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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Environment
Protection and Biodiversity Conservation Bill
1999
No. ,
1999
A Bill for an Act relating
to the protection of the environment and the conservation of biodiversity, and
for related purposes
ISBN: 0642
405670
Contents
THIS bill originated in the Senate; and, having this day passed, is now
ready for presentation to the House of Representatives for its
concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
23 June 1999
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 1999.
(1) Subject to subsection (2), this Act commences on a day to be fixed by
Proclamation.
(2) If this Act does not commence under subsection (1) within the period
of 12 months beginning on the day on which it receives the Royal Assent, it
commences on the first day after the end of that period.
(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, land-holders and
indigenous peoples; and
(e) to assist in the co-operative implementation of Australia’s
international environmental responsibilities; and
(f) to recognise the role of indigenous people in the conservation and
ecologically sustainable use of Australia’s biodiversity; and
(g) to promote the use of indigenous peoples’ knowledge of
biodiversity with the involvement of, and in co-operation with, the owners of
the knowledge.
(2) In order to achieve its objects, the Act:
(a) recognises an appropriate role for the Commonwealth in relation to the
environment by focussing Commonwealth involvement on matters of national
environmental significance and on Commonwealth actions and Commonwealth areas;
and
(b) strengthens intergovernmental co-operation, and minimises duplication,
through bilateral agreements; and
(c) provides for the intergovernmental accreditation of environmental
assessment and approval processes; and
(d) adopts an efficient and timely Commonwealth environmental assessment
and approval process that will ensure activities that are likely to have
significant impacts on the environment are properly assessed; and
(e) enhances Australia’s capacity to ensure the conservation of its
biodiversity by including provisions to:
(i) protect native species (and in particular prevent the extinction, and
promote the recovery, of threatened species) and ensure the conservation of
migratory species; and
(ii) establish an Australian Whale Sanctuary to ensure the conservation of
whales and other cetaceans; and
(iii) protect ecosystems by means that include the establishment and
management of reserves, the recognition and protection of ecological communities
and the promotion of off-reserve conservation measures; and
(iv) identify processes that threaten all levels of biodiversity and
implement plans to address these processes; and
(f) includes provisions to enhance the protection, conservation and
presentation of world heritage properties and the conservation and wise use of
Ramsar wetlands of international importance; and
(g) promotes
a partnership approach to environmental protection and biodiversity conservation
through:
(i) bilateral agreements with States and Territories; and
(ii) conservation agreements with land-holders; and
(iii) recognising and promoting indigenous peoples’ role in, and
knowledge of, the conservation and ecologically sustainable use of biodiversity;
and
(iv) the involvement of the community in management planning.
The following principles are principles of ecologically sustainable
development:
(a) decision-making processes should effectively integrate both long-term
and short-term economic, environmental, social and equitable
considerations;
(b) if there are threats of serious or irreversible environmental damage,
lack of full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation;
(c) the principle of inter-generational equity—that the present
generation should ensure that the health, diversity and productivity of the
environment is maintained or enhanced for the benefit of future
generations;
(d) the conservation of biological diversity and ecological integrity
should be a fundamental consideration in decision-making;
(e) improved valuation, pricing and incentive mechanisms should be
promoted.
This Act binds the Crown in each of its capacities.
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.
Chapter 2 of the Criminal Code applies to all offences against
this Act.
(1) To avoid doubt, nothing in this Act affects the operation of section
211 of the Native Title Act 1993 in relation to a provision of this
Act.
Note: Section 211 of the Native Title Act 1993
provides that holders of native title rights covering certain activities do not
need authorisation required by other laws to engage in those
activities.
(2) This Act does not affect the operation of:
(a) the Aboriginal Land Rights (Northern Territory) Act 1976;
or
(b) the Native Title Act 1993.
Aboriginal Land Rights (Northern Territory) Act 1976
(1A) Subsection 70(1) of the Aboriginal Land Rights (Northern
Territory) Act 1976 does not prevent a person exercising powers or
performing functions or duties under Division 4 or 5 of Part 15, or Division 5
of Part 19, of this Act from entering or remaining on land:
(a) in the Kakadu region or Uluru region; and
(b) in which an Aboriginal Land Trust established under that Act holds an
estate in fee simple.
Airports Act 1996 not affected
(1) This Act does not affect the operation of the Airports Act
1996.
Antarctic Treaty (Environment Protection) Act 1980 not
affected
(2) To avoid doubt, nothing in this Act affects the operation of
subsection 7(1) of the Antarctic Treaty (Environment Protection) Act 1980
or regulations made for the purposes of that subsection.
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.
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 this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(3) A property has world heritage values only if it contains
natural heritage or cultural heritage. The world heritage values
of the property are the natural heritage and cultural heritage contained in the
property.
(4) In this 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.
Declarations
because of threat in force for a year or less
(7) The Minister must not specify that a declaration of a property is to
be in force for more than 12 months if:
(a) the declaration is made in the circumstances described in paragraph
(1)(b); and
(b) the property is not a property submitted by the Commonwealth to the
World Heritage Committee under Article 11 of the World Heritage Convention as
suitable for inclusion in the World Heritage List.
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 is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on the world
heritage values of a declared World Heritage property.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on the world
heritage values of a declared World Heritage property and the person is reckless
as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for a term not more than 7 years, a fine not more than 420
penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(4) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(1) A person must not take an action that:
(a) has or will have a significant impact on the ecological character of a
declared Ramsar wetland; or
(b) is likely to have a significant impact on the ecological character of
a declared Ramsar wetland.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(3) In this Act:
ecological character has the same meaning as in the Ramsar
Convention.
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.
Declaring threatened wetlands of international importance
(1) The Minister may declare a specified wetland to be a declared Ramsar
wetland by notice in the Gazette if the Minister is satisfied
that:
(a) the wetland is of international significance or is likely to be of
international significance because of its ecology, botany, zoology, limnology or
hydrology; and
(b) the ecological character of some or all of the wetland is under
threat.
Note: The Minister may make more than one declaration of the
same wetland under this section. See subsection 33(1) of the Acts
Interpretation Act 1901.
Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration relating to a wetland wholly
or partly within a State or self-governing Territory, the Minister must inform
the appropriate Minister of the State or Territory of the proposal to make the
declaration, and give him or her a reasonable opportunity to comment on the
proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply with subsection (2) if he or she
is satisfied that the threat mentioned in paragraph (1)(b) is
imminent.
Failure to comply with subsection (2)
(4) The validity of a declaration is not affected by a failure to comply
with subsection (2) in relation to the making of the declaration.
When a declaration is in force
(5) A declaration comes into force on the day it is published in the
Gazette and remains in force for the period specified in the declaration,
unless it is revoked earlier.
Specifying period for which declaration is in force
(6) The Minister must specify in a declaration the period for which it is
to be in force. The period must not be longer than the shorter of the following
periods:
(a) the period the Minister believes the Commonwealth needs to:
(i) decide whether the wetland is of international significance in terms
of ecology, botany, zoology, limnology or hydrology; and
(ii) designate the wetland for inclusion in the List of Wetlands of
International Importance kept under Article 2 of the Ramsar
Convention;
(b) 12 months.
Revocation of declaration of threatened wetland
(7) The Minister must, by notice in the Gazette, revoke a
declaration of a wetland if:
(a) the Minister is satisfied that the wetland is not of international
significance because of its ecology, botany, zoology, limnology or hydrology;
or
(b) the Minister is satisfied that there is no longer a threat to any part
of the wetland.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on the
ecological character of a declared Ramsar wetland.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on the ecological
character of a declared Ramsar wetland and the person is reckless as to that
fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for a term not more than 7 years, a fine not more than 420
penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(4) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
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 person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact
on:
(i) a listed threatened species; or
(ii) a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on:
(i) a listed threatened species; or
(ii) a listed threatened ecological community;
and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for a term not more than 7 years, a fine not more than 420
penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(4) Subsections (1) and (2) do not apply to an action if:
(a) the listed threatened species subject to the significant impact (or
likely to be subject to the significant impact) is:
(i) a species included in the extinct category of the list under section
178; or
(ii) a conservation dependent species; or
(b) the listed threatened ecological community subject to the significant
impact (or likely to be subject to the significant impact) is an ecological
community included in the vulnerable category of the list under section
181.
Note 1: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Note 2: Section 19 sets out other defences. The defendant
bears an evidential burden in relation to the matters in that section too. See
subsection 13.3(3) of the Criminal Code.
(1) A subsection of section 18 or 18A relating to a listed threatened
species does not apply to an action if an approval of the taking of the action
by the person is in operation under Part 9 for the purposes of any subsection of
that section that relates to a listed threatened species.
(2) A subsection of section 18 or 18A relating to a listed threatened
ecological community does not apply to an action if an approval of the taking of
the action by the person is in operation under Part 9 for the purposes of either
subsection of that section that relates to a listed threatened ecological
community.
(3) A subsection of section 18 or 18A does not apply to an action
if:
(a) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(b) there is in force a decision of the Minister under Division 2 of Part
7 that the subsection is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(c) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(1) A person must not take an action that:
(a) has or will have a significant impact on a listed migratory species;
or
(b) is likely to have a significant impact on a listed migratory
species.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on a listed
migratory species.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on a listed
migratory species and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for a term not more than 7 years, a fine not more than 420
penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(4) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(1) A constitutional corporation, the Commonwealth or Commonwealth agency
must not take a nuclear action that has, will have or is likely to have a
significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) A person must not, for the purposes of trade or commerce:
(a) between Australia and another country; or
(b) between 2 States; or
(c) between a State and a Territory; or
(d) between 2 Territories;
take a nuclear action that has, will have or is likely to have a
significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(3) A person must not take in a Territory a nuclear action that has, will
have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(4) Subsections (1), (2) and (3) do not apply to an action if:
(a) an approval of the taking of the action by the constitutional
corporation, Commonwealth agency, Commonwealth or person is in operation under
Part 9 for the purposes of this section; or
(b) Part 4 lets the constitutional corporation, Commonwealth agency,
Commonwealth or person take the action without an approval under Part 9 for the
purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(1) In this Act:
nuclear action means any of the following:
(a) establishing or significantly modifying a nuclear
installation;
(b) transporting spent nuclear fuel or radioactive waste products arising
from reprocessing;
(c) establishing or significantly modifying a facility for storing
radioactive waste products arising from reprocessing;
(d) mining or milling uranium ore;
(e) establishing or significantly modifying a large-scale disposal
facility for radioactive waste;
(f) de-commissioning or rehabilitating any facility or area in which an
activity described in paragraph (a), (b), (c), (d) or (e) has been
undertaken;
(g) any other action prescribed by the regulations.
nuclear installation means any of the following:
(a) a nuclear reactor for research or production of nuclear materials for
industrial or medical use (including critical and sub-critical
assemblies);
(b) a plant for preparing or storing fuel for use in a nuclear reactor as
described in paragraph (a);
(c) a nuclear waste storage or disposal facility with an activity that is
greater than the activity level prescribed by regulations made for the purposes
of this section;
(d) a facility for production of radioisotopes with an activity that is
greater than the activity level prescribed by regulations made for the purposes
of this section.
Note: A nuclear waste storage or disposal facility could
include a facility for storing spent nuclear fuel, depending on the
regulations.
radioactive waste means radioactive material for which no
further use is foreseen.
reprocessing means a process or operation to extract
radioactive isotopes from spent nuclear fuel for further use.
spent nuclear fuel means nuclear fuel that has been
irradiated in a nuclear reactor core and permanently removed from the
core.
(2) In this Act:
large-scale disposal facility for radioactive waste means, if
regulations are made for the purposes of this definition, a facility prescribed
by the regulations.
(1) A constitutional corporation, or a Commonwealth agency that does not
enjoy the immunities of the Commonwealth, is guilty of an offence if:
(a) the corporation or agency takes a nuclear action; and
(b) the nuclear action results or will result in a significant impact on
the environment.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A constitutional corporation, or a Commonwealth agency that does not
enjoy the immunities of the Commonwealth, is guilty of an offence if:
(a) the corporation or agency takes a nuclear action; and
(b) the nuclear action is likely to have a significant impact on the
environment and the corporation or agency is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) A person is guilty of an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken for the purposes of trade or
commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; and
(c) the nuclear action results or will result in a significant impact on
the environment.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) A person is guilty of an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken for the purposes of trade or
commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; and
(c) the nuclear action is likely to have a significant impact on the
environment and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(5) A person is guilty of an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken in a Territory; and
(c) the nuclear action results or will result in a significant impact on
the environment.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(6) A person is guilty of an offence if:
(a) the person takes a nuclear action; and
(b) the nuclear action is taken in a Territory; and
(c) the nuclear action is likely to have a significant impact on the
environment and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is
punishable on conviction by imprisonment for a term not more than 7 years, a
fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(8) Subsections (1), (2), (3), (4), (5) and (6) do not apply to an action
if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Actions in Commonwealth marine areas affecting the
environment
(1) A person must not take in a Commonwealth marine area an action that
has, will have or is likely to have a significant impact on the
environment.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Actions outside Commonwealth marine areas affecting those
areas
(2) A person must not take outside a Commonwealth marine area but in the
Australian jurisdiction an action that:
(a) has or will have a significant impact on the environment in a
Commonwealth marine area; or
(b) is likely to have a significant impact on the environment in a
Commonwealth marine area.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Fishing in State or Territory waters managed by
Commonwealth
(3) A person must not take in the coastal waters (as defined in the
Fisheries Management Act 1991) of a State or the Northern Territory an
action:
(a) that:
(i) is fishing (as defined in the Fisheries Management Act 1991);
and
(ii) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of the Commonwealth as a result of an
agreement made under section 71 or 72 of that Act before the commencement of
this section; and
(b) that:
(i) has or will have a significant impact on the environment in those
coastal waters; or
(ii) is likely to have a significant impact on the environment in those
coastal waters.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
Exceptions to prohibitions
(4) Subsection (1), (2) or (3) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that the subsection is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the person taking the action is the Commonwealth or a Commonwealth
agency; or
(e) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: Section 28 regulates actions by the Commonwealth or a
Commonwealth agency with a significant impact on the
environment.
Exception—fishing in Commonwealth waters managed by
State
(5) Subsection (1) does not apply to an action if the action:
(a) is fishing (as defined in the Fisheries Management Act 1991);
and
(b) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of a State or the Northern Territory
as a result of an agreement made under section 71 or 72 of that Act before the
commencement of this section; and
(c) is permitted under a law of the State or Territory.
Exception—fishing
outside Commonwealth marine areas
(6) Subsection (2) does not apply to an action that:
(a) is fishing (as defined in the Fisheries Management Act 1991);
and
(b) is permitted under a law of a State or self-governing
Territory.
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).
Actions in Commonwealth marine areas affecting the
environment
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth marine area; and
(c) the action results or will result in a significant impact on the
environment.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Actions in Commonwealth marine areas likely to affect the
environment
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken in a Commonwealth marine area; and
(c) the action is likely to have a significant impact on the environment
and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Actions outside Commonwealth marine areas affecting those
areas
(3) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside a Commonwealth marine area but in the
Australian jurisdiction; and
(c) the action results or will result in a significant impact on the
environment in a Commonwealth marine area.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Actions likely to affect environment in Commonwealth marine
areas
(4) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside a Commonwealth marine area but in the
Australian jurisdiction; and
(c) the action is likely to have a significant impact on the environment
in a Commonwealth marine area and the person is reckless as to that
fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Fishing with impact in State or Territory waters managed by
Commonwealth
(5) A person is guilty of an offence if:
(a) the person takes an action that:
(i) is fishing (as defined in the Fisheries Management Act 1991);
and
(ii) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of the Commonwealth as a result of an
agreement made under section 71 or 72 of that Act before the commencement of
this section; and
(b) the action is taken in the coastal waters (as defined in the
Fisheries Management Act 1991) of a State or the Northern Territory;
and
(c) the action results or will result in a significant impact on the
environment in those coastal waters.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Fishing with likely impact in State or Territory waters managed by
Commonwealth
(6) A person is guilty of an offence if:
(a) the person takes an action that:
(i) is fishing (as defined in the Fisheries Management Act 1991);
and
(ii) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of the Commonwealth as a result of an
agreement made under section 71 or 72 of that Act before the commencement of
this section; and
(b) the action is taken in the coastal waters (as defined in the
Fisheries Management Act 1991) of a State or the Northern Territory;
and
(c) the action is likely to have a significant impact on the environment
in those coastal waters and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Penalties
(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is
punishable on conviction by imprisonment for a term not more than 7 years, a
fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
Defences—general
(8) Subsection (1), (2), (3), (4), (5) or (6) does not apply to an action
if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that the subsection is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Defence—fishing in Commonwealth waters managed by
State
(9) Subsections (1) and (2) do not apply to an action if the
action:
(a) is fishing (as defined in the Fisheries Management Act 1991);
and
(b) is included in the class of activities forming a fishery (as defined
in that Act) that is managed under the law of a State or the Northern Territory
as a result of an agreement made under section 71 or 72 of that Act before the
commencement of this section; and
(c) is permitted under a law of the State or Territory.
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Defence—fishing outside Commonwealth marine areas
(10) Subsections (3) and (4) do not apply to an action that:
(a) is fishing (as defined in the Fisheries Management Act 1991);
and
(b) is permitted under a law of a State or self-governing
Territory.
Note: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
(1) A person must not take an action that is prescribed by the regulations
for the purposes of this subsection.
Civil penalty:
(a) for an individual—5,000 penalty units;
(b) for a body corporate—50,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of this section; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(3) Before the Governor-General makes regulations prescribing an action
for the purposes of subsection (1), the Minister (the Environment
Minister) must:
(a) inform the appropriate Minister of each State and self-governing
Territory of the proposal to prescribe:
(i) the action; and
(ii) a thing as matter protected by this section in relation to the
action; and
(b) invite the appropriate Minister of each State and self-governing
Territory to give the Environment Minister comments on the proposal within a
specified period of at least 28 days; and
(c) consider the comments (if any); and
(d) if comments have been given as described in paragraph (b)—take
all reasonable steps to consult the appropriate Minister of each State and
self-governing Territory with a view to agreeing on:
(i) the action to be prescribed; and
(ii) the thing to be prescribed as matter protected by this section in
relation to the action.
Note: Section 34 provides that the matter protected by this
section is a thing prescribed by the regulations in relation to the
action.
(3A) To avoid doubt, regulations may be made for the purposes of this
section even if no agreement is reached on the matters described in paragraph
(3)(d).
(4) The regulations may prescribe different things as matter protected by
this section in relation to different actions prescribed for the purposes of
subsection (1).
(5) This section applies only to actions:
(a) taken in a Territory or a place acquired by the Commonwealth for
public purposes (within the meaning of section 52 of the Constitution);
or
(b) taken in a Commonwealth marine area; or
(c) taken for the purpose of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) taken by a constitutional corporation; or
(e) whose regulation is appropriate and adapted to give effect to
Australia’s obligations under an agreement with one or more other
countries.
(6) Regulations prescribing an action whose regulation is appropriate and
adapted to give effect to Australia’s obligations under an agreement with
one or more countries must specify the agreement.
Actions on Commonwealth land
(1) A person must not take on Commonwealth land an action that has, will
have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
Actions outside Commonwealth land affecting that land
(2) A person must not take outside Commonwealth land an action
that:
(a) has or will have a significant impact on the environment on
Commonwealth land; or
(b) is likely to have a significant impact on the environment on
Commonwealth land.
Civil penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
Exceptions to prohibitions
(3) Subsection (1) or (2) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(d) there is in force a decision of the Minister under Division 2 of Part
7 that the subsection is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(e) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process); or
(f) the person taking the action is the Commonwealth or a Commonwealth
agency.
Note: Section 28 regulates actions by the Commonwealth or a
Commonwealth agency with a significant impact on the
environment.
Commonwealth land is so much of a Commonwealth area as is
not a Commonwealth marine area.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken on Commonwealth land; and
(c) the action results or will result in a significant impact on the
environment.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken on Commonwealth land; and
(c) the action is likely to have a significant impact on the environment
and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(3) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside Commonwealth land but in the Australian
jurisdiction; and
(c) the action results or will result in a significant impact on the
environment on Commonwealth land.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action is taken outside Commonwealth land but in the Australian
jurisdiction; and
(c) the action is likely to have a significant impact on the environment
on Commonwealth land and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(5) An offence against subsection (1), (2), (3) or (4) is punishable on
conviction by imprisonment for a term not more than 2 years, a fine not more
than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(6) Subsection (1), (2), (3) or (4) does not apply to an action
if:
(a) an approval of the taking of the action by the person is in operation
under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part
9 for the purposes of the subsection; or
(c) there is in force a decision of the Minister under Division 2 of Part
7 that the subsection is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(d) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process); or
(e) the person taking the action is a Commonwealth agency.
Note 1: The defendant bears an evidential burden in relation
to the matters in this subsection. See subsection 13.3(3) of the Criminal
Code.
Note 2: Section 28 regulates actions by the Commonwealth or
a Commonwealth agency with a significant impact on the
environment.
(1) The Commonwealth or a Commonwealth agency must not take inside or
outside the Australian jurisdiction an action that has, will have or is likely
to have a significant impact on the environment inside or outside the Australian
jurisdiction.
Civil penalty:
(a) for a Commonwealth agency that is an individual—1,000 penalty
units;
(b) for a Commonwealth agency that is a body corporate—10,000
penalty units.
Note: This does not apply to decisions to authorise
activities. See Subdivision A of Division 1 of Part 23.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the Commonwealth or
Commonwealth agency is in operation under Part 9 for the purposes of this
section; or
(b) Part 4 lets the Commonwealth or Commonwealth agency take the action
without an approval under Part 9 for the purposes of this section; or
(c) the action is one declared by the Minister in writing to be an action
to which this section does not apply; or
(d) there is in force a decision of the Minister under Division 2 of Part
7 that this section is not a controlling provision for the action and, if the
decision was made because the Minister believed the action would be taken in a
manner specified in the notice of the decision under section 77, the action is
taken in that manner; or
(e) the action is an action described in subsection 160(2) (which
describes actions whose authorisation is subject to a special environmental
assessment process).
(3) The Minister may make a written declaration that actions are actions
to which this section does not apply, but only if he or she is satisfied that it
is necessary in the interests of:
(a) Australia’s defence or security; or
(b) preventing, mitigating or dealing with a national emergency.
(4) The Minister may make a written declaration that all actions, or a
specified class of actions, taken by a specified Commonwealth agency are actions
to which this section does not apply.
(5) The Minister may make a declaration under subsection (4) relating to a
Commonwealth agency’s actions only if he or she is satisfied that, 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) Every 5 years after the commencement of this Act, the Minister must
cause a report to be prepared on whether this Part should be amended (or
regulations made for the purposes of section 25) to prohibit or regulate
additional actions that have, will have or are likely to have a significant
impact on environmental matters that may properly be regarded as being of
national or international significance.
(2) The following must be taken into account in preparing the
report:
(a) environmental matters that are properly regarded as being of national
or international significance;
(b) the adequacy of existing legislation and administrative measures of
the Commonwealth, the States and the Territories to prevent significant impacts
on those matters;
(c) the principles of ecologically sustainable development;
(d) Australia’s international obligations;
(e) the objects of this Act;
(f) the matters (if any) prescribed by the regulations for the purposes of
this paragraph.
(3) Before preparation of the report begins, the Minister must publish in
accordance with the regulations (if any) an invitation for persons to comment,
within a specified period, on the matters to be covered by the report.
(4) Before preparation of the report is completed, the Minister must cause
to be published in accordance with the regulations (if any):
(a) a draft of the report; and
(b) an invitation to comment on the draft within the period specified by
the Minister.
(5) The Minister must publish the report.
(6) To avoid doubt, this section does not affect the operation of section
25.
(1) A person may take an action described in a provision of Part 3 without
an approval under Part 9 for the purposes of the provision if:
(a) the action is taken in a State or self-governing Territory;
and
(b) the action is one of a class of actions declared by a bilateral
agreement between the Commonwealth and the State or Territory not to require
approval under Part 9 for the purposes of the provision (because the action is
approved in accordance with a management plan that is a bilaterally accredited
management plan for the purposes of the bilateral agreement); and
(c) the provision of the bilateral agreement making the declaration is in
operation in relation to the action; and
(d) the bilaterally accredited management plan is in force under a law of
the State or Territory identified in or under the bilateral agreement;
and
(e) the action is taken in accordance with the bilaterally accredited
management plan.
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
(because the action is approved or taken in accordance with a bilaterally
accredited management plan); and
(d) the bilateral agreement specifies that the provision of the agreement
making the declaration has effect in relation to actions in the action
Territory; and
(e) the provision of the bilateral agreement making the declaration is in
operation in relation to the action; and
(f) the bilaterally accredited management plan is in force under a law of
the State or self-governing Territory identified in or under the bilateral
agreement; and
(g) the action is taken in accordance with the bilaterally accredited
management plan.
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 (because the action is approved in accordance with an accredited
management plan for the purposes of the declaration); and
(b) the declaration is in operation when the action is taken; and
(c) the
accredited management plan is in force under a law of the Commonwealth
identified in or under the declaration; and
(d) the action is taken in accordance with the accredited management
plan.
Declaration of actions not needing approval
(1) The Minister may declare in writing that actions in a class of actions
specified in the declaration wholly or partly by reference to the fact that
their taking has been approved by the Commonwealth or a specified Commonwealth
agency, in accordance with a management plan that is an accredited management
plan for the purposes of the declaration, do not require approval under Part 9
for the purposes of a specified provision of Part 3.
Note 1: Subdivisions C and D set out rules about
prerequisites for making a declaration and limits on making a
declaration.
Note 2: Section 35 provides for revocation of a
declaration.
What is an accredited management plan?
(2) A management plan is an accredited management plan for
the purposes of a declaration that certain actions do not require approval under
Part 9 for the purposes of a specified provision of Part 3 if and only if the
management plan:
(a) is in force under a law of the Commonwealth identified in or under the
declaration; and
(b) has been accredited in writing by the Minister in accordance with this
section for the purposes of the declaration.
Accrediting management plan
(3) For the purposes of subsection (2), the Minister may accredit by
written instrument a management plan for the purposes of a declaration. However,
the Minister may do so only if the Minister is satisfied that:
(a) the management plan and the law under which it is in force (or is to
be in force) meet the criteria prescribed by the regulations; and
(b) there has been or will be adequate assessment of the impacts that
actions approved in accordance with the plan:
(i) have or will have; or
(ii) are likely to have;
on each matter protected by a provision of Part 3 to which the
declaration relates; and
(c) actions approved or taken in accordance with the management plan will
not have unacceptable or unsustainable impacts on a matter protected by a
provision of Part 3 to which the declaration relates.
The Minister must publish in accordance with the regulations (if any) the
instrument accrediting the management plan.
Note: Subdivision C sets out more prerequisites for
accrediting a plan.
Tabling of management plan before accreditation
(4) The Minister must cause to be laid before each House of the Parliament
a copy of a management plan that the Minister is considering accrediting for the
purposes of subsection (2), together with a notice that the Minister proposes to
accredit the plan for a declaration under this section.
No accreditation before end of period for opposition
(5) The Minister must not accredit a management plan for the purposes of
subsection (2) under a bilateral agreement:
(a) before, or within 15 sitting days after, a copy of the management plan
is laid before each House of the Parliament under this section; or
(b) if, within those 15 sitting days of a House, notice of a motion to
oppose accreditation of the management plan is given in that House—within
15 sitting days of that House after the notice is given.
No accreditation after accreditation opposed
(6) The Minister must not accredit the management plan if either House of
the Parliament passes a resolution opposing accreditation of the management plan
following a motion of which notice has been given within 15 sitting days after
the management plan has been laid before the House under this section.
No accreditation if motion not defeated in time
(7) The Minister must not accredit the management plan if at the end of 15
sitting days after notice of a motion to oppose accreditation of the management
plan that was given in a House of the Parliament within 15 sitting days after
the management plan was laid before the House under this section:
(a) the notice has not been withdrawn and the motion has not been called
on; or
(b) the motion has been called on, moved and seconded and has not been
withdrawn or otherwise disposed of.
Extended time after dissolution or prorogation
(8) If:
(a) notice of a motion to oppose the accreditation of the management plan
is given in a House of the Parliament (the opposing House);
and
(b) before the end of 15 sitting days of the opposing House after the
notice is given:
(i) the House of Representatives is dissolved or expires; or
(ii) the Parliament is prorogued; and
(c) at the time of the dissolution, expiry or prorogation (as
appropriate):
(i) the notice has not been withdrawn and the motion has not been called
on; or
(ii) the motion has been called on, moved and seconded and has not been
withdrawn or otherwise disposed of;
the management plan is taken for the purposes of subsections (5), (6) and
(7) to have been laid before the opposing House on the first sitting day of that
House after the dissolution, expiry or prorogation (as appropriate).
The matter protected by a provision of Part 3 specified in
column 2 of an item of the following table is the thing specified in column 3 of
the item.
|
Matter protected by provisions of Part 3 |
||
|---|---|---|
|
Item |
Provision |
Matter protected |
|
1 |
section 12 |
the world heritage values of a declared World Heritage property |
|
1A |
section 15A |
the world heritage values of a declared World Heritage property |
|
2 |
section 16 |
the ecological character of a declared Ramsar wetland |
|
2A |
section 17B |
the ecological character of a declared Ramsar wetland |
|
3 |
subsection 18(1) |
a listed threatened species in the extinct in the wild category |
|
4 |
subsection 18(2) |
a listed threatened species in the critically endangered category |
|
5 |
subsection 18(3) |
a listed threatened species in the endangered category |
|
6 |
subsection 18(4) |
a listed threatened species in the vulnerable category |
|
7 |
subsection 18(5) |
a listed threatened ecological community in the critically endangered
category |
|
8 |
subsection 18(6) |
a listed threatened ecological community in the endangered
category |
|
8A |
subsection 18A(1) or (2) |
a listed threatened species (except a species included in the extinct
category of the list referred to in section 178 or a conservation dependent
species) and a listed threatened ecological community (except an ecological
community included in the vulnerable category of the list referred to in section
181) |
|
9 |
section 20 |
a listed migratory species |
|
9A |
section 20A |
a listed migratory species |
|
10 |
section 21 |
the environment |
|
10A |
section 22A |
the environment |
|
11 |
subsection 23(1) |
the environment |
|
12 |
subsection 23(2) |
the environment in a Commonwealth marine area |
|
13 |
subsection 23(3) |
the environment in the coastal waters (as defined in the Fisheries
Management Act 1991) in which the action is taken of the State or
Territory |
|
13A |
subsection 24A(1) or (2) |
the environment |
|
13B |
subsection 24A(3) or (4) |
the environment in a Commonwealth marine area |
|
13C |
subsection 24A(5) or (6) |
the environment in the coastal waters (as defined in the Fisheries
Management Act 1991) in which the action is taken of the State or
Territory |
|
14 |
section 25 |
a thing prescribed by the regulations for the purposes of this item in
relation to an action to which section 25 applies |
|
15 |
subsection 26(1) |
the environment |
|
16 |
subsection 26(2) |
the environment on Commonwealth land |
|
16A |
subsection 27A(1) or (2) |
the environment |
|
16B |
subsection 27A(3) or (4) |
the environment on Commonwealth land |
|
17 |
section 28 |
the environment |
The Minister may make a declaration under section 33 only if the Minister
is satisfied that the declaration:
(a) accords with the objects of this Act; and
(b) meets the requirements (if any) prescribed by the
regulations.
(1) The Minister may make a declaration under section 33 relating to a
declared World Heritage property only if:
(a) the Minister is satisfied that the declaration is not inconsistent
with Australia’s obligations under the World Heritage Convention;
and
(b) the Minister is satisfied that the declaration will promote the
management of the property in accordance with the Australian World Heritage
management principles; and
(c) the declaration meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 33 for the
purposes of a declaration relating to a declared World Heritage property only
if:
(a) the Minister is satisfied that the management plan is not inconsistent
with Australia’s obligations under the World Heritage Convention;
and
(b) the Minister is satisfied that the management plan will promote the
management of the property in accordance with the Australian World Heritage
management principles.
(1) The Minister may make a declaration under section 33 relating to a
declared Ramsar wetland only if:
(a) the Minister is satisfied that the declaration is not inconsistent
with Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the declaration will promote the
management of the wetland in accordance with the Australian Ramsar management
principles; and
(c) the declaration meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 33 for the
purposes of a declaration relating to a declared Ramsar wetland only
if:
(a) the Minister is satisfied that the management plan is not inconsistent
with Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the management plan will promote the
management of the wetland in accordance with the Australian Ramsar management
principles.
(1) The Minister may make a declaration under section 33 relating to a
listed threatened species or a listed threatened ecological community only
if:
(a) the Minister is satisfied that the declaration is not inconsistent
with Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b) the Minister is satisfied that the declaration will promote the
survival and/or enhance the conservation status of each species or community to
which the declaration relates; and
(c) the Minister is satisfied that the declaration is not inconsistent
with any recovery plan for the species or community or a threat abatement plan;
and
(d) the declaration meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 33 for the
purposes of a declaration relating to a listed threatened species or a listed
threatened ecological community only if:
(a) the Minister is satisfied that the management plan is not inconsistent
with Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b) the Minister is satisfied that the management plan will promote the
survival and/or enhance the conservation status of each species or community to
which the declaration relates; and
(c) the Minister is satisfied that the management plan is not inconsistent
with any recovery plan for the species or community or a threat abatement
plan.
(1) The Minister may make a declaration under section 33 relating to a
listed migratory species only if:
(a) the Minister is satisfied that the declaration is not inconsistent
with the Commonwealth’s obligations under whichever of the following
conventions or agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international agreement approved under subsection 209(4);
and
(b) the Minister is satisfied that the declaration will promote the
survival and/or enhance the conservation status of each species to which the
declaration relates; and
(c) the declaration meets the requirements (if any) prescribed by the
regulations.
(2) The Minister may accredit a management plan under section 33 for the
purposes of a declaration relating to a listed migratory species only
if:
(a) the Minister is satisfied that the management plan is not inconsistent
with the Commonwealth’s obligations under whichever of the following
conventions or agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international agreement approved under subsection 209(4);
and
(b) the Minister is satisfied that the management plan will promote the
survival and/or enhance the conservation status of each species to which the
declaration relates.
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 accordance with a
management plan that was an accredited management plan for the purposes of 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 a declaration or accrediting a management plan under section
33, or revoking a declaration under section 35, relating to an action
taken:
(a) by a person for the purposes of trade between Australia and another
country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning of section 99 of
the Constitution) to one State or part of a State over another State or part of
a State.
Publishing declarations
(2) The Minister must publish a declaration made under section 33, an
instrument accrediting a management plan under section 33, or an instrument
under section 35 revoking a declaration, in accordance with the
regulations.
(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 1999.
RFA forestry operations has the same meaning as in the
Regional Forest Agreements Act 1999.
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 1999.
(2) In this Act:
forestry operations has the same meaning as in the
Regional Forest Agreements Act 1999.
(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 delineated as the Eden RFA Region on the map of that New
South Wales Region dated 13 May 1999 and published by the Bureau of Resource
Sciences;
(b) the area delineated as the Lower North East RFA Region on the map of
that New South Wales Region dated 13 May 1999 and published by the Bureau of
Resource Sciences;
(c) the area delineated as the Upper North East RFA Region on the map of
that New South Wales Region dated 13 May 1999 and published by the Bureau of
Resource Sciences;
(d) the area delineated as the South Region on the map of the Comprehensive Regional Assessment South CRA Region dated August 1997 and published by the State Forests GIS Branch of the organisation known as State Forests of