed plan are available for purchase, for a reasonable price, at prescribed places in each State and self‑governing Territory; and

                     (b)  give a copy of it, together with a notice of a kind referred to in subsection (2), to the Scientific Committee; and

                     (c)  cause the notice to be published:

                              (i)  in the Gazette; and

                             (ii)  in a daily newspaper that circulates generally in each State, and self‑governing Territory; and

                            (iii)  in any other way required by the regulations (if any).

             (2)  The notice must:

                     (a)  specify the places where copies of the proposed plan may be purchased; and

                     (b)  invite persons to make written comments about the proposed plan; and

                     (c)  specify:

                              (i)  an address for lodgment of comments; and

                             (ii)  a day by which comments must be made.

             (3)  The day specified must not be a day occurring within 3 months after the notice is published in the Gazette.

291  Consideration of comments

                   The Minister:

                     (a)  must, in accordance with the regulations (if any), consider all comments on a proposed wildlife conservation plan made in response to an invitation under section 290; and

                     (b)  may revise the plan to take account of those comments.

292  Adoption of State plans

             (1)  The Minister must not adopt a plan as a wildlife conservation plan under subsection 285(3) unless:

                     (a)  the Minister is satisfied that an appropriate level of consultation has been undertaken in making the plan; and

                     (b)  the plan meets the requirements of section 287.

             (2)  Before adopting a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the plan.

293  Publication, review and variation of plans

             (1)  As soon as practicable after the Minister makes or adopts a wildlife conservation plan under section 285, the Minister must:

                     (a)  make copies of the plan available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and

                     (b)  give notice of the making or adoption of each such plan; and

                     (c)  publish the notice:

                              (i)  in the Gazette; and

                             (ii)  in a daily newspaper that circulates generally in each State, and self‑governing Territory; and

                            (iii)  in any other way required by the regulations (if any).

             (2)  The notice must:

                     (a)  state that the Minister has made or adopted the plan; and

                     (b)  specify the day on which the plan comes into force; and

                     (c)  specify the places where copies of the plan may be purchased.

294  Variation of plans by the Minister

             (1)  The Minister may, at any time, review a wildlife conservation plan that has been made or adopted under section 285 and consider whether a variation of it is necessary.

             (2)  Each plan must be reviewed by the Minister at intervals of not longer than 5 years.

             (3)  If the Minister considers that a variation of a plan is necessary, the Minister may, subject to subsections (4), (5), (6) and (7) vary the plan.

             (4)  The Minister must not vary a plan, unless the plan, as so varied, continues to meet the requirements of section 287.

             (5)  Before varying a plan, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

             (6)  If the Minister has made a plan jointly with, or adopted a plan that has been made by, a State or self‑governing Territory, or an agency of a State or self‑governing Territory, the Minister must seek the co‑operation of that State or Territory, or that agency, with a view to varying the plan.

             (7)  Sections 290, 291 and 293 apply to the variation of a plan in the same way that those sections apply to the making of a wildlife conservation plan.

295  Variation by a State or Territory of joint plans and plans adopted by the Minister

             (1)  If a State or self‑governing Territory varies a plan that:

                     (a)  the Minister has made jointly with the State or self‑governing Territory, or an agency of the State or Territory; or

                     (b)  has been adopted by the Minister as a wildlife conservation plan;

the variation is of no effect for the purposes of this Act unless it is approved by the Minister.

             (2)  Before approving a variation, the Minister must obtain and consider advice from the Scientific Committee on the content of the variation.

             (3)  The Minister must not approve a variation under subsection (1) unless satisfied:

                     (a)  an appropriate level of consultation was undertaken in varying the plan; and

                     (b)  the plan, as so varied, continues to meet the requirements of section 287.

             (4)  If the Minister approves a variation of a plan, the plan has effect as so varied on and after the date of the approval, or such later date as the Minister determines in writing.

             (5)  Section 293 applies to the variation of a plan in the same way that it applies to the making of a wildlife conservation plan.

296  Commonwealth assistance

             (1)  The Commonwealth may give to a State or self‑governing Territory, or to an agency of a State or a self‑governing Territory, financial assistance, and any other assistance, to make a wildlife conservation plan.

             (2)  The Commonwealth may give to a person (other than a State or a self‑governing Territory, or an agency of a State or Territory) financial assistance, and any other assistance, to implement a wildlife conservation plan.

             (3)  The giving of assistance may be made subject to such conditions as the Minister thinks fit.

297  Plans may cover more than one species etc.

                   A wildlife conservation plan made or adopted under this Subdivision may deal with all or any of the following:

                     (a)  one or more listed migratory species;

                     (b)  one or more listed marine species;

                     (c)  one or more species of cetacean.

298  Reports on preparation and implementation of plans

                   The Secretary must include in each annual report a report on the making and adoption under section 285 of each wildlife conservation plan during the year to which the report relates.

Subdivision CMiscellaneous

299  Wildlife conservation plans cease to have effect

                   If:

                     (a)  a wildlife conservation plan is in force for all or any of the following:

                              (i)  a listed migratory species;

                             (ii)  a listed marine species;

                            (iii)  a species of cetacean; and

                     (b)  the species becomes a listed threatened species;

the wildlife conservation plan ceases to have effect in relation to the species on and from the day on which a recovery plan takes effect for the species.

300  Document may contain more than one plan

             (1)  All or any of the plans made under this Division may be included in the same document.

             (2)  All or any of the plans adopted under this Division may be included in the same instrument of adoption.


 

Division 6Access to biological resources

301  Control of access to biological resources

             (1)  The regulations may provide for the control of access to biological resources in Commonwealth areas.

             (2)  Without limiting subsection (1), the regulations may contain provisions about all or any of the following:

                     (a)  the equitable sharing of the benefits arising from the use of biological resources in Commonwealth areas;

                     (b)  the facilitation of access to such resources;

                     (c)  the right to deny access to such resources;

                     (d)  the granting of access to such resources and the terms and conditions of such access.


 

Division 7Aid for conservation of species in foreign countries

302  Aid for conservation of species in foreign countries

                   On behalf of the Commonwealth, the Minister may give financial assistance to the governments of foreign countries and organisations in foreign countries to help the recovery and conservation, in those countries, of species covered by international agreements to which Australia is a party.


 

Division 8Miscellaneous

  

303  Regulations

                   The regulations may make provision for the conservation of biodiversity in Commonwealth areas.


 

Part 14Conservation agreements

  

304  Object of this Part

                   The object of this Part is to provide for:

                     (a)  conservation agreements between the Commonwealth and persons related to the protection and conservation of biodiversity; and

                     (b)  the effect of conservation agreements; and

                     (c)  the publication of conservation agreements.

Conservation agreements are agreements whose primary object is to enhance the conservation of biodiversity. They may relate to private or public land, or to marine areas.

305  Minister may enter into conservation agreements

             (1)  Subject to subsection (2) the Minister may, on behalf of the Commonwealth, enter into an agreement, expressed to be a conservation agreement, with a person for the protection and conservation of biodiversity in the Australian jurisdiction, including:

                     (a)  the protection, conservation and management of any listed species or ecological communities, or their habitats; and

                     (b)  the abatement of processes, and the mitigation or avoidance of actions that might adversely affect biodiversity.

             (2)  The Minister must not enter into a conservation agreement unless satisfied that:

                     (a)  the proposed agreement will result in a net benefit to the conservation of biodiversity; and

                     (b)  the proposed agreement is not inconsistent with a recovery plan, threat abatement plan or wildlife conservation plan.

             (3)  For the purposes of paragraph (2)(a), in deciding whether a proposed agreement will result in a net benefit to biodiversity conservation, the Minister must have regard to the prescribed matters (if any).

306  Content of conservation agreements

             (1)  Without limiting section 305, a conservation agreement may provide, for example, for all or any of the following:

                     (a)  activities that promote the protection and conservation of biodiversity;

                     (b)  controlling or prohibiting, in any place covered by the agreement, actions or processes that might adversely affect the species, ecological communities, habitats or potential habitats covered by the agreement;

                     (c)  requiring a person bound by the agreement not to obstruct access by a person authorised under the agreement to places covered by the agreement for the purpose of monitoring compliance with the agreement;

                     (d)  requiring a person bound by the agreement to give such an authorised person information requested by the authorised person that is in the first‑mentioned person’s control and is relevant to compliance with the agreement;

                     (e)  requiring the Commonwealth to provide financial, technical or other assistance to a person bound by the agreement;

                      (f)  declaring that specified actions taken in a specified manner, or in other specified circumstances, do not require approval under Part 9 for the purpose of a specified provision of Part 3;

                     (g)  the commencement and duration of the agreement.

             (2)  Without limiting section 305 or subsection (1) of this section, a conservation agreement entered into with the owner of a place may provide, for example, for all or any of the following:

                     (a)  requiring the owner to carry out specified activities, or to do specified things, that promote the conservation of biodiversity;

                     (b)  restricting the use of the place, or requiring the owner to refrain from, control or refuse to permit, actions or processes that may adversely affect the species, ecological communities, habitats or potential habitats covered by the agreement;

                     (c)  requiring the owner to permit access to the place by specified persons;

                     (d)  requiring the owner to contribute towards costs incurred in implementing the agreement;

                     (e)  specifying the manner in which any money paid to the owner under the agreement is to be applied by the owner;

                      (f)  requiring the owner to repay to the Commonwealth any money paid to the owner under the agreement if the owner commits a specified breach of the agreement or in other specified circumstances;

                     (g)  providing for any other matter relating to the conservation or enhancement of the place, including the preparation and implementation of a plan of management for the place.

307  Conservation agreements to be legally binding

                   A conservation agreement is legally binding on:

                     (a)  the Commonwealth; and

                     (b)  the person or persons with whom the Minister entered into the agreement on behalf of the Commonwealth; and

                     (c)  anyone else who is a successor to the whole or any part of any interest that a person mentioned in paragraph (b) had, when the agreement was entered into, in any place covered by the agreement.

308  Variation and termination of conservation agreements

             (1)  A conservation agreement may be varied by a variation agreement entered into by the Minister, on behalf of the Commonwealth, and the other party or parties to the conservation agreement.

             (2)  Sections 305 and 306 apply in relation to variation agreements in the same way as they apply in relation to conservation agreements.

             (3)  A conservation agreement may be terminated:

                     (a)  by agreement between the Minister, on behalf of the Commonwealth, and the other party or parties to the agreement; or

                     (b)  in such other manner, or in such circumstances (if any), as the agreement specifies.

             (4)  If the Minister is satisfied that a conservation agreement is not capable of achieving its purpose, the Minister may, by order published in the Gazette, terminate the agreement or vary it in any way the Minister thinks necessary to ensure it becomes capable of achieving its purpose.

             (5)  The Minister may make an order under subsection (4) in relation to a conservation agreement without the agreement of the other party or parties to the agreement.

             (6)  The Minister must cause a copy of an order to be laid before each House of the Parliament within the prescribed period after the publication of the order.

             (7)  If a conservation agreement is varied by an order, the other party or parties to the agreement may, by written notice given to the Minister, terminate the agreement.

             (8)  If a conservation agreement is terminated or varied by an order, the other party or parties to the agreement are not entitled to any compensation in respect of the termination or variation.

Note:          See Parts 17 and 18 for remedies for breach of conservation agreements.

309  Publication of conservation agreements

             (1)  As soon as practicable after a conservation agreement has been entered into or varied, other than by an order under subsection 308(4), the Minister must:

                     (a)  take reasonable steps to ensure that copies of the agreement or variation are available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory; and

                     (b)  cause a notice of the agreement or variation to be published:

                              (i)  in the Gazette; and

                             (ii)  in any other way required by the regulations.

             (2)  The notice must:

                     (a)  state that the agreement or variation has been entered into or made; and

                     (b)  specify the places where copies of the agreement or variation may be purchased.

             (3)  Subsection (1) does not apply in relation to a conservation agreement, or a variation of such an agreement, or any part of such an agreement or variation, if the Minister is satisfied that disclosure of the agreement or variation, or the part of the agreement or variation, as the case may be, would:

                     (a)  result in harm being done to components of biodiversity; or

                     (b)  disclose matters that are commercial‑in‑confidence.

310  List of conservation agreements

                   The Minister must:

                     (a)  maintain an up‑to‑date list of conservation agreements that are in force; and

                     (b)  take reasonable steps to ensure that copies of the list are available for purchase, for a reasonable price, at a prescribed place in each State and self‑governing Territory.

311  Commonwealth, State and Territory laws

             (1)  A provision of a conservation agreement has no effect to the extent (if any) to which it is inconsistent with a law of the Commonwealth, or of a State or Territory.

             (2)  For the purposes of subsection (1), a provision of a conservation agreement is not taken to be inconsistent with a law of the Commonwealth, or of a State or Territory, if both the provision and the law are capable of being complied with.

312  Minister must not give preference

                   The Minister must not, in exercising powers on behalf of the Commonwealth under this Part, give preference to one State or any part thereof within the meaning of section 99 of the Constitution.


 

Part 15Protected areas

Division 1Managing World Heritage properties

Subdivision ASimplified outline of this Division

313  Simplified outline of this Division

                   The following is a simplified outline of this Division:

The Commonwealth may submit a property for inclusion in the World Heritage List only after seeking the agreement of relevant States, self‑governing Territories and land‑holders.

The Minister must make plans for managing properties on the World Heritage List that are entirely in Commonwealth areas. The Commonwealth and Commonwealth agencies must not contravene such plans.

The Commonwealth must try to prepare and implement management plans for other properties on the World Heritage List, in co‑operation with the relevant States and self‑governing Territories.

The Commonwealth and Commonwealth agencies have duties relating to World Heritage properties in States and Territories.

The Commonwealth can provide assistance for the protection or conservation of declared World Heritage properties.

Note:          Section 12 prohibits an action that has a significant impact on the world heritage values of a declared World Heritage property, unless the person taking the action has the approval of the Minister administering that section or certain other requirements are met.

Subdivision BSeeking agreement on World Heritage listing

314  Special provisions relating to World Heritage nominations

             (1)  The Commonwealth may submit to the World Heritage Committee for inclusion in the World Heritage List a property containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on:

                     (a)  the proposed submission of the property (so far as it relates to the area); and

                     (b)  management arrangements for the property (so far as they relate to the area).

             (2)  The Commonwealth may submit to the World Heritage Committee for inclusion in the World Heritage List a property in a State or self‑governing Territory only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the State or Territory on:

                     (a)  the proposed submission of the property; and

                     (b)  management arrangements for the property.

             (3)  A failure to comply with this section does not affect the submission of a property to the World Heritage Committee for inclusion in the World Heritage List or the status of a property as a declared World Heritage property.

Subdivision CNotice of submission of property for listing

315  Minister must give notice of submission of property for listing etc.

             (1)  The Minister must give notice in the Gazette and in the way (if any) prescribed by the regulations of any of the following events as soon as practicable after the event occurs:

                     (a)  the Commonwealth submits a property to the World Heritage Committee for inclusion in the World Heritage List;

                     (b)  the Commonwealth extends the boundaries of a property submitted to the World Heritage Committee for inclusion in the World Heritage List;

                     (c)  the Commonwealth restricts the boundaries of a property submitted to the World Heritage Committee for inclusion in the World Heritage List;

                     (d)  the Commonwealth withdraws the submission of a property for inclusion in the World Heritage List;

                     (e)  a property submitted by the Commonwealth is included in the World Heritage List;

                      (f)  all or part of a property is removed from the World Heritage List.

             (2)  The notice must specify the area included in, or excluded or deleted from, the submission or World Heritage List as a result of the event.

             (3)  A failure to comply with this section does not affect the status of an area as a declared World Heritage property.

Subdivision DPlans for listed World Heritage properties in Commonwealth areas

316  Making plans

Minister must make plan

             (1)  The Minister must make a written plan for managing a property that is included in the World Heritage List and is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the property:

                     (a)  is included in the World Heritage List; or

                     (b)  becomes entirely within one or more Commonwealth areas.

Amending and replacing plan

             (2)  The Minister may make a written plan amending, or revoking and replacing, a plan made under subsection (1) or this subsection.

Requirements for plan

             (3)  A plan must not be inconsistent with:

                     (a)  Australia’s obligations under the World Heritage Convention; or

                     (b)  any Australian World Heritage management principles.

Note:          Section 323 explains what Australian World Heritage management principles are.

Ensuring plans reflect current management principles

             (4)  If the Australian World Heritage management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must make another plan:

                     (a)  amending the earlier plan so it is not inconsistent with them; or

                     (b)  revoking and replacing the earlier plan.

Plan may be in same document as another plan

             (5)  To avoid doubt, a plan under this section for a property may be in the same document as:

                     (a)  a plan under this section for another property; or

                     (b)  a plan that this Act or another law of the Commonwealth requires or permits to be prepared.

Commonwealth reserves

             (6)  Despite subsections (1) and (2), the Minister may not make a plan for so much of a property as is in a Commonwealth reserve.

Note:          A management plan must be prepared under Division 4 for a Commonwealth reserve, taking account of Australia’s obligations under the World Heritage Convention.

Heard Island and McDonald Islands

             (7)  Despite subsections (1) and (2), the Minister may not make a plan for so much of a property as is in the Territory of Heard Island and McDonald Islands and covered by a plan:

                     (a)  that is in operation under the Environment Protection and Management Ordinance 1987 of that Territory; and

                     (b)  that the Minister is satisfied is not inconsistent with:

                              (i)  Australia’s obligations under the World Heritage Convention; or

                             (ii)  any Australian World Heritage management principles.

317  Notice of plans

                   The Minister must give notice of the making of a plan under section 316, in accordance with the regulations.

318  Compliance with plans

                   The Commonwealth or a Commonwealth agency must not contravene a plan made by the Minister under section 316.

319  Review of plans every 5 years

             (1)  The Minister must cause a review of a plan made under section 316 to be carried out at least once in each period of 5 years after the plan is made.

             (2)  The review must consider whether the plan is consistent with the Australian World Heritage management principles (if any) in force at the time.

Note:          Section 323 explains what Australian World Heritage management principles are.

Subdivision EManaging World Heritage properties in States and self‑governing Territories

320  Application

                   This Subdivision applies in relation to a property that:

                     (a)  is:

                              (i)  in a State; or

                             (ii)  in a self‑governing Territory; or

                            (iii)  on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980; and

                     (b)  is not entirely within one or more Commonwealth areas.

321  Co‑operating to prepare and implement plans

             (1)  This section applies in relation to a property that is included in the World Heritage List.

             (2)  The Commonwealth must use its best endeavours to ensure a plan for managing the property in a way that is not inconsistent with Australia’s obligations under the World Heritage Convention or any Australian World Heritage management principles is prepared and implemented in co‑operation with the State or Territory.

Note:          The Commonwealth and the State or Territory could make a bilateral agreement adopting the plan and providing for its implementation.

322  Commonwealth responsibilities

             (1)  This section applies in relation to a property that is a declared World Heritage property.

             (2)  The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the property in a way that is not inconsistent with:

                     (a)  the World Heritage Convention; and

                     (b)  any Australian World Heritage management principles; and

                     (c)  if the property is on the World Heritage List and a plan for managing the property has been prepared as described in section 321—that plan.

Subdivision FAustralian World Heritage management principles

323  Australian World Heritage management principles

             (1)  The Australian World Heritage management principles are the principles (if any) prescribed by the regulations for management of natural heritage and cultural heritage.

             (2)  Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with Australia’s obligations under the World Heritage Convention.

Subdivision GAssistance for protecting World Heritage properties

324  Commonwealth assistance for protecting declared World Heritage properties

             (1)  The Commonwealth may give financial or other assistance for the protection or conservation of a declared World Heritage property to:

                     (a)  a State or self‑governing Territory in which the property occurs; or

                     (b)  any other person.

             (2)  The giving of assistance may be made subject to such conditions as the Minister thinks fit.


 

Division 2Managing wetlands of international importance

Subdivision ASimplified outline of this Division

325  Simplified outline of this Division

                   The following is a simplified outline of this Division:

The Commonwealth may designate a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention only after seeking the agreement of relevant States, self‑governing Territories and land‑holders.

The Minister must make plans for managing wetlands listed under the Ramsar Convention that are entirely in Commonwealth areas. The Commonwealth and Commonwealth agencies must not contravene such plans.

The Commonwealth must try to prepare and implement management plans for other wetlands listed under the Ramsar Convention, in co‑operation with the relevant States and self‑governing Territories.

The Commonwealth and Commonwealth agencies have duties relating to declared Ramsar wetlands in States and Territories.

The Commonwealth can provide assistance for the protection or conservation of declared Ramsar wetlands.

Note:          Section 16 prohibits an action that has a significant impact on an internationally important wetland, unless the person taking the action has the approval of the Minister administering that section or certain other requirements are met.

Subdivision BSeeking agreement on Ramsar designation

326  Commonwealth must seek agreement before designation

             (1)  The Commonwealth may designate for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention a wetland containing an area owned or occupied by another person only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the other person on:

                     (a)  the proposed designation of the wetland (so far as it relates to the area); and

                     (b)  management arrangements for the wetland (so far as they relate to the area).

             (2)  The Commonwealth may designate a wetland in a State or self‑governing Territory for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention only if the Minister is satisfied that the Commonwealth has used its best endeavours to reach agreement with the State or Territory on:

                     (a)  the proposed submission of the wetland; and

                     (b)  management arrangements for the wetland.

             (3)  A failure to comply with this section does not affect the designation of a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention or the status of a wetland as a declared Ramsar wetland.

Subdivision CNotice of designation of wetland

327  Minister must give notice of designation of wetland etc.

             (1)  The Minister must give notice in the Gazette and in the way (if any) prescribed by the regulations of any of the following events as soon as practicable after the event occurs:

                     (a)  the Commonwealth designates a wetland for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention;

                     (b)  the Commonwealth extends the boundaries of a wetland it has included in the List;

                     (c)  the Commonwealth restricts the boundaries of a wetland it has included in the List;

                     (d)  the Commonwealth deletes from the List a wetland it previously included in the List.

             (2)  The notice must specify the area included in, or excluded or deleted from, the List as a result of the event.

             (3)  A failure to comply with this section does not affect the status of an area as a declared Ramsar wetland.

Subdivision DPlans for listed wetlands in Commonwealth areas

328  Making plans

Minister must make plan

             (1)  The Minister must make a written plan for managing a wetland that is included in the List of Wetlands of International Importance kept under the Ramsar Convention and is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the wetland:

                     (a)  is included in the List; or

                     (b)  becomes entirely within one or more Commonwealth areas.

Amending and replacing plan

             (2)  The Minister may make a written plan amending, or revoking and replacing, a plan made under subsection (1) or this subsection.

Requirements for plan

             (3)  A plan must not be inconsistent with:

                     (a)  Australia’s obligations under the Ramsar Convention; or

                     (b)  any Australian Ramsar management principles.

Note:          Section 335 explains what Australian Ramsar management principles are.

Ensuring plans reflect current management principles

             (4)  If the Australian Ramsar management principles change so that a plan (the earlier plan) is inconsistent with them, the Minister must make another plan:

                     (a)  amending the earlier plan so it is not inconsistent with them; or

                     (b)  revoking and replacing the earlier plan.

Plan may be in same document as another plan

             (5)  To avoid doubt, a plan under this section for a wetland may be in the same document as:

                     (a)  a plan under this section for another wetland; or

                     (b)  a plan that this Act or another law of the Commonwealth requires or permits to be prepared.

Commonwealth reserves

             (6)  Despite subsections (1) and (2), the Minister may not make a plan for so much of a wetland as is in a Commonwealth reserve.

Note:          A management plan must be prepared under Division 4 for a Commonwealth reserve, taking account of Australia’s obligations under the Ramsar Convention.

Heard Island and McDonald Islands

             (7)  Despite subsections (1) and (2), the Minister may not make a plan for so much of a wetland as is in the Territory of Heard Island and McDonald Islands and covered by a plan:

                     (a)  that is in operation under the Environment Protection and Management Ordinance 1987 of that Territory; and

                     (b)  that the Minister is satisfied is not inconsistent with:

                              (i)  Australia’s obligations under the Ramsar Convention; or

                             (ii)  any Australian Ramsar management principles.

329  Notice of plans

                   The Minister must give notice of the making of a plan under section 328, in accordance with the regulations.

330  Compliance with plans

                   The Commonwealth or a Commonwealth agency must not contravene a plan made by the Minister under section 328.

331  Review of plans every 5 years

             (1)  The Minister must cause a review of a plan made under section 328 to be carried out at least once in each period of 5 years after the plan is made.

             (2)  The review must consider whether the plan is consistent with the Australian Ramsar management principles (if any) in force at the time.

Note:          Section 335 explains what Australian Ramsar management principles are.

Subdivision EManagement of wetlands in States and self‑governing Territories

332  Application

             (1)  This section applies in relation to a wetland that:

                     (a)  is:

                              (i)  in a State; or

                             (ii)  in a self‑governing Territory; or

                            (iii)  on, over or under the seabed vested in a State by the Coastal Waters (State Title) Act 1980 or in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980; and

                     (b)  is not entirely within one or more Commonwealth areas.

333  Co‑operating to prepare and implement plans

             (1)  This section applies in relation to a wetland that is included in the List of Wetlands of International Importance kept under the Ramsar Convention.

             (2)  The Commonwealth must use its best endeavours to ensure a plan for managing the wetland in a way that is not inconsistent with Australia’s obligations under the Ramsar Convention or any Australian Ramsar management principles is prepared and implemented in co‑operation with the State or Territory.

Note:          The Commonwealth and the State or Territory could make a bilateral agreement adopting the plan and providing for its implementation.

334  Commonwealth responsibilities

             (1)  This section applies in relation to a wetland that is a declared Ramsar wetland.

             (2)  The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure it exercises its powers and performs its functions in relation to the wetland in a way that is not inconsistent with:

                     (a)  the Ramsar Convention; and

                     (b)  the Australian Ramsar management principles (if any); and

                     (c)  if the wetland is included in the List of Wetlands of International Importance kept under the Ramsar Convention and a plan for managing the property has been prepared as described in section 333—that plan.

Subdivision FAustralian Ramsar management principles

335  Australian Ramsar management principles

             (1)  The Australian Ramsar management principles are the principles (if any) prescribed by the regulations for management of wetlands included in the List of Wetlands of International Importance kept under the Ramsar Convention.

             (2)  Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with Australia’s obligations under the Ramsar Convention.

Subdivision GAssistance for protecting wetlands

336  Commonwealth assistance for protecting declared Ramsar wetlands

             (1)  The Commonwealth may give financial or other assistance for the protection or conservation of a declared Ramsar wetland to:

                     (a)  a State or self‑governing Territory in which the wetland occurs; or

                     (b)  any other person.

             (2)  The giving of assistance may be made subject to such conditions as the Minister thinks fit.


 

Division 3Managing Biosphere reserves

337  Definition of Biosphere reserve

                   A Biosphere reserve is an area designated for inclusion in the World Network of Biosphere Reserves by the International Co‑ordinating Council of the Man and the Biosphere program of the United Nations Educational, Scientific and Cultural Organization.

338  Planning for management of Biosphere reserves

             (1)  The Minister may make and implement a written plan for managing a Biosphere reserve, or a part of a Biosphere reserve, entirely within one or more Commonwealth areas. The plan must not be inconsistent with any Australian Biosphere reserve management principles.

             (2)  The Commonwealth may co‑operate with a State or self‑governing Territory to prepare and implement a plan for managing a Biosphere reserve in the State or Territory. The plan must not be inconsistent with any Australian Biosphere reserve management principles.

339  Commonwealth activities in Biosphere reserves

                   The Commonwealth and each Commonwealth agency must take all reasonable steps to ensure that it exercises its powers and performs its functions in relation to a Biosphere reserve in a way that is not inconsistent with:

                     (a)  any Australian Biosphere reserve management principles; or

                     (b)  a plan prepared as described in section 338 for managing the Biosphere reserve.

340  Australian Biosphere reserve management principles

             (1)  The Australian Biosphere reserve management principles are the principles (if any) prescribed by the regulations for management of Biosphere reserves.

             (2)  Before the Governor‑General makes regulations prescribing principles, the Minister must be satisfied that the principles to be prescribed are consistent with the Statutory Framework of the World Network of Biosphere Reserves established under the Man and the Biosphere program of the United Nations Educational, Scientific and Cultural Organization.

341  Commonwealth assistance for protecting Biosphere reserves

             (1)  The Commonwealth may give financial or other assistance for the protection or conservation of a Biosphere reserve to:

                     (a)  a State or self‑governing Territory in which the reserve or part of the reserve occurs; or

                     (b)  any other person.

             (2)  The giving of assistance may be made subject to such conditions as the Minister thinks fit.


 

Division 4Commonwealth reserves

Subdivision ASimplified outline of this Division

342  Simplified outline of this Division

                   The following is a simplified outline of this Division:

Commonwealth reserves can be declared over areas of land or sea:

               (a)     that the Commonwealth owns or leases; or

               (b)     that are in a Commonwealth marine area; or

               (c)     outside Australia that the Commonwealth has international obligations to protect.

A Proclamation must assign the reserve to a particular category, that affects how the reserve is managed and used.

Some activities can be undertaken in a reserve only if a management plan provides for them. Commonwealth agencies must comply with a management plan. Regulations can be made to control a wide range of activities in reserves.

The Minister may approve a management plan prepared by the Secretary and any Board for a reserve.

In agreement with indigenous people, the Minister can set up a Board for a reserve including land leased from indigenous people.

Subdivision BDeclaring and revoking Commonwealth reserves

343  Simplified outline of this Subdivision

                   The following is a simplified outline of this Subdivision:

The Governor‑General can proclaim Commonwealth reserves over areas of land or sea:

               (a)     that the Commonwealth owns; or

               (b)     that the Commonwealth leases; or

               (c)     that are in a Commonwealth marine area; or

               (d)     outside Australia that the Commonwealth has international obligations to protect.

A Proclamation must assign the reserve to a particular category that affects how the reserve is managed and used.

Proclamations can be made to alter and revoke reserves.

The Secretary must consult publicly before some Proclamations are made.

344  Declaring Commonwealth reserves

Declaring a Commonwealth reserve

             (1)  The Governor‑General may, by Proclamation, declare as a Commonwealth reserve:

                     (a)  an area of land:

                              (i)  that is owned by the Commonwealth in a Territory; or

                             (ii)  that is owned by the Commonwealth outside a Territory; or

                            (iii)  that is held under lease by the Commonwealth in a Territory; or

                            (iv)  that is held under lease by the Commonwealth outside a Territory; or

                             (v)  outside Australia and in respect of which Australia has obligations relating to biodiversity or heritage under an agreement with one or more other countries that may appropriately be met by declaring the area a Commonwealth reserve; or

                     (b)  an area of sea:

                              (i)  in a Commonwealth marine area; or

                             (ii)  outside Australia and in respect of which Australia has obligations relating to biodiversity or heritage under an agreement with one or more other countries that may appropriately be met by declaring the area a Commonwealth reserve; or

                     (c)  an area of land described in paragraph (a) and sea described in paragraph (b).

Note 1:       Section 351 sets out some prerequisites for making Proclamations.

Note 2:       A reference to Australia generally includes its coastal sea. See section 15B of the Acts Interpretation Act 1901.

Limits on acquiring land for reservation

             (2)  If land:

                     (a)  is in:

                              (i)  a State or self‑governing Territory (except the Northern Territory); or

                             (ii)  the Northern Territory outside both Uluru‑Kata Tjuta National Park and the Alligator Rivers Region (as defined by the Environment Protection (Alligator Rivers Region) Act 1978); and

                     (b)  is dedicated or reserved under a law of the State or Territory for purposes related to nature conservation or the protection of areas of historical, archaeological or geological importance or of areas having special significance in relation to indigenous persons;

the Commonwealth must not acquire the land for the purposes of declaring it a Commonwealth reserve, without the consent of the State or Territory.

Uluru‑Kata Tjuta National Park

             (3)  Uluru‑Kata Tjuta National Park is the Commonwealth reserve (as it exists from time to time) to which the name Uluru‑Kata Tjuta National Park was given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1998.

345  Extent of Commonwealth reserve

             (1)  A Commonwealth reserve includes:

                     (a)  land or seabed to the depth stated in the Proclamation declaring the Commonwealth reserve; and

                     (b)  the waters and seabed under any sea in the area declared as a Commonwealth reserve.

             (2)  In this Act:

land includes subsoil of land and any body of water (whether flowing or not) except the sea.

seabed includes:

                     (a)  the surface of a coral formation; and

                     (b)  subsoil of seabed (including coral beneath the surface of a coral formation).

346  Content of Proclamation declaring Commonwealth reserve

Content of Proclamation

             (1)  The Proclamation declaring an area to be a Commonwealth reserve must:

                     (a)  give a name to the reserve; and

                     (b)  state the purposes for which the reserve is declared; and

                     (c)  state the depth of any land included in the reserve; and

                     (d)  state the depth of the seabed that is under any sea included in the reserve; and

                     (e)  assign the reserve to one of the following categories (the IUCN categories):

                              (i)  strict nature reserve;

                             (ii)  wilderness area;

                            (iii)  national park;

                            (iv)  natural monument;

                             (v)  habitat/species management area;

                            (vi)  protected landscape/seascape;

                           (vii)  managed resource protected area.

Assigning different zones of a reserve to different IUCN categories

             (2)  A Proclamation may also divide a reserve into zones and assign each zone to an IUCN category.

Assigning leasehold land to IUCN categories

             (3)  Before the Governor‑General makes a Proclamation assigning a Commonwealth reserve or zone including land or seabed held by the Commonwealth under lease to a particular IUCN category, the Minister must be satisfied that the category to which it is proposed to assign the reserve or zone is consistent with the terms of the lease.

347  Assigning Commonwealth reserves and zones to IUCN categories

Prerequisite to making Proclamation

             (1)  Before the Governor‑General makes a Proclamation assigning a Commonwealth reserve, or a zone within a Commonwealth reserve, to a particular IUCN category, the Minister must be satisfied:

                     (a)  that the reserve or zone:

                              (i)  has the characteristics listed in subsection (2) for the category; and

                             (ii)  meets the criteria (if any) prescribed by the regulations for the category; and

                     (b)  if there are Australian IUCN reserve management principles for the category—that the reserve or zone should be managed in accordance with those principles.

Characteristics for IUCN categories

             (2)  The characteristics are as follows:

                     (a)  for a strict nature reserve—the Commonwealth reserve or zone contains some outstanding or representative ecosystems, geological or physiological features or species;

                     (b)  for a wilderness area—the Commonwealth reserve or zone consists of a large area of land, sea or both that:

                              (i)  is unmodified, or only slightly modified, by modern or colonial society; and

                             (ii)  retains its natural character; and

                            (iii)  does not contain permanent or significant habitation;

                     (c)  for a national park—the Commonwealth reserve or zone consists of an area of land, sea or both in natural condition;

                     (d)  for a natural monument—the Commonwealth reserve or zone contains a specific natural feature, or natural and cultural feature, of outstanding value because of its rarity, representativeness, aesthetic quality or cultural significance;

                     (e)  for a habitat/species management area—the Commonwealth reserve or zone contains habitat for one or more species; and

                      (f)  for a protected landscape/seascape—the Commonwealth reserve or zone contains an area of land (with or without sea) where the interaction of people and nature over time has given the area a distinct character with significant aesthetic, cultural or ecological value;

                     (g)  for a managed resource protected area—the Commonwealth reserve or zone contains natural systems largely unmodified by modern or colonial technology.

348  Australian IUCN reserve management principles

             (1)  The Australian IUCN reserve management principles for an IUCN category are the principles (if any) prescribed by the regulations for that category.

             (2)  The principles prescribed for an IUCN category must identify the purpose or purposes for which a Commonwealth reserve, or zone of a Commonwealth reserve, assigned to the category is primarily to be managed.

349  Proclamations assigning reserve or zone to wilderness area category may affect management

                   A Proclamation assigning a Commonwealth reserve, or a zone of a Commonwealth reserve, to the IUCN category of wilderness area may contain provisions regulating the circumstances in which, and the manner in which, the Secretary or his or her agent may do one of the following acts if there is not a management plan in operation for the reserve:

                     (a)  carry on an excavation;

                     (b)  erect a building or other structure;

                     (c)  carry out works;

                     (d)  fell or take timber;

                     (e)  establish a track;

                      (f)  use a vehicle, aircraft or vessel;

                     (g)  inundate land by means of a dam or other works for affecting the flow of water (whether they are inside or outside the reserve or zone);

                     (h)  extract water by canals or other works for affecting the flow of water (whether they are inside or outside the reserve or zone).

350  Revocation and alteration of Commonwealth reserves

             (1)  The Governor‑General may revoke or amend a Proclamation under this Subdivision by another Proclamation.

Note:          Section 351 sets out some prerequisites for making Proclamations.

             (2)  Before the Governor‑General makes a Proclamation that results in land, sea or seabed ceasing to be included in a Commonwealth reserve, the Minister must be satisfied:

                     (a)  that the Proclamation, if made, would be in accordance with a resolution passed by each House of Parliament on a motion; and

                     (b)  that notice of the motion was given at least 15 sitting days of that House before the motion was moved.

             (3)  Subsection (2) does not apply to a Proclamation that results in land, sea or seabed ceasing to be included in one Commonwealth reserve or zone and being included in another Commonwealth reserve or zone.

             (4)  If the Commonwealth ceases to hold land or seabed in a Commonwealth reserve under lease:

                     (a)  the land or seabed ceases to be part of the reserve by force of this paragraph; and

                     (b)  the Governor‑General must make a Proclamation revoking or amending the Proclamation that included the land or seabed in a Commonwealth reserve, to reflect the fact that the land or seabed is no longer part of the reserve.

             (5)  Subsection (4) does not apply if the Commonwealth ceases to hold the land or seabed under a lease because:

                     (a)  the Commonwealth becomes the owner of the land or seabed; or

                     (b)  the Commonwealth surrenders the lease in consideration of the grant to the Commonwealth of another lease of that land or seabed.

             (6)  Except as described in subsection (4), land, sea or seabed in a Commonwealth reserve does not cease to be within the reserve merely because a usage right relating to the land, sea or seabed is transferred, assigned, surrendered, extinguished or changed in any way.

             (7)  A usage right is an estate or a legal or equitable charge, power, privilege, authority, licence or permit.

Note:          Section 22 of the Acts Interpretation Act 1901 defines estate.

351  Report before making Proclamation

Minister must consider report before Proclamation made

             (1)  Before the Governor‑General makes a Proclamation under this Subdivision, the Minister must consider a report prepared by the Secretary on the matter to be dealt with by the Proclamation.

Procedure for preparing report

             (2)  In preparing a report, the Secretary must:

                     (a)  publish in the Gazette and in accordance with the regulations (if any) a notice:

                              (i)  stating the matter to be dealt with by the Proclamation; and

                             (ii)  inviting the public to comment on the matter to be dealt with by the Proclamation; and

                            (iii)  specifying the address to which comments may be sent; and

                            (iv)  specifying the day by which any comments must be sent; and

                     (b)  consider any comments made in response to the invitation; and

                     (c)  include in the report the comments and the Secretary’s views on the comments.

Content of notice inviting comments

             (3)  A notice stating the matter to be dealt with by a Proclamation to declare a Commonwealth reserve must include a statement of:

                     (a)  the proposed name of the reserve; and

                     (b)  the proposed boundaries of the reserve and of any zones into which the reserve is to be divided; and

                     (c)  the purpose for which the reserve is to be declared; and

                     (d)  which IUCN category the reserve (and, if applicable, each zone of the reserve) is to be assigned to; and

                     (e)  the purposes for which it is intended to manage and use the reserve.

Content of notice relating to revocation of Commonwealth reserve

             (4)  A notice stating the matter to be dealt with by a Proclamation to cause any land, sea or seabed to cease to be part of a Commonwealth reserve must state the boundaries of that land, sea or seabed.

Time for comment

             (5)  The day specified in the notice as the day by which any comments must be sent must be at least 60 days after the last day on which the notice is published in the Gazette or in accordance with any regulations.

When this section does not apply

             (6)  Subsection (1) does not apply in relation to a Proclamation that:

                     (a)  declares an area in the Kakadu region to be a Commonwealth reserve; or

                     (b)  has the effect of changing:

                              (i)  the name of a Commonwealth reserve in the Kakadu region; or

                             (ii)  the purposes for which such a reserve is declared; or

                     (c)  results in land, sea or seabed ceasing to be included in one Commonwealth reserve and being included in another Commonwealth reserve without changing the IUCN category to which the land, sea or seabed is assigned.

352  What happens to Commonwealth leasehold interest when Commonwealth reserve is revoked

             (1)  If land held by the Commonwealth under lease ceases to be in a Commonwealth reserve because of a Proclamation made under section 350:

                     (a)  the Commonwealth’s leasehold interest in the land ceases to exist by force of this paragraph; and

                     (b)  if the land is in a State or Territory—the Secretary may give to the officer of the State or Territory responsible for registering land titles a copy of the Proclamation certified by the Secretary; and

                     (c)  the officer may make an entry in his or her registers and do anything else needed to reflect the effect of paragraph (a).

             (2)  Paragraph (1)(a) does not apply in relation to a Proclamation that causes land in one Commonwealth reserve to cease to be part of that reserve and to become part of another Commonwealth reserve.

Subdivision CActivities in Commonwealth reserves

353  Simplified outline of this Subdivision

                   The following is a simplified outline of this Subdivision:

Many works cannot be carried out in a Commonwealth reserve unless permitted by a management plan.

If there is not a management plan in force for a reserve, it must be managed in a way appropriate for the category it has been assigned to by a Proclamation or an earlier management plan.

Regulations can be made to control activities in reserves.

People who have rights relating to an area that is later included in a reserve can continue to exercise those rights in the reserve.

354  Activities that may be carried on only under management plan

             (1)  A person must not do one of the following acts in a Commonwealth reserve except in accordance with a management plan in operation for the reserve:

                     (a)  carry on an excavation;

                     (b)  erect a building or other structure;

                     (c)  carry out works;

                     (d)  fell or take timber.

Note:          These acts are totally prohibited in wilderness areas (except so far as the Secretary is concerned). See section 360.

             (2)  However, if a management plan is not in operation for a Commonwealth reserve, the Secretary or his or her agent may do an act described in subsection (1) for:

                     (a)  preserving or protecting the reserve; or

                     (b)  protecting or conserving biodiversity or heritage in the reserve; or

                     (c)  controlling authorised scientific research; or

                     (d)  protecting persons or property in the reserve; or

                     (e)  managing the effects of actions taken under a usage right described in section 359.

Note:          The Secretary may only do these acts in a wilderness area under a management plan or Proclamation. See section 360.

             (3)  Subsection (2) does not apply in relation to so much of a Commonwealth reserve as is in the Kakadu region, the Uluru region or the Jervis Bay Territory.

Note:          Section 385 sets out what the Secretary and his or her agents may do in a Commonwealth reserve in the Kakadu region, Uluru region or Jervis Bay Territory when there is not a management plan in operation for the reserve.

             (4)  This section has effect despite any other law of the Commonwealth, a State or a Territory, but:

                     (a)  subsections (1) and (2) are subject to:

                              (i)  section 359 (about interests and rights existing before a Commonwealth reserve); and

                             (ii)  section 360 (about wilderness areas); and

                            (iii)  item of Part of Schedule to the Environmental Reform (Consequential Provisions) Act 1998 (about Jabiru); and

                     (b)  subsection (1) is also subject to section 385 (about activities in Commonwealth reserves in the Kakadu region, Uluru region or Jervis Bay Territory without management plans).

355  Limits on mining operations in Commonwealth reserves

             (1)  A person must not carry on mining operations in a Commonwealth reserve unless:

                     (a)  the Governor‑General has approved the operations; and

                     (b)  the person carries them on in accordance with a management plan in operation for the reserve.

Note:          Section 387 generally prohibits mining operations in Kakadu National Park.

             (2)  The following are mining operations:

                     (a)  operations or activities connected with, or incidental to, the mining or recovery of minerals or the production of material from minerals, including:

                              (i)  prospecting and exploration for minerals; and

                             (ii)  milling, refining, treatment and processing of minerals; and

                            (iii)  storage and disposal of minerals and materials produced from minerals;

                     (b)  the construction and use of towns, camps, dams, pipelines power lines or other structures for the purposes of operations or activities described in paragraph (a);

                     (c)  the performance of any other work for the purposes of operations or activities described in paragraph (a).

             (3)  A mineral is a naturally occurring substance or mixture of substances.

             (4)  Subsection (1) does not prevent the doing of anything for the purposes of building or construction, or the supply of water, in a Commonwealth reserve unless the purposes are connected with, or incidental to, mining operations.

             (5)  This section is subject to:

                     (a)  section 359 (about interests and rights existing before a Commonwealth reserve); and

                     (b)  section 387 (about mining operations in Kakadu National Park); and

                     (c)  item of Part of Schedule to the Environmental Reform (Consequential Provisions) Act 1998 (about Jabiru);

but has effect despite any other law of the Commonwealth, a State or a Territory.

356  Regulations controlling activities relating to Commonwealth reserves

             (1)  The regulations may:

                     (a)  regulate or prohibit the pollution of soil, air or water in a manner that is, or is likely to be, harmful to:

                              (i)  people, biodiversity or heritage in Commonwealth reserves; or

                             (ii)  the natural features of Commonwealth reserves; and

                     (b)  regulate or prohibit tourism in Commonwealth reserves; and

                     (c)  provide for the protection and preservation of Commonwealth reserves and property and things in Commonwealth reserves; and

                     (d)  provide for the protection and conservation of biodiversity in Commonwealth reserves; and

                     (e)  regulate or prohibit access to all or part of a Commonwealth reserve by persons or classes of persons; and

                      (f)  provide for the removal of trespassers from Commonwealth reserves; and

                     (g)  regulate or prohibit camping in Commonwealth reserves; and

                     (h)  provide for the safety of persons in Commonwealth reserves; and

                      (i)  regulate or prohibit the use of fire in Commonwealth reserves; and

                      (j)  regulate the conduct of persons in Commonwealth reserves; and

                     (k)  regulate or prohibit the carrying on of any trade or commerce in a Commonwealth reserve; and

                      (l)  regulate or prohibit the use of vehicles in Commonwealth reserves and provide for signs and road markings for those purposes; and

                    (m)  provide for:

                              (i)  the removal of vehicles, aircraft or vessels from places in Commonwealth reserves where they have been left in contravention of the regulations or have been abandoned; and

                             (ii)  the impounding of such vehicles, aircraft or vessels; and

                     (n)  provide that the person taken for the purposes of the regulations to be the owner of a motor vehicle involved in a contravention of a provision of the regulations relating to the parking or stopping of vehicles in a Commonwealth reserve is, except as provided otherwise, taken to commit an offence against the provision; and

                     (o)  provide for a person to be taken to be the owner of a motor vehicle for the purposes of regulations made under paragraph (n) (including a person in whose name the motor vehicle is registered under the law of a State or Territory); and

                     (p)  regulate or prohibit the use of vessels in, and the passage of vessels through, Commonwealth reserves; and

                     (q)  regulate or prohibit the landing and use of aircraft in, and the flying of aircraft over, Commonwealth reserves; and

                      (r)  provide for the giving of effect to management plans for Commonwealth reserves; and

                      (s)  regulate or prohibit the taking of animals or plants into or out of Commonwealth reserves; and

                      (t)  provide for the impounding, removal, destruction or disposal of animals found straying in Commonwealth reserves; and

                     (u)  regulate or prohibit the taking into Commonwealth reserves, and the use in Commonwealth reserves, of weapons, traps, nets, snares, fishing apparatus and other devices; and

                     (v)  regulate or prohibit the laying of baits and the use of explosives and poisons in Commonwealth reserves; and

                    (w)  provide for the collection of specimens and the pursuit of research in Commonwealth reserves for scientific purposes; and

                     (x)  provide for the issue of licences, permits and authorities relating to activities in Commonwealth reserves, the conditions subject to which they are issued and the charging of fees by the Commonwealth in respect of such licences, permits and authorities; and

                     (y)  provide for any matter incidental to or connected with a matter described in another paragraph.

             (2)  A provision of the regulations regulating or prohibiting the flying of aircraft over a Commonwealth reserve does not have any effect so far as it is inconsistent with a law of the Commonwealth. For this purpose, a provision is not inconsistent with such a law if it can be complied with without contravention of the law.

             (3)  A law of a Territory has effect so far as it is not inconsistent with a provision of the regulations having effect in that Territory. For this purpose, such a law is not inconsistent with the provision so far as it can operate concurrently with the provision.

357  Managing Commonwealth reserves while a management plan is not in operation

             (1)  While a management plan is not in operation for a Commonwealth reserve, the Secretary must exercise his or her powers and perform his or her functions in relation to the reserve or to a zone of the reserve so as to manage the reserve in accordance with:

                     (a)  the Australian IUCN reserve management principles (if any) for the IUCN category to which the reserve or zone has most recently been assigned by:

                              (i)  a Proclamation made under Subdivision B; or

                             (ii)  a management plan that was in operation for the reserve (but is no longer); and

                     (b)  if the Commonwealth holds land or seabed included in the reserve under lease—the Commonwealth’s obligations under the lease.

             (2)  While a management plan is not in operation for a Commonwealth reserve, the Commonwealth or a Commonwealth agency must not exercise its powers or perform its functions in relation to the reserve or a zone of the reserve inconsistently with either or both of the following:

                     (a)  the Australian IUCN reserve management principles (if any) for the IUCN category to which the reserve or zone has most recently been assigned by:

                              (i)  a Proclamation made under Subdivision B; or

                             (ii)  a management plan that was in operation for the reserve (but is no longer);

                     (b)  if the Commonwealth holds land or seabed included in the reserve under lease—the Commonwealth’s obligations under the lease.

             (3)  If:

                     (a)  a zone of a Commonwealth reserve is assigned to an IUCN category at or after the time the reserve was most recently assigned to an IUCN category; and

                     (b)  the IUCN category for the zone is different from the IUCN category for the reserve;

disregard the IUCN category to which the reserve has been assigned for the purposes of the application of this section in relation to the zone.

358  Restriction on disposal of Commonwealth’s interests in Commonwealth reserves

             (1)  The Commonwealth must not sell or otherwise dispose of a usage right the Commonwealth holds in relation to land, sea or seabed in a Commonwealth reserve.

             (2)  However, the Commonwealth may grant a lease or sub‑lease of, or a licence relating to, land or seabed in a Commonwealth reserve, but only in accordance with a management plan in operation for the reserve.

             (3)  Despite subsection (1), the Commonwealth may surrender a lease of land or seabed within a Commonwealth reserve in consideration of the grant to the Commonwealth of a new lease of land or seabed that includes that land or seabed.

             (4)  The Lands Acquisition Act 1989 does not apply to the grant or surrender of a lease or sub‑lease under this section.

             (5)  This section has effect despite any law of the Commonwealth or of a State or Territory.

359  Prior usage rights relating to Commonwealth reserves continue to have effect

             (1)  None of the following provisions affect a usage right that was held by a person (other than the Commonwealth) in relation to land, sea or seabed immediately before the land, sea or seabed was included in a Commonwealth reserve:

                     (a)  provisions of this Act that relate to the reserve (whether or not they also relate to another Commonwealth reserve);

                     (b)  provisions of the regulations that relate to the reserve (whether or not they also relate to another Commonwealth reserve);

                     (c)  provisions of a management plan for the reserve.

             (2)  None of the provisions described in subsection (1) affect the application of a law of a State or Territory in relation to the usage right.

             (3)  The usage right may be renewed or have its term extended only:

                     (a)  with the Minister’s written consent; and

                     (b)  subject to any conditions determined by the Minister.

This subsection has effect despite subsections (1) and (2) and any other law of the Commonwealth, a State or a Territory.

             (4)  Subsections (1) and (2) apply in relation to a usage right relating to minerals on, in or under land or seabed included in a Commonwealth reserve as if the usage right were a usage right relating to the land or seabed.

             (5)  This section applies to a right arising out of a usage right in the same way as it applies to the usage right.

             (6)  This section does not apply in relation to:

                     (a)  a usage right relating to minerals in Kakadu National Park; or

                     (b)  a usage right so far as it relates to mining operations for those minerals.

360  Activities in wilderness areas

             (1)  This section applies only to a Commonwealth reserve, or a zone of a Commonwealth reserve, that is assigned by a Proclamation under Subdivision B or a management plan for the reserve to the IUCN category of wilderness area.

             (2)  The Commonwealth reserve or zone must be maintained in its natural state.

             (3)  A person may use the Commonwealth reserve or zone only for:

                     (a)  scientific research authorised by the Secretary; or

                     (b)  a purpose (except recovery of minerals) specified in the provisions of the management plan for the reserve that relate to the zone.

             (4)  A person other than the Secretary or his or her agent must not do any of the following acts in the Commonwealth reserve or zone:

                     (a)  carry on an excavation;

                     (b)  erect a building or other structure;

                     (c)  carry out works;

                     (d)  fell or take timber;

                     (e)  establish a track;

                      (f)  use a vehicle, aircraft or vessel;

                     (g)  inundate land by means of a dam or other works for affecting the flow of water (whether they are inside or outside the reserve or zone);

                     (h)  extract water by canals or other works for affecting the flow of water (whether they are inside or outside the reserve or zone).

             (5)  The Secretary or his or her agent must not do an act described in subsection (4) in the Commonwealth reserve or zone, except for purposes essential to the management of the reserve or zone and in accordance with:

                     (a)  the provisions of the management plan in operation for the reserve or zone; or

                     (b)  if there is not a management plan in operation for the reserve or zone and a Proclamation assigned the reserve or zone to the IUCN category of wilderness area—the provisions of the Proclamation.

             (6)  This section has effect despite any other law of the Commonwealth, a State or a Territory, but is subject to section 359 (about usage rights existing before a Commonwealth reserve).

Subdivision DComplying with management plans for Commonwealth reserves

361  Simplified outline of this Subdivision

                   The following is a simplified outline of this Subdivision:

The Secretary must manage a Commonwealth reserve to give effect to a management plan for the reserve. If indigenous people think the Secretary is not doing this for a reserve including their land, they can take the matter up with the Minister.

Commonwealth agencies must act so as not to contravene a management plan.

362  Commonwealth and Commonwealth agencies to comply with management plan for Commonwealth reserve

             (1)  The Secretary must exercise his or her powers and perform his or her functions to give effect to a management plan that is in operation for a Commonwealth reserve.

             (2)  The Commonwealth or a Commonwealth agency must not perform its functions or exercise its powers in relation to a Commonwealth reserve inconsistently with a management plan that is in operation for the reserve.

             (3)  To avoid doubt, if a management plan for a Commonwealth reserve prohibits the exercise of a specified power, or the performance of a specified function, under an Act (including a power or function under an instrument made under an Act), the power or function must not be exercised in or in relation to the reserve while the plan is in operation.

363  Resolving disagreement between land council and Secretary over implementation of plan

Minister to resolve disagreement

             (1)  If the Chair or Chairperson of a land council for indigenous people’s land in a jointly managed reserve and the Secretary disagree about whether the Secretary is exercising his or her powers and performing his or her functions consistently with a management plan in operation for the reserve:

                     (a)  the Secretary must inform the Minister; and

                     (b)  the Minister must appoint a person the Minister considers to be suitably qualified and in a position to deal with the matter impartially to inquire into the matter; and

                     (c)  the person appointed must inquire into the matter and give the Minister a report and recommendations; and

                     (d)  the Minister must give the Secretary any directions the Minister thinks fit; and

                     (e)  the Secretary must comply with any direction.

What is a land council?

             (2)  The land council for indigenous people’s land in a Commonwealth reserve is:

                     (a)  if the land is in the area of an Aboriginal Land Council established by or under the Aboriginal Land Rights (Northern Territory) Act 1976—that Aboriginal Land Council; and

                     (b)  if the land is in Jervis Bay Territory—the Wreck Bay Aboriginal Community Council established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; and

                     (c)  if the land is elsewhere—a body corporate that:

                              (i)  is established by or under an Act; and

                             (ii)  has functions relating to the indigenous people’s land in the reserve; and

                            (iii)  consists of indigenous persons who either live in an area to which one or more of the body’s functions relate or are registered as traditional owners of indigenous people’s land in an area to which one or more of the body’s functions relate.

What is indigenous people’s land?

             (3)  Land is indigenous people’s land if:

                     (a)  a body corporate holds an estate that allows the body to lease the land to the Commonwealth; and

                     (b)  the body corporate was established by or under an Act for the purpose of holding for the benefit of indigenous persons title to land vested in it by or under that Act.

Who is an indigenous person?

             (4)  A person is an indigenous person if he or she is:

                     (a)  a member of the Aboriginal race of Australia; or

                     (b)  a descendant of an indigenous inhabitant of the Torres Strait Islands.

What is a jointly managed reserve?

             (5)  A Commonwealth reserve is a jointly managed reserve if:

                     (a)  it includes indigenous people’s land held under lease by the Commonwealth; and

                     (b)  a Board is established for the reserve under Subdivision F.

364  Resolving disagreement between Secretary and Board over implementation of plan

             (1)  The Secretary must inform the Minister if the Secretary believes that:

                     (a)  a decision of a Board for a Commonwealth reserve is likely to be substantially detrimental to the good management of the reserve; or

                     (b)  a decision of a Board for a Commonwealth reserve is contrary to a management plan in operation for the reserve.

             (2)  The Minister must take the steps he or she thinks fit to resolve the matter.

             (3)  If the Minister cannot resolve the matter, the Minister must appoint as an arbitrator to inquire into the matter a person whom the Minister thinks is suitably qualified and in a position to deal with the matter impartially.

             (4)  The person appointed must inquire into the matter and give the Minister a report and recommendations.

             (5)  After the Minister receives the report and recommendations, he or she must give the Secretary and the Board:

                     (a)  the directions the Minister thinks appropriate; and

                     (b)  a statement of reasons for giving the directions; and

                     (c)  a copy of the report and recommendations.

             (6)  The Secretary and the Board must comply with any directions given by the Minister.

Subdivision EApproving management plans for Commonwealth reserves

365  Simplified outline of this Subdivision

                   The following is a simplified outline of this Subdivision:

The Minister may approve a management plan for a Commonwealth reserve prepared by the Secretary and any Board for the reserve. Before the Minister approves a plan, he or she may modify it.

Before the Secretary gives a plan to the Minister for approval, there are 2 opportunities for the public and others with an interest in the reserve to comment.

The Minister can resolve any disagreements between the Secretary and a Board for a reserve over preparation of a plan for the reserve.

366  Obligation to prepare management plans for Commonwealth reserves

Plans required for Commonwealth reserves without Boards

             (1)  The Secretary must prepare management plans for each Commonwealth reserve for which there is not a Board to try to ensure that a management plan for the reserve is in operation:

                     (a)  as soon as practicable after the reserve is declared; and

                     (b)  at all times after the first plan for managing the reserve takes effect.

Note:          Section 368 specifies steps to be taken in preparing a management plan for a Commonwealth reserve.

Amending or replacing plans for reserves without Boards

             (2)  The Secretary may prepare a management plan for a Commonwealth reserve for which there is not a Board:

                     (a)  to amend a management plan that is in operation for the reserve; or

                     (b)  to revoke and replace a management plan that is in operation for the reserve.

Plans required for Commonwealth reserves with Boards

             (3)  A Board for a Commonwealth reserve must prepare management plans for the reserve in conjunction with the Secretary, to try to ensure that a management plan for the reserve is in operation:

                     (a)  as soon as practicable after the Board is established; and

                     (b)  at all times after a plan for managing the reserve first takes effect after the establishment of the Board.

Note:          Section 368 specifies steps to be taken in preparing a management plan for a Commonwealth reserve.

Amending or replacing plans for reserves with Boards

             (4)  The Board for a Commonwealth reserve may prepare a management plan for the reserve in conjunction with the Secretary:

                     (a)  to amend a management plan that is in operation for the reserve; or

                     (b)  to revoke and replace a management plan that is in operation for the reserve.

367  Content of a management plan for a Commonwealth reserve

Mandatory content

             (1)  A management plan for a Commonwealth reserve must provide for the protection and conservation of the reserve. In particular, the plan must:

                     (a)  assign the reserve to an IUCN category (whether or not a Proclamation has assigned the reserve or a zone of the reserve to that IUCN category); and

                     (b)  state how the reserve, or each zone of the reserve, is to be managed; and

                     (c)  state how the natural features of the reserve, or of each zone of the reserve, are to be protected and conserved; and

                     (d)  if the Commonwealth holds land or seabed included in the reserve under lease—be consistent with the Commonwealth’s obligations under the lease; and

                     (e)  specify any limitation or prohibition on the exercise of a power, or performance of a function, under an Act in or in relation to the reserve; and

                      (f)  specify any mining operation, major excavation or other work that may be carried on in the reserve, and the conditions under which it may be carried on; and

                     (g)  specify any other operation or activity that may be carried on in the reserve; and

                     (h)  indicate generally the activities that are to be prohibited or regulated in the reserve, and the means of prohibiting or regulating them; and

                      (i)  indicate how the plan takes account of Australia’s obligations under each agreement with one or more other countries that is relevant to the reserve (including the World Heritage Convention and the Ramsar Convention, if appropriate).

Plan may assign different zones to different IUCN categories

             (2)  A management plan for a Commonwealth reserve may divide the reserve into zones and assign each zone to an IUCN category (whether or not a Proclamation has assigned the reserve or each zone of the reserve to that IUCN category). The category to which a zone is assigned may differ from the category to which the reserve is assigned.

Consistency with Australian IUCN reserve management principles

             (3)  The provisions of a management plan for a Commonwealth reserve that relate to the reserve or a particular zone of the reserve must not be inconsistent with any Australian IUCN reserve management principles for the IUCN category to which the reserve or zone is assigned by the plan.

If zone is in different category from reserve

             (4)  If the management plan for a Commonwealth reserve assigns the reserve to one IUCN category and assigns a zone of the reserve to a different IUCN category, disregard the IUCN category to which the reserve is assigned for the purposes of the application of subsection (3) in relation to the zone.

Plans for different reserves may appear together

             (5)  A management plan for a Commonwealth reserve may be in the same document as a management plan for another Commonwealth reserve.

Plans for proposed extension of reserve

             (6)  A management plan for a Commonwealth reserve may include provisions relating to an area that is proposed to be included in the reserve, but they do not have effect until the area is included in the reserve.

368  Steps in preparing management plans for Commonwealth reserves

Overview of process

             (1)  Before the Secretary gives the Minister a management plan for a Commonwealth reserve for approval:

                     (a)  the Minister must publish under subsection (2) an invitation to comment on the proposal to prepare a draft of the plan; and

                     (b)  the Secretary and the Board (if any) for the reserve must prepare a draft of the plan, taking into account any comments received in response to the invitation; and

                     (c)  the Minister must publish under subsection (5) an invitation to comment on the draft; and

                     (d)  the Secretary must make publicly available copies of the draft free or for a reasonable fee determined by the Secretary; and

                     (e)  the Secretary and the Board (if any) must consider any comments received in response to the invitation to comment on the draft and may alter the draft.

Notice inviting comments on proposal to prepare draft

             (2)  The Minister must publish a notice in the Gazette, in a daily newspaper circulating in each State and self‑governing Territory and in accordance with the regulations (if any):

                     (a)  stating that the Secretary proposes to prepare a draft of a management plan for the Commonwealth reserve; and

                     (b)  inviting comments on the proposal from:

                              (i)  members of the public; and

                             (ii)  the Chair or Chairperson of any land council for indigenous people’s land in the reserve; and

                            (iii)  if the reserve is in a State or self‑governing Territory—the agency (if any) of the State or Territory that is responsible for managing national parks established in the State or Territory under a law of the State or Territory; and

                            (iv)  if the Minister has established under Division 4 of Part 19 an advisory committee with functions relating to the reserve—the committee; and

                             (v)  if the Commonwealth holds any land or seabed in the reserve under lease—anyone the Commonwealth is obliged under the lease to consult about management of the land or seabed; and

                     (c)  specifying the address to which comments may be sent; and

                     (d)  specifying a day (at least 30 days after the last day on which the notice is published in the Gazette or in accordance with the regulations (if any)) by which comments must be sent.

Considerations in preparing a management plan

             (3)  In preparing a management plan for a Commonwealth reserve, the Secretary and the Board (if any) for the reserve must take account of:

                     (a)  any report considered by the Minister under section 351 before a Proclamation declaring the reserve was made; and

                     (b)  the regulation of the use of the reserve for the purpose for which it was declared; and

                     (c)  the interests of:

                              (i)  any owner of any land or seabed in the reserve; and

                             (ii)  the traditional owners of any indigenous people’s land in the reserve; and

                            (iii)  any other indigenous persons interested in the reserve; and

                            (iv)  any person who has a usage right relating to land, sea or seabed in the reserve that existed (or is derived from a usage right that existed) immediately before the reserve was declared; and

                     (d)  the protection of the special features of the reserve, including objects and sites of biological, historical, palaeontological, archaeological, geological and geographical interest; and

                     (e)  the protection, conservation and management of biodiversity and heritage within the reserve; and

                      (f)  the protection of the reserve against damage; and

                     (g)  Australia’s obligations under agreements between Australia and one or more other countries relevant to the protection and conservation of biodiversity and heritage.

Who are the traditional owners of indigenous people’s land?

             (4)  The traditional owners of indigenous people’s land are:

                     (a)  a local descent group of indigenous persons who:

                              (i)  have common spiritual affiliations to a site on the land under a primary spiritual responsibility for that site and for the land; and

                             (ii)  are entitled by indigenous tradition to forage as of right over the land; or

                     (b)  if the land is in the Jervis Bay Territory—the members of the Wreck Bay Aboriginal Community Council.

Notice inviting comment on draft

             (5)  The Minister must publish a notice in the Gazette, in a daily newspaper circulating in each State and self‑governing Territory and in accordance with the regulations (if any):

                     (a)  stating that the Secretary has prepared a draft of a management plan for the Commonwealth reserve; and

                     (b)  stating how the draft can be obtained; and

                     (c)  inviting comments on the draft from:

                              (i)  members of the public; and

                             (ii)  the Chair or Chairperson of any land council for any indigenous people’s land in the reserve; and

                            (iii)  if the reserve is in a State or self‑governing Territory—the agency (if any) of the State or Territory that is responsible for managing national parks established in the State or Territory under a law of the State or Territory; and

                            (iv)  if the Minister has established under Division 4 of Part 19 an advisory committee with functions relating to the reserve—the committee; and

                             (v)  if the Commonwealth holds any land or seabed in the reserve under lease—anyone the Commonwealth is obliged under the lease to consult about management of the land or seabed; and

                     (d)  specifying the address to which comments may be sent; and

                     (e)  specifying a day (at least 30 days after the last day on which the notice is published in the Gazette or in accordance with the regulations (if any)) by which comments must be sent.

369  Resolving disagreements between Secretary and Board in planning process

             (1)  The Secretary and the Board for a Commonwealth reserve must inform the Minister if they cannot agree on:

                     (a)  the content of a management plan they are preparing for the reserve; or

                     (b)  any changes to be made following comment made in response to an invitation to comment on a draft management plan for the reserve; or

                     (c)  whether the Secretary should give a management plan for the reserve to the Minister for approval (either initially or after the Minister has given the plan back to the Secretary with suggestions under paragraph 370(3)(b)).

             (2)  If the Minister is advised by the Secretary and a Board of a disagreement, the Minister must take the steps the Minister thinks fit to resolve the disagreement.

             (3)  If the Minister cannot resolve the disagreement, the Minister must appoint as an arbitrator to inquire into the matter a person whom the Minister thinks is suitably qualified and in a position to deal with the matter impartially.

             (4)  The appointed arbitrator must inquire into the matter and give the Minister a report and recommendations.

             (5)  After the Minister receives the report and recommendations, he or she must give the Secretary and the Board:

                     (a)  the directions the Minister thinks appropriate; and

                     (b)  a statement of reasons for giving the directions; and

                     (c)  a copy of the report and recommendations.

             (6)  The Secretary and the Board must comply with any directions given by the Minister.

370  Approval of management plans for Commonwealth reserves

Giving management plan to Minister for approval

             (1)  The Secretary must give the Minister a management plan for a Commonwealth reserve for approval, but only if the Board (if any) for the reserve agrees. The Secretary must do so as soon as practicable after considering under paragraph 368(1)(e) the comments (if any) on a draft of the management plan.

Things to be given to Minister with management plan

             (2)  When the Secretary gives the plan to the Minister, the Secretary must also give the Minister:

                     (a)  any comments received in response to the invitation to comment on a draft of the plan; and

                     (b)  the views of the Secretary and any Board for the reserve on the comments.

Minister’s decision

             (3)  After the Secretary has given the plan, the Minister:

                     (a)  must consider the plan and any comments and views given to the Minister under subsection (2); and

                     (b)  may either:

                              (i)  approve the plan; or

                             (ii)  give the plan back to the Secretary with suggestions for consideration by the Secretary and any Board for the reserve.

Note:          There are some extra rules about giving back to the Secretary a management plan for a Commonwealth reserve in the Kakadu region, the Uluru region or Jervis Bay Territory. See section 390.

Procedure if Minister gives plan back

             (4)  If the Minister gives the plan back to the Secretary with suggestions:

                     (a)  the Secretary and any Board for the Commonwealth reserve to which the plan relates must consider the suggestions; and

                     (b)  the Secretary must give the Minister an identical or altered version of the plan, but only if any Board for the reserve agrees; and

                     (c)  the Secretary must give the Minister, with the plan, the Secretary’s views on the Minister’s suggestions.

Minister’s decision on re‑submitted plan

             (5)  As soon as practicable after the Secretary has given the Minister a version of the plan under subsection (4), the Minister:

                     (a)  must consider it and the views given to the Minister under subsection (4); and

                     (b)  must approve the plan with any modifications the Minister considers appropriate.

Considerations for Minister assigning reserve to IUCN category

             (6)  When approving a management plan for a Commonwealth reserve to assign the reserve, or a zone of a reserve, to a particular IUCN category, the Minister must be satisfied of the matters specified in section 347 that he or she would have to be satisfied of before the Governor‑General could make a Proclamation to assign the reserve or zone to that IUCN category.

371  Approved management plans are disallowable instruments

             (1)  A management plan approved for a Commonwealth reserve by the Minister is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Note:          Section 46A of the Acts Interpretation Act 1901 provides for the commencement, tabling and disallowance of disallowable instruments.

             (2)  To avoid doubt, the provisions mentioned in section 46A of the Acts Interpretation Act 1901 apply as if the approval of the management plan were the making of the plan.

             (3)  When the management plan is laid before each House of the Parliament, there must also be laid before the House copies of any comments, views, report or recommendations given to the Minister under this Division in relation to the plan that have not been given effect to in the plan.

372  Amendment and revocation of management plans for Commonwealth reserves

                   A management plan for a Commonwealth reserve may amend or revoke and replace an earlier management plan for the reserve.

373  Expiry of management plans for Commonwealth reserves

                   A management plan for a Commonwealth reserve ceases to have effect 7 years after it took effect (unless it has already been revoked).

Subdivision FBoards for Commonwealth reserves on indigenous people’s land

374  Simplified outline of this Subdivision

                   The following is a simplified outline of this Subdivision:

The Minister must establish a Board for a Commonwealth reserve that is wholly or partly on indigenous people’s land, if the land council for that land (or traditional owners) and the Minister agree that there should be a Board for the reserve.

The Board’s role is to make decisions and plans for management of the reserve, in conjunction with the Secretary.

A majority of Board members must be indigenous people nominated by traditional owners if the reserve is wholly or mostly on indigenous people’s land.

375  Application

                   This Subdivision provides for Boards for Commonwealth reserves that consist of, or include, indigenous people’s land held under lease by the Commonwealth.

376  Functions of a Board for a Commonwealth reserve

             (1)  The functions of a Board established for a Commonwealth reserve are:

                     (a)  to make decisions relating to the management of the reserve that are consistent with the management plan in operation for the reserve; and

                     (b)  in conjunction with the Secretary, to:

                              (i)  prepare management plans for the reserve; and

                             (ii)  monitor the management of the reserve; and

                            (iii)  advise the Minister on all aspects of the future development of the reserve.

             (2)  When performing its functions, a Board must comply with a direction given by the Minister to the Board under:

                     (a)  section 364 (Resolving disagreement between Secretary and Board over implementation of plan); or

                     (b)  section 369 (Resolving disagreements between Secretary and Board in planning process).

377  Minister must establish Board if land council or traditional owners agree

             (1)  The Minister must establish a Board for a specified Commonwealth reserve by notice published in the Gazette and in the way (if any) prescribed by the regulations if he or she agrees on the matters set out in subsection (2) with:

                     (a)  the land council for the indigenous people’s land in the reserve that the Commonwealth holds under lease; or

                     (b)  if there is not such a land council—the traditional owners of the indigenous people’s land in the reserve that the Commonwealth holds under lease.

             (2)  The matters to be agreed on are:

                     (a)  that a Board should be established for the reserve; and

                     (b)  the name of the Board; and

                     (c)  the number of positions of member of the Board; and

                     (d)  the qualifications for appointment to each position of member of the Board.

             (3)  The notice must specify each of the matters described in paragraphs (2)(b), (c) and (d).

Note:          The notice may specify different qualifications for different positions. See subsection 33(3A) of the Acts Interpretation Act 1901.

             (4)  If the reserve consists wholly or mostly of indigenous people’s land held by the Commonwealth under lease, a majority of the members of the Board must be indigenous persons nominated by the traditional owners of the indigenous people’s land.

             (5)  If the reserve is in a State or self‑governing Territory, at least one member of the Board must be a person nominated by the State or Territory.

Note:          By agreement between the Minister and the land council or traditional owners, more than one member of a Board may be a person nominated by the State or Territory.

378  Altering the constitution of a Board or abolishing a Board

Revoking and amending notice establishing Board

             (1)  The Minister may, by notice in the Gazette:

                     (a)  revoke a notice under section 377 relating to the Board for the reserve; or

                     (b)  amend a notice under section 377 relating to the Board for the reserve so as to:

                              (i)  change the specification of the name by which the Board is to be known; or

                             (ii)  increase the number of members of the Board and specify the qualifications for appointment to each of the extra positions of member; or

                            (iii)  decrease the number of positions of member of the Board and specify which positions are abolished; or

                            (iv)  change the qualifications for appointment to a position of member of the Board.

Note:          The Minister may exercise the power of amendment from time to time. See subsection 33(1) of the Acts Interpretation Act 1901.

Limits on changing composition of Board

             (2)  Paragraph (1)(b) has effect subject to subsections 377(4) and (5).

Note 1:       Subsection 377(4) requires a majority of the members of the Board of a Commonwealth reserve consisting wholly or mostly of indigenous people’s land held by the Commonwealth under lease to be indigenous persons nominated by the traditional owners of the land.

Note 2:       Subsection 377(5) requires at least one member of a Board for a reserve in a State or self‑governing Territory to be a nominee of the State or Territory.

Prerequisite to revoking or amending notice

             (3)  The Minister may revoke or amend a notice under section 377 relating to a Commonwealth reserve only if the Minister agrees on the revocation or amendment with:

                     (a)  the land council for indigenous people’s land in the reserve, if the Board for the reserve was established with the agreement of the land council; or

                     (b)  the traditional owners of indigenous people’s land in the reserve, if the Board for the reserve was established with the agreement of the traditional owners.

Board’s identity not affected by name change

             (4)  If the Minister amends a notice published under section 377 so as to alter a Board’s name or constitution, section 25B of the Acts Interpretation Act 1901 applies in relation to the alteration as if it had been made by an Act.

Note:          This ensures that the Board’s identity and functions are not affected by the alteration, and that certain references to the Board under its old name are treated as references to the Board under its new name.

379  Appointment of Board members

Appointment of qualified persons

             (1)  The Minister may appoint a person in writing on a part‑time basis to a position of member of a Board if the person is qualified for appointment to the position.

Replacement appointments

             (2)  As soon as practicable after a position of member of a Board becomes vacant, the Minister must appoint a person to the position under subsection (1).

Validity of appointments

             (3)  A deficiency or irregularity relating to the nomination, selection or appointment of a member of a Board does not invalidate the member’s appointment.

380  Terms and conditions

Term of office

             (1)  A member of a Board holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          Section 382 sets out the circumstances in which a member’s appointment may be (or must be) terminated.

Resignation

             (2)  A member of a Board may resign his or her appointment by giving the Minister a written resignation.

Other terms and conditions

             (3)  A member of a Board holds office on the terms and conditions (if any) that are determined by the Minister in relation to matters not covered by this Act or the regulations.

381  Remuneration

             (1)  A member of a Board is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.

             (2)  A member of a Board is to be paid the allowances that are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

382  Termination of appointments of Board members

Termination when person stops being qualified for appointment

             (1)  The appointment of a person to a position of member of a Board is terminated when the person ceases to be qualified for appointment to the position.

Termination for misbehaviour or incapacity

             (2)  The Minister may terminate the appointment of a member of a Board for misbehaviour or physical or mental incapacity.

Termination for failure to attend Board meetings

             (3)  The Minister may terminate the appointment of a member of a Board if the member is absent, except on leave of absence, from 3 consecutive meetings of the Board of which the member has had notice.

Termination for engaging in conflicting work

             (4)  The Minister may terminate the appointment of a member of a Board if the member engages in paid employment that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the duties of the member.

Termination for failure to disclose interests

             (5)  The Minister must terminate the appointment of a member of a Board if:

                     (a)  the member does not comply with any requirements prescribed by the regulations to disclose an interest the member has in a matter being considered or about to be considered by the Board; and

                     (b)  the member does not have a reasonable excuse for not complying.

Termination on request by nominator

             (6)  The Minister must terminate the appointment of a member of a Board if:

                     (a)  the member was appointed on the nomination of a particular person, body or group of persons; and

                     (b)  the person, body or group gives the Minister a written request to terminate the appointment.

Termination for bankruptcy or insolvency

             (7)  The Minister may terminate the appointment of a member of the Board if the member:

                     (a)  becomes bankrupt; or

                     (b)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                     (c)  compounds with his or her creditors; or

                     (d)  makes an assignment of his or her remuneration for the benefit of his or her creditors.

383  Procedure of a Board

             (1)  The regulations may provide for:

                     (a)  matters relating to the operation of a Board, including:

                              (i)  procedures for convening meetings of the Board; and

                             (ii)  procedures for determining who is to preside at a meeting of the Board; and

                            (iii)  determining who may attend a meeting of the Board; and

                            (iv)  the constitution of a quorum for a meeting of the Board; and

                             (v)  procedures relating to a member’s interest in matters being dealt with by the Board; and

                            (vi)  the way in which matters are to be resolved by the Board; and

                     (b)  the appointment and rights of a deputy of a member of a Board.

             (2)  The regulations may allow a Board to determine a matter relating to the operation of the Board for which the regulations may provide.

             (3)  If there are no regulations in force, a Board may operate in the way it determines.

Subdivision GSpecial rules for some Commonwealth reserves in the Northern Territory or Jervis Bay Territory

384  Simplified outline of this Subdivision

                   The following is a simplified outline of this Subdivision:

Special rules apply to Commonwealth reserves in the Kakadu region, Uluru region and Jervis Bay Territory, affecting the activities that can be carried on in those reserves.

Special procedures apply to planning for management of reserves in the Kakadu region, Uluru region and Jervis Bay Territory. These provide for extra involvement of indigenous people in the planning process.

385  Activities in Commonwealth reserve without management plan

                   When a management plan is not in operation for a particular Commonwealth reserve wholly or partly in the Kakadu region, Uluru region or Jervis Bay Territory, the Secretary may perform the Secretary’s functions and exercise the Secretary’s powers in and in relation to a part of the reserve in the region, subject to any directions of the Minister.

386  What are the Kakadu region and the Uluru region?

             (1)  The Kakadu region is the part of the Alligator Rivers Region (as defined in the Environment Protection (Alligator Rivers Region) Act 1978) that excludes:

                     (a)  the area shown as the Arnhem Land Aboriginal Reserve on the map mentioned in that definition; and

                     (b)  the areas that are pastoral leases and are described on that map as Mount Bundey and Eva Valley.

             (2)  The Uluru region is the area of land described under the heading “Uluru” in Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976.

387  No mining operations in Kakadu National Park

             (1)  A person must not carry out mining operations in Kakadu National Park.

             (2)  Subsection (1) and subsection 355(1) do not prevent:

                     (a)  the use, development or reconstruction of the township known as Jabiru; or

                     (b)  the transportation of anything in Kakadu National Park along routes (including air routes) prescribed by the regulations for the purposes of this paragraph; or

                     (c)  the construction and use of pipelines and power lines in Kakadu National Park along routes prescribed by the regulations for the purposes of this paragraph; or

                     (d)  the doing of anything for the purposes of building or construction, or the supply of water, in Kakadu National Park as long as the purposes are not connected with, or incidental to, mining operations; and

                     (e)  prescribed activities carried on in Kakadu National Park in connection with, or incidental to, mining operations carried on outside Kakadu National Park.

             (3)  Kakadu National Park is the Commonwealth reserve (as it exists from time to time) to which the name Kakadu National Park was given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1998.

388  Establishment and development of townships in the Kakadu region and Uluru region

             (1)  A person may develop a township in a part of a Commonwealth reserve, but only if:

                     (a)  the part is in the Kakadu region or the Uluru region; and

                     (b)  the person does so in accordance with:

                              (i)  subsection (2) or (3); and

                             (ii)  the management plan for the reserve; and

                            (iii)  a town plan prepared and approved in accordance with the regulations.

             (2)  A person (other than the Commonwealth) may develop a township only:

                     (a)  on land that the person holds under lease or sub‑lease from the Commonwealth; or

                     (b)  on land that was developed before 9 June 1978, if the township was established before it was included in the reserve.

             (3)  The Commonwealth may develop a township only if the township did not exist before its site became part of the Commonwealth reserve.

             (4)  A person may only construct, alter or demolish a building or structure in a township in accordance with the management plan for the Commonwealth reserve and the town plan.

389  Planning for townships

Management plan provisions

             (1)  The provisions of a management plan for a Commonwealth reserve that relate to a township must include provisions for and in relation to:

                     (a)  the site of the township and the general purposes of the township, if the township was not established before its site was included in the reserve; and

                     (b)  the terms and conditions of any lease or sub‑lease from the Commonwealth of land on which the township is to be established or developed; and

                     (c)  the purposes of any zones into which the township is to be divided.

Town plan provisions

             (2)  A town plan must make detailed provision relating to the proposed construction or development of the township, including, in particular, the provision (if any) to be made for:

                     (a)  housing, shops, offices and other buildings and structures; and

                     (b)  bridges, railways, roads, streets, footpaths and parking areas; and

                     (c)  the supply of water, electricity and gas; and

                     (d)  the standards to be maintained in the construction and alteration of buildings and structures; and

                     (e)  sewerage and drainage; and

                      (f)  public amenities for recreation and other purposes; and

                     (g)  any other matters that are specified for the purposes of this paragraph by:

                              (i)  the management plan for the Commonwealth reserve containing the township; or

                             (ii)  the regulations; or

                            (iii)  any lease or sub‑lease from the Commonwealth of land on which the township is to be established or developed.

Town plans may adopt, apply or incorporate other instruments

             (3)  For