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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 New South Wales;
(e) the area delineated as the Gippsland Region in the map of that Region
dated 11 March 1998 and published by the Forest Information Section of the
Department of Natural Resources and Environment of Victoria;
(f) the area delineated as the North East RFA Region in the map of that
Region dated 11 March 1998 and published by the Forest Information Section of
the Department of Natural Resources and Environment of Victoria;
(g) the area delineated as the West Region in the map of that Region dated
3 March 1999 and published by the Forest Information Section of the Department
of Natural Resources and Environment of Victoria;
(h) the area delineated as the South East Queensland RFA Region on the map
of that Region dated 21 August 1998 and published by the Bureau of Resource
Sciences.
Regulations may amend list of regions
(2) The regulations may amend subsection (1).
Prerequisites for prescribing RFA regions
(3) Before the Governor-General makes regulations amending subsection (1),
the Minister must be satisfied that the proposed regulations, in conjunction
with this Subdivision, will not give preference (within the meaning of section
99 of the Constitution) to one State or part of a State over another State or
part of a State.
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 and a State or a self-governing Territory that:
(a) provides for one or more of the following:
(i) protecting the environment;
(ii) promoting the conservation and ecologically sustainable use of
natural resources;
(iii) ensuring an efficient, timely and effective process for
environmental assessment and approval of actions;
(iv) minimising duplication in the environmental assessment and approval
process through Commonwealth accreditation of the processes of the State or
Territory (or vice versa); and
(b) is expressed to be a bilateral agreement.
Publishing
notice of intention to enter into agreement
(3) As soon as practicable after starting the process of developing a
draft bilateral agreement with a State or self-governing Territory, the Minister
must publish, in accordance with the regulations (if any), notice of his or her
intention to develop a draft bilateral agreement with the State or
Territory.
Publishing bilateral agreements and related material
(4) As soon as practicable after entering into a bilateral agreement, the
Minister must publish in accordance with the regulations:
(a) the agreement; and
(b) a statement of the Minister’s reasons for entering into the
agreement; and
(c) a report on the comments (if any) received on the draft of the
agreement published under Subdivision B.
Declaration of actions not needing approval
(1) A bilateral agreement may declare that actions in a class of actions
specified in the agreement wholly or partly by reference to the fact that their
taking has been approved by:
(a) the State or self-governing Territory that is party to the agreement;
or
(b) an agency of the State or Territory;
in accordance with a management plan that is a bilaterally accredited
management plan for the purposes of the agreement do not require approval under
Part 9 for the purposes of a specified provision of Part 3.
What is a bilaterally accredited management plan?
(2) A management plan is a bilaterally accredited management
plan for the purposes of a bilateral agreement declaring that certain
actions do not require approval under Part 9 for the purposes of a specified
provision of Part 3 if and only if the management plan:
(a) is in force under a law:
(i) of the State or Territory that is party to the agreement;
and
(ii) identified in or under the agreement; and
(b) has been accredited in writing by the Minister in accordance with this
section for the purposes of the agreement.
Accrediting management plan
(3) For the purposes of subsection (2), the Minister may accredit in
writing a management plan for the purposes of a bilateral agreement with a State
or self-governing Territory. However, the Minister may do so only if the
Minister is satisfied that:
(a) the management plan and the law of the State or Territory under which
the management plan 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 management plan:
(i) have or will have; or
(ii) are likely to have;
on each matter protected by a provision of Part 3 in relation to which
the agreement makes a declaration under subsection (1); and
(c) actions approved in accordance with the management plan will not have
unacceptable or unsustainable impacts on a matter protected by a provision of
Part 3 in relation to which the agreement makes a declaration under subsection
(1).
The Minister must publish in accordance with the regulations (if any) the
instrument accrediting the management plan.
Note: Subdivision B 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).
No accreditation before end of period for disallowance
(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 plan is laid
before each House of the Parliament; or
(b) if, within those 15 sitting days of a House, notice of a motion to
disallow the management plan is given in that House—within 15 sitting days
of that House after the notice is given.
Disallowance motion passed
(6) The Minister must not accredit the management plan if either House of
the Parliament passes a resolution disallowing the management plan following a
motion of which notice has been given within 15 sitting days after the plan has
been laid before the House.
Disallowance 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 disallow 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:
(a) the notice has not been withdrawn and the motion has not been called
on; or
(b) the motion has been called on, moved and seconded and has not been
withdrawn or otherwise disposed of.
Extended time after dissolution or prorogation
(8) If:
(a) notice of a motion to disallow the management plan is given in a House
of the Parliament (the disallowing House); and
(b) before the end of 15 sitting days of the disallowing House after the
notice is given:
(i) the House of Representatives is dissolved or expires; or
(ii) the Parliament is prorogued; and
(c) at the time of the dissolution, expiry or prorogation (as
appropriate):
(i) the notice has not been withdrawn and the motion has not been called
on; or
(ii) the motion has been called on, moved and seconded and has not been
withdrawn or otherwise disposed of;
the management plan is taken for the purposes of subsections (5), (6) and
(7) to have been laid before the disallowing House on the first sitting day of
that House after the dissolution, expiry or prorogation (as
appropriate).
No preference
(9) In accrediting a management plan for the purposes of a bilateral
agreement making a declaration relating to an action:
(a) by a person for the purposes of trade between Australia and another
country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning of section 99 of
the Constitution) to one State or part of a State over another State or part of
a State.
Requirements for bilateral agreement making declaration
(10) The declaration does not have effect for the purposes of this Act
unless the bilateral agreement requires the State or self-governing Territory
that is party to the agreement and agencies of the State or Territory:
(a) to act in accordance with a management plan that is a bilaterally
accredited management plan for the purposes of the agreement; and
(b) not to approve the taking of actions that would be inconsistent with a
management plan that is a bilaterally accredited management plan for the
purposes of the agreement.
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.
Application
(1) A bilateral agreement with a State or self-governing Territory
including a declaration that is described in section 46 or 47 and covers actions
described in subsection (2) or (3) does not have effect for the purposes of this
Act unless the agreement also includes the undertaking required by subsection
(2) or (3) (as appropriate).
Agreements including declarations about approvals
(2) A bilateral agreement including a declaration described in section 46
must include an undertaking by the State or Territory to ensure that the
environmental impacts that the following actions covered by the declaration
have, will have or are likely to have on a thing that is not a matter protected
by a provision of Part 3 for which the declaration has effect will be assessed
to the greatest extent practicable:
(a) actions taken in the State or Territory by a constitutional
corporation;
(b) actions taken in the State or Territory by a person for the purposes
of trade or commerce between Australia and another country, between 2 States,
between a State and a Territory or between 2 Territories;
(c) actions that are taken in the State or Territory and are actions whose
regulation is appropriate and adapted to give effect to Australia’s
obligations under an agreement with one or more other countries;
(d) actions taken in the Territory (if applicable).
Agreements including declarations about assessment
(3) A bilateral agreement including a declaration described in section 47
must include an undertaking by the State or Territory to ensure that the
environmental impacts that the following actions covered by the declaration
have, will have or are likely to have (other than the relevant impacts of those
actions) will be assessed to the greatest extent practicable:
(a) actions taken in the State or Territory by a constitutional
corporation;
(b) actions taken in the State or Territory by a person for the purposes
of trade or commerce between Australia and another country, between 2 States,
between a State and a Territory or between 2 Territories;
(c) actions that are taken in the State or Territory and are actions whose
regulation is appropriate and adapted to give effect to Australia’s
obligations under an agreement with one or more other countries;
(d) actions taken in the Territory (if applicable).
Auditing
(4) A bilateral agreement does not have effect for the purposes of this
Act unless it includes a provision recognising that, under the
Auditor-General Act 1997, the Auditor-General may audit the operations of
the Commonwealth public sector (as defined in section 18 of that Act) relating
to the bilateral agreement.
(1) A provision of a bilateral agreement does not have any effect in
relation to an action in a Commonwealth area or an action by the Commonwealth or
a Commonwealth agency, unless the agreement expressly provides
otherwise.
(2) A
provision of a bilateral agreement does not have any effect in relation to an
action in Booderee National Park, Kakadu National Park or Uluru-Kata
Tjuta National Park.
(3) Booderee National Park is the Commonwealth reserve (as
it exists from time to time) to which the name Booderee National Park was given
by Proclamation continued in force by the Environmental Reform (Consequential
Provisions) Act 1999.
The Minister may enter into a bilateral agreement only if he or
she:
(a) has published in accordance with the regulations:
(i) a draft of the agreement; and
(ii) an invitation for any person to give the Minister comments on the
draft within a specified period of at least 28 days after the latest day on
which the draft or invitation was published; and
(b) has taken into account the comments (if any) received in response to
the invitation; and
(c) has considered the role and interests of indigenous peoples in
promoting the conservation and ecologically sustainable use of natural resources
in the context of the proposed agreement, taking into account Australia’s
relevant obligations under the Biodiversity Convention.
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.
(1) The Minister may enter into a bilateral agreement containing a
provision relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the agreement will promote the
management of the property in accordance with the Australian World Heritage
management principles; and
(c) the provision meets the requirements (if any) prescribed by the
regulations.
(2) The
Minister may accredit a management plan under section 46 for the purposes of a
bilateral agreement containing a provision relating to a declared World Heritage
property only if:
(a) the Minister is satisfied that the plan is not inconsistent with
Australia’s obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the plan will promote the management of
the property in accordance with the Australian World Heritage management
principles.
(1) The Minister may enter into a bilateral agreement containing a
provision relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the agreement will promote the
management of the wetland in accordance with the Australian Ramsar management
principles; and
(c) the provision meets the requirements (if any) prescribed by the
regulations.
(2) The
Minister may accredit a management plan under section 46 for the purposes of a
bilateral agreement containing a provision relating to a declared Ramsar wetland
only if:
(a) the Minister is satisfied that the plan is not inconsistent with
Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the plan will promote the management of
the wetland in accordance with the Australian Ramsar management
principles.
(1) The Minister may enter into a bilateral agreement containing a
provision relating to a listed threatened species or a listed threatened
ecological community only if:
(a) the Minister is satisfied that the provision is not inconsistent with
Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b) the Minister is satisfied that the agreement will promote the survival
and/or enhance the conservation status of each species or community to which the
provision relates; and
(c) the Minister is satisfied that the provision is not inconsistent with
any recovery plan for the species or community or a threat abatement plan;
and
(d) the provision meets the requirements (if any) prescribed by the
regulations.
(2) The
Minister may accredit a management plan under section 46 for the purposes of a
bilateral agreement containing a provision relating to a listed threatened
species or a listed threatened ecological community only if:
(a) the Minister is satisfied that the 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 plan 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 plan is not inconsistent with any
recovery plan for the species or community or a threat abatement plan.
(1) The Minister may enter into a bilateral agreement containing a
provision relating to a listed migratory species only if:
(a) the Minister is satisfied that the provision is not inconsistent with
the Commonwealth’s obligations under whichever of the following
conventions or agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international agreement approved under subsection 209(4);
and
(b) the Minister is satisfied that the agreement will promote the survival
and/or enhance the conservation status of each species to which the provision
relates; and
(c) the provision meets the requirements (if any) prescribed by the
regulations.
(2) The
Minister may accredit a management plan under section 46 for the purposes of a
bilateral agreement containing a provision relating to a listed migratory
species only if:
(a) the Minister is satisfied that the 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 plan will promote the survival
and/or enhance the conservation status of each species to which the provision
relates.
The Minister must not enter into a bilateral agreement, or accredit for
the purposes of a bilateral agreement a management plan, 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.
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.
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 for the shorter of the following
periods:
(a) 3 months;
(b) the period that is specified in the notice (either by reference to
time or by reference to the occurrence of an event).
(4) Subsection (3) has effect subject to section 62.
(5) As
soon as practicable after the Minister (the Environment Minister)
gives the appropriate Minister of the State or Territory (the State or
Territory Minister) notice of the suspension, the Environment Minister
must consult the State or Territory Minister about the non-compliance.
(6) To avoid doubt, this section has effect despite sections 58 and
59.
(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 must revoke the notice of suspension or cancellation by
another written notice:
(a) given to the appropriate Minister of the State or Territory;
and
(b) published in accordance with the regulations.
However, the Environment Minister must not revoke the notice of
cancellation after cancellation of the effect of the agreement occurs.
(3) Suspension or cancellation of the effect of the agreement does not
occur if the notice of suspension or cancellation is revoked before the
suspension or cancellation would otherwise occur.
(4) Suspension of the effect of the agreement ends when the notice of
suspension is revoked.
Minister may give notice of cancellation or suspension
(1) The Minister must give the appropriate Minister of a State or
self-governing Territory that is party to a bilateral agreement a notice under
subsection (2) or (3) if the appropriate Minister has requested a notice under
that subsection in accordance with the agreement.
Notice of suspension
(2) A notice may state that the effect of the agreement, or specified
provisions of the agreement, for the purposes of this Act or specified
provisions of this Act is suspended, either generally or in relation to actions
in a specified class, for a period:
(a) starting on a specified day after the day on which the notice is
given; and
(b) ending on a specified later day or on the occurrence of a specified
event.
Notice of cancellation
(3) A notice may state that the effect of the agreement, or specified
provisions of the agreement, for the purposes of this Act or specified
provisions of this Act is cancelled, either generally or in relation to actions
in a specified class, on a specified day after the day on which the notice is
given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified provision of an agreement is
suspended or cancelled for the purposes of this Act, or of a specified provision
of this Act, either generally or in relation to actions in a specified class, in
accordance with the notice.
Publishing notice and reasons
(5) As soon as practicable after the suspension or cancellation occurs,
the Minister must publish in accordance with the regulations:
(a) notice of the suspension or cancellation; and
(b) reasons for the suspension or cancellation.
Application
(1) This section explains how this Act operates in relation to an action
that a person was able to take without approval under Part 9 for the purposes of
a provision of Part 3 because of Division 1 of Part 4 and a provision of a
bilateral agreement immediately before the cancellation or suspension of the
operation of the provision of the agreement for the purposes of this Act or of
any provision of this Act.
Actions approved in specified manner may be taken
(2) If the action was able to be taken without approval under Part 9
because its taking had already been approved in accordance with a management
plan that is a bilaterally accredited management plan for the purposes of the
agreement, this Act continues to operate in relation to the action as if the
suspension or cancellation had not occurred.
(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.
Application of subsection (2)
(1) Subsection (2) explains how this Act operates in relation to an action
that a person was able to take without approval under Part 9 for the purposes of
a provision of Part 3 because of Division 1 of Part 4 and a provision of a
bilateral agreement immediately before the agreement ceases to have effect for
the purposes of this Act under section 65.
Actions already approved may be taken
(2) This Act continues to operate in relation to the action as if the
agreement had not ceased to have effect if the action was able to be taken
without approval under Part 9 because its taking had already been approved in
accordance with a management plan that was a bilaterally accredited management
plan for the purposes of the agreement.
The following is a simplified outline of this Chapter:
This Chapter deals with assessment and approval of actions that Part 3
prohibits without approval (controlled actions). (It does not deal
with actions that a bilateral agreement declares not to need
approval.)
A person proposing to take an action, or a government body aware of the
proposal, may refer the proposal to the Minister so he or she can
decide:
(a) whether his or her approval is needed to take the action;
and
(b) how to assess the impacts of the action to be able to make an informed
decision whether or not to approve the action.
An assessment may be done using:
(a) a process laid down under a bilateral agreement; or
(b) a process specified in a declaration by the Minister; or
(c) a process accredited by the Minister; or
(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.
(5) Subsections
(1) and (2) do not apply in relation to a person proposing to take an action if
the person has been informed by the Minister under section 73 that the proposal
has been referred to the Minister.
(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 or a longer
period agreed by the Minister and the requested person, State, Territory or
agency (as appropriate).
Note 1: If the proposal to take the action is not referred,
the person cannot get an approval under Part 9 to take the action. If taking the
action without approval contravenes Part 3, an injunction could be sought to
prevent or stop the action, or the person could be ordered to pay a pecuniary
penalty.
Note 2: Section 156 sets out rules about time
limits.
(2) In making a request, the Minister must act in accordance with the
regulations (if any).
(1) A Commonwealth agency (except the Minister) that is aware of a
proposal by a person to take an action may refer the proposal to the Minister
for a decision whether or not the action is a controlled action, if the agency
has administrative responsibilities relating to the action.
(2) This section does not apply in relation to a proposal by the
Commonwealth or a Commonwealth agency to take an action.
Note: Section 68 applies instead.
(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.
As soon as practicable after receiving a referral under section 69 or 71
of a proposal by a person to take an action, the Minister must:
(a) inform the person of the referral; and
(b) invite the person to give the Minister relevant information about
whether the action is a controlled action, within 10 business days.
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 public comment
(3) As soon as practicable after receiving a referral of a proposal to
take an action, the Environment Minister must cause to be published on the
Internet:
(a) the referral; and
(b) an invitation for anyone to give the Minister comments within 10
business days (measured in Canberra) on whether the action is a controlled
action.
Section does not apply if proponent says action is controlled
action
(4) This section does not apply in relation to a referral of a proposal to
take an action by the person proposing to take the action if the person states
in the referral that the person thinks the action is a controlled
action.
Is the action a controlled action?
(1) The Minister must decide:
(a) whether the action that is the subject of a proposal referred to the
Minister is a controlled action; and
(b) which provisions of Part 3 (if any) are controlling provisions for the
action.
Minister must consider public comment
(1A) In making a decision under subsection (1) about the action, the
Minister must consider the comments (if any) received:
(a) in response to the invitation (if any) under subsection 74(3) for
anyone to give the Minister comments on whether the action is a controlled
action; and
(b) within the period specified in the invitation.
Considerations in decision
(2) If, when the Minister makes a decision under subsection (1), it is
relevant for the Minister to consider the impacts of an action:
(a) the Minister must consider all adverse impacts (if any) the
action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3; and
(b) must not consider any beneficial impacts the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3.
Designating a proponent of the action
(3) If the Minister decides that the action is a controlled action, the
Minister must designate a person as proponent of the action.
Consent to designation
(4) The Minister may designate a person who does not propose to take the
action only if:
(a) the person agrees to being designated; and
(b) the person proposing to take the action agrees to the
designation.
Timing of decision and designation
(5) The Minister must make the decisions and designation:
(a) within 20 business days of the referral; or
(b) if the person proposing to take the action referred the proposal and
stated in the referral that the person thought the action was a controlled
action—within 10 business days of the referral.
Note: Section 156 sets out rules about time
limits.
Time does not run while further information being sought
(6) If the Minister has requested more information under section 76 for
the purposes of making a decision, a day is not to be counted as a business day
for the purposes of subsection (5) if it is:
(a) on or after the day the Minister requested the information;
and
(b) on or before the day on which the Minister receives the last of the
information requested.
Running of time may be suspended by agreement
(7) The Minister and the person proposing to take the action may agree in
writing that days within a period worked out in accordance with the agreement
are not to be counted as business days for the purposes of subsection (5). If
the agreement is made, those days are not to be counted for the purposes of that
subsection.
If the Minister believes on reasonable grounds that the referral of a
proposal to take an action does not include enough information for the Minister
to decide:
(a) whether the action is a controlled action; or
(b) which provisions of Part 3 (if any) are controlling provisions for the
action;
the Minister may request the person proposing to take the action to provide
specified information relevant to making the decision.
Giving notice
(1) Within 10 business days after deciding whether an action that is the
subject of a proposal referred to the Minister is a controlled action or not,
the Minister must:
(a) give written notice of the decision to:
(i) the person proposing to take the action; and
(ii) if the Minister has designated as proponent of the action a person
who does not propose to take the action—that person; and
(iii) if the Minister decided that the action is a controlled action
because of Division 1 of Part 3 (which deals with matters of national
environmental significance)—the appropriate Minister of each State or
self-governing Territory in which the action is to be taken; and
(b) publish notice of the decision in accordance with the
regulations.
Note 1: Section 156 sets out rules about time
limits.
Note 2: Subparagraph (1)(a)(iii) also applies to actions to
be taken in an area offshore from a State or the Northern Territory. See section
157.
Notice must identify any applicable controlling provisions
(2) If the decision is that the action is a controlled action, the notice
must identify each of the controlling provisions.
Identifying manner of action so it is not caught by provision of Part
3
(3) If, in deciding whether the action is a controlled action or not, the
Minister has made a decision (the component decision) that a
particular provision of Part 3 is not a controlling provision for the action
because the Minister believes it will be taken in a particular manner (whether
or not in accordance with an accredited management plan for the purposes of a
declaration under section 33 or a bilaterally accredited management plan for the
purposes of a bilateral agreement), the notice must set out the component
decision, identifying the provision and the manner.
Note: The Minister may decide a provision of Part 3 is not a
controlling provision for an action because he or she believes that the action
will be taken in a manner that will ensure the action will not have (and is not
likely to have) an adverse impact on the matter protected by the
provision.
Reasons for decision
(4) The Minister must give reasons for the decision to a person
who:
(a) has been given the notice; and
(b) within 28 days of being given the notice, has requested the Minister
to provide reasons.
The Minister must do so as soon as practicable, and in any case within 28
days of receiving the request.
Reasons need not be given in some cases
(5) Subsection (4) does not apply in relation to a decision whether or not
an action is a controlled action if the person proposing to take the
action:
(a) referred the proposal to the Minister; and
(b) stated in the referral that the person thought the action was a
controlled action.
Limited power to vary or substitute decisions
(1) The Minister may revoke a decision (the first decision)
made under subsection 75(1) about an action and substitute a new decision under
that subsection for the first decision, but only if:
(a) the Minister is satisfied that the revocation and substitution is
warranted by the availability of substantial new information about the impacts
that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; or
(aa) the Minister is satisfied that the revocation and substitution is
warranted by a substantial change in circumstances that was not foreseen at the
time of the first decision and relates to the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; or
(b) if the first decision was that the action was not a controlled action
because the Minister believed the action would be taken in the manner identified
in the notice under subsection 77(3)—the Minister is satisfied that the
action is not being, or will not be, taken in the manner identified;
or
(c) if the first decision was that the action was not a controlled action
because of a provision of a bilateral agreement or a declaration under section
33 and a management plan that is a bilaterally accredited management plan for
the purposes of the agreement or an accredited management plan for the purposes
of the declaration:
(i) the provision of the agreement or declaration no longer operates in
relation to the action; or
(ii) the management plan is no longer in force under a law of the
Commonwealth, a State or a self-governing Territory identified in or under the
agreement or declaration; or
(d) the Minister is requested under section 79 to reconsider the
decision.
Reversing decision that provision of Part 3 is not controlling
provision
(2) A provision of Part 3 letting an action be taken if the Minister has
decided that a particular provision (the prohibiting provision) of
that Part is not a controlling provision for the action does not prevent the
Minister from acting under subsection (1) to revoke a decision that the
prohibiting provision is not a controlling provision for an action and
substitute a decision that the prohibiting provision is a controlling provision
for the action.
Decision not to be revoked after approval granted or refused or action
taken
(3) The Minister must not revoke the first decision after:
(a) the Minister has granted or refused an approval of the taking of the
action; or
(b) the action is taken.
General effect of change of decision
(4) When the first decision is revoked and a new decision is substituted
for it:
(a) any provisions of this Chapter that applied in relation to the action
because of the first decision cease to apply in relation to the action;
and
(b) any provisions of this Chapter that are relevant because of the new
decision apply in relation to the action.
Change of designation of proponent
(5) If the Minister believes a person (the first proponent)
designated under section 75 as proponent of an action is no longer an
appropriate person to be the designated proponent of the action, the Minister
may revoke the designation and designate another person (the later
proponent) as proponent of the action.
Consent to designation
(6) The Minister may designate the other person as proponent of the action
only if:
(a) he or she consents to it and the person proposing to take the action
agrees to it; or
(b) the other person is the person proposing to take the action.
Effect of change of designated proponent
(7) If the Minister revokes the designation of the first proponent and
designates the later proponent:
(a) the provisions of this Chapter that applied to the first proponent
cease to apply to the first proponent in relation to the action but apply to the
later proponent; and
(b) for the purposes of those provisions the later proponent is taken to
have done anything the first proponent did in relation to the action;
and
(c) for the purposes of those provisions anything done in relation to the
first proponent in relation to the action is taken to have been done in relation
to the later proponent.
(1) This section applies if:
(a) the Minister (the Environment Minister) makes a decision
about whether a provision of Division 1 of Part 3 is a controlling provision for
an action proposed to be taken in a State or self-governing Territory;
and
(b) the person proposing to take the action did not refer the proposal to
the Minister with a statement that the person thought the action was a
controlled action.
Note 1: Division 1 of Part 3 deals with requirements for
approvals for actions involving matters of national environmental
significance.
Note 2: This section also applies to actions to be taken in
an area offshore from a State or the Northern Territory. See section
157.
(2) Within 5 business days of being notified of the decision, a Minister
of the State or Territory may request the Environment Minister to reconsider the
Environment Minister’s decisions made under subsection 75(1).
Note: Subsection 75(1) provides for decisions about whether
the action is a controlled action and what the controlling provisions for the
action are.
(3) Within 20 business days after receiving a request to reconsider a
decision, the Environment Minister must:
(a) reconsider the decision; and
(b) either confirm it or revoke it and substitute a new decision for it;
and
(c) give written notice of the outcome of the reconsideration and reasons
for the outcome to:
(i) the Minister who requested the reconsideration; and
(ii) the person proposing to take the action; and
(iii) the designated proponent of the action; and
(d) after giving notice as described in paragraph (c), publish notice of
the outcome and the reasons for it in accordance with the regulations.
Note: Section 156 sets out rules about time
limits.
The following is a simplified outline of this Part:
This Part provides for the assessment of impacts of controlled actions, to
provide information for decisions whether or not to approve the taking of the
actions. However, this Part does not apply to actions that a bilateral agreement
or Ministerial declaration says are to be assessed in another way.
For actions that are to be assessed under this Part, the Minister must
choose one of the following methods of assessment:
(a) an accredited assessment process;
(b) an assessment on preliminary documentation (see Division 4);
(c) a public environment report (see Division 5);
(d) an environmental impact statement (see Division 6);
(e) a public inquiry (see Division 7).
(1) This Part applies to the assessment of the relevant impacts of an
action that the Minister has decided under Division 2 of Part 7 is a controlled
action.
(2) This section has effect subject to sections 83 and 84.
(3) This section does not limit section 82.
If the Minister has decided the action is a controlled
action
(1) If the Minister has decided under Division 2 of Part 7 that an action
is a controlled action, the relevant impacts of the action are the
impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3 that the Minister has
decided under that Division is a controlling provision for the action.
If the Minister has not decided whether the action is
controlled
(2) If an action is a controlled action or would be apart from Division 1
or 2 of Part 4 (which provide that approval under Part 9 is not needed for an
action covered by a bilateral agreement or declaration)—the relevant
impacts of the action are impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3 that is a controlling
provision for the action or would be apart from whichever of those Divisions is
relevant.
Relationship between subsections (1) and (2)
(3) Subsection (1) has effect despite subsection (2).
(1) This Part does not apply in relation to an action if:
(a) the action is to be taken in a State or self-governing Territory;
and
(b) a bilateral agreement between the Commonwealth and the State or
Territory declares that actions in a class that includes the action need not be
assessed under this Part; and
(c) the provision of the bilateral agreement making the declaration is in
operation in relation to the action.
Note 1: Subsection (1) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
Note 2: Section 47 deals with bilateral agreements making
declarations described in paragraph (1)(b).
Note 2A: An action will be in a class of actions declared
not to need assessment under this Part only if the action has been assessed in a
manner specified in the bilateral agreement.
Note 3: Division 3 of Part 5 explains how the operation of a
bilateral agreement may be ended or suspended. Also, under section 49, bilateral
agreements do not operate in relation to actions in Commonwealth areas, or
actions taken by the Commonwealth or a Commonwealth agency, unless they
expressly provide that they do.
(2) If the action is to be taken in 2 or more States or self-governing
Territories, this section does not operate unless it operates in relation to
each of those States or Territories.
When this Part does not apply
(1) This Part does not apply in relation to an action if:
(a) the Minister has declared in writing that actions in a class that
includes the action need not be assessed under this Part; and
(b) the declaration is in operation.
Note: An action will be in a class of actions declared not
to need assessment under this Part only if the action has been assessed in a
manner specified in the declaration.
Declaration
(2) The Minister may declare in writing that actions in a specified class
of actions assessed by the Commonwealth or a Commonwealth agency in a specified
manner do not require assessment under this Part.
Prerequisites for making a declaration
(3) The Minister may make a declaration only if he or she is satisfied
that:
(a) assessment of an action in the specified manner will include
assessment of the impacts the action:
(i) has or will have; or
(ii) is likely to have;
on each matter protected by a provision of Part 3; and
(b) the specified manner of assessment meets the standards (if any)
prescribed by the regulations; and
(c) if the taking of an action assessed in the specified manner must be
approved under Part 9, he or she will receive a report including, or accompanied
by, enough information about the relevant impacts of the action to let him or
her make an informed decision whether or not to approve under Part 9 (for the
purpose of each controlling provision) the taking of the action.
Further requirements for making a declaration
(3A) Sections 34A, 34B, 34C, 34D and 34E apply in relation to the making
of a declaration under this section in the same way that they apply to the
making of a declaration under section 33.
Specified manner of assessment
(4) The manner of assessment that may be specified in a declaration
includes assessment by a Commonwealth agency under a law of the Commonwealth.
This does not limit subsection (2).
Publishing declaration
(5) The Minister must publish a declaration in accordance with the
regulations.
Revoking declaration
(6) The Minister may, by instrument in writing published in accordance
with the regulations, revoke a declaration.
Minister must not give preference
(7) In making or revoking a declaration relating to an action
taken:
(a) by a person for the purposes of trade between Australia and another
country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning of section 99 of
the Constitution) to one State or part of a State over another State or part of
a State.
The following is a simplified outline of this Division:
The Minister must choose one of the following ways of assessing the
relevant impacts of an action the Minister has decided is a controlled
action:
(a) an accredited assessment process;
(b) an assessment on preliminary documentation;
(c) a public environment report;
(d) an environmental impact statement;
(e) a public inquiry.
The designated proponent of an action, or a person proposing to take an
action, must give the Minister in the prescribed way the prescribed information
relating to the action.
Note: The Minister must not decide on an approach for
assessment until he or she receives information under this section. See
subsection 88(1).
Minister must choose one assessment approach
(1) The Minister must decide which one of the following approaches must be
used for assessment of the relevant impacts of the action:
(a) assessment by an accredited assessment process;
(b) assessment on preliminary documentation under Division 4;
(c) assessment by public environment report under Division 5;
(d) assessment by environmental impact statement under Division
6;
(e) assessment by inquiry under Division 7.
Minister must consult before making decision
(2) If:
(a) the action is to be taken in a State or self-governing Territory
and
(b) a controlling provision for the action is in Division 1 of Part 3
(about matters of national environmental significance);
the Minister must invite the appropriate Minister of the State or Territory
to provide information relevant to deciding which approach is appropriate,
before deciding on the approach to be used for assessment of the relevant
impacts of the action.
Note: Subsection (2) also applies to actions to be taken in
an area offshore from a State or the Northern Territory. See section
157.
Considerations in making choice
(3) In making the decision, the Minister must consider:
(a) information relating to the action given to the Minister in the
referral of the proposal to take the action or under section 86; and
(b) any other information available to the Minister about the relevant
impacts of the action that the Minister considers relevant (including
information in a report on the impacts of actions under a policy, plan or
program under which the action is to be taken that was given to the Minister
under an agreement under Part 10 (about strategic assessments)); and
(c) any relevant information received in response to an invitation under
subsection (2); and
(d) the matters (if any) prescribed by the regulations; and
(e) the guidelines (if any) published under subsection (6).
Accredited assessment process
(4) The Minister may decide on an assessment by an accredited assessment
process only if the Minister is satisfied that:
(a) the process is to be carried out under a law of the Commonwealth, a
State or a self-governing Territory; and
(b) the process and the law meet the standards (if any) prescribed by the
regulations; and
(c) the process will ensure that the relevant impacts of the action are
adequately assessed; and
(d) he or she will receive a report of the outcome of the process that
will provide enough information on the relevant impacts of the action to let him
or her make an informed decision whether or not to approve under Part 9 (for the
purposes of each controlling provision) the taking of the action.
Assessment on preliminary documentation
(5) The Minister may decide on an assessment on preliminary documentation
under Division 4 only if the Minister is satisfied (after considering the
matters in subsection (3)) that that approach will allow the Minister to make an
informed decision whether or not to approve under Part 9 (for the purposes of
each controlling provision) the taking of the action.
Guidelines for choosing assessment approach
(6) The Minister may publish in the Gazette guidelines setting out
criteria for deciding which approach must be used for assessing the relevant
impacts of an action.
Initial decision
(1) The Minister must decide on the approach to be used for assessment of
the relevant impacts of the action within 20 business days after whichever of
the following days is later (or either of them if they are the same):
(a) the day the Minister decides under Division 2 of Part 7 that the
action is a controlled action;
(b) the day the Minister is given information relating to the action as
required by section 86.
Note: Section 156 sets out rules about time
limits.
Extended time if difference of opinion with State or
Territory
(2) However, subsection (1) has effect as if it referred to 30 business
days (instead of 20 business days) if the Minister believes that information
provided in response to an invitation under subsection 87(2) cannot be
considered adequately to make the decision in the time allowed by subsection (1)
apart from this subsection.
Subsection (2) does not require decision to be delayed
(3) To avoid doubt, subsection (2) does not require the Minister to delay
making a decision:
(a) until information is received in response to an invitation under
subsection 87(2); or
(b) until 20 business days after the Minister is given information
relating to the action under section 86.
Time does not run while further information sought
(4) If the Minister has requested more information under section 89 for
the purposes of deciding on the approach to be used for assessment of the
relevant impacts of the action, a day is not to be counted as a business day for
the purposes of subsection (1) if it is:
(a) on or after the day the Minister requested the information;
and
(b) on or before the day on which the Minister receives the last of the
information requested.
Running of time may be suspended by agreement
(5) The Minister and the designated proponent of the action may agree in
writing that days within a period worked out in accordance with the agreement
are not to be counted as business days for the purposes of subsection (1). If
the agreement is made, those days are not to be counted for the purposes of that
subsection.
If the Minister believes on reasonable grounds that the information given
to the Minister in relation to an action is not enough to allow the Minister to
make an informed decision on the approach to be used for assessment of the
relevant impacts of the action, the Minister may request the designated
proponent to provide specified information relevant to making the
decision.
Application
(1) This section applies if:
(a) the Minister has made a decision (the first decision)
under section 87 that the relevant impacts of an action must be assessed
by:
(i) assessment by public environment report under Division 5; or
(ii) assessment by environmental impact statement under Division 6;
and
(b) the designated proponent publishes:
(i) a draft report under section 98 (about public environment reports);
or
(ii) a draft statement under section 103 (about environmental impact
statements).
Revoking and substituting decision
(2) The Minister may revoke the first decision and make another decision
(the new decision) under section 87 (in substitution for the first
decision) that the relevant impacts of the action must be assessed by an inquiry
under Division 7.
Effect of revocation and substitution
(3) When the first decision is revoked and the new decision is substituted
for it:
(a) whichever of Divisions 5 and 6 applied in relation to the action
because of the first decision ceases to apply in relation to the action;
and
(b) Division 7 applies in relation to the action.
(1) Within 10 business days after making a decision on the approach to be
used for assessment of the relevant impacts of an action, the Minister
must:
(a) give written notice of the decision to:
(i) the designated proponent of the action; and
(ii) if the action is to be taken in a State or self-governing Territory
and a controlling provision for the action is in Division 1 of Part 3 (which
deals with matters of national environmental significance)—the appropriate
Minister of the State or Territory; and
(b) publish notice of the decision in accordance with the
regulations.
Note 1: Section 156 sets out rules about time
limits.
Note 2: Subparagraph (1)(a)(ii) also applies to actions to
be taken in an area offshore from a State or the Northern Territory. See section
157.
(2) If the Minister decided that the relevant impacts of the action are to
be assessed by an accredited assessment process, the written notice and the
published notice must specify the process.
This Division applies in relation to an action if the Minister has
decided under section 87 that the relevant impacts of the action must be
assessed by assessment on preliminary documentation under this
Division.
(1) Within 10 business days of the decision, the Minister must give the
designated proponent a written direction:
(a) to publish within 10 business days in accordance with the
regulations:
(i) specified information included in the referral to the Minister of the
proposal to take the action; and
(ii) specified information that was given to the Minister under section
86; and
(iii) specified information relating to the action that was given to the
Minister after the referral but before the Minister made the decision under
section 87; and
(iv) an invitation for anyone to give the designated proponent comments
relating to the information or the action within a period of the length
specified in the direction; and
(b) to give to the Minister a copy and summary of any comments received
within the period specified in the invitation.
(2) The designated proponent must comply with the direction.
(1) After the period for comment, the designated proponent must give the
Minister:
(a) a document that sets out the information provided to the Minister
previously in relation to the action, with any changes or additions needed to
take account of any comments received by the designated proponent; or
(b) if the designated proponent did not receive any comments—a
written statement to that effect.
(2) The Minister may refuse to accept a document referred to in paragraph
(1)(a) if he or she believes on reasonable grounds that it is inadequate for the
purposes of making an informed decision on approving under Part 9 (for the
purposes of each controlling provision) the taking of the action.
Preparation
(1) The Secretary must prepare, and give to the Minister, a report
relating to the action within 20 business days after:
(b) if the designated proponent has received comments in response to an
invitation under section 93—the day the Minister accepted from the
designated proponent the document described in paragraph 94(1)(a); or
(c) if the designated proponent has not received any comments in response
to an invitation under section 93—the day the designated proponent gave
the Minister the statement to that effect under paragraph 94(1)(b).
Publication
(2) The Secretary must provide to a person who asks for the report a copy
of it (either free or at a reasonable charge determined by the
Secretary).
Discretion not to publish
(3) However, the Secretary may refuse to provide a copy of so much of the
report as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of the security of the Commonwealth or its providing advice to
the Minister; or
(b) the Secretary is satisfied is commercial-in-confidence.
Commercial-in-confidence
(4) The Secretary must not be satisfied that a part of the report is
commercial-in-confidence unless a person demonstrates to the Secretary
that:
(a) release of the information in that part would cause competitive
detriment to the person; and
(b) the information in that part is not in the public domain;
and
(c) the information is not required to be disclosed under another law of
the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.
This Division applies in relation to an action if the Minister has
decided under section 87 that the relevant impacts of the action must be
assessed by a public environment report under this Division.
(1) The Minister must prepare written guidelines for the content of a
draft report about the relevant impacts of the action. The Minister must do
so:
(a) within 20 business days of the decision that the relevant impacts of
the action must be assessed by a public environment report under this Division;
or
(b) if the Minister invites a person to comment on a draft of the
guidelines within a period specified by the Minister—within 20 business
days after the end of that period (or the latest of those periods, if there is
more than one).
(2) In preparing the guidelines, the Minister must seek to ensure that the
draft report will:
(a) contain enough information about the action and its relevant impacts
to allow the Minister to make an informed decision whether or not to approve
under Part 9 (for the purposes of each controlling provision) the taking of the
action; and
(b) address the matters (if any) prescribed by the regulations.
(3) The guidelines may also provide for the draft report to include
information about other certain and likely impacts of the action if:
(a) the action is to be taken in a State or self-governing Territory;
and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the draft report includes
information about those other impacts to help the State or Territory, or an
agency of the State or Territory, make decisions about the action; and
(c) the action:
(i) is to be taken by any person for the purposes of trade or commerce
between Australia and another country, between 2 States, between a State and a
Territory or between 2 Territories or by a constitutional corporation;
or
(ii) is an action whose regulation is appropriate and adapted to give
effect to Australia’s obligations under an agreement with one or more
other countries.
Note: Paragraph (3)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(4) Division 2 does not limit:
(a) subsection (3); or
(b) section 98 so far as it relates to guidelines prepared in reliance on
that subsection.
(5) In preparing the guidelines, the Minister may:
(a) invite anyone to comment on a draft of the guidelines within a period
specified by the Minister; and
(b) take account of the comments received (if any).
Designated proponent’s obligations
(1) The designated proponent of the action must:
(a) prepare a draft report about the relevant impacts of the action (and
any other impacts mentioned under subsection 97(3) in the guidelines for the
content of the draft report); and
(b) obtain the Minister’s approval for publication of the draft
report; and
(c) publish in accordance with the regulations:
(i) the draft report; and
(ii) an invitation for anyone to give the designated proponent comments
relating to the draft report or the action within the period specified in the
invitation; and
(d) give the Minister a copy and summary of the comments (if any) received
within the period specified in the invitation.
Approval of publication of draft report
(2) The Minister may only approve the publication of the draft report if
he or she is satisfied that the draft report adequately addresses the guidelines
for the content of the draft report.
Period for comment
(3) The period specified in the invitation to comment must be the period
specified in writing given by the Minister to the designated proponent. The
Minister must not specify a period of less than 20 business days.
Designated proponent must finalise report
(1) After the end of the period specified in the invitation to comment
under section 98, the designated proponent must finalise the draft report,
taking account of the comments received (if any), and give the finalised report
to the Minister.
Form of finalised report
(2) The designated proponent may give the finalised report to the Minister
in the form of:
(a) a revised version of the draft report; or
(b) the draft report and a supplement to the draft report.
Refusal to accept finalised report
(3) The Minister may refuse to accept the finalised report if he or she is
satisfied on reasonable grounds that the finalised report is inadequate for the
purposes of making an informed decision on approving under Part 9 (for the
purposes of each controlling provision) the taking of the action.
Publication of finalised report
(4) After the Minister has accepted the finalised report, the designated
proponent must publish it in accordance with the regulations.
Preparation
(1) The Secretary must prepare, and give to the Minister, a report
relating to the action within 20 business days after the day on which the
Minister accepted the finalised report from the designated proponent.
Publication
(2) The Secretary must provide to a person who asks for the report a copy
of it (either free or at a reasonable charge determined by the
Secretary).
Discretion not to publish
(3) However, the Secretary may refuse to provide a copy of so much of the
report as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of the security of the Commonwealth or its providing advice to
the Minister; or
(b) the Secretary is satisfied is commercial-in-confidence.
Commercial-in-confidence
(4) The Secretary must not be satisfied that a part of the report is
commercial-in-confidence unless a person demonstrates to the Secretary
that:
(a) release of the information in that part would cause competitive
detriment to the person; and
(b) the information in that part is not in the public domain;
and
(c) the information is not required to be disclosed under another law of
the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.
This Division applies in relation to an action if the Minister has
decided under section 87 that the relevant impacts of the action must be
assessed by an environmental impact statement under this Division.
(1) The Minister must prepare written guidelines for the content of a
draft statement about the action and its relevant impacts. The Minister must do
so:
(a) within 20 business days of the decision that the relevant impacts of
the decision must be assessed by an environmental impact statement under this
Division; or
(b) if the Minister invites a person to comment on a draft of the
guidelines within a period specified by the Minister—within 20 business
days after the end of that period (or the latest of those periods, if there is
more than one).
(2) In preparing the guidelines, the Minister must seek to ensure that the
draft statement will:
(a) contain enough information about the action and its relevant impacts
to allow the Minister to make an informed decision whether or not to approve
under Part 9 (for the purposes of each controlling provision) the taking of the
action; and
(b) address any matters specified by the regulations.
(3) The guidelines may also provide for the draft statement to include
information about other certain and likely impacts of an action if:
(a) the action is to be taken in a State or self-governing Territory;
and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the draft statement includes
information about those other impacts to help the State or Territory, or an
agency of the State or Territory, make decisions about the action; and
(c) the action:
(i) is to be taken by any person for the purposes of trade or commerce
between Australia and another country, between 2 States, between a State and a
Territory or between 2 Territories or by a constitutional corporation;
or
(ii) is an action whose regulation is appropriate and adapted to give
effect to Australia’s obligations under an agreement with one or more
other countries.
Note: Paragraph (3)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(4) Division 2 does not limit:
(a) subsection (3); or
(b) section 103 so far as it relates to guidelines prepared in reliance on
that subsection.
(5) In preparing the guidelines, the Minister may:
(a) invite anyone to comment on a draft of the guidelines within a period
specified by the Minister; and
(b) take account of the comments (if any) received.
Designated proponent’s obligations
(1) The designated proponent of the action must:
(a) prepare a draft statement about the relevant impacts of the action
(and any other impacts mentioned under subsection 102(3) in the guidelines for
the content of the draft statement); and
(b) obtain the Minister’s approval for publication of the draft
statement; and
(c) publish in accordance with the regulations:
(i) the draft statement; and
(ii) an invitation for anyone to give the designated proponent comments
relating to the draft statement or the action within the period specified in the
invitation; and
(d) give the Minister a copy and summary of the comments (if any) received
within the period specified in the invitation.
Approval of publication of draft statement
(2) The Minister may only approve the publication of the draft statement
if he or she is satisfied that the draft statement adequately addresses the
guidelines for the content of the draft statement.
Period for comment
(3) The period specified in the invitation to comment must be the period
specified in writing given by the Minister to the designated proponent. The
Minister must not specify a period of less than 20 business days.
Designated proponent must finalise statement
(1) After the period specified in the invitation to comment under section
103, the designated proponent must:
(a) finalise the draft statement, taking account of the comments (if any)
received in response to the invitation; and
(b) give the finalised statement to the Minister.
Form of finalised statement
(2) The designated proponent may give the finalised statement to the
Minister in the form of:
(a) a revised version of the draft statement; or
(b) the draft statement and a supplement to the draft statement.
Refusal to accept finalised statement
(3) The Minister may refuse to accept the finalised statement if he or she
is satisfied on reasonable grounds that it is inadequate for the purposes of
making an informed decision on approving under Part 9 (for the purposes of each
controlling provision) the taking of the action.
Publication of finalised statement
(4) After the Minister has accepted the finalised statement, the
designated proponent must publish it in accordance with the
regulations.
Preparation
(1) The Secretary must prepare, and give to the Minister, a report
relating to the action within 30 business days after the day on which the
Minister accepted from the designated proponent the finalised
statement.
Publication
(2) The Secretary must provide to a person who asks for the report a copy
of it (either free or at a reasonable charge determined by the
Secretary).
Discretion not to publish
(3) However, the Secretary may refuse to provide a copy of so much of the
report as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of the security of the Commonwealth or its providing advice to
the Minister; or
(b) the Secretary is satisfied is commercial-in-confidence.
Commercial-in-confidence
(4) The Secretary must not be satisfied that a part of the report is
commercial-in-confidence unless a person demonstrates to the Secretary
that:
(a) release of the information in that part would cause competitive
detriment to the person; and
(b) the information in that part is not in the public domain;
and
(c) the information is not required to be disclosed under another law of
the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.
The following is a simplified outline of this Division:
This Division provides for the Minister to appoint commissions to carry out
inquiries in a flexible way into the impacts of actions.
Commissioners have powers to call witnesses, obtain documents and inspect
places for the purposes of their inquiries.
Commissioners must report to the Minister and publish their
reports.
(1) If the Minister decides that the relevant impacts of an action must be
assessed by inquiry under this Division, the Minister must:
(a) appoint in writing one or more persons (the
commissioners) as a commission to conduct the inquiry and report
to the Minister in relation to the action; and
(b) specify in writing (the terms of reference):
(i) the matters relating to the action that are to be the subject of the
inquiry and report; and
(ii) the period within which the commission must report to the
Minister.
Note 1: The Minister may revoke an appointment and amend
terms of reference. See subsection 33(3) of the Acts Interpretation Act
1901.
Note 2: Subdivision E contains more provisions about the
basis on which a commissioner holds office.
(2) If the Minister appoints 2 or more commissioners for an inquiry, the
Minister must appoint one of them to preside at the inquiry.
(3) In specifying in the terms of reference the matters relating to the
action that are to be the subject of the inquiry and report, the
Minister:
(a) must specify the relevant impacts of the action; and
(b) may specify other certain or likely impacts of the action.
(4) However, the Minister may specify other certain or likely impacts of
the action only if:
(a) the action is to be taken in a State or self-governing Territory;
and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the inquiry reports on those
other impacts to help the State or Territory, or an agency of the State or
Territory, make decisions about the action; and
(c) the action:
(i) is to be taken by any person for the purposes of trade or commerce
between Australia and another country, between 2 States, between a State and a
Territory or between 2 Territories or by a constitutional corporation;
or
(ii) is an action whose regulation is appropriate and adapted to give
effect to Australia’s obligations under an agreement with one or more
other countries.
Note: Paragraph (4)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(5) The Minister may also specify in the terms of reference the manner in
which the commission is to carry out the inquiry.
(1) As soon as practicable, the commission must publish in accordance with
the regulations and in any other way it thinks fit:
(a) the terms of reference; and
(b) the information relating to the action given to the Minister under
this Chapter before the Minister made the decision under Division 3 to use an
inquiry to assess the relevant impacts of the action.
(2) The commission need not publish the information described in paragraph
(1)(b) if, before the Minister appointed the commission, the designated
proponent of the action published:
(a) a draft report under section 98 (which deals with draft public
environment reports); or
(b) a draft statement under section 103 (which deals with draft
environmental impact statements).
However, in this case the commission must publish as described in
subsection (1) notice of the fact that the draft report or draft statement has
already been published.
(1) A commission must comply with the terms of reference in conducting its
inquiry.
(2) Subject to this Division, a commission:
(a) may determine the procedure to be followed in its inquiry;
and
(b) is not subject to any directions by an employee of the Commonwealth or
by a Commonwealth agency; and
(c) is not bound by the rules of evidence.
(1) A hearing held as part of an inquiry must be conducted in public,
except so far as the commission directs otherwise.
(2) The commission must make publicly available (in any way the commission
thinks fit) the content of any submission or evidence given to the commission in
writing, except so far as the commission directs otherwise.
(3) If the commission believes that it is desirable in the public
interest, the commission may:
(a) give directions that all or part of the inquiry be held in private,
specifying the persons who may be present; and
(b) give directions prohibiting or restricting the publication of all or
specified passages of submissions or evidence given to the commission orally or
in writing.
Summoning witnesses
(1) A commissioner may, by writing signed by the commissioner, summon a
person to appear before the commission at a time and place specified in the
summons to give evidence and produce any documents mentioned in the
summons.
Failure of witness to attend
(2) A person served with a summons to appear as a witness at an inquiry by
a commission must not:
(a) fail to attend as required by the summons; or
(b) fail to appear and report from day to day unless excused or released
from further attendance by or on behalf of the commission.
Note: A defendant bears an evidential burden in relation to
the excuse or release from further attendance mentioned in paragraph (2)(b). See
subsection 13.3(3) of the Criminal Code.
Offence
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months, a fine of
not more than 30 penalty units, or both.
Allowances for witnesses
(4) A person summoned by a commission to appear as a witness at an inquiry
is entitled to be paid by the Commonwealth such allowances for travelling and
other expenses as are prescribed by the regulations.
Power to administer oath or affirmation
(1) A commissioner may administer an oath or affirmation to a person
appearing as a witness before the commission.
Note: This means that proceedings before the commission are
judicial proceedings for the purposes of Part III of the Crimes
Act 1914, which creates various offences relating to judicial
proceedings.
Refusal to be sworn or to answer questions
(2) A person appearing as a witness at an inquiry by a commission must
not:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer by the commissioner (or the commissioner presiding at the inquiry if
there is more than one commissioner for the inquiry); or
(c) refuse or fail to produce a document that the person was required to
produce by a summons served on the person.
Offence
(3) A person who contravenes subsection (2) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months, a fine of
not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a
court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
No privilege against self-incrimination
(4) An individual is not excused from answering a question or producing a
document on the ground that answering the question or producing the document
would tend to incriminate the individual or to expose the individual to a
penalty.
Answers and documents cannot be used in criminal
proceedings
(5) However, none of the following is admissible in evidence in criminal
proceedings against the individual (except proceedings under section
491):
(a) the answer to the question;
(b) the production of the document;
(c) any information, document or thing obtained as a direct or indirect
consequence of answering the question or producing the document.
Sworn witnesses may also give written evidence on oath
(6) A commission may permit a person who is appearing as a witness before
the commission and has been sworn or has made an affirmation to give evidence by
tendering a written statement and verifying it by oath or affirmation.
Inspecting and copying documents produced or given at
inquiry
(1) A commissioner, or a person assisting a commission and authorised by a
commissioner to do so, may:
(a) inspect a document produced or given to the commission; and
(b) make a copy of, or take an extract from, the document.
Keeping documents produced or given at inquiry
(2) A commission may keep for a reasonable period a document produced or
given to the commission.
(1) If a commissioner, or a person authorised by a commissioner, enters
any land, building or place by consent as described in section 115 or under a
warrant issued under section 116, the commissioner or person may:
(a) inspect the land, building or place; and
(b) inspect any material on the land, or on or in the building or
place.
(2) However, the commissioner or authorised person may not make the
inspection if:
(a) the person occupying or in charge of the land, building or place asks
the commissioner or authorised person to produce his or her identity card or
other written evidence of his or her identity; and
(b) the commissioner or person does not produce it.
(3) A person (the offender) is guilty of an offence
punishable on conviction by imprisonment for not more than 6 months
if:
(a) the offender obstructs or hinders another person; and
(b) the offender knows the other person is a commissioner, or a person
authorised by a commissioner, acting under subsection (1) or a warrant issued
under section 116.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets
a court that convicts an individual of an offence impose a fine instead of, or
as well as, imprisonment. The maximum fine (in penalty units) the court can
impose is 5 times the maximum term of imprisonment (in months).
(1) A commissioner, or a person authorised by a commissioner, may enter
land, a building or a place at any reasonable time for any reasonable purpose of
an inquiry, if the person (the occupant) occupying or in charge of
the land, building or place consents.
(2) Before obtaining the consent, the commissioner or authorised person
must inform the occupant that the occupant may refuse to give consent.
(3) The commissioner or authorised person may not enter the land, building
or place if:
(a) the occupant asks the commissioner or authorised person to produce his
or her identity card or other written evidence of his or her identity;
and
(b) the commissioner or authorised person does not produce it.
(4) An entry by a commissioner or authorised person with the
occupant’s consent is not lawful if the occupant’s consent was not
voluntary.
(1) A commissioner may apply to a magistrate for a warrant authorising the
commissioner or a person authorised by the commissioner to enter any land,
building or place if the commissioner has reason to believe that it is necessary
or desirable for the purposes of an inquiry for the commissioner or person to
enter the land, building or place for the purposes of the inquiry.
Note: Section 117 allows applications for warrants to be
made by telephone.
(2) If the magistrate is satisfied by information on oath or affirmation
that the issue of the warrant is reasonably required for the purposes of the
inquiry, he or she may grant a warrant authorising the person named in the
warrant to enter the land, building or place for the purposes specified in the
warrant.
(3) The magistrate must specify in the warrant the date after which the
warrant ceases to have effect.
(4) The person named in a warrant may not enter the land, building or
place if:
(a) the person occupying or in charge of the land, building or place asks
the person named in the warrant to produce his or her identity card or other
written evidence of his or her identity; and
(b) the person named in the warrant does not produce it.
Application
(1) A commissioner may apply to a magistrate for a warrant by telephone,
telex, facsimile or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person
would frustrate the effective execution of the warrant.
Voice communication
(2) The magistrate may require communication by voice to the extent that
is practicable in the circumstances.
Information
(3) An application under this section must include all information
required to be provided in an ordinary application for a warrant, but the
application may, if necessary, be made before the information is sworn or
affirmed.
Issue of warrant
(4) The magistrate may complete and sign the same form of warrant that
would be issued under section 116 if, after considering the information and
having received and considered any further information he or she required, the
magistrate is satisfied that:
(a) a warrant in the terms of the application should be issued urgently;
or
(b) the delay that would occur if an application were made in person would
frustrate the effective execution of the warrant.
Notification
(5) If the magistrate decides to issue the warrant, the magistrate must
inform the applicant, by telephone, telex, facsimile or other electronic means,
of the terms of the warrant and the day on which and the time at which it was
signed.
Form of warrant
(6) The applicant must then complete a form of warrant in terms
substantially corresponding to those given by the magistrate, stating on the
form the name of the magistrate and the day on which and the time at which the
warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must, not later than the day after the day of expiry of
the warrant or the day after the day on which the warrant was executed,
whichever is the earlier, give or transmit to the magistrate:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or
affirmed—that information duly sworn or affirmed.
Attachment
(8) The magistrate must attach to the documents provided under subsection
(7) the form of warrant completed by the magistrate.
Presumption
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that
the exercise of a power under a warrant issued under this section was duly
authorised; and
(b) the form of warrant signed by the magistrate is not produced in
evidence;
the court is to assume, unless the contrary is proved, that the exercise of
the power was not duly authorised.
(1) The Minister may cause to be issued to a commissioner or a person
authorised by a commissioner an identity card:
(a) in a form approved by the Minister; and
(b) containing a recent photograph of the person to whom it is
issued.
(2) As soon as practicable after the commission to which the commissioner
was appointed has reported to the Minister on its inquiry, the commissioner or
authorised person must return his or her identity card to the
Minister.
(3) A person must not contravene subsection (2).
Penalty: 1 penalty unit.
(1) A person is guilty of an offence punishable on conviction by a fine of
not more than 30 penalty units if:
(a) the person insults, disturbs or uses insulting language towards
another person; and
(b) the person knows the other person is a commissioner exercising the
powers or performing the functions or duties of a commissioner.
(2) A person is guilty of an offence punishable on conviction by a fine of
not more than 30 penalty units if:
(a) the person creates a disturbance, or takes part in creating or
continuing a disturbance, in or near a place; and
(b) the person knows the place is a place where a commission is holding an
inquiry.
(3) A person must not:
(a) interrupt an inquiry by a commission; or
(b) do any other act or thing that would, if a commission were a court of
record, constitute a contempt of that court.
Penalty: 30 penalty units.
Protection of commissioners
(1) In performing his or her duties as a commissioner, a commissioner has
the same protection and immunity as a Justice of the High Court.
Rights and obligations of witnesses
(2) A person appearing before a commission as a witness at an
inquiry:
(a) has the same protection as a witness in proceedings in the High Court;
and
(b) is subject to the same liabilities in any civil or criminal
proceedings as such a witness (in addition to the penalties provided by this
Division).
Interfering with witness is an offence
(3) A person must not:
(a) use violence to or inflict injury on; or
(b) cause or procure violence, damage, loss or disadvantage to;
or
(c) cause or procure the punishment of;
another person (the witness) because the witness will appear
or did appear as a witness at an inquiry or because of any submission or
evidence the witness gave to a commission.
Interference with a witness’ employment
(4) An employer must not dismiss an employee, or prejudice an employee in
his or her employment, because the employee appeared as a witness or gave any
submission or evidence at an inquiry by a commission.
Interference with employee who proposes to give evidence
(5) An employer must not dismiss or threaten to dismiss an employee or
prejudice, or threaten to prejudice, an employee in his or her employment,
because the employee proposes to appear as a witness or to give a submission or
evidence at an inquiry by a commission.
Offences
(6) A person who contravenes subsection (3), (4) or (5) is guilty of an
offence punishable on conviction by imprisonment for not more than 6 months, a
fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a
court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Burden of proof in proceedings relating to witness
(7) In proceedings arising out of subsection (4), the employer has the
burden of proving that the employee was not dismissed or prejudiced because the
employee appeared as a witness or gave a submission or evidence at an inquiry by
a commission, if it is established that:
(a) the employee was dismissed from, or prejudiced in, his or her
employment; and
(b) before the employee was dismissed or prejudiced, the employee appeared
as a witness, or gave any submission or evidence, at an inquiry by a
commission.
Burden of proof in proceedings relating to employee proposing to give
evidence
(8) In any proceedings arising out of subsection (5), the employer has the
burden of proving that the employee was not dismissed, prejudiced in his or her
employment or threatened with dismissal or prejudice because the employee
proposed to appear as a witness or give evidence at an inquiry by a commission,
if it is established that:
(a) the employee was dismissed, prejudiced or threatened; and
(b) the employee made the proposal before the employee was dismissed,
prejudiced or threatened.
Relationship of subsections (3), (4) and (5)
(9) Subsections (4) and (5) do not limit subsection (3).
The commission must report to the Minister on the inquiry within the
period specified by the Minister in the terms of reference.
(1) After reporting to the Minister, the commission must publish the
report in accordance with the regulations.
(2) However, the commission must not publish the report so far as it sets
out any submission or evidence whose publication the commission prohibited or
restricted by a direction under paragraph 110(3)(b).
(1) A commissioner is to be appointed on a full-time basis or a part-time
basis.
(2) A commissioner appointed on a full-time basis must not engage in paid
employment outside the duties of the commissioner’s office without the
Minister’s approval.
(3) A commissioner appointed on a part-time basis must not engage in any
paid employment that, in the Minister’s opinion, conflicts or may conflict
with the proper performance of the commissioner’s duties.
(1) A commissioner who is not appointed or employed under the Public
Service Act 1922 is to be paid the remuneration that is determined by the
Remuneration Tribunal. If no determination of that remuneration is in operation,
the commissioner is to be paid the remuneration that is prescribed.
(2) A commissioner is to be paid the allowances that are
prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) Subject to section 87E of the Public Service Act 1922, a
commissioner appointed on a full-time basis has the recreation leave
entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a commissioner appointed on a full-time basis
leave of absence, other than recreation leave, on the terms and conditions as to
remuneration or otherwise that the Minister determines.
(3) The commissioner (the presiding commissioner) appointed
to preside at an inquiry may grant leave of absence to any other commissioner
for the inquiry on the terms and conditions that the presiding commissioner
determines, if the other commissioner has been appointed on a part-time
basis.
A commissioner may resign his or her appointment by giving the Minister a
written resignation.
(1) The Minister may terminate a commissioner’s appointment for
misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the appointment of a commissioner
if:
(a) the commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(b) the commissioner fails, without reasonable excuse, to comply with
section 128 (about disclosure of interests); or
(c) the Minister becomes aware that the commissioner has a pecuniary or
other interest in the subject-matter of the inquiry and the Minister considers
that the commissioner should not continue to participate in the conduct of the
inquiry.
(3) The Minister must terminate the appointment of a commissioner on a
full-time basis if:
(a) the commissioner is absent, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months; or
(b) the commissioner engages, except with the Minister’s approval,
in paid employment outside the duties of his or her office.
(4) The Minister must terminate the appointment of a commissioner on a
part-time basis if:
(a) the commissioner is absent, except on leave of absence, from 3
consecutive meetings of his or her commission (if it consists of 2 or more
commissioners); or
(b) the commissioner engages in paid employment that, in the
Minister’s opinion, conflicts or could conflict with the proper
performance of the duties of his or her office.
(1) A commissioner must give written notice to the Minister of all direct
and indirect pecuniary interests that he or she has or acquires in a business or
in a body corporate carrying on a business.
(2) If a commissioner has or acquires an interest, pecuniary or otherwise,
that could conflict with the proper performance of his or her duties, he or she
must:
(a) inform the Minister of the interest; and
(b) ensure that the interest is disclosed in the report of his or her
inquiry.
A commissioner holds office on the terms and conditions (if any) in
relation to matters not covered by this Act that are determined by the
Minister.
Basic rule
(1) Within whichever of the following periods is relevant, the Minister
must decide for the purposes of each controlling provision whether or not to
approve the taking of a controlled action:
(a) 30 business days, or such longer period as the Minister specifies in
writing, if the action is the subject of an assessment report;
(b) 40 business days, or such longer period as the Minister specifies in
writing, if a commission has conducted an inquiry relating to the
action.
Start of period—basic rule
(1A) The relevant period starts on the first business day after the day
the Minister receives the assessment report or the report of the commission (as
appropriate).
Start of period—certain actions in States and
Territories
(1B) However, if the action is to be taken in a State or self-governing
Territory and is covered by subsection (1C), the relevant period starts on the
later of the following days:
(a) the day worked out under subsection (1A);
(b) the first business day after the day the Minister receives from the
State or self-governing Territory a notice:
(i) stating that the certain and likely impacts of the action on things
other than matters protected by the controlling provisions for the action have
been assessed to the greatest extent practicable; and
(ii) explaining how they have been assessed.
Note 1: This means that the Minister cannot grant an
approval until he or she has received notice from a State or Territory as
described in paragraph (1B)(b).
Note 2: Subsection (1B) also applies in relation to actions
to be taken in an area offshore from a State or the Northern Territory. See
section 157.
Actions to which subsection (1B) applies
(1C) Subsection (1B) applies to an action only if it:
(a) is to be taken by any person for the purposes of trade or commerce
between Australia and another country, between 2 States, between a State and a
Territory or between 2 Territories or by a constitutional corporation;
or
(b) is an action whose regulation is appropriate and adapted to give
effect to Australia’s obligations under an agreement with one or more
other countries.
Start of period—actions in 2 or more jurisdictions
(1D) If the action is to be taken in more than one State or self-governing
Territory, the relevant period does not start until after the last day on which
the Minister receives from one of those States or Territories a notice described
in paragraph (1B)(b).
Exception for certain actions
(1E) Subsection (1B) does not apply if:
(a) the action:
(i) is a nuclear action; or
(ii) is to be taken in a Commonwealth marine area; or
(iii) is to be taken on Commonwealth land; or
(iv) is to be taken by the Commonwealth or a Commonwealth agency;
and
(b) the relevant impacts of the action have been assessed under Part
8.
What is an assessment report?
(2) An assessment report is a report given to the Minister
as described in:
(a) subsection 47(4) (about assessments under a bilateral agreement);
or
(b) subsection 84(3) (about assessments in a manner specified in a
declaration); or
(c) subsection 87(4) (about assessments by accredited assessment
processes); or
(d) subsection 95(1) (about assessments on preliminary documentation);
or
(e) subsection 100(1) (about public environment reports); or
(f) subsection 105(1) (about environmental impact statements).
Time may be extended only to consider other Ministers’
comments
(3) The Minister may specify a longer period for the purposes of paragraph
(1)(a) or (b) only if:
(a) the Minister has received comments about a proposed decision from
another Minister in accordance with an invitation under section 131;
and
(b) the Minister is satisfied that it would not be practicable to consider
them adequately and make a decision within the period that would apply if the
longer period were not specified.
Notice of extension of time
(4) If the Minister specifies a longer period for the purposes of
paragraph (1)(a) or (b), he or she must:
(a) give a copy of the specification to the person proposing to take the
action; and
(b) publish the specification in accordance with the
regulations.
Time does not run while further information is sought
(5) If, under section 132, the Minister has requested more information for
the purposes of making a decision whether or not to approve the taking of an
action, a day is not to be counted as a business day for the purposes of
subsection (1) if it is:
(a) on or after the day the Minister requested the information;
and
(b) on or before the day on which the Minister receives the last of the
information requested.
(1) Before the Minister (the Environment Minister) decides
whether or not to approve the taking of an action, and what conditions (if any)
to attach to an approval, he or she must:
(a) inform any other Minister whom the Environment Minister believes has
administrative responsibilities relating to the action of the decision the
Environment Minister proposes to make; and
(b) invite the other Minister to give the Environment Minister comments on
the proposed decision within 10 business days.
(2) A Minister invited to comment may make comments that:
(a) relate to economic and social matters relating to the action;
and
(b) may be considered by the Environment Minister consistently with the
principles of ecologically sustainable development.
This does not limit the comments such a Minister may give.
If the Minister believes on reasonable grounds that he or she does not
have enough information to make an informed decision whether or not to approve
for the purposes of a controlling provision the taking of an action, the
Minister may request any of the following to provide specified information
relevant to making the decision:
(a) the person proposing to take the action;
(b) the designated proponent of the action;
(c) if a commission has conducted an inquiry under Division 7 of Part 8
relating to the action—the commission.
Approval
(1) After receiving an assessment report relating to a controlled action,
or the report of a commission that has conducted an inquiry relating to a
controlled action, the Minister may approve for the purposes of a controlling
provision the taking of the action by a person.
Content of approval
(2) An approval must:
(a) be in writing; and
(b) specify the action that may be taken; and
(c) name the person who may take the action; and
(d) specify each provision of Part 3 for which the approval has effect;
and
(e) specify the period for which the approval has effect; and
(f) set out any conditions attached to the approval.
Notice of approval
(3) The Minister must:
(a) give a copy of the approval to the person; and
(b) provide a copy of the approval to a person who asks for it (either
free or for a reasonable charge determined by the Minister).
Limit on publication of approval
(4) However, the Minister must not provide under subsection (3) a copy of
so much of the approval as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of commercial confidence; or
(b) the Minister believes it is in the national interest not to
provide.
The Minister may consider the defence or security of the Commonwealth when
determining what is in the national interest. This does not limit the matters
the Minister may consider.
Circumstances
in which approval must not be granted
(5) The Minister must not approve for the purposes of a provision of Part
3 the taking in a State or self-governing Territory of an action that is covered
by subsection (6) before the Minister receives from the State or Territory a
notice described in paragraph 130(1B)(b). This does not apply if:
(a) the action:
(i) is a nuclear action; or
(ii) is to be taken in a Commonwealth marine area; or
(iii) is to be taken on Commonwealth land; or
(iv) is to be taken by the Commonwealth or a Commonwealth agency;
and
(b) the relevant impacts of the action have been assessed under Part
8.
Note: Subsection (5) also applies in relation to actions to
be taken in an area offshore from a State or the Northern Territory. See section
157.
Actions to which subsection (5) applies
(6) Subsection (5) applies to an action only if it:
(a) is to be taken by any person for the purposes of trade or commerce
between Australia and another country, between 2 States, between a State and a
Territory or between 2 Territories or by a constitutional corporation;
or
(b) is an action whose regulation is appropriate and adapted to give
effect to Australia’s obligations under an agreement with one or more
other countries.
Notice of refusal of approval
(7) If the Minister refuses to approve for the purposes of a controlling
provision the taking of an action by the person who proposed to take the action,
the Minister must give the person notice of the refusal.
Note: Under section 13 of the Administrative Decisions
(Judicial Review) Act 1977, the person may request reasons for the refusal,
and the Minister must give them.
Generally
(1) The Minister may attach a condition to the approval of the action if
he or she is satisfied that the condition is necessary or convenient
for:
(a) protecting a matter protected by a provision of Part 3 for which the
approval has effect; or
(b) repairing or mitigating damage to a matter protected by a provision of
Part 3 for which the approval has effect (whether or not the damage has been,
will be or is likely to be caused by the action).
Conditions to protect matters from the approved action
(2) The Minister may attach a condition to the approval of the action if
he or she is satisfied that the condition is necessary or convenient
for:
(a) protecting from the action any matter protected by a provision of Part
3 for which the approval has effect; or
(b) repairing or mitigating damage that may or will be, or has been,
caused by the action to any matter protected by a provision of Part 3 for which
the approval has effect.
This subsection does not limit subsection (1).
Other conditions that may be attached to approval
(3) The conditions that may be attached to an approval include:
(a) conditions relating to any security to be given by the person by bond,
guarantee or cash deposit:
(i) to comply with this Act and the regulations; and
(ii) not to contravene a condition attached to the approval; and
(iii) to meet any liability of the person whose taking of the action is
approved to the Commonwealth for measures taken by the Commonwealth under
section 499 (which lets the Commonwealth repair and mitigate damage caused by a
contravention of this Act) in relation to the action; and
(b) conditions requiring the person to insure against any specified
liability of the person to the Commonwealth for measures taken by the
Commonwealth under section 499 in relation to the approved action; and
(c) conditions requiring the person taking the action to comply with
conditions specified in an instrument (including any kind of authorisation) made
or granted under a law of a State or self-governing Territory or another law of
the Commonwealth; and
(d) conditions requiring an environmental audit of the action to be
carried out periodically by a person who can be regarded as being independent
from the person whose taking of the action is approved; and
(e) conditions requiring the preparation, submission for approval by the
Minister, and implementation of a plan for managing the impacts of the approved
action on a matter protected by a provision of Part 3 for which the approval has
effect such as a plan for conserving habitat of a species or ecological
community; and
(f) conditions requiring specified environmental monitoring or testing to
be carried out; and
(g) conditions requiring compliance with a specified industry standard or
code of practice.
This subsection does not limit the kinds of conditions that may be attached
to an approval.
Considerations in deciding on condition
(4) In deciding whether to attach a condition to an approval, the Minister
must consider:
(a) any relevant conditions that have been imposed under a law of a State
or self-governing Territory or another law of the Commonwealth on the taking of
the action; and
(aa) information provided by the person proposing to take the action or by
the designated proponent of the action; and
(b) the desirability of ensuring as far as practicable that the condition
is a cost-effective means for the Commonwealth and the person taking the action
to achieve the object of the condition.
(5) A failure to consider information as required by paragraph (4)(aa)
does not invalidate a decision about attaching a condition to the
approval.
(1) This section deals with the approval:
(a) for the purposes of section 21 or 22A of a nuclear action:
(i) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(ii) by a constitutional corporation; or
(b) for the purposes of section 25 of an action that is prescribed for the
purposes of subsection 25(1) and is taken:
(i) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States; or
(ii) by a constitutional corporation.
(2) The Minister must not grant the approval, or attach a condition to the
approval, that has the effect of giving preference (within the meaning of
section 99 of the Constitution) to one State or part of a State over another
State or part of a State.
Mandatory considerations
(1) In deciding whether or not to approve the taking of an action, and
what conditions to attach to an approval, the Minister must consider the
following, so far as they are not inconsistent with any other requirement of
this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that
the Minister has decided is a controlling provision for the action;
(b) economic and social matters.
Factors to be taken into account
(2) In considering those matters, the Minister must take into
account:
(a) the principles of ecologically sustainable development; and
(b) the assessment report relating to the action; and
(c) if the action was assessed under Division 5 or 6 of Part 8 (which deal
with public environment reports and environmental impact statements)—the
report or statement about the action finalised by the designated proponent;
and
(d) if an inquiry was conducted under Division 7 of Part 8 in relation to
the action—the report of the commissioners; and
(e) any other information the Minister has on the relevant impacts of the
action (including information in a report on the impacts of actions taken under
a policy, plan or program under which the action is to be taken that was given
to the Minister under an agreement under Part 10 (about strategic assessments));
and
(f) any relevant comments given to the Minister by another Minister in
accordance with an invitation under section 131.
Person’s environmental history
(4) In deciding whether or not to approve the taking of an action by a
person, and what conditions to attach to an approval, the Minister may consider
whether the person is a suitable person to be granted an approval, having regard
to the person’s history in relation to environmental matters.
Minister not to consider other matters
(5) In deciding whether or not to approve the taking of an action, and
what conditions to attach to an approval, the Minister must not consider any
matters that the Minister is not required or permitted by this Subdivision to
consider.
In deciding whether or not to approve for the purposes of section 12 or
15A the taking of an action, and what conditions to attach to such an approval,
the Minister must not act inconsistently with Australia’s obligations
under the World Heritage Convention.
In deciding whether or not to approve for the purposes of section 16 or
17B the taking of an action, and what conditions to attach to such an approval,
the Minister must not act inconsistently with Australia’s obligations
under the Ramsar Convention.
In deciding whether or not to approve for the purposes of a subsection of
section 18 or section 18A the taking of an action, and what conditions to attach
to such an approval, the Minister must not act inconsistently with:
(a) Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; or
(b) a recovery plan or threat abatement plan.
In deciding whether or not to approve for the purposes of section 20 or
20A the taking of an action relating to a listed migratory species, and what
conditions to attach to such an approval, the Minister must not act
inconsistently with Australia’s obligations under whichever of the
following conventions and agreements because of which the species is
listed:
(a) the Bonn Convention;
(b) CAMBA;
(c) JAMBA;
(d) an international agreement approved under subsection 209(4).
The Minister must not approve an action consisting of or involving the
construction or operation of any of the following nuclear
installations:
(a) a nuclear fuel fabrication plant;
(b) a nuclear power plant;
(c) an enrichment plant;
(d) a reprocessing facility.
(1) A person whose taking of an action has been approved under this Part
must not contravene any condition attached to the approval.
Civil penalty:
(a) for an individual—1,000 penalty units, or such lower amount as
is prescribed by the regulations;
(b) for a body corporate—10,000 penalty units, or such lower amount
as is prescribed by the regulations.
(2) A contravention of a condition attached to an approval under this Part
does not invalidate the approval.
(1) A person whose taking of an action has been approved under this Part
is guilty of an offence if:
(a) the person takes an action or omits to take an action; and
(b) the action or omission contravenes a condition attached to the
approval and the person is reckless as to that fact; and
(c) the action or omission results or will result in a significant impact
on a matter protected by a provision of Part 3.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) A person whose taking of an action has been approved under this Part
is guilty of an offence if:
(a) the person takes an action or omits to take an action; and
(b) the action or omission contravenes a condition attached to the
approval and the person is reckless as to that fact; and
(c) the action or omission is likely to have a significant impact on a
matter protected by a provision of Part 3 and the person is reckless as to that
fact.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(4) An offence against subsection (1) or (2) is punishable on conviction
by imprisonment for a term not more than 2 years, a fine not more than 120
penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets
a court fine a body corporate up to 5 times the maximum amount the court could
fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted
of an offence against this section may also be guilty of an offence against
section 495.
(1) The Minister may, by written instrument, revoke, vary or add to any
conditions attached to an approval under this Part of an action if:
(a) any condition attached to the approval has been contravened;
or
(b) both of the following conditions are satisfied:
(i) the action has had a significant impact that was not identified in
assessing the action on any matter protected by a provision of Part 3 for which
the approval has effect, or the Minister believes the action will have such an
impact;
(ii) the Minister believes it is necessary to revoke, vary or add a
condition to protect the matter from the impact; or
(c) the person whose taking of the action was approved agrees to the
proposed revocation, variation or addition and the Minister is satisfied that
any conditions attached to the approval after the proposed revocation, variation
or addition are necessary or convenient for:
(i) protecting a matter protected by any provision of Part 3 for which the
approval has effect; or
(ii) repairing or mitigating damage to a matter protected by a provision
of Part 3 for which the approval has effect (whether or not the damage has been,
will be or is likely to be caused by the action).
(2) The Minister may, by written instrument, revoke any condition attached
to an approval under this Part of an action if the Minister is satisfied that
the condition is not needed to protect any matter protected by a provision of
Part 3 for which the approval has effect.
(3) In deciding whether or not to revoke, vary or add to any conditions
attached to the approval of the taking of an action by a person, the Minister
may have regard to the person’s history in relation to environmental
matters.
(4) The revocation, variation or addition takes effect on the day
specified in the instrument. The Minister must not specify a day earlier than
the day the instrument is made.
(5) As soon as possible after making the instrument, the Minister
must:
(a) give a copy of it to the person to whose action the approval relates;
and
(b) publish the instrument in accordance with the regulations.
Note: If the person is not satisfied with changed conditions
attached to the approval of the person’s action, he or she can ask the
Minister to reverse the change by making another change to the conditions under
this section.
(6) However, the Minister must not publish so much of the instrument
as:
(a) is an exempt document under the Freedom of Information Act 1982
on the grounds of commercial confidence; or
(b) the Minister believes it is in the national interest not to
publish.
The Minister may consider the defence or security of the Commonwealth when
determining what is in the national interest. This does not limit the matters
the Minister may consider.
(1) The Minister may, by written instrument, suspend the effect of an
approval under this Part for the purposes of a specified provision of Part 3 for
a specified period (which must not start before the day on which the instrument
is made) if the Minister believes on reasonable grounds that:
(a) a significant impact on the matter protected by the provision has
occurred because of the contravention of a condition attached to the approval;
or
(b) the conditions specified in subsection (2) are satisfied.
(2) The conditions are that:
(a) the action has had, or the Minister believes that the action will
have, a significant impact that was not identified in assessing the action on a
matter protected by a provision of Part 3 for which the approval has effect;
and
(b) the approval would not have been granted if information that the
Minister has about that impact had been available when the decision to approve
the action was made.
(3) In deciding whether or not to suspend an approval of the taking of an
action by a person, the Minister may have regard to the person’s history
in relation to environmental matters.
(4) During the specified period, the specified provision of Part 3 applies
as if the Minister had not given the approval.
(5) As soon as possible after making the instrument, the Minister
must:
(a) give a copy of it to the person to whose action the approval relates;
and
(b) publish the instrument in accordance with the regulations.
(1) The Minister may, by written instrument, revoke an approval under this
Part for the purposes of a specified provision of Part 3 if:
(a) a significant impact on the matter protected by the provision has
occurred because of the contravention of a condition attached to the approval;
or
(b) the conditions specified in subsection (2) are satisfied.
(2) The conditions are that:
(a) the action has had, or the Minister believes that the action will
have, a significant impact that was not identified in assessing the action on a
matter protected by a provision of Part 3 for which the approval has effect;
and
(b) the approval would not have been granted if information that the
Minister has about that impact had been available when the decision to approve
the action was made.
(2A) The Minister may, by written instrument, revoke an approval under
this Part of an action for the purposes of a specified provision of Part 3 if he
or she believes that:
(a) the impacts that the action has had, will have or is likely to have
were not accurately identified in information available to the Minister when the
approval was given; and
(b) the information did not accurately identify those impacts because of
negligence or a deliberate act or omission by the person proposing to take the
action or the designated proponent of the action.
(3) In deciding whether or not to revoke an approval of the taking of an
action by a person, the Minister may have regard to the person’s history
in relation to environmental matters.
(4) The revocation takes effect on the day specified in the instrument.
The Minister must not specify a day earlier than the day the instrument is
made.
(5) As soon as possible after making the instrument, the Minister
must:
(a) give a copy of it to the person to whose action the approval related;
and
(b) publish the instrument in accordance with the regulations.
Application
(1) This section applies if the Minister has, by written
instrument:
(a) suspended an approval under this Part of the taking of an action by a
person; or
(b) revoked an approval under this Part of the taking of an action by a
person.
Requesting reinstatement of approval
(2) Within 2 months after receiving a copy of the instrument under this
Division, the person may request the Minister to reinstate the
approval.
Deciding whether to reinstate approval
(3) Within 20 business days of receiving the request, the Minister must
decide whether or not to reinstate the approval.
Considerations for decision
(4) Subdivision B of Division 1 applies to the decision whether or not to
reinstate the approval in the same way as it applies to a decision whether or
not to approve the taking of an action.
Extra time for decision
(5) A day is not to be counted for the purposes of subsection (3)
if:
(a) the Minister and the person agree in writing that it should not be
counted; or
(b) the Minister has requested the person to provide information under
subsection (6) and the day is on or before the day on which the Minister
receives the last of the information requested.
Requesting information for decision
(6) If the Minister believes on reasonable grounds that he or she does not
have enough information to make an informed decision whether or not to reinstate
the approval, the Minister may request the person to provide specified
information relevant to making the decision.
Reversal of decision to suspend or revoke approval
(7) If the Minister decides to reinstate the approval, it and any
conditions attached to it immediately before the suspension or revocation have
effect on and after the day of the decision (subject to any future suspension or
revocation under this Division).
Notice of decision about reversal
(8) The Minister must:
(a) give the person written notice of the Minister’s decision;
and
(b) publish notice of the decision in accordance with the
regulations.
Transfer by written agreement
(1) A person (the transferor) whose taking of an action has
been approved under this Part for the purposes of a provision of Part 3 may
transfer the approval to another person (the transferee) by
written agreement, subject to the Minister’s consent.
Transfer ineffective until Minister consents
(2) The transfer does not have effect for the purposes of this Act until
the Minister consents in writing to the transfer. To avoid doubt, the
Minister’s consent to a transfer cannot take effect before the Minister
gives the consent.
Effect of consent
(3) If the Minister consents to the transfer:
(a) this Act (except Division 3) operates in relation to the transferor as
if the Minister had revoked the approval when the Minister’s consent took
effect; and
(b) this Act operates in relation to the transferee as if, when the
Minister’s consent to the transfer took effect, he or she:
(i) had approved under this Part for the purposes of the provision of Part
3 the taking of the action by the transferee; and
(ii) had attached to the approval the conditions that were attached to the
approval of the taking of the action by the transferor.
Considerations in deciding whether to consent
(4) In deciding whether or not to consent to the transfer, the Minister
may consider:
(a) whether the transferee would be a suitable person to be granted the
approval, having regard to the transferee’s history in relation to
environmental matters; and
(b) whether the transferee can comply with the conditions attached to the
approval.
Giving copies of consents to transferor and transferee
(5) The Minister must give the transferor and the transferee a copy of the
consent each.
(1) The Minister may agree in writing with a person responsible for the
adoption or implementation of a policy, plan or program that an assessment be
made of the relevant impacts of actions under the policy, plan or program that
are controlled actions or would be apart from Division 1 or 2 of Part
4.
(1A) The agreement may also provide for the assessment of other certain
and likely impacts of actions under the policy, plan or program if:
(a) the actions are to be taken in a State or self-governing Territory;
and
(b) the appropriate Minister of the State or Territory has asked the
Minister administering this section to ensure that the assessment deal with
those other impacts to help the State or Territory, or an agency of the State or
Territory, make decisions about the actions; and
(c) the actions:
(i) are to be taken by any person for the purposes of trade or commerce
between Australia and another country, between 2 States, between a State and a
Territory or between 2 Territories or by a constitutional corporation;
or
(ii) are actions whose regulation is appropriate and adapted to give
effect to Australia’s obligation under an agreement with one or more other
countries.
Note: Paragraph (1A)(a) also applies to actions to be taken
in an area offshore from a State or the Northern Territory. See section
157.
(2) The agreement must provide for:
(aa) the preparation of draft terms of reference for a report on the
impacts to which the agreement relates; and
(ab) the publication of the draft terms of reference for public comment
for a period of at least 28 days that is specified by the Minister;
and
(ac) the finalisation of the terms of reference, to the Minister’s
satisfaction, taking into account the comments (if any) received on the draft
terms of reference; and
(a) the preparation of a draft of a report on the impacts to which the
agreement relates; and
(b) the publication of the draft report for public comment for a period of
at least 28 days that is specified by the Minister; and
(c) the finalisation of the report, taking into account the comments (if
any) received after publication of the draft report; and
(d) the provision of the report to the Minister; and
(e) the making of recommendations by the Minister to the person about the
policy, plan or program (including recommendations for modification of the
policy, plan or program); and
(f) the endorsement of the policy, plan or program by the Minister if he
or she is satisfied that:
(i) the report adequately addresses the impacts to which the agreement
relates; and
(ii) either the recommended modifications of the policy, plan or program
(if any) have been made or any modifications having the same effect have been
made; and
(g) any other matter prescribed by the regulations.
Note 1: If the relevant impacts of actions under a policy,
plan or program are assessed under an agreement under this Part, the Minister
may decide on a less onerous approach for an assessment relating to an
individual action under the policy, plan or program. See section
87.
Note 2: If the Minister endorses a policy, plan or program
embodied in a management plan in force under a law, he or she may declare under
section 33, or make a bilateral agreement declaring, that actions approved in
accordance with the management plan do not need approval for the purposes of a
specified provision of Part 3.
(3) If the agreement relates to actions to be taken in a State or
self-governing Territory, the Minister must tell the appropriate Minister of the
State or Territory:
(a) that the agreement has been made; and
(b) what those actions are (in general terms).
The following is a simplified outline of this Division:
The Australian Fisheries Management Authority must make agreements under
Division 1 for the assessment of actions in fisheries managed under the
Fisheries Management Act 1991. An agreement must be made whenever it is
proposed to make a management plan or a determination not to have a plan. An
agreement must be made within 5 years of the commencement of this Act for all
fisheries that did not have plans at that commencement.
The Minister administering the Torres Strait Fisheries Act 1984 must
make agreements under Division 1 for the assessment of actions permitted by
policies or plans for managing fishing in Torres Strait. All policies or plans
must be covered by an agreement within 5 years after the commencement of this
Act.
A further agreement for assessment must be made if the impact of the
actions is significantly greater than assessed under an earlier
agreement.
If the Minister endorses a policy or plan assessed under an agreement under
Division 1, the Minister must make a declaration that actions under the policy
or plan do not need approval under Part 9 for the purposes of section 23 or 24A
(which protect the marine environment).
Plans under the Fisheries Management Act 1991
(1) Before the Australian Fisheries Management Authority determines a plan
of management for a fishery under section 17 of the Fisheries Management Act
1991, the Authority must:
(a) make an agreement with the Minister under section 146 for assessment
of the relevant impacts of actions under the plan; and
(b) consider any recommendations made by the Minister under the
agreement.
Plans under the Torres Strait Fisheries Act 1984
(2) Before the Minister administering the Torres Strait Fisheries Act
1984 determines a plan of management for a fishery under section 15A of that
Act, he or she must:
(a) make an agreement under section 146 with the Minister (the
Environment Minister) administering this section for assessment of
the relevant impacts of actions under the plan; and
(b) consider any recommendations made by the Environment Minister under
the agreement.
Before the Australian Fisheries Management Authority determines under
subsection 17(1A) of the Fisheries Management Act 1991 that a plan of
management is not warranted for a fishery, the Authority must:
(a) make an agreement with the Minister under section 146 for assessment
of the relevant impacts of actions permitted under the Authority’s policy
for managing the fishery; and
(b) consider any recommendations made by the Minister under the
agreement.
Fisheries managed under the Fisheries Management Act 1991
(1) This section applies to fisheries (as defined in the Fisheries
Management Act 1991):
(a) that are managed under that Act (whether as a result of arrangements
under section 71 or 72 of that Act or not); and
(b) for which there were not plans of management in force under that Act
when this Act commenced.
Two-thirds of fisheries to be covered by agreements in 3
years
(2) Before the day that is the third anniversary of this Act commencing,
the Australian Fisheries Management Authority must make agreements with the
Minister under section 146 for assessment of the relevant impacts of actions
permitted under the Authority’s policies for managing at least
2/3 of the
fisheries.
All fisheries to be covered by agreements in 5 years
(3) Before the day that is the fifth anniversary of this Act commencing,
the Australian Fisheries Management Authority must make agreements with the
Minister under section 146 for assessment of the relevant impacts of actions
permitted under the Authority’s policies for managing the
fisheries.
Agreement not needed if fishery already subject to
agreement
(4) However, subsection (3) does not require another agreement to be made
in relation to a fishery if an agreement relating to the fishery has been made,
before the day mentioned in that subsection, by the Authority and the Minister
under section 146 because of subsection 148(1) or section 149.
Fisheries managed under the Torres Strait Fisheries Act
1984
(1) This section applies to actions that:
(a) are involved in fishing (as defined in the Torres Strait Fisheries
Act 1984) in an area of Australian jurisdiction (as defined in that Act);
and
(b) were not covered by a plan of management in force under section 15A of
that Act when this Act commenced.
Policies for all actions to be covered by agreements in 5
years
(2) Before the day that is the fifth anniversary of this Act commencing,
the Minister administering the Torres Strait Fisheries Act 1984 must make
agreements under section 146 with the Minister administering this section for
assessment of the relevant impacts of the actions permitted by policies under
that Act.
Agreement not needed if fishery already subject to
agreement
(3) However, subsection (2) does not require another agreement to be made
in relation to actions if an agreement covering them has been made under section
146, before the day mentioned in that subsection, by the Ministers mentioned in
that subsection because of subsection 148(1).
Application
(1) This section applies if the Minister (the Environment
Minister) and the Minister administering the Fisheries Management Act
1991 agree that the impacts that actions:
(a) included in a fishery managed under that Act; or
(b) permitted under a policy or plan for managing fishing (as defined in
the Torres Strait Fisheries Act 1984) in an area of Australian
jurisdiction (as defined in that Act);
have, will have or are likely to have on a matter protected by a provision
of Part 3 are significantly greater than the impacts identified in the most
recent report provided to the Environment Minister under an agreement made under
section 146 relating to the fishery, policy or plan.
Further assessment for management arrangements under the Fisheries
Management Act 1991
(2) The Australian Fisheries Management Authority must make another
agreement with the Minister under section 146 in relation to the
Authority’s policy for managing the fishery, unless there is a plan of
management in force for the fishery under the Fisheries Management Act
1991.
Further assessment for policy or plan for Torres Strait
fishing
(3) The Minister administering the Torres Strait Fisheries Act 1984
must make another agreement under section 146 in relation to the policy or plan
for managing fishing (as defined in the Torres Strait Fisheries Act 1984)
in an area of Australian jurisdiction (as defined in that Act).
(1) This section applies if the Minister makes an agreement under section
146 as required by this Division and endorses under the agreement:
(a) a plan of management under the Fisheries Management Act 1991
for a fishery; or
(b) policies of the Australian Fisheries Management Authority for managing
a fishery for which there is not a plan of management under the Fisheries
Management Act 1991; or
(c) a plan of management under the Torres Strait Fisheries Act 1984
for a fishery; or
(d) policies for managing fishing under the Torres Strait Fisheries Act
1984.
(a) make a declaration under section 33 that actions approved in
accordance with the accredited management plan consisting of the endorsed plan
or policies do not require an approval under Part 9 for the purposes of
subsection 23(1), (2) or (3) or subsection 24A(1), (2), (3), (4), (5) or (6);
and
(b) accredit under section 33 the endorsed plan or policies as an
accredited management plan for the purposes of the declaration.
Note: The declaration and accreditation will allow actions
that would otherwise be prohibited by sections 23 and 24A to be taken without
approval if they are taken in accordance with the accredited management plan.
See section 32.
This Division does not limit Division 1.
(1) If:
(a) a person who proposes to take a controlled action or is the designated
proponent of an action is required or requested under this Chapter to do
something; and
(b) the person does not do the thing within a period that the Minister
believes is a reasonable period;
the Minister may give the person a written notice inviting the person to
satisfy the Minister within a specified reasonable period that assessment of the
action should continue or that the Minister should make a decision about
approving the action.
Note: Sections 28A and 29 of the Acts Interpretation Act
1901 explain how documents may be served and when they are taken to be
served.
(2) If, by the end of the specified period, the person fails to satisfy
the Minister that assessment of the action should continue or that the Minister
should make a decision about approving the action, the Minister may declare in
writing that this Chapter no longer applies to the action.
(3) This Chapter (apart from this section) ceases to apply in relation to
the action on the date specified in the declaration. The Minister must not
specify a date earlier than the date of making of the declaration.
(4) The Minister must:
(a) give a copy of the declaration to the person and to the Secretary;
and
(b) publish the declaration in accordance with the regulations.
(1) If this Chapter specifies a time limit in business days in relation to
a controlled action (or an action that the Minister believes may be or is a
controlled action), the limit is to be worked out by reference to what is a
business day in the place where the action is to be taken.
(2) A day is not to be counted as a business day for the purposes of
subsection (1) if it is not a business day in all the places in which the action
is to be taken.
(3) Failure to comply with a time limit set in this Chapter does not
affect the validity of:
(a) a decision under this Chapter; or
(b) an assessment or approval under this Chapter.
Note: The Minister must make a statement to Parliament about
some failures to comply with time limits. See section 518.
(1) A provision of this Chapter that is expressed to apply in relation to
actions taken or to be taken in a State also applies in the same way to actions
taken or to be taken on, under or over the seabed vested in the State by section
4 of the Coastal Waters (State Title) Act 1980.
(2) So far as a provision of this Chapter that is expressed to apply in
relation to actions taken or to be taken in a self-governing Territory relates
to the Northern Territory, the provision also applies in the same way to actions
taken or to be taken on, under or over the seabed vested in the Northern
Territory by section 4 of the Coastal Waters (Northern Territory Title) Act
1980.
(1) A person proposing to take a controlled action, or the designated
proponent of an action, may apply in writing to the Minister for an exemption
from a specified provision of Part 3 or of this Chapter.
(2) The Minister must decide within 20 business days of receiving the
application whether or not to grant the exemption.
(3) The Minister may, by written notice, exempt a specified person from
the application of a specified provision of Part 3 or of this Chapter in
relation to a specified action.
(4) The Minister may do so only if he or she is satisfied that it is in
the national interest that the provision not apply in relation to the person or
the action.
(5) In determining the national interest, the Minister may consider
Australia’s defence or security or a national emergency. This does not
limit the matters the Minister may consider.
(6) A provision specified in the notice does not apply in relation to the
specified person or action on or after the day specified in the notice. The
Minister must not specify a day earlier than the day the notice is
made.
(7) Within 10 business days after making the notice, the Minister
must:
(a) publish a copy of the notice and his or her reasons for granting the
exemption in accordance with the regulations; and
(b) give a copy of the notice to the person specified in the
notice.
The following is a simplified outline of this Subdivision:
A Commonwealth agency or employee must consider advice from the Minister
before authorising one of the following actions with a significant impact on the
environment:
(a) providing foreign aid;
(b) managing aircraft operations in airspace;
(c) adopting or implementing a major development plan for an
airport;
(d) an action prescribed by the regulations.
The agency or employee must inform the Minister of the proposal to
authorise the action.
The environmental impacts of the action must be assessed in accordance with
a declaration made by the Minister accrediting a Commonwealth assessment
process, or by one of the following methods chosen by the Minister:
(a) a specially accredited process;
(b) an assessment on preliminary documentation under Division 4 of Part
8;
(c) a public environment report under Division 5 of Part 8;
(d) an environmental impact statement under Division 6 of Part
8;
(e) an inquiry under Division 7 of Part 8.
The Minister must give the agency or employee advice on protecting the
environment from the action, within 30 days of receiving the report of the
assessment.
Requirement
(1) Before a Commonwealth agency or employee of the Commonwealth gives an
authorisation (however described) of an action described in subsection (2), the
agency or employee must obtain and consider advice from the Minister in
accordance with this Subdivision.
Note: The giving of an authorisation for an action may be
constituted by the renewal of an authorisation of the action or the variation of
an authorisation for a different action.
Relevant actions
(2) Subsection (1) applies in relation to:
(a) the entry by the Commonwealth, under Australia’s foreign aid
program, into a contract, agreement or arrangement for the implementation of a
project that has, will have or is likely to have a significant impact on the
environment anywhere in the world; and
(b) the adoption or implementation of a plan for aviation airspace
management involving aircraft operations that have, will have or are likely to
have a significant impact on the environment; and
(c) the adoption or implementation of a major development plan (as defined
in the Airports Act 1996); and
(d) any other action prescribed by the regulations for the purposes of
this paragraph.
(2A) Regulations may prescribe an action for the purposes of paragraph
(2)(d):
(a) partly by reference to the action’s having, or being likely to
have, a significant impact on the environment; or
(b) partly by reference to a specified person believing that the action
has, will have or is likely to have a significant impact on the environment;
or
(c) wholly or partly by reference to legislation under which the
authorisation of the action is to be granted.
This does not limit the ways in which regulations may prescribe an
action.
This section does not apply to actions like those already
assessed
(3) Subsection (1) does not apply in relation to a particular
authorisation (the later authorisation) if the agency or employee
has complied with, or is complying with, this Subdivision in relation to another
authorisation or proposed authorisation and is satisfied of one or both of the
matters in subsection (4).
Which actions are like actions?
(4) For the purposes of subsection (3), the agency or employee must be
satisfied that:
(a) the Minister’s advice relating to the other authorisation deals
or will deal with all the impacts that the action to which the later
authorisation relates has, will have or is likely to have on the environment;
or
(b) the impacts that the action to which the later authorisation relates
has, will have or is likely to have on the environment:
(i) are an extension of the corresponding impacts of the action to which
the other authorisation relates; and
(ii) are not significantly different in nature from those corresponding
impacts; and
(iii) do not significantly add to those corresponding impacts.
State law excluded in relation to aviation
(5) A law of a State or Territory does not apply in relation to the
assessment of the certain or likely environmental impacts of an action described
in paragraph (2)(b) if subsection (1) applies in relation to authorisation of
the action, or would apply apart from subsection (3).
Requirement for referral
(1) If a Commonwealth agency or employee of the Commonwealth proposing to
give an authorisation (however described) of an action thinks the agency or
employee is required by section 160 to obtain and consider the Minister’s
advice before giving the authorisation, the agency or employee must:
(a) refer the proposal to the Minister; and
(b) nominate a person to act as designated proponent of the
action.
Minister may request referral
(2) The Minister may request a Commonwealth agency or employee of the
Commonwealth to:
(a) refer to the Minister a proposal to give an authorisation (however
described) of an action; and
(b) nominate a person to act as designated proponent of the
action;
if the Minister thinks the agency or employee is required by section 160 to
obtain and consider the Minister’s advice before giving the
authorisation.
Complying with Minister’s request
(3) The Commonwealth agency or employee must comply with the
Minister’s request.
Content of referral
(4) A referral must include the information prescribed by the
regulations.
Part 8 (except sections 82, 83 and 84) and the other provisions of this
Act (so far as they relate to that Part) apply in relation to the action
proposed to be authorised as if:
(a) the referral of the proposal to give the authorisation were a referral
of a proposal to take the action; and
(b) the Minister had decided under Division 2 of Part 7 that the action
was a controlled action when the proposal to give the authorisation was referred
to the Minister; and
(c) the person nominated to act as the designated proponent had been
designated as the proponent of the action by the Minister under section 75;
and
(d) a reference in Part 8 or those provisions to the relevant impacts of
the action were a reference to the impact that the action has, will have or is
likely to have on the environment; and
(e) a reference in Part 8 or those provisions to making an informed
decision on approving under Part 9 (for the purposes of each controlling
provision) the taking of the action were a reference to giving informed advice
about the proposal to give an authorisation of the action.
(1) The Minister must give advice on the following matters to the
Commonwealth agency or employee of the Commonwealth who referred the proposal to
give an authorisation of the action:
(a) whether the agency or employee should give the
authorisation;
(b) what conditions (if any) should be attached to the authorisation (if
possible) to protect the environment;
(c) any other matter relating to protection of the environment from the
action.
(2) The Minister must give the advice within 30 days of
receiving:
(a) a report mentioned in subsection 84(3) or section 95, 100 or 105 (as
applied by section 162); or
(b) a report of an inquiry under Division 7 of Part 8 (as applied by
section 162) relating to the action.
As soon as practicable after considering the Minister’s advice, the
Commonwealth agency or employee of the Commonwealth must give the Minister a
report stating:
(a) what action has been taken in relation to the Minister’s advice;
and
(b) if the agency or employee did not give effect to some or all of the
Minister’s advice—why the agency or employee did not do
so.
Overview
(1) This section provides for the assessment of an action for which a
person is applying for a permit under Division 3 of Part 13 (about whales and
other cetaceans).
Application of Part 8
(2) Part 8 (except sections 82, 83 and 84) and the other provisions of
this Act (so far as they relate to that Part) apply in relation to the action
proposed to be authorised by the permit as if:
(a) the application for the permit were a referral of a proposal to take
the action; and
(b) the Minister had decided under Division 2 of Part 7 that the action
was a controlled action when the application was made; and
(c) the person applying for the permit had been designated as the
proponent of the action by the Minister under section 75; and
(d) a reference in Part 8 or those provisions to the relevant impacts of
the action were a reference to the impact that the action has, will have or is
likely to have on cetaceans; and
(e) a reference in Part 8 or those provisions to making an informed
decision on approving under Part 9 (for the purposes of each controlling
provision) the taking of the action were a reference to making an informed
decision about whether or not to issue the permit.
Assessment report must be considered in decision on permit
(5) The Minister must consider the assessment report relating to the
action when deciding whether to grant the permit for the action.
(1) This Subdivision applies if the Minister and a Minister of a State or
self-governing Territory agree that it should apply in relation to an action
that:
(a) is to be taken in the State or Territory by a constitutional
corporation; or
(b) if the agreement is with a Minister of a Territory—is to be
taken in the Territory; or
(c) is to be taken in the State or Territory by a person for the purposes
of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) is to be taken in the State or Territory and is an action whose
assessment under this Subdivision is an appropriate means of giving effect to
Australia’s obligations under an agreement with one or more other
countries.
(2) This section applies to the adoption or implementation of a policy,
plan or program in the same way as it applies to any other action.
(3) Despite subsection (1), this Subdivision does not apply in relation to
an action to be taken in 2 or more States or self-governing Territories unless
there is an agreement between the Minister and a Minister of each of those
States and Territories that this Subdivision should apply in relation to the
action.
Power to make agreement
(1) The Minister may make a written agreement with a Minister of a State
or self-governing Territory to apply this Subdivision in relation to an action
to be taken in the State or Territory.
Prerequisites for making agreement
(2) The Minister may agree only if he or she is satisfied that the action
is not a controlled action.
Minister must not make an agreement that gives preference
(3) The Minister must not enter into an agreement that has the effect of
giving preference (within the meaning of section 99 of the Constitution) to one
State or part of a State over another State or part of a State, in relation to
the taking of the action:
(a) by a constitutional corporation; or
(b) by a person for the purposes of trade or commerce between Australia
and another country or between 2 States.
Generally
(1) An agreement to apply this Subdivision in relation to an action
must:
(a) either specify that one of Divisions 4, 5, 6 and 7 of Part 8 is to
apply in relation to the action or specify that Division 1 of Part 10 is to
apply in relation to the action; and
(b) if it specifies that one of Divisions 4, 5 and 6 of Part 8 is to
apply—specify the person who is taken to be the designated proponent of
the action for the purposes of that Division.
Agreement applying Division 4 of Part 8
(2) An agreement that specifies that Division 4 of Part 8 (about
assessment on preliminary documentation) is to apply in relation to an action
may deal with how the Minister will exercise his or her power under section 94
to refuse to accept a document.
Agreement applying Division 5 of Part 8
(3) An agreement that specifies that Division 5 of Part 8 (about public
environment reports) is to apply in relation to an action may deal with how the
Minister will exercise his or her power:
(a) under section 97 to prepare guidelines for the content of a draft
report; or
(b) under section 98 to approve publication of a draft report or specify a
period for comment; or
(c) under section 99 to refuse a finalised report.
Agreement applying Division 6 of Part 8
(4) An agreement that specifies that Division 6 of Part 8 (about
environmental impact statements) is to apply in relation to an action may deal
with how the Minister will exercise his or her power:
(a) under section 102 to prepare guidelines for the content of a draft
statement; or
(b) under section 103 to approve publication of a draft statement or
specify a period for comment; or
(c) under section 104 to refuse a finalised statement.
Agreement applying Division 7 of Part 8
(5) An agreement that specifies that Division 7 of Part 8 (about
inquiries) is to apply in relation to an action may deal with how the Minister
will exercise his or her power under section 107:
(a) to appoint one or more persons as commissioners, and to appoint a
person to preside; or
(b) to specify the matters relating to the action that are to be the
subject of the inquiry and report; or
(c) to specify the time within which the commission must report to the
Minister; or
(d) to specify the manner in which the commission is to carry out the
inquiry.
Agreement applying Part 10
(6) An agreement that specifies that Division 1 of Part 10 is to apply
may:
(a) be in the same document as an agreement mentioned in that Division;
or
(b) specify the manner in which an agreement the Minister makes under that
Division is to provide for matters that that Division requires that agreement to
provide for.
Provisions that apply
(1) If the agreement states that a particular Division of Part 8 is to
apply in relation to the assessment of an action, the following provisions of
this Act (the applied provisions) apply in relation to the action
as set out in subsection (2):
(a) that Division;
(b) the other provisions of this Act (except Part 9), so far as they
relate to that Division.
Modification of applied provisions
(2) The applied provisions apply in relation to the action as
if:
(a) the Minister had decided under Division 2 of Part 7 that the action
was a controlled action; and
(b) the Minister had decided that the relevant impacts of the action must
be assessed under the Division specified in the agreement applying the Division;
and
(c) the person specified in the agreement as the person who is taken to be
the designated proponent of the action for the purposes of that Division had
been designated as the proponent of the action by the Minister under section 75;
and
(d) a reference in the applied provisions to the relevant impacts of the
action were a reference to the impact that the action has, will have or is
likely to have on the environment; and
(e) a reference in the applied provisions to making an informed decision
on approving under Part 9 (for the purposes of each controlling provision) the
taking of the action were a reference to making an informed report and
recommendations relating to the action.
Modification of section 93
(3) Also, if the agreement states that Division 4 of Part 8 is to apply in
relation to the assessment of an action, that Division applies in relation to
the action as if subparagraphs 93(1)(a)(i), (ii) and (iii) merely referred to
specified information relating to the action.
Minister must give copy of report to State or Territory
Minister
(4) The Minister must give a copy of the report he or she receives from
the Secretary or commission of inquiry under the applied provisions in relation
to the action to each Minister of a State or Territory who is party to the
agreement.
If an agreement to apply this Subdivision states that Division 1 of Part
10 is to apply:
(a) that Division applies as if:
(i) the reference in subsection 146(1) to relevant impacts of actions were
a reference to the impacts the actions have, will have or are likely to have on
the environment; and
(ii) paragraph 146(2)(f) were omitted; and
(b) the Minister must give a copy of the report provided to the Minister
under the agreement made under section 146, and of any recommendations made by
the Minister under the agreement, to each Minister of a State or Territory who
is party to the agreement to apply this Subdivision.
The Secretary must publish on the Internet every week notice of the
following:
(a) the publication in the immediately preceding week by the Minister
under section 45 of a notice of the Minister’s intention to develop a
draft bilateral agreement;
(b) each referral (if any) of an action received by the Minister under
Division 1 of Part 7 in the immediately preceding week;
(c) each decision (if any) in the immediately preceding week under
Division 2 of Part 7 that an action is a controlled action;
(d) each decision (if any) in the immediately preceding week under
Division 3 of Part 8 about which approach is to be used for assessment of the
relevant impacts of an action;
(e) the information and invitations (if any) published in the immediately
preceding week under Division 4 of Part 8 (about assessment on preliminary
documentation);
(f) each set of guidelines (if any) prepared in the immediately preceding
week by the Minister under Division 5 or 6 of Part 8 for a report or
statement;
(g) each public invitation (if any) issued in the immediately preceding
week by the Minister to comment on a draft of guidelines under Division 5 or 6
of Part 8 for a report or statement;
(h) each draft or finalised report or statement published in the
immediately preceding week under Division 5 or 6 of Part 8 by a designated
proponent;
(i) the availability of each assessment report given to the Minister under
Division 4, 5 or 6 of Part 8 in the immediately preceding week;
(j) any other matter prescribed by the regulations.
(1) The Minister may, on behalf of the Commonwealth, co-operate with, and
give financial or other assistance to, any person for the purpose of identifying
and monitoring components of biodiversity.
(2) Without limiting subsection (1), the co-operation and assistance may
include co-operation and assistance in relation to all or any of the
following:
(a) identifying and monitoring components of biodiversity that are
important for its conservation and ecologically sustainable use;
(b) identifying components of biodiversity that are inadequately
understood;
(c) collecting and analysing information about the conservation status of
components of biodiversity;
(d) collecting and analysing information about processes or activities
that are likely to have a significant impact on the conservation and
ecologically sustainable use of biodiversity;
(e) assessing strategies and techniques for the conservation and
ecologically sustainable use of biodiversity;
(f) systematically determining biodiversity conservation needs and
priorities.
(3) In this Act:
components of biodiversity includes species, habitats,
ecological communities, genes, ecosystems and ecological processes.
(4) For the purposes of this section, the components of biological
diversity that are important for its conservation and ecologically sustainable
use are to be identified having regard to the matters set out in Annex I to the
Biodiversity Convention.
(5) The giving of assistance may be made subject to such conditions as the
Minister thinks fit.
(1) The Minister must prepare inventories that identify, and state the
abundance of, the listed threatened species, listed threatened ecological
communities, listed migratory species and listed marine species on Commonwealth
land.
(2) Commonwealth land must be covered by an inventory:
(a) within 5 years after the commencement of this Act; or
(b) within 5 years after the land became Commonwealth land;
whichever is later.
(3) A Commonwealth agency that has an interest in Commonwealth land must
provide all reasonable assistance in connection with the preparation under this
section of an inventory that is to cover the land.
(1) The Minister must prepare surveys that identify, and state the extent
of the range of:
(a) cetaceans present in Commonwealth marine areas; and
(b) the listed threatened species, listed threatened ecological
communities, listed migratory species and listed marine species in Commonwealth
marine areas.
(2) A Commonwealth marine area must be covered by a survey:
(a) within 10 years after the commencement of this Act; or
(b) within 10 years after the area became a Commonwealth marine
area;
whichever is later.
(3) A Commonwealth agency that has an interest in a Commonwealth marine
area is to provide all reasonable assistance in connection with the preparation
under this section of a survey that is to cover the area.
The Minister must take reasonable steps to ensure that the inventories
and surveys prepared under this Division are maintained in an up-to-date
form.
Obligations imposed by this Act are not affected, in their application in
relation to Commonwealth land or Commonwealth marine areas, by any lack of
inventories or surveys for such land or areas.
(1) The Minister may prepare a bioregional plan for a bioregion that is
within a Commonwealth area. In preparing the plan, the Minister must carry out
public consultation on a draft of the plan in accordance with the
regulations.
(2) The Minister may, on behalf of the Commonwealth, co-operate with a
State or a self-governing Territory, an agency of a State or of a self-governing
Territory, or any other person in the preparation of a bioregional plan for a
bioregion that is not wholly within a Commonwealth area.
(3) The co-operation may include giving financial or other
assistance.
(4) A bioregional plan may include provisions about all or any of the
following:
(a) the components of biodiversity, their distribution and conservation
status;
(b) important economic and social values;
(c) objectives relating to biodiversity and other values;
(d) priorities, strategies and actions to achieve the
objectives;
(e) mechanisms for community involvement in implementing the
plan;
(f) measures for monitoring and reviewing the plan.
(5) Subject to this Act, the Minister must have regard to a bioregional
plan in making any decision under this Act to which the plan is
relevant.
Obligations imposed by this Act are not affected, in their application in
relation to Commonwealth areas, by a lack of bioregional plans for those
areas.
(1) The Minister must, by instrument published in the Gazette,
establish a list of threatened species divided into the following
categories:
(a) extinct;
(b) extinct in the wild;
(c) critically endangered;
(d) endangered;
(e) vulnerable;
(f) conservation dependent.
(2) The list, as first established, must contain only the species
contained in Schedule 1 to the Endangered Species Protection Act 1992, as
in force immediately before the commencement of this Act.
(3) The Minister must include:
(a) in the extinct category of the list, as first established, only the
species mentioned in subsection (2) that were listed as presumed extinct; and
(b) in the endangered category of the list, as first established, only the
native species mentioned in subsection (2) that were listed as endangered;
and
(c) in the vulnerable category of the list, as first established, only the
species mentioned in subsection (2) that were listed as vulnerable.
(4) If the Minister is satisfied that a species included in the list, as
first established, in:
(a) the extinct category; or
(b) the endangered category; or
(c) the vulnerable category;
is not eligible to be included in that or any other category, or is
eligible to be, or under subsection 186(3), (4) or (5) can be, included in
another category, the Minister must, within 6 months after the commencement of
this Act, amend the list accordingly in accordance with this
Subdivision.
(1) A native species is eligible to be included in the extinct
category at a particular time if, at that time, there is no reasonable
doubt that the last member of the species has died.
(2) A native species is eligible to be included in the extinct in
the wild category at a particular time if, at that time:
(a) it is known only to survive in cultivation, in captivity or as a
naturalised population well outside its past range; or
(b) it has not been recorded in its known and/or expected habitat, at
appropriate seasons, anywhere in its past range, despite exhaustive surveys over
a time frame appropriate to its life cycle and form.
(3) A native species is eligible to be included in the critically
endangered category at a particular time if, at that time, it is facing
an extremely high risk of extinction in the wild in the immediate future, as
determined in accordance with the prescribed criteria.
(4) A native species is eligible to be included in the endangered
category at a particular time if, at that time:
(a) it is not critically endangered; and
(b) it is facing a very high risk of extinction in the wild in the near
future, as determined in accordance with the prescribed criteria.
(5) A native species is eligible to be included in the vulnerable
category at a particular time if, at that time:
(a) it is not critically endangered or endangered; and
(b) it is facing a high risk of extinction in the wild in the medium-term
future, as determined in accordance with the prescribed criteria.
(6) A native species is eligible to be included in the conservation
dependent category at a particular time if, at that time, the species is
the focus of a specific conservation program, the cessation of which would
result in the species becoming vulnerable, endangered or critically endangered
within a period of 5 years.
(1) A native species of marine fish is eligible to be included in a
category mentioned in a paragraph of subsection 178(1) at a particular time if,
at that time, the species meets the prescribed criteria for that
category.
(2) A subsection of section 179 referring to a category (the
relevant category) does not apply to a native species of marine
fish if regulations are in force for the purposes of subsection (1) of this
section prescribing criteria for the relevant category.
(1) The Minister must, by instrument published in the Gazette,
establish a list of threatened ecological communities divided into the following
categories:
(a) critically endangered;
(b) endangered;
(c) vulnerable.
(2) Subject to subsection (3), the Minister must not include an ecological
community in a particular category of the list, as first established, unless
satisfied that the ecological community is eligible to be included in that
category when the list is first published.
(3) The list, as first established, must contain only the ecological
communities listed in Schedule 2 to the Endangered Species Protection Act
1992 immediately before the commencement of this Act, and they must be
listed in the endangered category.
(4) If the Minister is satisfied that an ecological community included in
the endangered category of the list, as first established under subsection (3),
is not eligible to be included in that or any other category, or is eligible to
be included in another category, the Minister must, within 6 months after the
commencement of this Act, amend the list accordingly in accordance with this
Subdivision.
(5) An instrument (other than an instrument establishing the list
mentioned in subsection (3)) is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(1) An ecological community is eligible to be included in the
critically endangered category at a particular time if, at that
time, it is facing an extremely high risk of extinction in the wild in the
immediate future, as determined in accordance with the prescribed
criteria.
(2) An ecological community is eligible to be included in the
endangered category at a particular time if, at that
time:
(a) it is not critically endangered; and
(b) it is facing a very high risk of extinction in the wild in the near
future, as determined in accordance with the prescribed criteria.
(3) An ecological community is eligible to be included in the
vulnerable category at a particular time if, at that
time:
(a) it is not critically endangered nor endangered; and
(b) it is facing a high risk of extinction in the wild in the medium-term
future, as determined in accordance with the prescribed criteria.
(1) The Minister must, by instrument published in the Gazette,
establish a list of threatening processes that are key threatening
processes.
(2) The list, as first established, must contain only the key threatening
processes contained in Schedule 3 to the Endangered Species Protection Act
1992, as in force immediately before the commencement of this Act.
(1) Subject to this Subdivision, the Minister may, by instrument published
in the Gazette, amend a list referred to in section 178, 181 or 183
by:
(a) including items in the list; or
(b) deleting items from the list; or
(c) in the case of the list referred to in section 178 or
181—transferring items from one category in the list to another category
in the list; or
(d) correcting an inaccuracy or updating the name of a listed threatened
species or listed threatened ecological community.
(2) An instrument (other than an instrument mentioned in paragraph (1)(d))
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(3) Despite section 48 of the Acts Interpretation Act 1901 as it
applies in relation to an instrument because of section 46A of that Act,
amendments of the kind mentioned in paragraphs (1)(b) and (c) take effect on the
first day on which they are no longer liable to be disallowed, or to be taken to
have been disallowed, under section 48 of that Act as it so applies.
(4) When an instrument is laid before each House of the Parliament in
accordance with section 48 of the Acts Interpretation Act 1901, the
Minister must cause a statement to be laid before each House with the instrument
explaining:
(a) in the case of an item that has been included in a list by the
instrument—why the item was so included; or
(b) in the case of an item that has been deleted from a list by the
instrument—why the item was so deleted; or
(c) in the case of an item that has been transferred by the instrument
from one category in the list referred to in section 178 or 181 to another
category in that list—why the item has been so transferred.
(5) The Minister must cause a notice summarising the information contained
in an instrument to be published in accordance with the regulations (if
any).
(1) The Minister must take all reasonably practical steps to amend as
necessary:
(a) the list referred to in section 178 so that it contains in each
category all native species that are eligible to be, or under subsection 186(3),
(4) or (5) can be, included in that category; and
(b) the list referred to in section 181 so that it contains in each
category all ecological communities that are eligible to be included in that
category.
(2) The Minister must decide whether to amend the list referred to in
section 181 to include an ecological community that is described as critically
endangered, endangered or vulnerable in a list that is:
(a) kept by:
(i) a State; or
(ii) a self-governing Territory; or
(iii) the body known as the Australian and New Zealand Environment and
Conservation Council; and
(b) identified by the Minister by a notice published in the
Gazette.
(1) Subject to subsections (3), (4) and (5), the Minister must
not:
(a) include (whether as a result of a transfer or otherwise) a native
species in a particular category; or
(b) delete (whether as a result of a transfer or otherwise) a native
species from a particular category;
unless satisfied that the native species is eligible, or is no longer
eligible, as the case requires, to be included in that category.
(2) In deciding whether to include a native species in, or delete a native
species from, a particular category (whether as a result of a transfer or
otherwise), the Minister must not consider any matter that does not relate to
the survival of the native species concerned.
(3) The Minister may include a native species in the critically endangered
category if satisfied that:
(a) it so closely resembles in appearance, at any stage of its biological
development, a species that is eligible to be included in that category (see
subsection 179(3)) that it is difficult to differentiate between the 2 species;
and
(b) this difficulty poses an additional threat to the last-mentioned
species; and
(c) it would substantially promote the objects of this Act if the
first-mentioned species were regarded as critically endangered.
(4) The Minister may include a native species in the endangered category
if satisfied that:
(a) it so closely resembles in appearance, at any stage of its biological
development, a species that is eligible to be included in that category (see
subsection 179(4)) that it is difficult to differentiate between the 2 species;
and
(b) this difficulty poses an additional threat to the last-mentioned
species; and
(c) it would substantially promote the objects of this Act if the
first-mentioned species were regarded as endangered.
(5) The Minister may include a native species in the vulnerable category
if satisfied that:
(a) it so closely resembles in appearance, at any stage of its biological
development, a species that is eligible to be included in that category (see
subsection 179(5)) that it is difficult to differentiate between the 2 species;
and
(b) this difficulty poses an additional threat to the last-mentioned
species; and
(c) it would substantially promote the objects of this Act if the
first-mentioned species were regarded as vulnerable.
(1) The Minister must not:
(a) include (whether as a result of a transfer or otherwise) an ecological
community in a particular category of the list; or
(b) delete (whether as a result of a transfer or otherwise) an ecological
community from a particular category;
unless satisfied that the ecological community is eligible, or is no longer
eligible, as the case requires, to be included in that category.
(2) In deciding whether to include an ecological community in, or delete
an ecological community from, a particular category (whether as a result of a
transfer or otherwise), the Minister must not consider any matter that does not
relate to the survival of the ecological community concerned.
(1) The Minister must not add a threatening process to the list unless
satisfied that it is eligible to be treated as a key threatening
process.
(2) The Minister must not delete a threatening process from the list
unless satisfied that it is no longer eligible to be treated as a key
threatening process.
(3) A process is a threatening process if it threatens, or
may threaten, the survival, abundance or evolutionary development of a native
species or ecological community.
(4) A threatening process is eligible to be treated as a key threatening
process if:
(a) it could cause a native species or an ecological community to become
eligible for listing in any category, other than conservation dependent;
or
(b) it could cause a listed threatened species or a listed threatened
ecological community to become eligible to be listed in another category
representing a higher degree of endangerment; or
(c) it adversely affects 2 or more listed threatened species (other than
conservation dependent species) or 2 or more listed threatened ecological
communities.
(1) Subject to section 192, in deciding whether to amend:
(a) the list referred to in section 178 or 181; or
(b) the list referred to in section 183;
the Minister must, in accordance with the regulations (if any), obtain and
consider advice from the Scientific Committee on the proposed
amendment.
(2) In preparing advice under subsection (1), the Scientific Committee may
obtain advice from a person with expertise relevant to the subject matter of the
proposed amendment.
(3) In preparing advice for a proposed amendment of a list referred to in
paragraph (1)(a), the Scientific Committee must not consider any matter that
does not relate to the survival of the native species or ecological community
concerned.
(4) If a native species, ecological community or threatening process has
been nominated under section 191 to be listed, the Scientific Committee must
give its advice to the Minister within 12 months, or such longer period as the
Minister specifies, after the Scientific Committee receives the nomination from
the Minister under that section.
(5) The Minister must:
(a) decide whether to amend the list; and
(b) if the Minister decides to amend the list—cause the necessary
instrument to be published in the Gazette;
within 90 days after receiving the Scientific Committee’s advice on
the amendment.
(6) A member of the Scientific Committee has a duty not to disclose to any
other person the advice, or any information relating to the advice, before the
end of that period of 90 days unless the disclosure:
(a) is for the official purposes of the Scientific Committee; or
(b) if an instrument is published in the Gazette relating to an
amendment of a list to which the advice relates—occurred after the
publication.
(1) If the Scientific Committee is of the opinion that a native species or
ecological community is not eligible to be included in any category of the list
mentioned in section 178 or 181, the Committee may give advice to the Minister
concerning any action that is necessary to prevent the species or community
becoming threatened.
(2) The Minister is to have regard to any advice given under subsection
(1) in performing any function, or exercising any power, under this Act relevant
to the species or community.
(1) A person may, in accordance with the regulations (if any), nominate to
the Minister:
(a) a native species to be included in a particular category of the list
referred to in section 178; or
(b) an ecological community to be included in a particular category of the
list referred to in section 181; or
(c) a threatening process to be included in the list referred to in
section 183.
(2) The Minister must forward a nomination to the Scientific Committee
within 10 business days of receiving the nomination. However, the Minister need
not forward a nomination that the Minister rejects under subsection
(6).
(3) If the Minister decides that a nominated native species or ecological
community is not eligible to be included in the nominated category, the Minister
must, in accordance with the regulations (if any):
(a) advise the person who made the nomination of the Minister’s
decision; and
(b) give to that person a statement of reasons why the native species or
ecological community is not eligible to be included in the nominated
category.
(4) If the Minister decides that a threatening process is not eligible to
be listed, the Minister must, in accordance with the regulations (if
any):
(a) advise the person who made the nomination of the Minister’s
decision; and
(b) give to that person a statement of reasons why the threatening process
is not eligible to be listed.
(5) The Minister may, at any time, request a person who has made a
nomination to provide additional information about the subject of the nomination
within such period as the Minister specifies.
(6) The
Minister may reject a nomination if satisfied that it is vexatious, frivolous or
not made in good faith.
(1) If the Minister is satisfied that a native species that is listed in
the extinct category has been definitely located in nature since it was last
listed as extinct, the Minister may, under section 184, transfer the species
from the extinct category to another category without considering advice from
the Scientific Committee.
(2) Subsection (1) does not prevent the Minister from making such an
amendment after having considered advice from the Scientific
Committee.
(1) If the Minister is satisfied that a native species poses a serious
threat to human health, the Minister may, by instrument published in the
Gazette, determine that the species is not appropriate for inclusion in
any of the categories of the list referred to in section 178.
(2) While the determination is in force, the species is not to be added to
that list.
(3) A determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
(4) The Minister must cause a notice summarising the information contained
in an instrument to be published in accordance with the regulations (if
any).
The Minister must, in accordance with the regulations (if any), make
copies of up-to-date lists available for purchase, for a reasonable price, at a
prescribed place in each State and self-governing Territory.
This Subdivision does not apply to a member of a listed threatened
species that is a cetacean.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a native
species or a member of an ecological community; and
(c) the member is a member of a listed threatened species (except a
conservation dependent species) or of a listed threatened ecological community;
and
(d) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a native
species or a member of an ecological community; and
(c) the member is a member of a listed threatened species (except a
conservation dependent species) or of a listed threatened ecological community;
and
(d) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and
(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or moves a member of a native species
or a member of an ecological community; and
(b) the member is a member of a listed threatened species (except a
conservation dependent species) or a listed threatened ecological community;
and
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or moves a member of a native species
or a member of an ecological community; and
(b) the member is a member of a listed threatened species (except a
conservation dependent species) or a listed threatened ecological community;
and
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a native species or a
member of an ecological community; and
(b) the member is a member of a listed threatened species (except a
conservation dependent species) or a listed threatened ecological community;
and
(c) the member has been taken in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a native species or a
member of an ecological community; and
(b) the member is a member of a listed threatened species (except a
conservation dependent species) or a listed threatened ecological community;
and
(c) the member has been taken in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
Sections 196, 196A, 196B, 196C, 196D, 196E and 207B do not apply
to:
(a) an action authorised by a permit that was issued under section 201 and
is in force; or
(b) an action provided for by, and done in accordance with, a recovery
plan in force under Division 5; or
(c) an action that is covered by an approval in operation under Part 9 for
the purposes of a subsection of section 18 or of section 18A; or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33
not to require an approval under Part 9 for the purposes of section 18 or 18A;
and
(ii) is taken in accordance with a management plan that is an accredited
management plan for the purposes of the declaration; or
(e) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by a member of a listed threatened species or
listed threatened ecological community; or
(f) an action that is reasonably necessary to prevent a risk to human
health; or
(g) an action by a Commonwealth agency, or an agency of a State or of a
self-governing Territory, that is reasonably necessary for the purposes of law
enforcement; or
(h) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(j) an action that is taken in accordance with a permit issued under
regulations made under the Great Barrier Reef Marine Park Act 1975 and in
force.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
To avoid doubt, sections 196, 196A, 196B, 196C, 196D, 196E and 197 do not
affect the operation of section 18 or 18A.
(1) This section applies to an action taken by a person if all of the
following conditions are met:
(a) the person’s action either:
(i) results in the death or injury of a member of a listed threatened
species (except a conservation dependent species), or a member of a listed
threatened ecological community, that is in or on a Commonwealth area;
or
(ii) consists of, or involves, trading, taking, keeping or moving a member
of a listed threatened species (except a conservation dependent species), or a
member of a listed threatened ecological community, that is in or on a
Commonwealth area;
(b) the person’s action does not constitute an offence against
section 196, 196A, 196B, 196C, 196D or 196E;
(c) the person’s action is not an action that the person was
authorised by a permit to take.
Note 1: Section 197 sets out most of the circumstances in
which an action described in paragraph (1)(a) will not be an offence against
section 196, 196A, 196B, 196C, 196D or 196E.
Note 2: A person is authorised by a permit to take an action
if the person is the holder of the permit or the person is given an authority
under section 204 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the holder of
the permit to give certain notices.
(2) Within 7 days of becoming aware of the action, the person must notify
the Secretary in writing, by telephone or by use of any other electronic
equipment:
(a) that the action was taken; and
(b) of other particulars (if any) about the action that are prescribed by
the regulations.
(3) An example of the particulars about the action that the regulations
may prescribe is the time and place of taking the action. This does not limit
the particulars the regulations may prescribe.
(4) Subsection (2) does not apply to the person if he or she, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the action.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(2).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 201.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(3) As
soon as practicable after receiving the application, the Minister must cause
notice of the application to be given to each person and body registered under
section 266A (about registration for consultation on permit
applications).
(4) The notice must:
(a) state that an application for a permit has been made; and
(b) set out details of the application; and
(c) invite persons and bodies to make written submissions to the Minister
about whether a permit should be issued; and
(d) specify:
(i) an address for lodgment of submissions; and
(ii) a day by which submissions must be lodged.
(5) The day specified must not be a day occurring within 5 days after the
last day on which the notice was given.
(1) Subject to subsection (3), the Minister may, on application by a
person under section 200, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the
permit without breaching section 196, 196A, 196B, 196C, 196D, 196E or
207B.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will contribute significantly to the conservation
of the listed threatened species or listed threatened ecological community
concerned; or
(b) the impact of the specified action on a member of the listed
threatened species or listed threatened ecological community concerned is
incidental to, and not the purpose of, the taking of the action and:
(i) the taking of the action will not adversely affect the survival or
recovery in nature of that species or ecological community; and
(ii) the taking of the action is not inconsistent with a recovery plan
that is in force for that species or ecological community; and
(iii) the holder of the permit will take all reasonable steps to minimise
the impact of the action on that species or ecological community; or
(c) the specified action is of particular significance to indigenous
tradition and will not adversely affect the survival or recovery in nature of
the listed threatened species or listed threatened ecological community
concerned; or
(d) the specified action is necessary in order to control pathogens and is
conducted in a way that will, so far as is practicable, keep to a minimum any
impact on the listed threatened species or listed threatened ecological
community concerned.
(4) In this Act:
indigenous tradition means the body of traditions,
observances, customs and beliefs of indigenous persons generally or of a
particular group of indigenous persons.
(5) In
making a decision on the application, the Minister must consider all written
submissions made by persons or bodies registered under section 266A (about
registration for consultation on permit applications) to the Minister on or
before the day, and at the address for lodgment, specified in the notice under
section 200.
(1) A permit is subject to such conditions as are specified in the permit
or as are imposed under subsection (2).
(2) The Minister may, in accordance with the regulations:
(a) vary or revoke a condition of a permit; or
(b) impose further conditions of a permit.
(3) Without limiting subsections (1) and (2), conditions of a permit may
include conditions stating the period within which the action specified in the
permit may be taken.
The holder of a permit is guilty of an offence punishable on conviction
by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an act or thing; and
(b) doing, or failing to do, the act or thing results in a contravention
of a condition of the permit.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to take for or on behalf of the holder any action authorised
by the permit. The authority may be given generally or as otherwise provided by
the instrument of authority.
(2) The holder of a permit must not give an authority unless:
(a) the permit contains a condition permitting the holder to do so;
and
(b) the authority is given in accordance with any requirements set out in
the condition.
(3) A permit is, for the purposes of this Act, taken to authorise the
taking of a particular action by a person if the taking of that action by the
person is authorised by an authority given by the holder of the
permit.
(4) The giving of an authority does not prevent the taking of any action
by the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
taking of any action by a person for or on behalf of the holder of the
permit.
(6) A person who gives an authority must give to the Minister written
notice of it within 14 days after giving the authority.
On the application, in accordance with the regulations, of the holder of
a permit, the Minister may, in accordance with the regulations, transfer the
permit to another person.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
An application may be made to the Administrative Appeals Tribunal for
review of a decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a condition of a permit; or
(c) to impose a further condition of a permit; or
(d) to transfer or refuse to transfer a permit; or
(e) to suspend or cancel a permit.
Such fees as are prescribed (if any) are payable in respect of the
following:
(a) the grant or the transfer of a permit;
(b) the variation or revocation of a condition of a permit;
(c) the imposition of a further condition of a permit.
(1) The Minister must cause to be kept in accordance with the regulations
(if any) a register in which the Minister may list habitat identified by the
Minister in accordance with the regulations as being critical to the survival of
a listed threatened species or listed threatened ecological community.
(2) The regulations must require the Minister to consider scientific
advice in identifying the habitat.
(3) The register must be made available for public inspection in
accordance with the regulations (if any).
(4) Habitat listed in the register in relation to a species or ecological
community is critical habitat for the species or ecological
community.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the person knows that the action significantly damages or will
significantly damage critical habitat for a listed threatened species (except a
conservation dependent species) or of a listed threatened ecological community;
and
(c) the habitat is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 197. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(4) To avoid doubt, this section does not affect the operation of Division
2, 3 or 4.
(1) This section applies to a Commonwealth agency that executes a contract
for the sale or lease to someone else of Commonwealth land that includes
critical habitat for a listed threatened species or listed threatened ecological
community. It does not matter whether the Commonwealth agency executes the
contract for the Commonwealth or on its own behalf.
(2) The Commonwealth agency must ensure that the contract includes a
covenant the effect of which is to protect the critical habitat.
(3) The Commonwealth agency must take reasonable steps to ensure as far as
practicable that the covenant binds the successors in title of the buyer or
lessee (as appropriate).
The regulations may:
(a) provide for the transportation, treatment and disposal of members of
listed threatened species or listed threatened ecological communities killed,
injured or taken in contravention of this Division; and
(b) provide for the methods or equipment by which members of listed
threatened species or listed threatened ecological communities may be killed or
taken otherwise than in contravention of this Division; and
(c) provide for the gathering and dissemination of information relating to
listed threatened species or listed threatened ecological communities;
and
(d) provide for the protection and conservation of listed threatened
species or listed threatened ecological communities; and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) The Minister must, by instrument published in the
Gazette:
(a) establish a list of migratory species for the purposes of this Act;
and
(b) amend the list, as necessary, so that it includes all species required
to be included in the list under subsection (3).
(2) The Minister must establish the list within 30 days after the
commencement of this Act.
(3) The list must include:
(a) all species from time to time included in appendices to the Bonn
Convention and for which Australia is a Range State under the Convention;
and
(b) all species from time to time included in lists established under
JAMBA and CAMBA; and
(c) all native species from time to time identified in a list established
under, or an instrument made under, an international agreement approved by the
Minister under subsection (4).
The list must not include any other species.
(4) The Minister may, by instrument published in the Gazette,
approve an international agreement for the purposes of subsection (3) if
satisfied it is an agreement relevant to the conservation of migratory
species.
(5) An instrument mentioned in subsection (4) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(6) The Minister may, by instrument published in the Gazette,
correct an inaccuracy or update the name of a migratory species.
This Subdivision does not apply to a member of a listed migratory species
that is a member of a listed threatened species or a cetacean.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a migratory
species; and
(c) the member is a member of a listed migratory species; and
(d) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 212. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a migratory
species; and
(c) the member is a member of a listed migratory species; and
(d) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 212. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and
(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or moves a member of a migratory
species; and
(b) the member is a member of a listed migratory species; and
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 212. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or moves a member of a migratory
species; and
(b) the member is a member of a listed migratory species; and
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 212. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a migratory species;
and
(b) the member is a member of a listed migratory species; and
(c) the member has been taken in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 212. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a migratory species;
and
(b) the member is a member of a listed migratory species; and
(c) the member has been taken in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 212. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
Sections 211, 211A, 211B, 211C, 211D and 211E do not apply to:
(a) an action authorised by a permit that was issued under section 216 and
is in force; or
(b) an action provided for by, and taken in accordance with, a wildlife
conservation plan made or adopted under Division 5 and in force; or
(c) an action that is covered by an approval in operation under Part 9 for
the purposes of subsection 20(1) or section 20A; or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33
not to require an approval under Part 9 for the purposes of section 20 or 20A;
and
(ii) is taken in accordance with a management plan that is an accredited
management plan for the purposes of the declaration; or
(e) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by a member of a listed migratory species;
or
(f) an action that is reasonably necessary to prevent a risk to human
health; or
(g) an action by a Commonwealth agency, or an agency of a State or of a
self-governing Territory, that is reasonably necessary for the purposes of law
enforcement; or
(h) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(j) an action that is taken in accordance with a permit issued under
regulations made under the Great Barrier Reef Marine Park Act 1975 and in
force.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
To avoid doubt, sections 211, 211A, 211B, 211C, 211D, 211E and 212 do not
affect the operation of section 20 or 20A.
(1) This section applies to an action taken by a person if all of the
following conditions are met:
(a) the person’s action either:
(i) results in the death or injury of a member of a listed migratory
species that is in or on a Commonwealth area; or
(ii) consists of, or involves, trading, taking, keeping or moving a member
of a listed migratory species that is in or on a Commonwealth area;
(b) the person’s action does not constitute an offence against
section 211, 211A, 211B, 211C, 211D or 211E;
(c) the person’s action is not an action that the person was
authorised by a permit to take.
Note 1: Section 212 sets out most of the circumstances in
which an action described in paragraph (1)(a) will not be an offence against
section 211, 211A, 211B, 211C, 211D or 211E.
Note 2: A person is authorised by a permit to take an action
if the person is the holder of the permit or the person is given an authority
under section 219 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the holder of
the permit to give certain notices.
(2) Within 7 days of becoming aware of the action, the person must notify
the Secretary in writing, by telephone or by use of any other electronic
equipment:
(a) that the action was taken; and
(b) of other particulars (if any) about the action that are prescribed by
the regulations.
(3) An example of the particulars about the action that the regulations
may prescribe is the time and place of taking the action. This does not limit
the particulars the regulations may prescribe.
(4) Subsection (2) does not apply to the person if he or she, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the action.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(2).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 216.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(3) As soon as practicable after receiving the application, the Minister
must cause notice of the application to be given to each person and body
registered under section 266A (about registration for consultation on permit
applications).
(4) The notice must:
(a) state that an application for a permit has been made; and
(b) set out details of the application; and
(c) invite persons and bodies to make written submissions to the Minister
about whether a permit should be issued; and
(d) specify:
(i) an address for lodgment of submissions; and
(ii) a day by which submissions must be lodged.
(5) The day specified must not be a day occurring within 5 days after the
last day on which the notice was given.
(1) Subject to subsection (3), the Minister may, on application by a
person under section 215, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the
permit without breaching section 211, 211A, 211B, 211C, 211D or 211E.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will contribute significantly to the conservation
of the listed migratory species concerned or other listed migratory species;
or
(b) the impact of the specified action on a member of the listed migratory
species concerned is incidental to, and not the purpose of, the taking of the
action and:
(i) the taking of the action will not adversely affect the conservation
status of that species or a population of that species; and
(ii) the taking of the action is not inconsistent with a wildlife
conservation plan for that species that is in force; and
(iii) the holder of the permit will take all reasonable steps to minimise
the impact of the action on that species; or
(c) the specified action is of particular significance to indigenous
tradition and will not adversely affect the conservation status of the listed
migratory species concerned, or a population of that species; or
(d) the specified action is necessary in order to control pathogens and is
conducted in a way that will, so far as is practicable, keep to a minimum any
impact on the listed migratory species concerned.
(4) In
making a decision on the application, the Minister must consider all written
submissions made by persons or bodies registered under section 266A (about
registration for consultation on permit applications) to the Minister on or
before the day, and at the address for lodgment, specified in the notice under
section 215.
(1) A permit is subject to such conditions as are specified in the permit
or as are imposed under subsection (2).
(2) The Minister may, in accordance with the regulations:
(a) vary or revoke a condition of a permit; or
(b) impose further conditions of a permit.
The holder of a permit is guilty of an offence punishable on conviction
by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an act or thing; and
(b) doing, or failing to do, the act or thing results in a contravention
of a condition of the permit.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to take for or on behalf of the holder any action authorised
by the permit. The authority may be given generally or as otherwise provided by
the instrument of authority.
(2) The holder of a permit must not give an authority unless:
(a) the permit contains a condition permitting the holder to do so;
and
(b) the authority is given in accordance with any requirements set out in
the condition.
(3) A permit is, for the purposes of this Act, taken to authorise the
taking of a particular action by a person if the taking of that action by the
person is authorised by an authority given by the holder of the
permit.
(4) The giving of an authority does not prevent the taking of any action
by the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
taking of any action by a person for or on behalf of the holder of the
permit.
(6) A person who gives an authority must give to the Minister written
notice of it within 14 days after giving the authority.
On the application, in accordance with the regulations, of the holder of
a permit, the Minister may, in accordance with the regulations, transfer the
permit to another person.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
An application may be made to the Administrative Appeals Tribunal for
review of a decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a condition of a permit; or
(c) to impose a further condition of a permit; or
(d) to transfer or refuse to transfer a permit; or
(e) to suspend or cancel a permit.
Such fees as are prescribed (if any) are payable in respect of the
following:
(a) the grant or the transfer of a permit;
(b) the variation or revocation of a condition of a permit;
(c) the imposition of a further condition of a permit.
The regulations may:
(a) provide for the transportation, treatment and disposal of members of
listed migratory species killed, injured or taken in contravention of this
Division; and
(b) provide for the methods or equipment by which members of listed
migratory species may be killed or taken otherwise than in contravention of this
Division; and
(c) provide for the gathering and dissemination of information relating to
listed migratory species; and
(d) provide for the protection and conservation of listed migratory
species; and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) This Division extends to acts, omissions, matters and things outside
Australia (whether in a foreign country or not), except so far as the contrary
intention appears.
(2) A provision of this Division that has effect in relation to a place
outside the outer limits of the Australian Whale Sanctuary applies only in
relation to:
(a) Australian citizens; and
(b) persons who:
(i) are not Australian citizens; and
(ii) hold permanent visas under the Migration Act 1958;
and
(iii) are domiciled in Australia or an external Territory; and
(c) corporations incorporated in Australia or an external Territory;
and
(d) the Commonwealth; and
(e) Commonwealth agencies; and
(f) Australian aircraft; and
(g) Australian vessels; and
(h) members of crews of Australian aircraft and Australian vessels
(including persons in charge of aircraft or vessels).
(3) This Division applies to a vessel as if it were an Australian vessel
if:
(a) the vessel is a boat within the meaning of the Fisheries Management
Act 1991; and
(b) a declaration, under subsection 4(2) of that Act, that the vessel is
taken to be an Australian boat is in force.
(1) The Australian Whale Sanctuary is established in order to give formal
recognition of the high level of protection and management afforded to cetaceans
in Commonwealth marine areas and prescribed waters.
(2) The Australian Whale Sanctuary comprises:
(a) the waters of the exclusive economic zone (other than the coastal
waters of a State or the Northern Territory); and
(b) so much of the coastal waters of a State or the Northern Territory as
are prescribed waters; and
(c) any marine or tidal waters that are inside the baseline of the
territorial sea adjacent to an external Territory, whether or not within the
limits of an external Territory.
Note: Generally the baseline is the lowest astronomical tide
along the coast but it also includes lines enclosing bays and indentations that
are not bays and straight baselines that depart from the coast.
(1) The regulations may declare the whole, or a specified part, of the
coastal waters of a State or the Northern Territory to be prescribed
waters.
(2) Before the Governor-General makes a regulation under subsection (1),
the Minister must obtain the agreement of the relevant Minister of the State or
the Northern Territory.
(1) Section 15B of the Acts Interpretation Act 1901 does not apply
in relation to this Division.
(2) The coastal waters of a State or the Northern Territory
are:
(a) the part or parts of the territorial sea that are:
(i) within 3 nautical miles of the baseline of the territorial sea;
and
(ii) adjacent to that State or Territory; and
(b) any marine or tidal waters that are inside that baseline and are
adjacent to that State or Territory but are not within the limits of a State or
that Territory.
Note: Generally the baseline is the lowest astronomical tide
along the coast but it also includes lines enclosing bays and indentations that
are not bays and straight baselines that depart from the coast.
(3) Any part of the territorial sea that is adjacent to the Jervis Bay
Territory is, for the purposes of subsection (2), taken to be adjacent to New
South Wales.
(1) If the Minister is satisfied that a law of a State or the Northern
Territory adequately protects cetaceans in the coastal waters, or a part of the
coastal waters, of the State or Territory, the Minister may make a declaration
accordingly, whether or not those coastal waters or that part are prescribed
waters.
(2) A declaration must be in writing.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a cetacean; and
(c) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part
of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale
Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 231. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a cetacean; and
(c) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part
of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale
Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 231. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps, moves or interferes with a cetacean;
and
(b) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part
of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale
Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 231. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(4) In this Act:
interfere with a cetacean includes harass, chase, herd, tag,
mark or brand the cetacean.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps, moves or interferes with a cetacean;
and
(b) the cetacean is in:
(i) the Australian Whale Sanctuary (but not the coastal waters, or a part
of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force); or
(ii) waters beyond the outer limits of the Australian Whale
Sanctuary.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 231. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a) and (b).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been:
(i) killed in contravention of section 229 or 229A; or
(ii) taken in contravention of section 229B or 229C.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 231. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(3) In this Act:
treat a cetacean means divide or cut up, or extract any
product from, the cetacean.
(1) Subject to section 231, a person is guilty of an offence if:
(a) the person has in his or her possession:
(i) a cetacean; or
(ii) a part of a cetacean; or
(iii) a product derived from a cetacean; and
(b) the cetacean has been:
(i) killed in contravention of section 229 or 229A; or
(ii) taken in contravention of section 229B or 229C.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) An offence against this section is punishable on conviction by
imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
Sections 229, 229A, 229B, 229C, 229D and 230 do not apply to:
(a) an action authorised by a permit that was issued under section 238 and
is in force; or
(b) an action provided for by, and taken in accordance with, a recovery
plan, or a wildlife conservation plan, made or adopted under Division 5 and in
force; or
(c) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering of a cetacean; or
(d) an action that is reasonably necessary to prevent a risk to human
health; or
(e) an action by a Commonwealth agency, or an agency of a State or of a
self-governing Territory, that is reasonably necessary for the purposes of law
enforcement; or
(f) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(g) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(h) in the case of an action taken in relation to a cetacean that is not a
member of a listed threatened species—the action was provided for by, and
taken in accordance with, a plan of management that is accredited under section
245.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
(1) This section applies to an action taken by a person if all of the
following conditions are met:
(a) the person’s action:
(i) results in the injury or death of a cetacean, or consists of taking a
cetacean, in the Australian Whale Sanctuary (but not the coastal waters, or a
part of the coastal waters of a State or the Northern Territory for which a
declaration under section 228 is in force) or in waters beyond the outer limits
of the Australian Whale Sanctuary; or
(ii) consists of treating a cetacean killed, injured or taken in
contravention of section 229, 229A, 229B or 229C;
(b) the person’s action does not constitute an offence against
section 229, 229A, 229B, 229C or 229D;
(c) the person’s action is not an action that the person was
authorised by a permit to take.
Note 1: Section 231 sets out most of the circumstances in
which an action described in paragraph (1)(a) will not be an offence against
section 229, 229A, 229B, 229C or 229D.
Note 2: A person is authorised by a permit to take an action
if the person is the holder of the permit or the person is given an authority
under section 241 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the holder of
the permit to give certain notices.
(2) Within 7 days of becoming aware of the action, the person must notify
the Secretary in writing, by telephone or by use of any other electronic
equipment:
(a) that the action was taken; and
(b) of other particulars (if any) about the action that are prescribed by
the regulations.
(3) An example of the particulars about the action that the regulations
may prescribe is the time and place of taking the action. This does not limit
the particulars the regulations may prescribe.
(4) Subsection (2) does not apply to the person if he or she, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the action.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if the person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(2).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to section 235, a person is guilty of an offence if:
(a) the person has in his or her possession:
(i) a cetacean; or
(ii) a part of a cetacean; or
(iii) a product derived from a cetacean; and
(b) the cetacean has been unlawfully imported.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) An offence against this section is punishable on conviction by
imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty
units, or both.
(1) Subject to section 235, a person is guilty of an offence if:
(a) the person treats a cetacean; and
(b) the cetacean has been unlawfully imported.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) An offence against this section is punishable on conviction by
imprisonment for not more than 2 years or a fine not exceeding 1000 penalty
units, or both.
Sections 233 and 234 do not apply to:
(a) an action authorised by a permit that was issued under section 238 and
is in force; or
(b) an action provided for by, and taken in accordance with, a recovery
plan, or a wildlife conservation plan, made or adopted under Division 5 and that
is in force; or
(c) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by a cetacean; or
(d) an action that is reasonably necessary to prevent a risk to human
health; or
(e) an action by a Commonwealth agency, or an agency of a State or of a
self-governing Territory, that is reasonably necessary for the purposes of law
enforcement; or
(f) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(g) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
(1) The master of a foreign whaling vessel is guilty of an offence if the
vessel is brought into a port in Australia or an external Territory and the
master has not obtained the written permission of the Minister for the vessel to
be brought into the port.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) An offence against subsection (1) is punishable on conviction by a
fine not exceeding 500 penalty units.
(4) Subsection (1) does not apply if:
(a) the vessel is brought into the port in accordance with a prescribed
agreement between Australia and any other country or countries; or
(b) the vessel is brought into the port under the direction of a person
exercising powers under a law of the Commonwealth or of a State; or
(c) an unforeseen emergency renders it necessary to bring the vessel into
the port in order to secure the safety of the vessel or human life.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (4). See subsection 13.3(3) of the Criminal
Code.
(5) In this Act:
foreign whaling vessel means a vessel, other than an
Australian vessel, designed, equipped or used for:
(a) killing, taking, treating or carrying whales; or
(b) supporting the operations of a vessel or vessels designed, equipped or
used for killing, taking, treating or carrying whales.
master, in relation to a foreign whaling vessel, means the
person (other than a ship’s pilot) in charge or command of the
vessel.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 238.
Note: The action to be covered by the permit will undergo
assessment under Part 8 as it applies because of section 165.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(3) As
soon as practicable after receiving the application, the Minister must cause
notice of the application to be given to each person and body registered under
section 266A (about registration for consultation on permit
applications).
(4) The notice must:
(a) state that an application for a permit has been made; and
(b) set out details of the application; and
(c) invite persons and bodies to make written submissions to the Minister
about whether a permit should be issued; and
(d) specify:
(i) an address for lodgment of submissions; and
(ii) a day by which submissions must be lodged.
(5) The day specified must not be a day occurring within 5 days after the
last day on which the notice was given.
(1) Subject to subsections (3) and (4), the Minister may, on application
by a person under section 237, issue a permit to the person.
(2) A permit authorises its holder to take an action specified in the
permit without breaching sections 229, 229A, 229B, 229C, 229D, 230, 233 and
234.
(3) The Minister must not issue the permit unless satisfied
that:
(a) the specified action will contribute significantly to the conservation
of cetaceans; or
(b) if the specified action will interfere with cetaceans, the
interference is incidental to, and not the purpose of, the taking of the action
and:
(i) the taking of the action will not adversely affect the conservation
status of a species of cetacean or a population of that species; and
(ii) the taking of the action is not inconsistent with a recovery plan or
wildlife conservation plan that is in force for a species of cetacean;
and
(iii) the holder of the permit will take all reasonable steps to minimise
the interference with cetaceans; or
(c) the specified action is whale watching and is carried out in
accordance with the regulations (if any) made for the purposes of this
section.
Note: In deciding whether to issue the permit, the Minister
must consider the assessment report that relates to the action to be covered by
the permit and was prepared as a result of Part 8 applying because of section
165.
(3A) In making a decision on the application, the Minister must consider
all written submissions made by persons or bodies registered under section 266A
(about registration for consultation on permit applications) to the Minister on
or before the day, and at the address for lodgment, specified in the notice
under section 237.
(4) The Minister must not grant a permit authorising its holder to kill a
cetacean or to take a cetacean for live display.
(5) In this Act:
whale watching means any activity conducted for the purpose
of observing a whale, including but not limited to being in the water for the
purposes of observing or swimming with a whale, or otherwise interacting with a
whale.
(1) A permit is subject to such conditions as are specified in the permit
or as are imposed under subsection (2).
(2) The Minister may, in accordance with the regulations:
(a) vary or revoke a condition of a permit; or
(b) impose further conditions of a permit.
The holder of a permit is guilty of an offence punishable upon conviction
by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an act or thing; and
(b) doing, or failing to do, the act or thing results in a contravention
of a condition of the permit.
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) Subject to subsection (2), the holder of a permit may give to a person
written authority to take for or on behalf of the holder any action authorised
by the permit. The authority may be given generally or as otherwise provided by
the instrument of authority.
(2) The holder of a permit must not give an authority unless:
(a) the permit contains a condition permitting the holder to do so;
and
(b) the authority is given in accordance with any requirements set out in
the condition.
(3) A permit is, for the purposes of this Act, taken to authorise the
taking of a particular action by a person if the taking of that action by the
person is authorised by an authority given by the holder of the
permit.
(4) The giving of an authority does not prevent the taking of any action
by the holder of the permit.
(5) Except as provided in this section, a permit does not authorise the
taking of any action by a person for or on behalf of the holder of the
permit.
(6) A person who gives an authority must give to the Minister written
notice of it within 14 days after giving the authority.
On the application, in accordance with the regulations, of the holder of
a permit, the Minister may, in accordance with the regulations, transfer the
permit to another person.
The Minister may, in accordance with the regulations:
(a) suspend a permit for a specified period; or
(b) cancel a permit.
An application may be made to the Administrative Appeals Tribunal for
review of a decision:
(a) to issue or refuse a permit; or
(b) to specify, vary or revoke a condition of a permit; or
(c) to impose a further condition of a permit; or
(d) to transfer or refuse to transfer a permit; or
(e) to suspend or cancel a permit.
Such fees as are prescribed (if any) are payable in respect of the
following:
(a) the grant or the transfer of a permit;
(b) the variation or revocation of a condition of a permit;
(c) the imposition of a further condition of a permit.
The Minister may, by instrument in writing, accredit for the purposes of
this Division:
(a) a plan of management within the meaning of section 17 of the
Fisheries Management Act 1991; or
(b) a plan of management for a fishery made by a State or self-governing
Territory and that is in force in the State or Territory;
if satisfied that:
(c) the plan requires persons engaged in fishing under the plan to take
all reasonable steps to ensure that cetaceans are not killed or injured as a
result of the fishing; and
(d) the fishery to which the plan relates does not, or is not likely to,
adversely affect the conservation status of a species of cetacean or a
population of that species.
(1) If:
(a) a cetacean is:
(i) in the Australian Whale Sanctuary, other than the coastal waters, or a
part of the coastal waters, of a State or the Northern Territory for which a
declaration under section 228 is in force; or
(ii) in waters beyond the outer limits of the Australian Whale Sanctuary;
and
(a) a person kills, injures or takes the cetacean, whether or not in
contravention of this Division;
the cetacean vests, by force of this section, in the
Commonwealth.
(2) The Commonwealth is not liable in any action, suit or proceedings in
respect of any matter relating to a cetacean at any time before the taking of
possession of the cetacean by the Commonwealth.
The regulations may:
(a) provide for the transportation, treatment and disposal of cetaceans
killed, injured or taken in contravention of this Division; and
(b) provide for the methods or equipment by which cetaceans may be killed,
taken or interfered with otherwise than in contravention of this Division;
and
(c) provide for the gathering and dissemination of information relating to
cetaceans; and
(d) provide for the protection and conservation of cetaceans;
and
(e) provide for any matter incidental to or connected with any of the
above paragraphs.
(1) The Minister must, by instrument published in the Gazette,
establish a list of marine species for the purposes of this Part.
(2) The list, as first established, must contain only the
following:
(a) all species in the Family Hydrophiidae (sea-snakes);
(b) all species in the Family Laticaudidae (sea-snakes);
(c) all species in the Family Otariidae (eared seals);
(d) all species in the Family Phocidae (“true”
seals);
(e) all species in the Genus Crocodylus (crocodiles);
(f) all species in the Genus Dugong (dugong);
(g) all species in the Family Cheloniidae (marine turtles);
(h) the species Dermochelys coriacea (leatherback
turtles);
(i) all species in the Family Syngnathidae (seahorses, sea-dragons and
pipefish);
(j) all species in the Family Solenostomidae (ghost pipefish);
(k) all species in the Class Aves (birds) that occur naturally in
Commonwealth marine areas.
(3) The Minister must establish the list within 30 days after the
commencement of this Act.
(4) The Minister must cause a notice summarising the information contained
in the instrument to be published in accordance with the regulations (if
any).
(1) Subject to this Subdivision, the Minister may, by instrument published
in the Gazette, amend the list:
(a) by including items in the list; or
(b) by deleting items from the list; or
(c) by correcting an inaccuracy or updating the name of a marine
species.
(2) An instrument mentioned in paragraph (1)(a) or (b) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
(3) Despite section 48 of the Acts Interpretation Act 1901 as it
applies in relation to an instrument because of section 46A of that Act,
amendments of a list that delete items from the list take effect on the first
day on which they are no longer liable to be disallowed, or to be taken to have
been disallowed, under section 48 of that Act as it so applies.
(4) When an instrument is laid before each House of the Parliament in
accordance with section 48 of the Acts Interpretation Act 1901, the
Minister must cause a statement to be laid before each House with the instrument
explaining:
(a) in the case of an item that has been included in the list by the
instrument—why the item was so included; or
(b) in the case of an item that has been deleted from the list by the
instrument—why the item was so deleted.
(5) The Minister must cause a notice summarising the information contained
in an instrument to be published in accordance with the regulations (if
any).
(1) The Minister must not add a marine species to the list
unless:
(a) the Minister is satisfied that it is necessary to include the species
in the list in order to ensure the long-term conservation of the species;
and
(b) the species occurs naturally in a Commonwealth marine area.
(2) Before adding a marine species to the list, the Minister must consult
with each Minister who has an interest in a Commonwealth marine area where the
species occurs naturally.
(1) In deciding whether to add an item to, or delete an item from, the
list, the Minister must, in accordance with the regulations (if any), obtain and
consider advice from the Scientific Committee on the scientific aspects of the
addition or deletion of the item concerned.
(2) The Minister must:
(a) decide whether to add an item to, or delete an item from, the list;
and
(b) if the Minister decides to add or delete the item—cause the
necessary instrument to be published in the Gazette;
within 90 days after receiving the Scientific Committee’s advice on
the addition or deletion of the item.
(3) A member of the Scientific Committee has a duty not to disclose to any
other person the advice, or any information relating to the advice, before the
end of that period of 90 days unless the disclosure:
(a) is for the official purposes of the Scientific Committee; or
(b) if an instrument is published in the Gazette relating to an
addition or deletion to which the advice relates—occurred after the
publication.
The Minister must, in accordance with the regulations (if any), make
copies of up-to-date lists available for purchase, for a reasonable price, at a
prescribed place in each State and self-governing Territory.
This Subdivision does not apply to a member of a listed marine species
that is a member of a listed migratory species, a member of a listed threatened
species or a cetacean.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a marine
species; and
(c) the member is a member of a listed marine species; and
(d) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 255. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results in the death or injury of a member of a marine
species; and
(c) the member is a member of a listed marine species; and
(d) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 255. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and
(d).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or moves a member of a marine species;
and
(b) the member is a member of a listed marine species; and
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 255. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person takes, trades, keeps or moves a member of a marine species;
and
(b) the member is a member of a listed marine species; and
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 255. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a marine species;
and
(b) the member is a member of a listed marine species; and
(c) the member has been taken in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 255. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more
than 2 years or a fine not exceeding 1,000 penalty units, or both.
(1) A person is guilty of an offence if:
(a) the person trades, keeps or moves a member of a marine species;
and
(b) the member is a member of a listed marine species; and
(c) the member has been taken in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances
described in section 255. A defendant bears an evidential burden in relation to
those circumstances. See subsection 13.3(3) of the Criminal
Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of
the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500
penalty units.
Sections 254, 254A, 254B, 254C, 254D and 254E do not apply to:
(a) an action authorised by a permit that was issued under section 258 and
is in force; or
(b) an action provided for by, and taken in accordance with, a wildlife
conservation plan made under Division 5 and in force; or
(c) an action that is covered by an approval in operation under Part 9 for
the purposes of subsection 23(1) or (2), 24A(1), (2), (3) or (4), 26(1) or (2)
or 27A(1), (2), (3) or (4); or
(d) an action that:
(i) is one of a class of actions declared by the Minister under section 33
not to require an approval under Part 9 for the purposes of subsection 23(1) or
(2), 24A(1), (2), (3) or (4), 26(1) or (2) or 27A(1), (2), (3) or (4);
and
(ii) is taken in accordance with a management plan that is an accredited
management plan for the purposes of the declaration; or
(e) an action that is taken in a humane manner and is reasonably necessary
to relieve or prevent suffering by an animal; or
(f) an action that is reasonably necessary to prevent a risk to human
health; or
(g) an action by a Commonwealth agency, or an agency of a State or of a
self-governing Territory, that is reasonably necessary for the purposes of law
enforcement; or
(h) an action that is reasonably necessary to deal with an emergency
involving a serious threat to human life or property; or
(i) an action that occurs as a result of an unavoidable accident, other
than an accident caused by negligent or reckless behaviour; or
(j) an action taken in accordance with a permit issued under regulations
made under the Great Barrier Reef Marine Park Act 1975 and in force;
or
(k) an action provided for by, and taken in accordance with, a plan of
management that is accredited under section 265.
Note: A defendant bears an evidential burden in relation to
the matters in this section. See subsection 13.3(3) of the Criminal
Code.
(1) This section applies to an action taken by a person if all of the
following conditions are met:
(a) the person’s action either:
(i) results in the death or injury of a member of a listed marine species
that is in or on a Commonwealth area; or
(ii) consists of, or involves, trading, taking, keeping or moving a member
of a listed marine species that is in or on a Commonwealth area;
(b) the person’s action does not constitute an offence against
section 254, 254A, 254B, 254C, 254D or 254E;
(c) the person’s action is not an action that the person was
authorised by a permit to take.
Note 1: Section 255 sets out most of the circumstances in
which an action described in paragraph (1)(a) will not be an offence against
section 254, 254A, 254B, 254C, 254D or 254E.
Note 2: A person is authorised by a permit to take an action
if the person is the holder of the permit or the person is given an authority
under section 261 by the holder of the permit to take the
action.
Note 3: The conditions of a permit may require the holder of
the permit to give certain notices.
(2) Within 7 days of becoming aware of the action, the person must notify
the Secretary in writing, by telephone or by use of any other electronic
equipment:
(a) that the action was taken; and
(b) of other particulars (if any) about the action that are prescribed by
the regulations.
(3) An example of the particulars about the action that the regulations
may prescribe is the time and place of taking the action. This does not limit
the particulars the regulations may prescribe.
(4) Subsection (2) does not apply to the person if he or she, or any other
person or body, is required by or under a law of the Commonwealth to notify the
Secretary of the action.
(5) A person is guilty of an offence punishable on conviction by a fine
not exceeding 100 penalty units if a person:
(a) fails to do an act; and
(b) the failing to do the act results in a contravention of subsection
(2).
Note: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
(1) A person may, in accordance with the regulations, apply to the
Minister for a permit to be issued under section 258.
(2) The application must be accompanied by the fee prescribed by the
regulations (if any).
(3) As soon as practicable after receiving the application, the Minister
must cause notice of the application to be given to each person and body
registered under section 266A (about registration for consultation on permit
applications).
(4) The notice must:
(a) state that an application for a permit has been made; and
(b) set out details of the application; and
(c) invite persons and bodies to make written submissions to the Minister
about whether a permit should be issued; and
(d) specify:
(i) an address for lodgment of submissions; and
(ii) a day by which submissions must be