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:
This Act may be cited as the Environment Protection and Biodiversity Conservation Act 1998.
(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.
(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.
(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.
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.
This Act has effect subject to Australia’s obligations under any agreement between Australia and one or more other countries.
Chapter 2 of the Criminal Code applies to all offences against this Act.
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.
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.
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.
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.
(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.
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.
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.
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.
(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.
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.
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.
(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.
(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.
(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.
(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.
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.
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).
(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.
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.
Commonwealth land is so much of a Commonwealth area as is not a Commonwealth marine area.
(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.
(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.
(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.
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.
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.
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.
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 |
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.
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.
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.
(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.
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.
(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.
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.
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.
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.
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).
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
(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.
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.
(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.
(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.
(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.
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.
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.
(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.
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.
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.
(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.
(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.
(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).
(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.
(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.
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.
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.
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.
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.
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.
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.
(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.
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).
(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.
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).
(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.
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.
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.
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).
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.
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.
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.
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.
(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.
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.
(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.
(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.
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.
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.
(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).
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.
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.
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.
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.
(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.
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.
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.
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.
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.
(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.
(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.
(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.
(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.
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.
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.
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.
(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).
(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.
(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.
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.
(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.
(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.
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).
The commission must report to the Minister on the inquiry within the period specified by the Minister in the terms of reference.
(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).
(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.
(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.
(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.
A commissioner may resign his or her appointment by giving the Minister a written resignation.
(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.
(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.
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.
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.
(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.
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.
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.
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.
(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.
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.
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.
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.
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.
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).
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.
(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.
(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.
(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.
(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.
(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.
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).
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.
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.
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.
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).
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).
(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.
This Division does not limit Division 1.
(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.
(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.
(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.
(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.
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.
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).
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.
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.
(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.
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.
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.
(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.
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.
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.
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.
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.
(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.
(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.
(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.
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.
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.
(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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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).
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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).
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.
This Subdivision does not apply to a member of a listed threatened species that is a cetacean.
(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.
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.
For the avoidance of doubt, sections 196 and 197 do not affect the operation of section 18.
(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.
(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).
(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.
(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.
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.
(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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
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.
(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.
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.
(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.
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.
For the avoidance of doubt, sections 211 and 212 do not affect the operation of section 20.
(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.
(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).
(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.
(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.
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.
(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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
(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.
(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.
(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.
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.
(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.
(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).
(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.
(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.
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.
(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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
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.
(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.
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.
(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).
(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).
(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.
(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.
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.
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.
(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.
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.
(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.
(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).
(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.
(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.
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.
(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.
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.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
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.
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.
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.
(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.