[pic] Environment Protection and Biodiversity Conservation Act 1999 Act No. 91 of 1999 as amended This compilation was prepared on 18 July 2008 taking into account amendments up to Act No. 73 of 2008 Volume 1 includes: Table of Contents Sections 1 - 266 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Volume 2 includes: Table of Contents Sections 266B - 528 Schedule 1 Note 1 Table of Acts Act Notes Table of Amendments Notes 2 and 3 Table A Prepared by the Office of Legislative Drafting and Publishing, Attorney-General's Department, Canberra Contents Chapter 1-Preliminary 1 Part 1-Preliminary 1 1 Short title [see Note 1] 1 2 Commencement [see Note 1] 1 3 Objects of Act 1 3A Principles of ecologically sustainable development 3 4 Act to bind Crown 3 5 Application of Act 4 6 Extended application of Act to match extended management of fisheries under the Fisheries Management Act 1991 6 7 Application of the Criminal Code 7 8 Native title rights not affected 7 9 Relationship with other Acts 8 10 Relationship with State law 8 Chapter 2-Protecting the environment 9 Part 2-Simplified outline of this Chapter 9 11 Simplified outline of this Chapter 9 Part 3-Requirements for environmental approvals 10 Division 1-Requirements relating to matters of national environmental significance 10 Subdivision A-World Heritage 10 12 Requirement for approval of activities with a significant impact on a declared World Heritage property 10 13 What is a declared World Heritage property? 11 14 Declaring a property to be a declared World Heritage property 11 15 Amending or revoking a declaration of a declared World Heritage property 13 15A Offences relating to declared World Heritage properties 14 Subdivision AA-National Heritage 15 15B Requirement for approval of activities with a significant impact on a National Heritage place 15 15C Offences relating to National Heritage places 17 Subdivision B-Wetlands of international importance 22 16 Requirement for approval of activities with a significant impact on a declared Ramsar wetland 22 17 What is a declared Ramsar wetland? 23 17A Making and revoking declarations of wetlands 23 17B Offences relating to declared Ramsar wetlands 25 Subdivision C-Listed threatened species and communities 26 18 Actions with significant impact on listed threatened species or endangered community prohibited without approval 26 18A Offences relating to threatened species etc. 28 19 Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited 29 Subdivision D-Listed migratory species 30 20 Requirement for approval of activities with a significant impact on a listed migratory species 30 20A Offences relating to listed migratory species 31 20B Certain actions relating to listed migratory species not prohibited 32 Subdivision E-Protection of the environment from nuclear actions 32 21 Requirement for approval of nuclear actions 32 22 What is a nuclear action? 34 22A Offences relating to nuclear actions 35 Subdivision F-Marine environment 37 23 Requirement for approval of activities involving the marine environment 37 24 What is a Commonwealth marine area? 39 24A Offences relating to marine areas 40 Subdivision G-Additional matters of national environmental significance 44 25 Requirement for approval of prescribed actions 44 Subdivision H-Actions that are taken to be covered by this Division 46 25A Actions that are taken to be covered by this Division 46 Subdivision HA-Limitation on liability for actions of third parties 47 25AA Limitation on liability for actions of third parties 47 Subdivision I-Evidentiary certificates 48 25B Evidentiary certificates 48 25C Certificate to be given to person 49 25D Evidentiary effect of certificate 49 25E Variation of certificate 49 25F Revocation of certificate 49 Division 2-Protection of the environment from proposals involving the Commonwealth 50 Subdivision A-Protection of environment from actions involving Commonwealth land 50 26 Requirement for approval of activities involving Commonwealth land 50 27 What is Commonwealth land? 51 27A Offences relating to Commonwealth land 51 Subdivision AA-Protection of Commonwealth Heritage places outside the Australian jurisdiction 53 27B Requirement for approval of actions with significant impact on Commonwealth Heritage places overseas 53 27C Offences relating to Commonwealth Heritage places overseas 54 Subdivision B-Protection of the environment from Commonwealth actions 55 28 Requirement for approval of activities of Commonwealth agencies significantly affecting the environment 55 Subdivision C-Actions that are taken to be covered by this Division 57 28AA Actions that are taken to be covered by this Division 57 Subdivision D-Limitation on liability for actions of third parties 58 28AB Limitation on liability for actions of third parties 58 Part 4-Cases in which environmental approvals are not needed 59 Division 1-Actions covered by bilateral agreements 59 29 Actions declared by agreement not to need approval 59 30 Extended operation in State and Northern Territory waters 60 31 Extended operation in non-self-governing Territories 60 Division 2-Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes 62 Subdivision A-Effect of declarations 62 32 Actions declared by Minister not to need approval 62 Subdivision B-Making declarations 63 33 Making declaration that actions do not need approval under Part 9 63 34 What is matter protected by a provision of Part 3? 67 Subdivision C-Prerequisites for making declarations 69 34A Minister may only make declaration if prescribed criteria are met 69 34B Declarations relating to declared World Heritage properties 69 34BA Declarations relating to National Heritage places 70 34C Declarations relating to declared Ramsar wetlands 70 34D Declarations relating to listed threatened species and ecological communities 71 34E Declarations relating to migratory species 72 34F Declarations relating to Commonwealth Heritage places 73 Subdivision D-Other rules about declarations 73 35 Revoking declarations 73 36 Other rules about declarations 74 36A Minor amendments of accredited management arrangement or accredited authorisation process 74 Division 3-Actions covered by Ministerial declarations and bioregional plans 76 Subdivision A-Effect of declarations 76 37 Actions declared by Minister not to need approval 76 Subdivision B-Making declarations 76 37A Making declarations that actions do not need approval under Part 9 76 Subdivision C-Prerequisites for making declarations 77 37B General considerations 77 37C Minister may make declaration only if prescribed criteria are met 77 37D Declarations relating to declared World Heritage properties 77 37E Declarations relating to National Heritage places 78 37F Declarations relating to declared Ramsar wetlands 78 37G Declarations relating to listed threatened species and ecological communities 78 37H Declarations relating to listed migratory species 79 37J No declarations relating to nuclear actions 79 Subdivision D-Other rules about declarations 80 37K Revoking declarations 80 37L Other rules about declarations 80 Division 3A-Actions covered by conservation agreements 81 37M Actions declared by conservation agreement not to need approval 81 Division 4-Forestry operations in certain regions 82 Subdivision A-Regions covered by regional forest agreements 82 38 Part 3 not to apply to certain RFA forestry operations 82 Subdivision B-Regions subject to a process of negotiating a regional forest agreement 82 39 Object of this Subdivision 82 40 Forestry operations in regions not yet covered by regional forest agreements 82 41 What is an RFA region? 84 Subdivision C-Limits on application 85 42 This Division does not apply to some forestry operations 85 Division 5-Actions in the Great Barrier Reef Marine Park 86 43 Actions taken in accordance with permission 86 Division 6-Actions with prior authorisation 87 43A Actions with prior authorisation 87 43B Actions which are lawful continuations of use of land etc. 88 Chapter 3-Bilateral agreements 89 Part 5-Bilateral agreements 89 Division 1-Object of Part 89 44 Object of this Part 89 Division 2-Making bilateral agreements 90 Subdivision A-Power to make bilateral agreements 90 45 Minister may make agreement 90 46 Agreement may declare actions do not need approval under Part 9 91 47 Agreement may declare classes of actions do not need assessment 95 48 Other provisions of bilateral agreements 96 48A Mandatory provisions 97 49 Express provision needed to affect Commonwealth areas or actions 99 Subdivision B-Prerequisites for making bilateral agreements 99 49A Consultation on draft agreement 99 50 Minister may only enter into agreement if prescribed criteria are met 100 51 Agreements relating to declared World Heritage properties 100 51A Agreements relating to National Heritage places 100 52 Agreements relating to declared Ramsar wetlands 101 53 Agreements relating to listed threatened species and ecological communities 101 54 Agreements relating to migratory species 103 55 Agreements relating to nuclear actions 104 56 Agreements relating to prescribed actions 104 Subdivision C-Minor amendments of bilateral agreements 104 56A Ministerial determination of minor amendments to bilateral agreements 104 Division 3-Suspending and ending the effect of bilateral agreements 106 Subdivision A-Suspension and cancellation of effect 106 57 Representations about suspension or cancellation 106 58 Consultation before cancellation or suspension 107 59 Suspension or cancellation 107 60 Emergency suspension of effect of bilateral agreement 109 61 Cancellation during suspension 110 62 Revocation of notice of suspension or cancellation 110 63 Cancellation or suspension at request of other party 111 64 Cancellation or suspension of bilateral agreement does not affect certain actions 112 Subdivision B-Expiry of bilateral agreements 112 65 Expiry and review of bilateral agreements 112 65A Expiry of bilateral agreement does not affect certain actions 113 Chapter 4-Environmental assessments and approvals 114 Part 6-Simplified outline of this Chapter 114 66 Simplified outline of this Chapter 114 Part 7-Deciding whether approval of actions is needed 116 Division 1-Referral of proposals to take action 116 67 What is a controlled action? 116 67A Prohibition on taking controlled action without approval 116 68 Referral by person proposing to take action 116 68A Actions proposed to be taken under a contract etc. 117 69 State or Territory may refer proposal to Minister 118 70 Minister may request referral of proposal 118 71 Commonwealth agency may refer proposal to Minister 119 72 Form and content of referrals 120 73 Informing person proposing to take action of referral 120 74 Inviting provision of information on referred proposal 120 74A Minister may request referral of a larger action 122 74AA Offence of taking action before decision made in relation to referral etc. 123 Division 1A-Decision that action is clearly unacceptable 125 74B Application of this Division 125 74C Informing person proposing to take action that action is clearly unacceptable 125 74D Procedure if Minister is requested to reconsider referral 126 Division 2-Ministerial decision whether action needs approval 128 75 Does the proposed action need approval? 128 76 Minister may request more information for making decisions 130 77 Notice and reasons for decision 131 77A Action to be taken in a particular manner 132 Division 3-Reconsideration of decisions 134 78 Reconsideration of decision 134 78A Request for reconsideration of decision by person other than State or Territory Minister 137 78B Minister must inform interested persons of request and invite comments 138 78C Minister must reconsider decision and give notice of outcome 139 79 Reconsideration of decision on request by a State or Territory 140 Part 8-Assessing impacts of controlled actions 142 Division 1-Simplified outline of this Part 142 80 Simplified outline of this Part 142 Division 2-Application of this Part 143 81 Application 143 82 What are the relevant impacts of an action? 143 83 This Part does not apply if action covered by bilateral agreement 144 84 This Part does not apply if action covered by declaration 145 Division 3-Decision on assessment approach 147 Subdivision A-Simplified outline of this Division 147 85 Simplified outline of this Division 147 Subdivision B-Deciding on approach for assessment 147 87 Minister must decide on approach for assessment 147 88 Timing of decision on assessment approach 149 89 Minister may request more information for making decision 150 90 Directing an inquiry after starting an assessment 150 91 Notice of decision on assessment approach 151 Division 3A-Assessment on referral information 153 92 Application of this Division 153 93 Recommendation report 153 Division 4-Assessment on preliminary documentation 155 94 Application of this Division 155 95 Direction to publish referral information and invitation to comment-no further information required 155 95A Direction to publish referral information and invitation to comment-further information required 156 95B Procedure after end of period for comment 157 95C Recommendation report 158 Division 5-Public environment reports 159 96 Application 159 96A Minister must give designated proponent written guidelines for preparation of draft public environment report 159 96B Standard guidelines 160 97 Tailored guidelines 160 98 Designated proponent must invite comment on draft public environment report 162 99 Finalising public environment report 162 100 Recommendation report 163 Division 6-Environmental impact statements 164 101 Application 164 101A Minister must give designated proponent written guidelines for preparation of draft environmental impact statement 164 101B Standard guidelines 165 102 Tailored guidelines 165 103 Designated proponent must invite comment on draft environmental impact statement 167 104 Finalising environmental impact statement 168 105 Recommendation report 168 Division 7-Inquiries 169 Subdivision A-Preliminary 169 106 Simplified outline 169 Subdivision B-Establishment of inquiries 169 107 Appointing commissioners and setting terms of reference 169 108 Publicising inquiry 170 Subdivision C-Conduct of inquiries 171 109 Procedure of inquiries 171 110 Inquiry to be public 171 111 Calling witnesses 172 112 Dealing with witnesses 172 113 Dealing with documents given to commission 174 114 Inspections of land, buildings and places 174 115 Entering premises by consent 175 116 Entering premises under warrant 175 117 Warrants by telephone or other electronic means 176 118 Identity cards 178 119 Contempt 178 120 Protection of commissioners and witnesses 179 Subdivision D-Inquiry reports 181 121 Timing of report 181 122 Publication of report 181 Subdivision E-Commissioners' terms and conditions 181 123 Basis of appointment 181 124 Remuneration 181 125 Leave of absence 182 126 Resignation 182 127 Termination of appointment 182 128 Disclosure of interests 183 129 Other terms and conditions 183 Part 9-Approval of actions 184 Division 1-Decisions on approval and conditions 184 Subdivision A-General 184 130 Timing of decision on approval 184 131 Inviting comments from other Ministers before decision 185 131AA Inviting comments before decision from person proposing to take action and designated proponent 186 131A Inviting public comment before decision 188 132 Requesting further information for approval decision 188 132A Requesting notice from appropriate State or Territory Minister about certain actions 189 133 Grant of approval 190 134 Conditions of approval 192 135 Certain approvals and conditions must not give preference 196 135A Publication of recommendation reports 197 Subdivision B-Considerations for approvals and conditions 198 136 General considerations 198 137 Requirements for decisions about World Heritage 200 137A Requirements for decisions about National Heritage places 200 138 Requirements for decisions about Ramsar wetlands 200 139 Requirements for decisions about threatened species and endangered communities 201 140 Requirements for decisions about migratory species 201 140A No approval for certain nuclear installations 202 Division 2-Requirement to comply with conditions 203 142 Compliance with conditions on approval 203 142A Offence of breaching conditions on approval 203 142B Strict liability offence for breach of approval condition 204 Division 3-Variation of conditions and suspension and revocation of approvals 206 143 Variation of conditions attached to approval 206 144 Suspension of approval 208 145 Revocation of approval 209 145A Reinstating suspended or revoked approval 211 Division 4-Transfer of approvals 213 145B Transfer with Minister's consent 213 Division 5-Extension of period of effect of approval 215 145C Application to Minister to extend period of effect of approval 215 145D Minister must decide whether or not to extend approval period 215 145E Minister may request further information for making decision 216 Part 10-Strategic assessments 217 Division 1-Strategic assessments generally 217 Subdivision A-Assessment of actions to be taken in accordance with policy, plan or program 217 146 Minister may agree on strategic assessment 217 Subdivision B-Approval of taking of actions in accordance with endorsed policy, plan or program 219 146A Definition 219 146B Minister may approve taking of actions in accordance with endorsed policy, plan or program 219 146C Inviting comments from other Ministers before deciding whether or not to approve taking of actions in accordance with endorsed policy, plan or program 220 146D Effect of approval of taking of actions in accordance with endorsed policy, plan or program 221 Subdivision C-Considerations for approving taking of actions in accordance with endorsed policy, plan or program 222 146E Minister must comply with this Subdivision 222 146F General considerations 222 146G Approvals relating to declared World Heritage properties 223 146H Approvals relating to National Heritage places 223 146J Approvals relating to declared Ramsar wetlands 223 146K Approvals relating to listed threatened species and ecological communities 223 146L Approvals relating to listed migratory species 224 146M No approvals relating to nuclear actions 224 Division 2-Assessment of Commonwealth-managed fisheries 225 147 Simplified outline of this Division 225 148 Assessment before management plan is determined 225 149 Assessment before determination that no plan required 226 150 Assessment of all fisheries without plans must be started within 5 years 226 151 Assessment of all Torres Strait fisheries to be started within 5 years 227 152 Further assessment if impacts greater than previously assessed 228 153 Minister must make declaration if he or she endorses plan or policy 229 154 This Division does not limit Division 1 229 Part 11-Miscellaneous rules about assessments and approvals 230 Division 1-Rules about timing 230 155 This Chapter ceases to apply to lapsed proposals 230 156 General rules about time limits 231 Division 1A-Variation of proposals to take actions 232 156A Request to vary proposal to take an action 232 156B Minister must decide whether or not to accept a varied proposal 233 156C Minister may request further information in relation to a varied proposal 233 156D Effect of Minister's decision to accept or not accept a varied proposal 234 156E Notice of decision 234 Division 1B-Change of person proposing to take action 236 156F Change of person proposing to take action 236 Division 2-Actions in area offshore from a State or the Northern Territory 238 157 Actions treated as though they were in a State or the Northern Territory 238 Division 3-Exemptions 239 158 Exemptions from Part 3 and this Chapter 239 Division 3A-Approval process decisions not affected by listing events that happen after section 75 decision made 240 158A Approval process decisions not affected by listing events that happen after section 75 decision made 240 Division 4-Application of Chapter to actions that are not controlled actions 242 Subdivision A-Minister's advice on authorising actions 242 159 Simplified outline of this Subdivision 242 160 Requirement to take account of Minister's advice 243 161 Seeking the Minister's advice 245 161A Minister may decide that advice is not required 246 161B Certain provisions of other Acts not to apply if Minister decides that advice is not required 246 162 Assessment of the action 247 163 Providing advice 247 164 Reporting on response to advice 248 Subdivision C-Assessment under agreement with State or Territory 248 166 This Subdivision applies if Ministers agree it should 248 167 Making an agreement 249 168 Content of an agreement 250 169 Application of a Division of Part 8 251 170 Application of Subdivision A of Division 1 of Part 10 252 Division 5-Publication of information relating to assessments 254 170A Publication of information relating to assessments 254 170B Information critical to protecting matters of national environmental significance not to be disclosed 255 170BA Designated proponent may request Minister to permit commercial-in-confidence information not to be disclosed 255 Division 6-Withdrawal of referrals 258 170C Withdrawal of referral of proposal to take an action 258 Chapter 5-Conservation of biodiversity and heritage 259 Part 11A-Interpretation 259 170D References to business days are references to Canberra business days 259 Part 12-Identifying and monitoring biodiversity and making bioregional plans 260 Division 1-Identifying and monitoring biodiversity 260 171 Identifying and monitoring biodiversity 260 172 Inventories of listed threatened species etc. on Commonwealth land 261 173 Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas 261 174 Inventories and surveys to be updated 262 Division 2-Bioregional plans 263 176 Bioregional plans 263 177 Obligations under this Act unaffected by lack of bioregional plans 264 Part 13-Species and communities 265 Division 1-Listed threatened species and ecological communities 265 Subdivision A-Listing 265 178 Listing of threatened species 265 179 Categories of threatened species 266 180 Native species of marine fish 267 181 Listing of threatened ecological communities 267 182 Critically endangered, endangered and vulnerable communities 268 183 Listing of key threatening processes 269 184 Minister may amend lists 269 186 Amending list of threatened native species 269 187 Amending list of ecological communities 271 188 Amending list of key threatening processes 272 189 Minister must consider advice from Scientific Committee 273 189A Certain information may be kept confidential 274 189B Disclosure of Scientific Committee's assessments and advice 275 190 Scientific Committee may provide advice about species or communities becoming threatened 276 192 Rediscovery of threatened species that were extinct 277 193 Species posing a serious threat to human health 277 194 Lists must be publicly available 277 Subdivision AA-The nomination and listing process 278 194A Simplified outline 278 194B Definitions 279 194C Meaning of assessment period 279 194D Minister may determine conservation themes for an assessment period 280 194E Minister to invite nominations for each assessment period 280 194F Minister to give nominations to Scientific Committee 281 194G Scientific Committee to prepare proposed priority assessment list 283 194H Matters to be included in proposed priority assessment list 284 194J Statement to be given to Minister with proposed priority assessment list 284 194K The finalised priority assessment list 285 194L Publication of finalised priority assessment list 286 194M Scientific Committee to invite comments on items in finalised priority assessment list 286 194N Scientific Committee to assess items on finalised priority assessment list and give assessments to Minister 287 194P Time by which assessments to be provided to Minister 288 194Q Decision about inclusion of an item in the Subdivision A List 289 194R Scientific Committee may obtain advice 290 194S Co-ordination with Australian Heritage Council-Committee undertaking assessment 290 194T Co-ordination with Australian Heritage Council-Committee given assessment to Minister 292 Subdivision B-Permit system 292 195 Subdivision does not apply to cetaceans 292 196 Killing or injuring member of listed threatened species or community 293 196A Strict liability for killing or injuring member of listed threatened species or community 293 196B Taking etc. member of listed threatened species or community 294 196C Strict liability for taking etc. member of listed threatened species or community 294 196D Trading etc. member of listed threatened species or community taken in Commonwealth area 295 196E Strict liability for trading etc. member of listed threatened species or community taken in Commonwealth area 295 197 Certain actions are not offences 296 198 Operation of sections 18 and 18A not affected 298 199 Failing to notify taking of listed threatened species or listed ecological community 298 200 Application for permits 300 201 Minister may issue permits 300 202 Conditions of permits 301 203 Contravening conditions of a permit 302 204 Authorities under permits 302 205 Transfer of permits 303 206 Suspension or cancellation of permits 303 206A Review of decisions about permits 303 207 Fees 303 Subdivision BA-Protecting critical habitat 303 207A Register of critical habitat 303 207B Offence of knowingly damaging critical habitat 304 207C Sale or lease of Commonwealth land containing critical habitat 305 Subdivision C-Miscellaneous 305 208A Minister may accredit plans, regimes or policies 305 208 Regulations 306 Division 2-Migratory species 308 Subdivision A-Listing 308 209 Listed migratory species 308 Subdivision B-Permit system 309 210 Subdivision does not apply to members of listed threatened species or cetaceans 309 211 Killing or injuring member of listed migratory species 309 211A Strict liability for killing or injuring member of listed migratory species 309 211B Taking etc. member of listed migratory species 310 211C Strict liability for taking etc. member of listed migratory species 310 211D Trading etc. member of listed migratory species taken in Commonwealth area 311 211E Strict liability for trading etc. member of listed migratory species taken in Commonwealth area 311 212 Certain actions are not offences 312 213 Operation of sections 20 and 20A not affected 314 214 Failing to notify taking etc. of listed migratory species 314 215 Application for permits 315 216 Minister may issue permits 316 217 Conditions of permits 317 218 Contravening conditions of a permit 317 219 Authorities under permits 317 220 Transfer of permits 318 221 Suspension or cancellation of permits 318 221A Review of decisions about permits 318 222 Fees 319 Subdivision C-Miscellaneous 319 222A Minister may accredit plans, regimes or policies 319 223 Regulations 320 Division 3-Whales and other cetaceans 321 Subdivision A-Application of Division 321 224 Application of Division 321 Subdivision B-Australian Whale Sanctuary and important cetacean habitat areas 322 225 Australian Whale Sanctuary 322 226 Prescribed waters 322 227 Coastal waters 323 228 Minister may make declaration for coastal waters 323 228A Important cetacean habitat areas 323 Subdivision C-Offences 324 229 Killing or injuring a cetacean 324 229A Strict liability for killing or injuring a cetacean 324 229B Intentionally taking etc. a cetacean 325 229C Strict liability for taking etc. a cetacean 326 229D Treating cetaceans 327 230 Possession of cetaceans 328 231 Certain actions are not offences 329 232 Action to be taken on killing etc. cetaceans 330 Subdivision E-Miscellaneous offences 332 236 Offences relating to foreign whaling vessels 332 Subdivision F-Permit system 333 237 Application for permits 333 238 Minister may issue permits 333 239 Conditions of permits 335 240 Contravening conditions of a permit 335 241 Authorities under permits 335 242 Transfer of permits 336 243 Suspension or cancellation of permits 336 243A Review of decisions about permits 336 244 Fees 336 Subdivision G-Miscellaneous 337 245 Minister may accredit plans, regimes or policies 337 246 Vesting of whales in Commonwealth 338 247 Regulations 338 Division 4-Listed marine species 339 Subdivision A-Listing 339 248 Listed marine species 339 249 Minister may amend list 339 250 Adding marine species to the list 340 251 Minister must consider advice from Scientific Committee 340 252 Minister to make lists available to the public 341 Subdivision B-Permit system 341 253 Subdivision does not apply to members of certain species and cetaceans 341 254 Killing or injuring member of listed marine species 341 254A Strict liability for killing or injuring member of listed marine species 342 254B Taking etc. member of listed marine species 342 254C Strict liability for taking etc. member of listed marine species 343 254D Trading etc. member of listed marine species taken in Commonwealth area 343 254E Strict liability for trading etc. member of listed marine species taken in Commonwealth area 344 255 Certain actions are not offences 344 256 Failing to notify taking etc. of listed marine wildlife 346 257 Application for permits 348 258 Minister may issue permits 348 259 Conditions of permits 349 260 Contravening conditions of a permit 349 261 Authorities under permits 350 262 Transfer of permits 350 263 Suspension or cancellation of permits 350 263A Review of decisions about permits 351 264 Fees 351 Subdivision C-Miscellaneous 351 265 Minister may accredit plans, regimes or policies 351 266 Regulations 352 An Act relating to the protection of the environment and the conservation of biodiversity, and for related purposes Chapter 1-Preliminary Part 1-Preliminary 1 Short title [see Note 1] This Act may be cited as the Environment Protection and Biodiversity Conservation Act 1999. 2 Commencement [see Note 1] (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. 3 Objects of Act (1) The objects of this Act are: (a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and (b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and (c) to promote the conservation of biodiversity; and (ca) to provide for the protection and conservation of heritage; 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 (fa) includes provisions to identify places for inclusion in the National Heritage List and Commonwealth Heritage List and to enhance the protection, conservation and presentation of those places; 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. 3A Principles of ecologically sustainable development 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. 4 Act to bind Crown This Act binds the Crown in each of its capacities. 5 Application of Act Extension to external Territories (1) This Act extends to each external Territory. Limited extraterritorial application (2) This Act applies to acts, omissions, matters and things in the Australian jurisdiction, and does not apply to acts, omissions, matters and things outside the Australian jurisdiction except so far as the contrary intention appears. Application limited to Australians outside exclusive economic zone (3) A provision of this Act that has effect in relation to a place that is outside the outer limits of the exclusive economic zone and is not on or in the continental shelf applies only in relation to: (a) Australian citizens; and (b) persons who: (i) are not Australian citizens; and (ii) hold permanent visas under the Migration Act 1958; and (iii) are domiciled in Australia or an external Territory; and (c) corporations incorporated in Australia or an external Territory; and (d) the Commonwealth; and (e) Commonwealth agencies; and (f) Australian aircraft; and (g) Australian vessels; and (h) members of crews of Australian aircraft and Australian vessels (including persons in charge of aircraft or vessels). Application to everyone in Australia and exclusive economic zone (4) A provision of this Act that has effect in relation to a place that is within the outer limits of the exclusive economic zone (whether the place is in the zone or in Australia or an external Territory) or that is on or in the continental shelf applies in relation to: (a) all persons (including persons who are not Australian citizens); and (b) all aircraft (including aircraft that are not Australian aircraft); and (c) all vessels (including vessels that are not Australian vessels). Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the Acts Interpretation Act 1901. Definitions (5) In this Act: Australian aircraft means: (a) an aircraft that is owned, possessed or controlled by: (i) the Commonwealth or a Commonwealth agency; or (ii) a State, a self-governing Territory or an agency of a State or self-governing Territory; or (b) an aircraft that is registered in Australia. Australian jurisdiction means the land, waters, seabed and airspace in, under or above: (a) Australia; or (b) an external Territory; or (c) the exclusive economic zone; or (d) the continental shelf. Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the Acts Interpretation Act 1901. Australian vessel means: (a) a vessel that is owned, possessed or controlled by: (i) the Commonwealth or a Commonwealth agency; or (ii) a State, a self-governing Territory or an agency of a State or self-governing Territory; or (b) a vessel that is registered in Australia; or (c) a vessel that is flying the Australian flag. 6 Extended application of Act to match extended management of fisheries under the Fisheries Management Act 1991 (1) This section applies if: (a) under the Fisheries Management Act 1991, a plan of management in force under that Act applies to particular fishing activities in a particular area of water; and (b) the area of water is not within, or is not wholly within: (i) the Australian jurisdiction; or (ii) a Commonwealth area; or (iii) a Commonwealth marine area; and (c) the area of water is not: (i) an area of water, 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; or (ii) an area of water within the limits of a State or the Northern Territory. (2) If, apart from this subsection, a provision of this Act would, or would not, apply in relation to the fishing activities (or in relation to fish or other things taken in the course of the activities) because the area of water mentioned in subsection (1) is not within, or is not wholly within: (a) the Australian jurisdiction; or (b) a Commonwealth area; or (c) a Commonwealth marine area; that provision has effect in relation to the fishing activities (and in relation to fish or other things taken in the course of the activities) as if the area of water were wholly within: (d) the Australian jurisdiction; or (e) a Commonwealth area; or (f) a Commonwealth marine area; as the case requires. Note: This section is subject to subsection 5(3). Example 1: Fishing activities in an area of water that is not a Commonwealth area generally do not contravene Part 13. However, because of this subsection, that Part applies to fishing activities to which this section applies as if the area of water were within a Commonwealth area. The fishing activities may therefore contravene that Part. Example 2: If fish taken in the course of fishing activities in an area of water that is not within the Australian jurisdiction are brought into Australia, this generally constitutes an import (being an import by way of introduction from the sea) of the fish into Australia, which may contravene Part 13A. However, because of this subsection, that Part applies to the fish as if the area of water were within the Australian jurisdiction. The bringing of the fish into Australia therefore does not constitute an import for the purposes of that Part. Example 3: This section allows a plan of management to be accredited under Part 13 in respect of the entire area of water to which the plan relates (even if some of the area is outside the Australian jurisdiction, a Commonwealth area or a Commonwealth marine area). (3) In this section: fishing has the same meaning as in the Fisheries Management Act 1991. 7 Application of the Criminal Code Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Part 2.5 of the Criminal Code (which deals with corporate criminal responsibility) is excluded from applying to offences against this Act by subsection 498B(9). 8 Native title rights not affected (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. 9 Relationship with other Acts 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. 10 Relationship with State law This Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears. Chapter 2-Protecting the environment Part 2-Simplified outline of this Chapter 11 Simplified outline of this Chapter The following is a simplified outline of this Chapter: This Chapter provides a basis for the Minister to decide whether an action that has, will have or is likely to have a significant impact on certain aspects of the environment should proceed. It does so by prohibiting a person from taking an action without the Minister having given approval or decided that approval is not needed. (Part 9 deals with the giving of approval.) Approval is not needed to take an action if any of the following declare that the action does not need approval: (a) a bilateral agreement between the Commonwealth and the State or Territory in which the action is taken; (b) a declaration by the Minister. Also, an action does not need approval if it is taken in accordance with Regional Forest Agreements or a plan for managing the Great Barrier Reef. Part 3-Requirements for environmental approvals Division 1-Requirements relating to matters of national environmental significance Subdivision A-World Heritage 12 Requirement for approval of activities with a significant impact on a declared World Heritage property (1) A person must not take an action that: (a) has or will have a significant impact on the world heritage values of a declared World Heritage property; or (b) is likely to have a significant impact on the world heritage values of a declared World Heritage property. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that 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 section: cultural heritage has the meaning given by the World Heritage Convention. natural heritage has the meaning given by the World Heritage Convention. 13 What is a declared World Heritage property? Properties on World Heritage List (1) A property included in the World Heritage List is a declared World Heritage property as long as the property is included in the List. Properties not yet on World Heritage List (2) A property specified in a declaration made under section 14 (with any amendments made under section 15) is a declared World Heritage property for the period for which the declaration is in force. 14 Declaring a property to be a declared World Heritage property Making declarations (1) The Minister may declare a specified property to be a declared World Heritage property by notice in the Gazette if: (a) the property is a property submitted by the Commonwealth to the World Heritage Committee under Article 11 of the World Heritage Convention as suitable for inclusion in the World Heritage List; or (b) the Minister is satisfied that: (i) the property has, or is likely to have, world heritage values; and (ii) some or all of the world heritage values of the property are under threat. Note 1: The Minister may make more than one declaration relating to the same property. See subsection 33(1) of the Acts Interpretation Act 1901. Note 2: The Minister may make an extra declaration to cover property that is an extension of a property previously submitted to the World Heritage Committee. Consulting State or Territory before making declaration (2) Before the Minister makes a declaration relating to property wholly or partly within a State or self-governing Territory, the Minister must inform the appropriate Minister of the State or Territory of the proposal to make the declaration, and give him or her a reasonable opportunity to comment on the proposal. Consultation not required if threat is imminent (3) However, the Minister need not comply with subsection (2) if: (a) he or she proposes to make a declaration in the circumstances described in paragraph (1)(b); and (b) he or she is satisfied that the threat mentioned in subparagraph (1)(b)(ii) is imminent. Failure to comply with subsection (2) (4) The validity of a declaration is not affected by a failure to comply with subsection (2) in relation to the making of the declaration. When a declaration is in force (5) A declaration: (a) comes into force when it is published in the Gazette; and (b) remains in force (whether amended under section 15 or not) until the earliest of the following events: (i) the end of the period specified in the declaration as the period for which the declaration is in force; (ii) the revocation of the declaration; (iii) if the declaration specifies a property submitted to the World Heritage Committee for inclusion in the World Heritage List- the Committee either includes the property in the List or decides the property should not be included in the List. Specified period for which declaration is in force (6) The Minister must specify in a declaration the period for which it is to be in force. The period must not be longer than the period the Minister believes: (a) the World Heritage Committee needs to decide whether or not to include the property in the World Heritage List, in the case of a declaration specifying a property that has been submitted to the Committee for inclusion in the List; or (b) the Commonwealth needs to decide whether the property has world heritage values and to submit the property to the World Heritage Committee for inclusion in the World Heritage List, in the case of a declaration specifying a property not yet submitted to the Committee for inclusion in the List. 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. 15 Amending or revoking a declaration of a declared World Heritage property Revoking declarations specifying nominated property (1) The Minister must, by notice in the Gazette, revoke a declaration made under section 14 specifying a property that has been submitted to the World Heritage Committee for inclusion in the World Heritage List if the Commonwealth decides to withdraw the submission of the property for inclusion in the List. Amending declarations specifying nominated property (2) The Minister must, by notice in the Gazette, amend a declaration made under section 14 specifying a property that has been submitted to the World Heritage Committee for inclusion in the World Heritage List so as to remove from the specification any part of the property that the Commonwealth decides to withdraw from the submission. Revoking declarations specifying property not yet nominated (3) The Minister must, by notice in the Gazette, revoke a declaration made under section 14 specifying a property that is not submitted to the World Heritage Committee for inclusion in the World Heritage List if: (a) the Minister is satisfied that the property does not have world heritage values; or (b) the Commonwealth decides not to submit the property to the Committee for inclusion in the List; or (c) the Minister is satisfied that none of the world heritage values of the property are under threat. 15A Offences relating to declared World Heritage properties (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 property; and (c) the property is a declared World Heritage property. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Strict liability applies to paragraph (1)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (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 property; and (c) the property is a declared World Heritage property. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraph (2)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. (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. Subdivision AA-National Heritage 15B Requirement for approval of activities with a significant impact on a National Heritage place (1) A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place. 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 Territory; or (d) between 2 Territories; take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place. 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 an action in: (a) a Commonwealth area; or (b) a Territory; that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place. Civil Penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (4) A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place. Civil Penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Note: For indigenous heritage value, see section 528. (5) A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention. Civil Penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (6) Subsection (5) only applies to actions whose prohibition is appropriate and adapted to give effect to Australia's obligations under Article 8 of the Biodiversity Convention. (However, that subsection may not apply to certain actions because of subsection (8).) (8) Subsections (1) to (5) (inclusive) 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). 15C Offences relating to National Heritage places (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 an action; and (b) the action results or will result in a significant impact on the heritage values of a place; and (c) the heritage values are National Heritage values of the place; and (d) the place is a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Strict liability applies to paragraphs (1)(c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (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 an action; and (b) the action is likely to have a significant impact on the heritage values of a place; and (c) the heritage values are National Heritage values of the place; and (d) the place is a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraphs (2)(c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (3) A person is guilty of an offence if: (a) the person takes an action; and (b) the 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 Territory; or (iv) between 2 Territories; and (c) the action results or will result in a significant impact on the heritage values of a place; and (d) the heritage values are National Heritage values of the place; and (e) the place is a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (3A) Strict liability applies to paragraphs (3)(d) and (e). Note: For strict liability, see section 6.1 of the Criminal Code. (4) A person is guilty of an offence if: (a) the person takes an action; and (b) the 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 Territory; or (iv) between 2 Territories; and (c) the action is likely to have a significant impact on the heritage values of a place; and (d) the heritage values are National Heritage values of the place; and (e) the place is a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (4A) Strict liability applies to paragraphs (4)(d) and (e). Note: For strict liability, see section 6.1 of the Criminal Code. (5) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken in: (i) a Commonwealth area; or (ii) a Territory; and (c) the action results or will result in a significant impact on the heritage values of a place; and (d) the heritage values are National Heritage values of the place; and (e) the place is a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (5A) Strict liability applies to paragraphs (5)(d) and (e). Note: For strict liability, see section 6.1 of the Criminal Code. (6) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken in: (i) a Commonwealth area; or (ii) a Territory; and (c) the action is likely to have a significant impact on the heritage values of a place; and (d) the heritage values are National Heritage values of the place; and (e) the place is a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (6A) Strict liability applies to paragraphs (6)(d) and (e). Note: For strict liability, see section 6.1 of the Criminal Code. (7) 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 heritage values, to the extent that they are indigenous heritage values, of a place; and (c) the heritage values are National Heritage values of the place; and (d) the place is a National Heritage place. Note 1: For indigenous heritage value, see section 528. Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (7A) Strict liability applies to paragraphs (7)(c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (8) 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 heritage values, to the extent that they are indigenous heritage values, of a place; and (c) the heritage values are National Heritage values of the place; and (d) the place is a National Heritage place. Note 1: For indigenous heritage value, see section 528. Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (8A) Strict liability applies to paragraphs (8)(c) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. (9) 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 heritage values of a place; and (ba) the heritage values are National Heritage values of the place; and (bb) the place is a National Heritage place; and (c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (9A) Strict liability applies to paragraphs (9)(ba), (bb) and (c). Note: For strict liability, see section 6.1 of the Criminal Code. (10) 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 heritage values of a place; and (ba) the heritage values are National Heritage values of the place; and (bb) the place is a National Heritage place; and (c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (10A) Strict liability applies to paragraphs (10)(ba), (bb) and (c). Note: For strict liability, see section 6.1 of the Criminal Code. (13) An offence against any of subsections (1) to (10) (inclusive) 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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. (14) Subsections (9) and (10) only apply to actions whose prohibition is appropriate and adapted to give effect to Australia's obligations under Article 8 of the Biodiversity Convention. (However, those subsections may not apply to certain actions because of subsection (16).) (16) Subsections (1) to (10) (inclusive) do not apply to an action if: (a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency or person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the constitutional corporation, Commonwealth agency 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). Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. Subdivision B-Wetlands of international importance 16 Requirement for approval of activities with a significant impact on a declared Ramsar wetland (1) A person must not take an action that: (a) has or will have a significant impact on the ecological character of a declared Ramsar wetland; or (b) is likely to have a significant impact on the ecological character of a declared Ramsar wetland. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that 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. 17 What is a declared Ramsar wetland? Areas designated for listing (1) A wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article is a declared Ramsar wetland as long as the wetland or part is not: (a) excluded by the Commonwealth from the boundaries of a wetland in the List under that Article; or (b) deleted by the Commonwealth from the List under that Article. Areas declared by the Minister (2) A wetland, or part of a wetland, is also a declared Ramsar wetland for the period for which a declaration of the wetland as a declared Ramsar wetland is in force. 17A Making and revoking declarations of wetlands 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. 17B Offences relating to declared Ramsar wetlands (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 wetland; and (c) the wetland is a declared Ramsar wetland. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Strict liability applies to paragraph (1)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (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 wetland; and (c) the wetland is a declared Ramsar wetland. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraph (2)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. (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. Subdivision C-Listed threatened species and communities 18 Actions with significant impact on listed threatened species or endangered community prohibited without approval Species that are extinct in the wild (1) A person must not take an action that: (a) has or will have a significant impact on a listed threatened species included in the extinct in the wild category; or (b) is likely to have a significant impact on a listed threatened species included in the extinct in the wild category. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Critically endangered species (2) A person must not take an action that: (a) has or will have a significant impact on a listed threatened species included in the critically endangered category; or (b) is likely to have a significant impact on a listed threatened species included in the critically endangered category. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Endangered species (3) A person must not take an action that: (a) has or will have a significant impact on a listed threatened species included in the endangered category; or (b) is likely to have a significant impact on a listed threatened species included in the endangered category. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Vulnerable species (4) A person must not take an action that: (a) has or will have a significant impact on a listed threatened species included in the vulnerable category; or (b) is likely to have a significant impact on a listed threatened species included in the vulnerable category. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Critically endangered communities (5) A person must not take an action that: (a) has or will have a significant impact on a listed threatened ecological community included in the critically endangered category; or (b) is likely to have a significant impact on a listed threatened ecological community included in the critically endangered category. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Endangered communities (6) A person must not take an action that: (a) has or will have a significant impact on a listed threatened ecological community included in the endangered category; or (b) is likely to have a significant impact on a listed threatened ecological community included in the endangered category. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. 18A Offences relating to threatened species etc. (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 species; or (ii) an ecological community; and (c) the species is a listed threatened species, or the community is a listed threatened ecological community. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Strict liability applies to paragraph (1)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (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 species; or (ii) an ecological community; and (c) the species is a listed threatened species, or the community is a listed threatened ecological community. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraph (2)(c). Note: For strict liability, see section 6.1 of the Criminal Code. (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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. (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. 19 Certain actions relating to listed threatened species and listed threatened ecological communities not prohibited (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). (4) A subsection of section 18 or 18A does not apply to an action, to the extent that it is covered by subsection 517A(7). Subdivision D-Listed migratory species 20 Requirement for approval of activities with a significant impact on a listed migratory species (1) A person must not take an action that: (a) has or will have a significant impact on a listed migratory species; or (b) is likely to have a significant impact on a listed migratory species. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that 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). 20A Offences relating to listed migratory species (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 species; and (c) the species is a listed migratory species. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (1A) Strict liability applies to paragraph (1)(c). Note: For strict liability , see section 6.1 of the Criminal Code. (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 species; and (c) the species is a listed migratory species. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraph (2)(c). Note: For strict liability , see section 6.1 of the Criminal Code. (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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. (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. 20B Certain actions relating to listed migratory species not prohibited A subsection of section 20 or 20A does not apply to an action, to the extent that it is covered by subsection 517A(7). Subdivision E-Protection of the environment from nuclear actions 21 Requirement for approval of nuclear actions (1) A constitutional corporation, the Commonwealth or Commonwealth agency must not take a nuclear action that has, will have or is likely to have a significant impact on the environment. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (2) A person must not, for the purposes of trade or commerce: (a) between Australia and another country; or (b) between 2 States; or (c) between a State and a Territory; or (d) between 2 Territories; take a nuclear action that has, will have or is likely to have a significant impact on the environment. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (3) A person must not take in a Territory a nuclear action that has, will have or is likely to have a significant impact on the environment. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (4) Subsections (1), (2) and (3) do not apply to an action if: (a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency, Commonwealth or person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the constitutional corporation, Commonwealth agency, Commonwealth or person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that 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). 22 What is a nuclear action? (1) In this Act: nuclear action means any of the following: (a) establishing or significantly modifying a nuclear installation; (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. 22A Offences relating to nuclear actions (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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. (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. Subdivision F-Marine environment 23 Requirement for approval of activities involving the marine environment Actions in Commonwealth marine areas affecting the environment (1) A person must not take in a Commonwealth marine area an action that has, will have or is likely to have a significant impact on the environment. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Actions outside Commonwealth marine areas affecting those areas (2) A person must not take outside a Commonwealth marine area but in the Australian jurisdiction an action that: (a) has or will have a significant impact on the environment in a Commonwealth marine area; or (b) is likely to have a significant impact on the environment in a Commonwealth marine area. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Fishing in State or Territory waters managed by Commonwealth (3) A person must not take in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory an action: (a) that: (i) is fishing (as defined in the Fisheries Management Act 1991); and (ii) is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and (b) that: (i) has or will have a significant impact on the environment in those coastal waters; or (ii) is likely to have a significant impact on the environment in those coastal waters. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. Exceptions to prohibitions (4) Subsection (1), (2) or (3) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that 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. 24 What is a Commonwealth marine area? Each of the following is a Commonwealth marine area: (a) any waters of the sea inside the seaward boundary of the exclusive economic zone, except: (i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and (ii) waters within the limits of a State or the Northern Territory; (b) the seabed under waters covered by paragraph (a); (c) airspace over waters covered by paragraph (a); (d) any waters over the continental shelf, except: (i) waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and (ii) waters within the limits of a State or the Northern Territory; and (iii) waters covered by paragraph (a); (e) any seabed under waters covered by paragraph (d); (f) any airspace over waters covered by paragraph (d); (g) any other area of sea or seabed that is included in a Commonwealth reserve. 24A Offences relating to marine areas 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. (1A) Strict liability applies to paragraph (1)(b). Note: For strict liability, see section 6.1 of the Criminal Code. 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. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2A) Strict liability applies to paragraph (2)(b). Note: For strict liability, see section 6.1 of the Criminal Code. 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 an area; and (d) the area is a Commonwealth marine area. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (3A) Strict liability applies to paragraphs (3)(b) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. 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 an area; and (d) the area is a Commonwealth marine area. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (4A) Strict liability applies to paragraphs (4)(b) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. 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. (5A) Strict liability applies to paragraph (5)(b). Note: For strict liability, see section 6.1 of the Criminal Code. 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. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (6A) Strict liability applies to paragraph (6)(b). Note: For strict liability, see section 6.1 of the Criminal Code. 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. Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C. 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. Subdivision G-Additional matters of national environmental significance 25 Requirement for approval of prescribed actions (1) A person must not take an action that is prescribed by the regulations for the purposes of this subsection. Civil penalty: (a) for an individual-5,000 penalty units; (b) for a body corporate-50,000 penalty units. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that 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 t