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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Environment
Protection and Biodiversity Conservation Bill
1998
No. ,
1998
(Environment and
Heritage)
A Bill for an Act relating to the
protection of the environment and the conservation of biodiversity, and for
related purposes
ISBN: 0642 376964
Contents
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.