ENVIRONMENTAL PROTECTION ACT 1994 - SECT 363AB Who is a related person of a company

ENVIRONMENTAL PROTECTION ACT 1994 - SECT 363AB

363AB Who is a related person of a company

(1) A person is a
"related person" of a company if—

(a) the person is a holding company of the company; or

(b) the person owns land on which the company carries out, or has carried out, a relevant activity other than a resource activity; or

(c) the person—

(i) is an associated entity of the company; and

(ii) owns land on which the company carries out, or has carried out, a relevant activity that is a resource activity; or

(d) the administering authority decides under this section the person has a relevant connection with the company.

(2) The administering authority may decide a person has a relevant connection with a company if satisfied—

(a) the person is capable of significantly benefiting financially, or has significantly benefited financially, from the carrying out of a relevant activity by the company; or

(b) the person is, or has been at any time during the previous 2 years, in a position to influence the company’s conduct in relation to the way in which, or extent to which, the company complies with its obligations under this Act.

(3) A reference in subsection (2) (b) to a person being in a position to influence a company’s conduct includes a person being in that position—

(a) whether alone or jointly with an associated entity of the company; and

(b) whether by giving a direction or approval, by making funding available or in another way.

(4) In deciding for subsection (2) whether a person has a relevant connection with a company (the
"first company" ), the matters an administering authority may consider include the following—

(a) the extent of the person’s control of the first company;

(b) whether the person is an executive officer of—

(i) the first company; or

(ii) a holding company or other company with a financial interest in the first company;

(c) the extent of the person’s financial interest in the first company;

(d) the extent to which a legally recognisable structure or arrangement makes or has made it possible for the person to receive a financial benefit from the carrying out of a relevant activity by the first company, including (but not limited to) a structure or arrangement under which—

(i) the person is not entitled to require a financial benefit; but

(ii) it is possible for the person to receive a financial benefit because of a decision by someone else or the exercise of a discretion by someone else;

(e) any agreements or other transactions the person enters into with a company mentioned in paragraph (b) (i) or (ii) ;

(f) the extent to which dealings between the person and a company mentioned in paragraph (b) (i) or (ii) are—

(i) at arm’s length; or

(ii) on an independent, commercial footing; or

(iii) for the purpose of providing professional advice; or

(iv) for the purpose of providing finance, including the taking of a security;

(g) the extent of the person’s compliance with a requirement under section 451 for information relevant to the making of a decision under this section.

(5) The matters mentioned in subsection (4) may be considered as at the time the administering authority is making the decision under subsection (2) or as at an earlier time relevant to the decision.

(6) In deciding for subsection (2) whether a person, other than an associated entity of a company, has a relevant connection with the company, it is irrelevant if the person—

(a) is capable of significantly benefiting financially, or has significantly benefited financially—

(i) under an agreement or obligation relating to native title, Aboriginal cultural heritage or Torres Strait Islander cultural heritage; or

(ii) under a conduct and compensation agreement, or from compensation paid or payable, under resource legislation; or

(iii) under a make good agreement for a water bore under the Water Act 2000 ; or

(b) is or has been in a position to influence the company’s conduct because of an agreement or obligation mentioned in paragraph (a) .

(7) In making a decision under this section, the administering authority must have regard to any relevant guidelines in force under section 548A .

(8) In this section—


"control" has the meaning given by the Corporations Act , section 50AA .


"financial benefit" , received by a person, includes profit, income, revenue, a dividend, a distribution, money’s worth, an advantage, priority or preference, whether direct or indirect, that is received, obtained, preferred on or enjoyed by the person.


"owner" , of land, does not include a person mentioned in schedule 4 , definition owner , paragraph 1(d) to (f).