Australia

Part 3—Requirements for environmental approvals 10

Part 4—Cases in which environmental approvals are not needed 47

Division 1—Actions covered by bilateral agreements 47 29 Actions declared by agreement not to need approval ......................47 30 Extended operation in State and Northern Territory waters.............48 31 Extended operation in non-self-governing Territories.....................48

Division 2—Actions covered by Ministerial declarations 50

Subdivision A—Effect of declarations 50 32 Actions declared by Minister not to need approval .........................50

Subdivision B—Making declarations 50 33 Making declaration that actions do not need approval under Part 9 ...............................................................................................50 34 What is matter protected by a provision of Part 3? .........................53

Subdivision C—Prerequisites for making declarations 56 34A Minister may only make declaration if prescribed criteria are met...................................................................................................56 34B Declarations relating to declared World Heritage properties...........56 34C Declarations relating todeclared Ramsar wetlands.........................56 34D Declarations relating to listed threatened species and ecological communities...................................................................57 34E Declarations relating to migratory species.......................................58

Subdivision D—Other rules about declarations 59 35 Revoking declarations.....................................................................59 36 Other rules about declarations.........................................................60

Part 5—Bilateral agreements 66

Division 1—Object of Part 66 44 Object of this Part............................................................................66

Division 2—Making bilateral agreements 67

Subdivision A—Power to make bilateral agreements 67 45 Minister may make agreement.........................................................67 46 Agreement may declare actions do not need approval under

Part 9 ...............................................................................................68 47 Agreement may declare classes of actions do not need

assessment .......................................................................................72 48 Other provisions of bilateral agreements.........................................73 48A Mandatory provisions......................................................................74 49 Express provision needed to affect Commonwealth areas or

actions .............................................................................................76

Subdivision B—Prerequisites for making bilateral agreements 76 49A Consultation on draft agreement......................................................76 50 Minister may only enter into agreement if prescribed criteria

are met.............................................................................................77 51 Agreements relating to declared World Heritage properties............77 52 Agreements relating to declared Ramsar wetlands..........................77 53 Agreements relating to listed threatened species and

ecological communities...................................................................78 54 Agreements relating to migratory species........................................79 55 Agreements relating to nuclear actions............................................80 56 Agreements relating to prescribed actions.......................................80

Division 3—Suspending and ending the effect of bilateral agreements 82

Subdivision A—Suspension and cancellation of effect 82 57 Representations about suspension or cancellation...........................82 58 Consultation before cancellation or suspension...............................83 59 Suspension or cancellation ..............................................................83 60 Emergency suspension of effect of bilateral agreement...................85 61 Cancellation during suspension.......................................................86 62 Revocation of notice of suspension or cancellation.........................86

63 Cancellation or suspension at request of other party .......................87 64 Cancellation or suspension of bilateral agreement does not affect certain actions........................................................................88

Subdivision B—Expiry of bilateral agreements 89 65 Expiry and review of bilateral agreements ......................................89 65A Expiry of bilateral agreement does not affect certain actions..........89

Part 7—Deciding whether approval of actions is needed 93

Division 1—Referral of proposals to take action 93 67 What isa controlled action?............................................................93 68 Referral byperson proposing to take action....................................93 69 State or Territory may refer proposal to Minister............................94 70 Minister may request referral of proposal........................................94 71 Commonwealth agency may refer proposal to Minister..................95 72 Form and content of referrals ..........................................................95 73 Informing person proposing totake action of referral.....................95 74 Inviting provision of information on referred proposal ...................95

Division 2—Ministerial decision whether action needs approval 97 75 Does the proposed action need approval?........................................97 76 Minister may request more information for making decision..........99 77 Notice and reasons for decision.......................................................99 78 Reconsideration of decision...........................................................101 79 Reconsideration of decision on request by a State or Territory ........................................................................................103

Part 8—Assessing impacts of controlled actions 105

Division 1—Simplified outline of this Part 105 80 Simplified outline of this Part........................................................105

Division 2—Application of this Part 106 81 Application....................................................................................106 82 What are the relevant impacts of an action?..................................106 83 This Part does not apply if action covered by bilateral agreement ......................................................................................107

84 This Part does not apply if action covered by declaration .............107

Division 3—Decision on assessment approach 110

Subdivision A—Simplified outline of this Division 110 85 Simplified outline of this Division.................................................110

Subdivision B—Deciding on approach for assessment 110 86 Designated proponent must provide preliminary information

for assessment................................................................................110 87 Minister must decide on approach for assessment.........................111 88 Timing of decision on assessment approach..................................113 89 Minister may request more information for making decision........114 90 Directing an inquiry after starting an assessment ..........................114 91 Notice of decision on assessment approach...................................115

Division 4—Assessment on preliminary documentation 117 92 Application....................................................................................117 93 Public comment on information included in referral.....................117 94 Revised documentation .................................................................117 95 Assessment report..........................................................................118

Division 5—Public environment reports 120 96 Application....................................................................................120 97 Minister must prepare guidelines for draft public

environment report ........................................................................120 98 Designated proponent must invite comment on draft public

environment report ........................................................................121 99 Finalising public environment report.............................................122 100 Assessment report..........................................................................123

Division 6—Environmental impact statements 125 101 Application....................................................................................125 102 Minister must prepare guidelines for draft environmental

impact statement............................................................................125 103 Designated proponent must invite comment on draft

environmental impact statement....................................................126 104 Finalising draft environmental impact statement...........................127 105 Assessment report..........................................................................128

Division 7—Inquiries 130

Subdivision A—Preliminary 130 106 Simplified outline..........................................................................130

Part 9—Approval of actions 147

Division 1—Decisions on approval and conditions 147 Subdivision A—General 147 130 Timing of decision on approval.....................................................147 131 Inviting comments from other Ministers before decision..............150 132 Requesting further information for approval decision...................150 133 Grant of approval...........................................................................151 134 Attaching conditions to approval...................................................153 135 Certain approvals and conditions must not give preference ..........155 Subdivision B—Considerations for approvals and conditions 156 136 General considerations ..................................................................156

137 Requirements for decisions about World Heritage........................157 138 Requirements for decisions about Ramsar wetlands......................157 139 Requirements for decisions about threatened species and

endangered communities...............................................................157

140 Requirements for decisions about migratory species.....................158

140A No approval forcertain nuclear installations.................................158

Division 2—Requirement to comply with conditions 159 142 Compliance with conditions on approval ......................................159 142A Offence of breaching conditions on approval................................159

Part 10—Strategic assessments 169

Division 1—Strategic assessments generally 169 146 Minister mayagree onstrategic assessment..................................169

Division 2—Assessment of Commonwealth-managed fisheries 172 147 Simplified outline of this Division.................................................172 148 Assessment before management plan is determined......................173 149 Assessment before determination that no plan required................173 150 Assessment of all fisheries without plans must be started

within 5years................................................................................174

151 Assessment of all Torres Strait fisheries to be started within 5 years ...........................................................................................175

152 Further assessment if impacts greater than previously assessed .........................................................................................175

153 Minister must make declaration if he or she endorses plan or policy.............................................................................................176

154 This Division does not limit Division 1.........................................177

Part 11—Miscellaneous rules about assessments and approvals 178

Division 1—Rules about timing 178 155 This Chapter ceases to apply to lapsed proposals..........................178 156 General rules about time limits......................................................179

Division 2—Actions in area offshore from a State or the Northern Territory 180 157 Actions treated as though they were in a State or the Northern Territory.........................................................................180

Division 3—Exemptions 181 158 Exemptions from Part 3 and this Chapter......................................181

Part 12—Identifying and monitoring biodiversity and making bioregional plans 196

Division 1—Identifying and monitoring biodiversity 196 171 Identifying andmonitoring biodiversity........................................196 172 Inventories of listed threatened species etc. on

Commonwealth land......................................................................197

173 Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas ........................................................197 174 Inventories and surveys to be updated...........................................198 175 Obligations under this Act unaffected by lack of inventories or surveys ......................................................................................198

Division 2—Bioregional plans 199 176 Bioregional plans...........................................................................199 177 Obligations under this Act unaffected by lack of bioregional

plans ..............................................................................................200

Part 13—Species and communities 201

Part 15—Protected areas 310

Part 17—Enforcement 384

Part 19—Organisations 474

Division 1—Establishment and functions of the Threatened Species Scientific Committee 474 502 Establishment ................................................................................474 503 Functions of the Committee ..........................................................474

Division 2—Establishment and functions of the Biological Diversity Advisory Committee 475 504 Establishment ................................................................................475 505 Functions of the Committee ..........................................................476

Division 2A—Indigenous Advisory Committee 477 505A Establishment ................................................................................477 505B Functions of the Committee ..........................................................477

Division 3—Members and procedures of Committees 478 506 Application....................................................................................478 507 Terms and conditions ....................................................................478 508 Remuneration................................................................................478 509 Termination of appointments of Committee members ..................479 510 Procedure of a Committee.............................................................480

Division 4—Advisory committees 482 511 Minister may establish advisory committees.................................482 512 Appointments................................................................................482 513 Members of advisory committees..................................................482 514 Committee procedure ....................................................................483 Division 5—Director of National Parks 484 Subdivision A—Establishment, functions and powers 484 514A Continuation..................................................................................484 514B Functions.......................................................................................484 514C Powers...........................................................................................485 514D Requirements relating to functions and powers.............................486 Subdivision B—Constitution of Director of National Parks 487 514E Constitution...................................................................................487 514F Appointment..................................................................................487 514G Acting appointments......................................................................488 Subdivision C—Terms and conditions of appointment 488 514H Term of office................................................................................488 514J Remuneration ................................................................................489

514K Outside employment......................................................................489 514L Disclosure of interests ...................................................................489 514M Leave of absence ...........................................................................489 514N Resignation....................................................................................489 514P Termination...................................................................................490 514Q Other terms and conditions............................................................490

Subdivision D—Australian National Parks Fund 490 514R Australian National Parks Fund.....................................................490 514S Payments to Australian National Parks Fund ................................491 514T Application of money....................................................................491

Subdivision E—Accountability 492 514U Modification of the Commonwealth Authorities and Companies Act 1997......................................................................492 514V Extra matters tobe included in annual report................................492

Subdivision F—Miscellaneous 492 514W Exemption from taxation...............................................................492 514X Changes in office of Director ........................................................493

Part 20—Delegation 494 515 Delegation .....................................................................................494

Part 21—Reporting 495

Division 1—Annual reports 495 516 Annual report on operation of Act.................................................495 516A Annual reports to deal with environmental matters.......................495

Division 2—State of the environment reports 498 516B State of the environment reports....................................................498

Part 23—Definitions 503

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.

Preliminary Chapter 1 Preliminary Part 1

Section 4

7 Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this

Act.

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.

Chapter 1 Preliminary Part 1 Preliminary

Section 10

Airports Act 1996 not affected

(1) This Act does not affect the operation of the Airports Act 1996.

Antarctic Treaty (Environment Protection) Act 1980 not affected

(2) To avoid doubt, nothing in this Act affects the operation of subsection 7(1) of the Antarctic Treaty (Environment Protection) Act 1980 or regulations made for the purposes of that subsection.

Australian Heritage Commission Act 1975 does not apply

(3) The making of a decision, or the giving of an approval, under this Act is not an action for the purposes of section 30 of the Australian Heritage Commission Act 1975.

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).

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(3)

A property has world heritage values only if it contains natural heritage or cultural heritage. The world heritage values of the property are the natural heritage and cultural heritage contained in the property.

(4)

In this Act:

cultural heritage has the meaning given by the World Heritage Convention.

natural heritage has the meaning given by the World Heritage Convention.

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:

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 14

(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:

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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.

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 15

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

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(b) the action results or will result in a significant impact on the world heritage values of a declared World Heritage property.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is likely to have a significant impact on the world heritage values of a declared World Heritage property and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section

495.

(4) Subsections (1) and (2) do not apply to an action if:

(a)

an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b)

Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c)

there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d)

the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 16

Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

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.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

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

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 17A

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:

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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 declared Ramsar wetland.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is likely to have a significant impact on the ecological character of a declared Ramsar wetland and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section

495.

(4) Subsections (1) and (2) do not apply to an action if:

(a)

an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b)

Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 18

(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.

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:

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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:

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 18A

(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 listed threatened species; or

(ii)

a listed threatened ecological community.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is likely to have a significant impact on:

(i)

a listed threatened species; or

(ii)

a listed threatened ecological community; and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section

495.

(4) Subsections (1) and (2) do not apply to an action if:

(a)

the listed threatened species subject to the significant impact (or likely to be subject to the significant impact) is:

(i)

a species included in the extinct category of the list under section 178; or

(ii)

a conservation dependent species; or

(b)

the listed threatened ecological community subject to the significant impact (or likely to be subject to the significant impact) is an ecological community included in the vulnerable category of the list under section 181.

Note 1: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: Section 19 sets out other defences. The defendant bears an evidential burden in relation to the matters in that section too. See subsection 13.3(3) of the Criminal Code.

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

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 20

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).

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

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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 listed migratory species.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is likely to have a significant impact on a listed migratory species and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section

495.

(4) Subsections (1) and (2) do not apply to an action if:

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 21

(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.

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.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

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;

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 22

(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.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

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

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 22A

(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.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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.

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:

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 23

(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

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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.

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 24

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.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

Actions in Commonwealth marine areas likely to affect the environment

(2) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken in a Commonwealth marine area; and

(c)

the action is likely to have a significant impact on the environment and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Actions outside Commonwealth marine areas affecting those areas

(3) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and

(c)

the action results or will result in a significant impact on the environment in a Commonwealth marine area.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Actions likely to affect environment in Commonwealth marine areas

(4) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken outside a Commonwealth marine area but in the Australian jurisdiction; and

(c)

the action is likely to have a significant impact on the environment in a Commonwealth marine area and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 24A

Fishing with impact in State or Territory waters managed by Commonwealth

(5) A person is guilty of an offence if:

(a)

the person takes an action that:

(i)

is fishing (as defined in the Fisheries Management Act 1991); and

(ii)

is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and

(b)

the action is taken in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory; and

(c)

the action results or will result in a significant impact on the environment in those coastal waters.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Fishing with likely impact in State or Territory waters managed by Commonwealth

(6) A person is guilty of an offence if:

(a)

the person takes an action that:

(i)

is fishing (as defined in the Fisheries Management Act 1991); and

(ii)

is included in the class of activities forming a fishery (as defined in that Act) that is managed under the law of the Commonwealth as a result of an agreement made under section 71 or 72 of that Act before the commencement of this section; and

(b)

the action is taken in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory; and

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(c) the action is likely to have a significant impact on the environment in those coastal waters and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Penalties

(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section

495.

Defences—general

(8) Subsection (1), (2), (3), (4), (5) or (6) does not apply to an action if:

(a)

an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b)

Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c)

there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d)

the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 25

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.

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:

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1

(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.

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 1 Requirements relating to matters of national environmental significance

Section 25

(3A) To avoid doubt, regulations may be made for the purposes of this section even if no agreement is reached on the matters described in paragraph (3)(d).

(4)

The regulations may prescribe different things as matter protected by this section in relation to different actions prescribed for the purposes of subsection (1).

(5)

This section applies only to actions:

(a)

taken in a Territory or a place acquired by the Commonwealth for public purposes (within the meaning of section 52 of the Constitution); or

(b)

taken in a Commonwealth marine area; or

(c)

taken for the purpose of trade or commerce:

(i)

between Australia and another country; or

(ii)

between 2 States; or

(iii) between a State and a Territory; or (iv) between 2 Territories; or

(d)

taken by a constitutional corporation; or

(e)

whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.

(6)

Regulations prescribing an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more countries must specify the agreement.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Protection of the environment from proposals involving the Commonwealth Division 2

26 Requirement for approval of activities involving Commonwealth land

Actions on Commonwealth land

(1) A person must not take on Commonwealth land an action that has, will have or is likely to have a significant impact on the environment.

Civil penalty:

(a)

for an individual—1,000 penalty units;

(b)

for a body corporate—10,000 penalty units.

Actions outside Commonwealth land affecting that land

(2) A person must not take outside Commonwealth land an action that:

(a)

has or will have a significant impact on the environment on Commonwealth land; or

(b)

is likely to have a significant impact on the environment on Commonwealth land.

Civil penalty:

(a)

for an individual—1,000 penalty units;

(b)

for a body corporate—10,000 penalty units.

Exceptions to prohibitions

(3) Subsection (1) or (2) does not apply to an action if:

(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 2 Protection of the environment from proposals involving the Commonwealth

Section 27

(b)

Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or

(d)

there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(e)

the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process); or

(f)

the person taking the action is the Commonwealth or a Commonwealth agency.

Note: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.

27A Offences relating to Commonwealth land

(1) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken on Commonwealth land; and

(c)

the action results or will result in a significant impact on the environment.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken on Commonwealth land; and

(c)

the action is likely to have a significant impact on the environment and the person is reckless as to that fact.

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Protection of the environment from proposals involving the Commonwealth Division 2

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken outside Commonwealth land but in the Australian jurisdiction; and

(c)

the action results or will result in a significant impact on the environment on Commonwealth land.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(4) A person is guilty of an offence if:

(a)

the person takes an action; and

(b)

the action is taken outside Commonwealth land but in the Australian jurisdiction; and

(c)

the action is likely to have a significant impact on the environment on Commonwealth land and the person is reckless as to that fact.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(5) An offence against subsection (1), (2), (3) or (4) is punishable on conviction by imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both.

Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section

495.

(6) Subsection (1), (2), (3) or (4) does not apply to an action if:

(a)

an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or

(b)

Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or

(c)

there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for

Chapter 2 Protecting the environment Part 3 Requirements for environmental approvals Division 2 Protection of the environment from proposals involving the Commonwealth

Section 28

the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d)

the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process); or

(e)

the person taking the action is a Commonwealth agency.

Note 1: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Note 2: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.

28 Requirement for approval of activities of Commonwealth agencies significantly affecting the environment

(1) The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.

Civil penalty:

(a)

for a Commonwealth agency that is an individual—1,000 penalty units;

(b)

for a Commonwealth agency that is a body corporate— 10,000 penalty units.

Note: This does not apply to decisions to authorise activities. See Subdivision A of Division 1 of Part 23.

(2) Subsection (1) does not apply to an action if:

(a) an approval of the taking of the action by the Commonwealth or Commonwealth agency is in operation under Part 9 for the purposes of this section; or

Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Review of extension of operation of this Part Division 3

(b)

Part 4 lets the Commonwealth or Commonwealth agency take the action without an approval under Part 9 for the purposes of this section; or

(c)

the action is one declared by the Minister in writing to be an action to which this section does not apply; or

(d)

there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(e)

the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

(3)

The Minister may make a written declaration that actions are actions to which this section does not apply, but only if he or she is satisfied that it is necessary in the interests of:

(a)

Australia’s defence or security; or

(b)

preventing, mitigating or dealing with a national emergency.

(4)

The Minister may make a written declaration that all actions, or a specified class of actions, taken by a specified Commonwealth agency are actions to which this section does not apply.

(5)

The Minister may make a declaration under subsection (4) relating to a Commonwealth agency’s actions only if he or she is satisfied that, in taking the actions to which the declaration relates, the agency must comply with the law of a State or Territory dealing with environmental protection.

32 Actions declared by Minister not to need approval

A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:

(a)

the action is one of a class of actions declared by the Minister under section 33 not to require approval under Part 9 for the purposes of the provision (because the action is approved in accordance with an accredited management plan for the purposes of the declaration); and

(b)

the declaration is in operation when the action is taken; and

(c)

the accredited management plan is in force under a law of the Commonwealth identified in or under the declaration; and

(d)

the action is taken in accordance with the accredited management plan.

33 Making declaration that actions do not need approval under Part 9

Declaration of actions not needing approval

(1) The Minister may declare in writing that actions in a class of actions specified in the declaration wholly or partly by reference to the fact that their taking has been approved by the Commonwealth or a specified Commonwealth agency, in accordance with a management plan that is an accredited management plan for the purposes of the declaration, do not require approval under Part 9 for the purposes of a specified provision of Part 3.

Note 1: Subdivisions C and D set out rules about prerequisites for making a declaration and limits on making a declaration.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations Division 2

Note 2: Section 35 provides for revocation of a declaration.

What is an accredited management plan?

(2) A management plan is an accredited management plan for the purposes of a declaration that certain actions do not require approval under Part 9 for the purposes of a specified provision of Part 3 if and only if the management plan:

(a)

is in force under a law of the Commonwealth identified in or under the declaration; and

(b)

has been accredited in writing by the Minister in accordance with this section for the purposes of the declaration.

Accrediting management plan

(3) For the purposes of subsection (2), the Minister may accredit by written instrument a management plan for the purposes of a declaration. However, the Minister may do so only if the Minister is satisfied that:

(a)

the management plan and the law under which it is in force (or is to be in force) meet the criteria prescribed by the regulations; and

(b)

there has been or will be adequate assessment of the impacts that actions approved in accordance with the plan:

(i)

have or will have; or

(ii)

are likely to have;

on each matter protected by a provision of Part 3 to which the declaration relates; and

(c) actions approved or taken in accordance with the management plan will not have unacceptable or unsustainable impacts on a matter protected by a provision of Part 3 to which the declaration relates.

The Minister must publish in accordance with the regulations (if any) the instrument accrediting the management plan.

Note: Subdivision C sets out more prerequisites for accrediting a plan.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 2 Actions covered by Ministerial declarations

Section 33

Tabling of management plan before accreditation

(4) The Minister must cause to be laid before each House of the Parliament a copy of a management plan that the Minister is considering accrediting for the purposes of subsection (2), together with a notice that the Minister proposes to accredit the plan for a declaration under this section.

No accreditation before end of period for opposition

(5) The Minister must not accredit a management plan for the purposes of subsection (2) under a bilateral agreement:

(a)

before, or within 15 sitting days after, a copy of the management plan is laid before each House of the Parliament under this section; or

(b)

if, within those 15 sitting days of a House, notice of a motion to oppose accreditation of the management plan is given in that House—within 15 sitting days of that House after the notice is given.

No accreditation after accreditation opposed

(6) The Minister must not accredit the management plan if either House of the Parliament passes a resolution opposing accreditation of the management plan following a motion of which notice has been given within 15 sitting days after the management plan has been laid before the House under this section.

No accreditation if motion not defeated in time

(7) The Minister must not accredit the management plan if at the end of 15 sitting days after notice of a motion to oppose accreditation of the management plan that was given in a House of the Parliament within 15 sitting days after the management plan was laid before the House under this section:

(a)

the notice has not been withdrawn and the motion has not been called on; or

(b)

the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations Division 2

Extended time after dissolution or prorogation

(8) If:

(a)

notice of a motion to oppose the accreditation of the management plan is given in a House of the Parliament (the opposing House); and

(b)

before the end of 15 sitting days of the opposing House after the notice is given:

(i)

the House of Representatives is dissolved or expires; or

(ii)

the Parliament is prorogued; and

(c)

at the time of the dissolution, expiry or prorogation (as appropriate):

(i)

the notice has not been withdrawn and the motion has not been called on; or

(ii)

the motion has been called on, moved and seconded and

has not been withdrawn or otherwise disposed of; the management plan is taken for the purposes of subsections (5),

(6) and (7) to have been laid before the opposing House on the first sitting day of that House after the dissolution, expiry or prorogation (as appropriate).

34 What is matter protected by a provision of Part 3?

The matter protected by a provision of Part 3 specified in column 2 of an item of the following table is the thing specified in column 3 of the item.

34A Minister may only make declaration if prescribed criteria are met

The Minister may make a declaration under section 33 only if the Minister is satisfied that the declaration:

(a)

accords with the objects of this Act; and

(b)

meets the requirements (if any) prescribed by the regulations.

34B Declarations relating to declared World Heritage properties

(1)

The Minister may make a declaration under section 33 relating to a declared World Heritage property only if:

(a)

the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under the World Heritage Convention; and

(b)

the Minister is satisfied that the declaration will promote the management of the property in accordance with the Australian World Heritage management principles; and

(c)

the declaration meets the requirements (if any) prescribed by the regulations.

(2)

The Minister may accredit a management plan under section 33 for the purposes of a declaration relating to a declared World Heritage property only if:

(a)

the Minister is satisfied that the management plan is not inconsistent with Australia’s obligations under the World Heritage Convention; and

(b)

the Minister is satisfied that the management plan will promote the management of the property in accordance with the Australian World Heritage management principles.

34C Declarations relating to declared Ramsar wetlands

(1) The Minister may make a declaration under section 33 relating to a declared Ramsar wetland only if:

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations Division 2

(a)

the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under the Ramsar Convention; and

(b)

the Minister is satisfied that the declaration will promote the management of the wetland in accordance with the Australian Ramsar management principles; and

(c)

the declaration meets the requirements (if any) prescribed by the regulations.

(2) The Minister may accredit a management plan under section 33 for the purposes of a declaration relating to a declared Ramsar wetland only if:

(a)

the Minister is satisfied that the management plan is not inconsistent with Australia’s obligations under the Ramsar Convention; and

(b)

the Minister is satisfied that the management plan will promote the management of the wetland in accordance with the Australian Ramsar management principles.

34D Declarations relating to listed threatened species and ecological communities

(1) The Minister may make a declaration under section 33 relating to a listed threatened species or a listed threatened ecological community only if:

(a)

the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under:

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

the Minister is satisfied that the declaration will promote the survival and/or enhance the conservation status of each species or community to which the declaration relates; and

(c)

the Minister is satisfied that the declaration is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 2 Actions covered by Ministerial declarations

Section 34E

(d) the declaration meets the requirements (if any) prescribed by the regulations.

(2) The Minister may accredit a management plan under section 33 for the purposes of a declaration relating to a listed threatened species or a listed threatened ecological community only if:

(a)

the Minister is satisfied that the management plan is not inconsistent with Australia’s obligations under:

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

the Minister is satisfied that the management plan will promote the survival and/or enhance the conservation status of each species or community to which the declaration relates; and

(c)

the Minister is satisfied that the management plan is not inconsistent with any recovery plan for the species or community or a threat abatement plan.

34E Declarations relating to migratory species

(1) The Minister may make a declaration under section 33 relating to a listed migratory species only if:

(a)

the Minister is satisfied that the declaration is not inconsistent with the Commonwealth’s obligations under whichever of the following conventions or agreements because of which the species is listed:

(i)

the Bonn Convention;

(ii)

CAMBA;

(iii) JAMBA; (iv) an international agreement approved under subsection 209(4); and

(b)

the Minister is satisfied that the declaration will promote the survival and/or enhance the conservation status of each species to which the declaration relates; and

(c)

the declaration meets the requirements (if any) prescribed by the regulations.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations Division 2

(2) The Minister may accredit a management plan under section 33 for the purposes of a declaration relating to a listed migratory species only if:

(a)

the Minister is satisfied that the management plan is not inconsistent with the Commonwealth’s obligations under whichever of the following conventions or agreements because of which the species is listed:

(i)

the Bonn Convention;

(ii)

CAMBA;

(iii) JAMBA; (iv) an international agreement approved under subsection 209(4); and

(b)

the Minister is satisfied that the management plan will promote the survival and/or enhance the conservation status of each species to which the declaration relates.

35 Revoking declarations

Revoking declarations

(1) The Minister may, by written instrument, revoke a declaration made under section 33.

Revocation does not affect some actions

(2) If:

(a)

before the revocation of a declaration made under section 33, an action could be taken without approval under Part 9 because its taking had been approved by the Commonwealth or a Commonwealth agency in accordance with a management plan that was an accredited management plan for the purposes of the declaration; and

(b)

the declaration is revoked;

this Act continues to operate in relation to the action as if the declaration had not been revoked.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 2 Actions covered by Ministerial declarations

Section 36

36 Other rules about declarations

Minister must not give preference

(1) In making a declaration or accrediting a management plan under section 33, or revoking a declaration under section 35, relating to an action taken:

(a)

by a person for the purposes of trade between Australia and another country or between 2 States; or

(b)

by a constitutional corporation; the Minister must not give preference (within the meaning of

section 99 of the Constitution) to one State or part of a State over another State or part of a State.

Publishing declarations

(2) The Minister must publish a declaration made under section 33, an instrument accrediting a management plan under section 33, or an instrument under section 35 revoking a declaration, in accordance with the regulations.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Forestry operations in certain regions Division 4

38 Approval not needed for forestry operations permitted by regional forest agreements

(1) A person may undertake RFA forestry operations without approval under Part 9 for the purposes of a provision of Part 3 if they are undertaken in accordance with a regional forest agreement.

Note: This section does not apply to some forestry operations. See section

42.

(2) In this Act:

regional forest agreement has the same meaning as in the Regional Forest Agreements Act 1999.

RFA forestry operations has the same meaning as in the Regional Forest Agreements Act 1999.

39 Object of this Subdivision

The purpose of this Subdivision is to ensure that an approval under Part 9 is not required for forestry operations in a region for which a process (involving the conduct of a comprehensive regional assessment, assessment under the Environment Protection (Impact of Proposals) Act 1974 and protection of the environment through agreements between the Commonwealth and the relevant State and conditions on licences for the export of wood chips) of developing and negotiating a regional forest agreement is being, or has been, carried on.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 4 Forestry operations in certain regions

Section 40

40 Forestry operations in regions not yet covered by regional forest agreements

(1) A person may undertake forestry operations in an RFA region in a State or Territory without approval under Part 9 for the purposes of a provision of Part 3 if there is not a regional forest agreement in force for any of the region.

Note 1: This section does not apply to some forestry operations. See section

42.

Note 2: The process of making a regional forest agreement is subject to assessment under the Environment Protection (Impact of Proposals) Act 1974, as continued by the Environmental Reform (Consequential Provisions) Act 1999.

(2)

In this Act:

forestry operations has the same meaning as in the Regional Forest Agreements Act 1999.

(3)

Subsection (1) does not operate in relation to an RFA region that is the subject of a declaration in force under this section.

(4)

The Minister may declare in writing that subsection (1) does not apply to an RFA region.

(5)

A declaration is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(6)

The Minister must not make a declaration that has the effect of giving preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State, in relation to the taking of the action:

(a)

by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or

(b)

by a constitutional corporation.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Forestry operations in certain regions Division 4

41 What is an RFA region?

Regions that are RFA regions

(1)

Each of the following is an RFA region:

(a)

the area delineated as the Eden RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;

(b)

the area delineated as the Lower North East RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;

(c)

the area delineated as the Upper North East RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;

(d)

the area delineated as the South Region on the map of the Comprehensive Regional Assessment South CRA Region dated August 1997 and published by the State Forests GIS Branch of the organisation known as State Forests of New South Wales;

(e)

the area delineated as the Gippsland Region in the map of that Region dated 11 March 1998 and published by the Forest Information Section of the Department of Natural Resources and Environment of Victoria;

(f)

the area delineated as the North East RFA Region in the map of that Region dated 11 March 1998 and published by the Forest Information Section of the Department of Natural Resources and Environment of Victoria;

(g)

the area delineated as the West Region in the map of that Region dated 3 March 1999 and published by the Forest Information Section of the Department of Natural Resources and Environment of Victoria;

(h)

the area delineated as the South East Queensland RFA Region on the map of that Region dated 21 August 1998 and published by the Bureau of Resource Sciences.

(2)

The regulations may amend subsection (1).

Regulations may amend list of regions

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 4 Forestry operations in certain regions

Section 42

Prerequisites for prescribing RFA regions

(3) Before the Governor-General makes regulations amending subsection (1), the Minister must be satisfied that the proposed regulations, in conjunction with this Subdivision, will not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.

42 This Division does not apply to some forestry operations

Subdivisions A and B do not apply to forestry operations:

(a)

in a property included in the World Heritage List; or

(b)

in a wetland included in the List of Wetlands of International Importance kept under the Ramsar Convention; or

(c)

that are incidental to another action whose primary purpose does not relate to forestry.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions in the Great Barrier Reef Marine Park Division 5

45 Minister may make agreement

Making bilateral agreement

(1) On behalf of the Commonwealth, the Minister may enter into a bilateral agreement.

Note 1: A bilateral agreement can detail the level of Commonwealth accreditation of State practices, procedures, processes, systems, management plans and other approaches to environmental protection.

Note 2: Subdivision B sets out some prerequisites for entering into bilateral agreements.

What is a bilateral agreement?

(2) A bilateral agreement is a written agreement between the Commonwealth and a State or a self-governing Territory that:

(a)

provides for one or more of the following:

(i)

protecting the environment;

(ii)

promoting the conservation and ecologically sustainable use of natural resources;

(iii) ensuring an efficient, timely and effective process for environmental assessment and approval of actions; (iv) minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State or Territory (or vice versa); and

(b)

is expressed to be a bilateral agreement.

Publishing notice of intention to enter into agreement

(3) As soon as practicable after starting the process of developing a draft bilateral agreement with a State or self-governing Territory,

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 2 Making bilateral agreements

Section 46

the Minister must publish, in accordance with the regulations (if any), notice of his or her intention to develop a draft bilateral agreement with the State or Territory.

Publishing bilateral agreements and related material

(4) As soon as practicable after entering into a bilateral agreement, the Minister must publish in accordance with the regulations:

(a)

the agreement; and

(b)

a statement of the Minister’s reasons for entering into the agreement; and

(c)

a report on the comments (if any) received on the draft of the agreement published under Subdivision B.

46 Agreement may declare actions do not need approval under Part 9

Declaration of actions not needing approval

(1) A bilateral agreement may declare that actions in a class of actions specified in the agreement wholly or partly by reference to the fact that their taking has been approved by:

(a)

the State or self-governing Territory that is party to the agreement; or

(b)

an agency of the State or Territory; in accordance with a management plan that is a bilaterally accredited management plan for the purposes of the agreement do

not require approval under Part 9 for the purposes of a specified provision of Part 3.

What is a bilaterally accredited management plan?

(2) A management plan is a bilaterally accredited management plan for the purposes of a bilateral agreement declaring that certain actions do not require approval under Part 9 for the purposes of a specified provision of Part 3 if and only if the management plan:

(a) is in force under a law:

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Making bilateral agreements Division 2

(i)

of the State or Territory that is party to the agreement; and

(ii)

identified in or under the agreement; and

(b) has been accredited in writing by the Minister in accordance with this section for the purposes of the agreement.

Accrediting management plan

(3) For the purposes of subsection (2), the Minister may accredit in writing a management plan for the purposes of a bilateral agreement with a State or self-governing Territory. However, the Minister may do so only if the Minister is satisfied that:

(a)

the management plan and the law of the State or Territory under which the management plan is in force (or is to be in force) meet the criteria prescribed by the regulations; and

(b)

there has been or will be adequate assessment of the impacts that actions approved in accordance with the management plan:

(i)

have or will have; or

(ii)

are likely to have; on each matter protected by a provision of Part 3 in relation

to which the agreement makes a declaration under subsection (1); and

(c) actions approved in accordance with the management plan will not have unacceptable or unsustainable impacts on a matter protected by a provision of Part 3 in relation to which the agreement makes a declaration under subsection (1).

The Minister must publish in accordance with the regulations (if any) the instrument accrediting the management plan.

Note: Subdivision B sets out more prerequisites for accrediting a plan.

Tabling of management plan before accreditation

(4) The Minister must cause to be laid before each House of the Parliament a copy of a management plan that the Minister is considering accrediting for the purposes of subsection (2).

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 2 Making bilateral agreements

Section 46

No accreditation before end of period for disallowance

(5) The Minister must not accredit a management plan for the purposes of subsection (2) under a bilateral agreement:

(a)

before, or within 15 sitting days after, a copy of the plan is laid before each House of the Parliament; or

(b)

if, within those 15 sitting days of a House, notice of a motion to disallow the management plan is given in that House— within 15 sitting days of that House after the notice is given.

Disallowance motion passed

(6) The Minister must not accredit the management plan if either House of the Parliament passes a resolution disallowing the management plan following a motion of which notice has been given within 15 sitting days after the plan has been laid before the House.

Disallowance motion not defeated in time

(7) The Minister must not accredit the management plan if at the end of 15 sitting days after notice of a motion to disallow the management plan that was given in a House of the Parliament within 15 sitting days after the management plan was laid before the House:

(a)

the notice has not been withdrawn and the motion has not been called on; or

(b)

the motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of.

Extended time after dissolution or prorogation

(8) If:

(a)

notice of a motion to disallow the management plan is given in a House of the Parliament (the disallowing House); and

(b)

before the end of 15 sitting days of the disallowing House after the notice is given:

(i) the House of Representatives is dissolved or expires; or

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Making bilateral agreements Division 2

(ii) the Parliament is prorogued; and

(c) at the time of the dissolution, expiry or prorogation (as appropriate):

(i)

the notice has not been withdrawn and the motion has not been called on; or

(ii)

the motion has been called on, moved and seconded and

has not been withdrawn or otherwise disposed of; the management plan is taken for the purposes of subsections (5),

(6) and (7) to have been laid before the disallowing House on the first sitting day of that House after the dissolution, expiry or prorogation (as appropriate).

No preference

(9) In accrediting a management plan for the purposes of a bilateral agreement making a declaration relating to an action:

(a)

by a person for the purposes of trade between Australia and another country or between 2 States; or

(b)

by a constitutional corporation; the Minister must not give preference (within the meaning of

section 99 of the Constitution) to one State or part of a State over another State or part of a State.

Requirements for bilateral agreement making declaration

(10) The declaration does not have effect for the purposes of this Act unless the bilateral agreement requires the State or self-governing Territory that is party to the agreement and agencies of the State or Territory:

(a)

to act in accordance with a management plan that is a bilaterally accredited management plan for the purposes of the agreement; and

(b)

not to approve the taking of actions that would be inconsistent with a management plan that is a bilaterally accredited management plan for the purposes of the agreement.

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 2 Making bilateral agreements

Section 47

47 Agreement may declare classes of actions do not need assessment

Declaration of actions that do not need further assessment

(1) A bilateral agreement may declare that actions in a class of actions identified wholly or partly by reference to the fact that they have been assessed in a specified manner need not be assessed under Part 8.

Note: A declaration described in subsection (1) can accredit practices, procedures, systems of the State or self-governing Territory for environmental assessment.

Prerequisite to declaration

(2) The Minister may enter into a bilateral agreement declaring that actions assessed in a specified manner need not be assessed under Part 8 only if he or she is satisfied that assessment of an action in the specified manner will include assessment of the impacts the action:

(a) has or will have; or

(b) is likely to have; on each matter protected by a provision of Part 3.

Assessment approaches that may be accredited

(3) The manner of assessment of actions that may be specified in a bilateral agreement between the Commonwealth and a State or Territory for the purposes of subsection (1) includes:

(a)

assessment by any person under a law of the State or Territory; and

(b)

assessment by any person under an agreement or other instrument made under a law of the State or Territory; and

(c)

assessment by any person in accordance with criteria specified in an instrument agreed by the parties to the bilateral agreement.

This does not limit subsection (1).

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Making bilateral agreements Division 2

Report on actions that do not need further assessment

(4) If a bilateral agreement has (or could have) the effect that an action need not be assessed under Part 8 but the action must still be approved under Part 9, the agreement must provide for the Minister to receive a report including, or accompanied by, enough information about the relevant impacts of the action to let the Minister make an informed decision whether or not to approve under Part 9 (for the purposes of each controlling provision) the taking of the action.

48 Other provisions of bilateral agreements

(1) A bilateral agreement may include:

(a)

provisions for State accreditation of Commonwealth processes and decisions; and

(b)

other provisions for achieving the object of this Part; and

(c)

provisions for the provision of information by one party to the agreement to the other party; and

(d)

provisions for the publication of information relating to the agreement; and

(e)

provisions relating to the operation of the whole agreement or particular provisions of the agreement, such as:

(i)

provisions for the commencement of all or part of the agreement; or

(ii)

provisions for auditing, monitoring and reporting on the operation and effectiveness of all or part of the agreement; or

(iii) provisions for review of all or part of the agreement; or

(iv)

provisions for rescission of all or part of the agreement; or

(v)

provisions for expiry of the agreement; and

(f)

provisions varying or revoking another bilateral agreement between the same parties; and

(g)

a provision dealing with a matter that another section of this Act permits a bilateral agreement to deal with.

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 2 Making bilateral agreements

Section 48A

Consistency with Act and regulations

(2) A provision of a bilateral agreement has no effect for the purposes of this Act to the extent that it is inconsistent with this Act or the regulations. A provision of a bilateral agreement is not inconsistent with this Act or the regulations if it is possible to comply with both the provision on the one hand and the Act or regulations on the other hand.

Relationship with sections 46 and 47

(3) Subsection (1) does not limit sections 46 and 47.

48A Mandatory provisions

Application

(1) A bilateral agreement with a State or self-governing Territory including a declaration that is described in section 46 or 47 and covers actions described in subsection (2) or (3) does not have effect for the purposes of this Act unless the agreement also includes the undertaking required by subsection (2) or (3) (as appropriate).

Agreements including declarations about approvals

(2) A bilateral agreement including a declaration described in section 46 must include an undertaking by the State or Territory to ensure that the environmental impacts that the following actions covered by the declaration have, will have or are likely to have on a thing that is not a matter protected by a provision of Part 3 for which the declaration has effect will be assessed to the greatest extent practicable:

(a)

actions taken in the State or Territory by a constitutional corporation;

(b)

actions taken in the State or Territory by a person for the purposes of trade or commerce between Australia and another country, between 2 States, between a State and a Territory or between 2 Territories;

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Making bilateral agreements Division 2

(c)

actions that are taken in the State or Territory and are actions whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries;

(d)

actions taken in the Territory (if applicable).

Agreements including declarations about assessment

(3) A bilateral agreement including a declaration described in section 47 must include an undertaking by the State or Territory to ensure that the environmental impacts that the following actions covered by the declaration have, will have or are likely to have (other than the relevant impacts of those actions) will be assessed to the greatest extent practicable:

(a)

actions taken in the State or Territory by a constitutional corporation;

(b)

actions taken in the State or Territory by a person for the purposes of trade or commerce between Australia and another country, between 2 States, between a State and a Territory or between 2 Territories;

(c)

actions that are taken in the State or Territory and are actions whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries;

(d)

actions taken in the Territory (if applicable).

Auditing

(4) A bilateral agreement does not have effect for the purposes of this Act unless it includes a provision recognising that, under the Auditor-General Act 1997, the Auditor-General may audit the operations of the Commonwealth public sector (as defined in section 18 of that Act) relating to the bilateral agreement.

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 2 Making bilateral agreements

Section 49

49 Express provision needed to affect Commonwealth areas or actions

(1)

A provision of a bilateral agreement does not have any effect in relation to an action in a Commonwealth area or an action by the Commonwealth or a Commonwealth agency, unless the agreement expressly provides otherwise.

(2)

A provision of a bilateral agreement does not have any effect in relation to an action in Booderee National Park, Kakadu National Park or Uluru-Kata Tjuta National Park.

(3)

Booderee National Park is the Commonwealth reserve (as it exists from time to time) to which the name Booderee National Park was given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1999.

49A Consultation on draft agreement

The Minister may enter into a bilateral agreement only if he or she:

(a)

has published in accordance with the regulations:

(i)

a draft of the agreement; and

(ii)

an invitation for any person to give the Minister comments on the draft within a specified period of at least 28 days after the latest day on which the draft or invitation was published; and

(b)

has taken into account the comments (if any) received in response to the invitation; and

(c)

has considered the role and interests of indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources in the context of the proposed agreement, taking into account Australia’s relevant obligations under the Biodiversity Convention.

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Making bilateral agreements Division 2

57 Representations about suspension or cancellation

Representations

(1) A person may refer to the Minister a matter that the person believes involves a contravention of a bilateral agreement.

Minister must decide whether agreement has been contravened

(2) The Minister must:

(a)

decide whether or not the bilateral agreement has been contravened; and

(b)

decide what action he or she should take in relation to any contravention.

Publication of decision and reasons

(3) The Minister must publish in accordance with the regulations each decision he or she makes, and the reasons for it.

Minister need not decide on vexatious referrals

(4) Despite subsection (2), the Minister need not make a decision under that subsection if he or she is satisfied that:

(a)

the referral was vexatious, frivolous, or not supported by sufficient information to make a decision; or

(b)

the matter referred is the same in substance as a matter that has been referred before; or

(c)

if the alleged contravention of the bilateral agreement were a contravention of the Act, the person referring the matter would not be entitled to apply under section 475 for an injunction in relation to the contravention.

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Suspending and ending the effect of bilateral agreements Division 3

58 Consultation before cancellation or suspension

(1)

The Minister (the Environment Minister) must consult the appropriate Minister of a State or Territory that is party to a bilateral agreement if the Environment Minister believes that the State or Territory:

(a)

has not complied with the agreement or will not comply with it; or

(b)

has not given effect, or will not give effect, to the agreement in a way that:

(i)

accords with the objects of this Act and the objects of this Part; and

(ii)

promotes the discharge of Australia’s obligations under any agreement with one or more other countries relevant to a matter covered by the agreement.

(2)

Subsection (1) operates whether the Environment Minister’s belief relates to a matter referred to him or her under section 57 or not.

59 Suspension or cancellation

Minister may give notice of suspension or cancellation

(1) If, after the consultation, the Environment Minister is not satisfied that the State or Territory:

(a)

has complied with, and will comply with, the agreement; and

(b)

has given effect, and will give effect, to the agreement in a way that:

(i)

accords with the objects of this Act and the objects of this Part; and

(ii)

promotes the discharge of Australia’s obligations under all international agreements (if any) relevant to a matter covered by the agreement;

he or she may give the appropriate Minister of the State or Territory a written notice described in subsection (2) or (3).

Example 1: The Minister could give notice if the agreement declared that certain actions affecting the world heritage values of a declared world heritage property did not require approval under Part 9 if approved by

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 3 Suspending and ending the effect of bilateral agreements

Section 59

the State, and the State approved an action that was not consistent with the protection, conservation and presentation of those values.

Example 2: The Minister could give notice if the agreement declared that certain actions affecting the ecological character of a declared Ramsar wetland did not require approval under Part 9 if approved by the State, and the State approved an action that had a significant adverse impact on that character.

Example 3: The Minister could give notice if the agreement declared that certain actions affecting a listed threatened species did not require approval under Part 9 if approved by the State, and the State approved an action that caused the species to become more threatened.

Notice of suspension

(2) A notice may state that the effect of the agreement, or specified provisions of the agreement, for the purposes of this Act or specified provisions of this Act is suspended, either generally or in relation to actions in a specified class, for a period:

(a)

starting on a specified day at least 10 business days (in the capital city of the State or Territory) after the day on which the notice is given; and

(b)

ending on a specified later day or on the occurrence of a specified event.

Notice of cancellation

(3) A notice may state that the effect of the agreement, or specified provisions of the agreement, for the purposes of this Act or specified provisions of this Act is cancelled, either generally or in relation to actions in a specified class, on a specified day at least 10 business days (in the capital city of the State or Territory) after the day on which the notice is given.

Effect suspended or cancelled in accordance with notice

(4) The effect of an agreement or specified provision of an agreement is suspended or cancelled for the purposes of this Act, or of a specified provision of this Act, either generally or in relation to actions in a specified class, in accordance with the notice. This subsection has effect subject to sections 61 and 62.

Bilateral agreements Chapter 3 Bilateral agreements Part 5 Suspending and ending the effect of bilateral agreements Division 3

Reasons for giving notice

(5) When giving a notice, the Environment Minister must give the appropriate Minister of the State or Territory a written statement of reasons for the giving of the notice.

Publishing notice and reasons

(6) As soon as practicable after the suspension or cancellation occurs, the Environment Minister must publish in accordance with the regulations:

(a)

notice of the suspension or cancellation; and

(b)

reasons for the suspension or cancellation.

60 Emergency suspension of effect of bilateral agreement

(1)

This section applies if the Minister is satisfied that:

(a)

the State or Territory that is party to a bilateral agreement is not complying with it, or will not comply with it; and

(b)

as a result of the non-compliance, a significant impact is occurring or imminent on any matter protected by a provision of Part 3 that is relevant to an action in a class of actions to which the agreement relates.

(2)

The Minister may suspend the effect of the agreement or specified provisions of the agreement for the purposes of this Act or specified provisions of this Act, by notice:

(a)

given to the appropriate Minister of the State or Territory; and

(b)

published in accordance with the regulations.

(3)

The suspension continues for the shorter of the following periods:

(a)

3 months;

(b)

the period that is specified in the notice (either by reference to time or by reference to the occurrence of an event).

(4)

Subsection (3) has effect subject to section 62.

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 3 Suspending and ending the effect of bilateral agreements

Section 61

(5)

As soon as practicable after the Minister (the Environment Minister) gives the appropriate Minister of the State or Territory (the State or Territory Minister) notice of the suspension, the Environment Minister must consult the State or Territory Minister about the non-compliance.

(6)

To avoid doubt, this section has effect despite sections 58 and 59.

61 Cancellation during suspension

(1)

The Minister may give notice of the cancellation of the effect of a bilateral agreement even while its effect is suspended under section 59 or 60.

(2)

The cancellation may occur even though the period of suspension has not ended.

(3)

This section applies whether the cancellation or suspension has effect generally or in relation to actions in a specified class.

62 Revocation of notice of suspension or cancellation

(1)

This section applies if the Minister:

(a)

has given a notice under section 59 or 60 to suspend or cancel the effect of a bilateral agreement (either generally or in relation to actions in a specified class); and

(b)

is later satisfied that the State or Territory that is party to the agreement will comply with the agreement and give effect to it in a way that:

(i)

accords with the objects of this Act and the objects of this Part; and

(ii)

promotes the discharge of Australia’s obligations under all international agreements (if any) relevant to a matter covered by the agreement.

(2)

The Minister must revoke the notice of suspension or cancellation by another written notice: