Australia

24 What is a Commonwealth marine area?

Each of the following is a Commonwealth marine area:

(a)

any waters of the sea inside the seaward boundary of the exclusive economic zone, except:

(i)

waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and

(ii)

waters within the limits of a State or the Northern Territory;

(b)

the seabed under waters covered by paragraph (a);

(c)

airspace over waters covered by paragraph (a);

(d)

any waters over the continental shelf, except:

(i)

waters, rights in respect of which have been vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 or in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and

(ii)

waters within the limits of a State or the Northern Territory; and

(iii) waters covered by paragraph (a);

(e)

any seabed under waters covered by paragraph (d);

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(f) any airspace over waters covered by paragraph (d).

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.

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.

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Actions likely to affect environment in Commonwealth marine areas

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

(a)

the person takes an action; and

(b)

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

(c)

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

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

Fishing with impact in State or Territory waters managed by Commonwealth

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

(a)

the person takes an action that:

(i)

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

(ii)

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

(b)

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

(c)

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

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

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

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

(a) the person takes an action that:

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

(i)

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

(ii)

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

(b)

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

(c)

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

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

Penalties

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

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

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

Defences—general

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

(a)

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

(b)

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

(c)

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

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the notice of the decision under section 77, the action is taken in that manner; or

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

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

Defence—fishing in Commonwealth waters managed by State

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

(a)

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

(b)

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

(c)

is permitted under a law of the State or Territory.

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

Defence—fishing outside Commonwealth marine areas

(10) Subsections (3) and (4) do not apply to an action that:

(a)

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

(b)

is permitted under a law of a State or self-governing Territory.

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

Subdivision G—Additional matters of national environmental significance

25 Requirement for approval of prescribed actions

(1) A person must not take an action that is prescribed by the regulations for the purposes of this subsection.

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.

(2)

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

(a)

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

(b)

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

(c)

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

(d)

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

(3)

Before the Governor-General makes regulations prescribing an action for the purposes of subsection (1), the Minister (the Environment Minister) must:

(a)

inform the appropriate Minister of each State and self-governing Territory of the proposal to prescribe:

(i)

the action; and

(ii)

a thing as matter protected by this section in relation to the action; and

(b)

invite the appropriate Minister of each State and self-governing Territory to give the Environment Minister comments on the proposal within a specified period of at least 28 days; and

(c)

consider the comments (if any); and

(d)

if comments have been given as described in paragraph (b)— take all reasonable steps to consult the appropriate Minister of each State and self-governing Territory with a view to agreeing on:

(i) the action to be prescribed; and

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Section 25A

(ii) the thing to be prescribed as matter protected by this section in relation to the action.

Note: Section 34 provides that the matter protected by this section is a thing prescribed by the regulations in relation to the action.

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

(4)

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

(5)

This section applies only to actions:

(a)

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

(b)

taken in a Commonwealth marine area; or

(c)

taken for the purpose of trade or commerce:

(i)

between Australia and another country; or

(ii)

between 2 States; or

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

(d)

taken by a constitutional corporation; or

(e)

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

(6)

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

Subdivision H—Actions that are taken to be covered by this Division

25A Actions that are taken to be covered by this Division

(1) The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision applies.

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Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(2)

To avoid doubt, if, as a result of a regulation made for the purposes of subsection (1), a regulatory provision applies to an action, the action is taken to be described in the provision.

(3)

Regulations made for the purposes of subsection (1) may only specify actions:

(a)

taken in a Territory; 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.

(4)

Regulations specifying 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.

(5)

In this section:

regulatory provision means:

(a)

a civil penalty provision set out in this Division; or

(b)

a provision of this Division that creates an offence.

Subdivision I—Evidentiary certificates

25B Evidentiary certificates

Contravention

(1) The Minister may issue a written certificate:

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Section 25C

(a)

stating that a specified person has contravened, or is contravening, a specified civil penalty provision set out in this Division; and

(b)

setting out particulars of that contravention.

(2)

The Minister may issue a certificate under subsection (1) relating to a particular contravention if the Minister has reason to believe that the person concerned has committed, or is committing, the contravention.

(3)

To avoid doubt, a certificate under subsection (1) may be issued even if any relevant proceedings under section 475 or 481 have been instituted.

Proposal

(4)

The Minister may issue a written certificate stating that, if a specified person were to carry out a proposal to engage in specified conduct, that conduct would contravene a specified civil penalty provision set out in this Division.

(5)

The Minister may issue a certificate under subsection (4) if the Minister has reason to believe that:

(a)

the person proposes to engage in the conduct concerned; and

(b)

the conduct would contravene the civil penalty provision concerned.

(6)

To avoid doubt, a certificate under subsection (4) may be issued even if any relevant proceedings under section 475 have been instituted.

25C Certificate to be given to person

As soon as practicable after issuing a certificate under subsection 25B(1) or (4), the Minister must give a copy of the certificate to the person concerned.

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25D Evidentiary effect of certificate

(1)

In any proceedings under section 475 or 481, a certificate under subsection 25B(1) is prima facie evidence of the matters in the certificate.

(2)

In any proceedings under section 475, a certificate under subsection 25B(4) is prima facie evidence of the matters in the certificate.

(3)

A document purporting to be a certificate under subsection 25B(1) or (4) must, unless the contrary is established, be taken to be such a certificate and to have been properly issued.

(4)

The Minister may certify that a document is a copy of a certificate under subsection 25B(1) or (4).

(5)

This section applies to the certified copy as if it were the original.

25E Variation of certificate

(1)

The Minister may vary a certificate under subsection 25B(1) or (4) so long as the variation is of a minor nature.

(2)

If a certificate is varied, the Minister must give the person concerned a written notice setting out the terms of the variation.

25F Revocation of certificate

(1)

The Minister may revoke a certificate under subsection 25B(1) or (4).

(2)

If a certificate is revoked, the Minister must give the person concerned a written notice stating that the certificate has been revoked.

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Section 26

Division 2—Protection of the environment from proposals involving the Commonwealth

Subdivision A—Protection of environment from actions involving Commonwealth land

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

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(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.

27 What is Commonwealth land?

Commonwealth land is so much of a Commonwealth area as is not a Commonwealth marine area.

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.

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

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Section 27A

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

(a)

the person takes an action; and

(b)

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

(c)

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

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

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

(a)

the person takes an action; and

(b)

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

(c)

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

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

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

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

Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

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

(a)

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

(b)

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

(c)

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

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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.

Subdivision B—Protection of the environment from Commonwealth actions

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

(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

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Section 28

(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.

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Division 3—Review of extension of operation of this Part

28A Identifying extra matters to be protected by this Part

(1)

Every 5 years after the commencement of this Act, the Minister must cause a report to be prepared on whether this Part should be amended (or regulations made for the purposes of section 25) to prohibit or regulate additional actions that have, will have or are likely to have a significant impact on environmental matters that may properly be regarded as being of national or international significance.

(2)

The following must be taken into account in preparing the report:

(a)

environmental matters that are properly regarded as being of national or international significance;

(b)

the adequacy of existing legislation and administrative measures of the Commonwealth, the States and the Territories to prevent significant impacts on those matters;

(c)

the principles of ecologically sustainable development;

(d)

Australia’s international obligations;

(e)

the objects of this Act;

(f)

the matters (if any) prescribed by the regulations for the purposes of this paragraph.

(3)

Before preparation of the report begins, the Minister must publish in accordance with the regulations (if any) an invitation for persons to comment, within a specified period, on the matters to be covered by the report.

(4)

Before preparation of the report is completed, the Minister must cause to be published in accordance with the regulations (if any):

(a)

a draft of the report; and

(b)

an invitation to comment on the draft within the period specified by the Minister.

(5)

The Minister must publish the report.

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Section 28A

(6) To avoid doubt, this section does not affect the operation of section 25.

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Part 4—Cases in which environmental approvals are not needed

Division 1—Actions covered by bilateral agreements

29 Actions declared by agreement not to need approval

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

(a)

the action is taken in a State or self-governing Territory; and

(b)

the action is one of a class of actions declared by a bilateral agreement between the Commonwealth and the State or Territory not to require approval under Part 9 for the purposes of the provision (because the action is approved in accordance with a management plan that is a bilaterally accredited management plan for the purposes of the bilateral agreement); and

(c)

the provision of the bilateral agreement making the declaration is in operation in relation to the action; and

(d)

the bilaterally accredited management plan is in force under a law of the State or Territory identified in or under the bilateral agreement; and

(e)

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

Note 1: Section 46 deals with bilateral agreements making declarations described in paragraph (1)(b).

Note 2: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended. Also, under section 49, bilateral agreements do not operate in relation to actions in Commonwealth areas, or actions taken by the Commonwealth or a Commonwealth agency, unless they expressly provide that they do.

(2) If the action is to be taken in 2 or more States or self-governing Territories, this section does not operate unless it operates in relation to each of those States or Territories.

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Section 30

30 Extended operation in State and Northern Territory waters

(1)

Section 29 applies to an action taken on, over or under the seabed vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 in the same way that it applies to an action taken in the State.

(2)

Section 29 applies to an action taken on, over or under the seabed vested in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980 in the same way that it applies to an action taken in the Territory.

(3)

Section 29 applies to an action taken in a Commonwealth marine area to which a law of a State or self-governing Territory is applied by a Commonwealth law or by an agreement or arrangement under a Commonwealth law (other than this Act) in the same way as it applies to an action in the State or Territory, if the provision of the bilateral agreement has effect in relation to the area.

Note: A provision of a bilateral agreement only has effect in relation to a Commonwealth area if the agreement expressly provides that it does. See section 49.

31 Extended operation in non-self-governing Territories

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

(a)

the action is taken in a Territory (the action Territory) that is not a self-governing Territory; and

(b)

an Act providing for the government of the action Territory provides that some or all of the law of a State or self-governing Territory is in force in the action Territory as a law of the Territory; and

(c)

the action is one of a class of actions declared by a bilateral agreement between the Commonwealth and the State or self-governing Territory not to require approval under Part 9 for the purposes of the provision of Part 3 (because the action is approved or taken in accordance with a bilaterally accredited management plan); and

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(d)

the bilateral agreement specifies that the provision of the agreement making the declaration has effect in relation to actions in the action Territory; and

(e)

the provision of the bilateral agreement making the declaration is in operation in relation to the action; and

(f)

the bilaterally accredited management plan is in force under a law of the State or self-governing Territory identified in or under the bilateral agreement; and

(g)

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

Note: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended.

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Section 32

Division 2—Actions covered by Ministerial declarations

Subdivision A—Effect of declarations

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.

Subdivision B—Making declarations

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.

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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.

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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.

Matter protected by provisions of Part 3

Item Provision Matter protected

1 section 12 the world heritage values of a declared World Heritage property

1A section 15 the world heritage values of a declared World A Heritage property

2 section 16 the ecological character of a declared Ramsar wetland

2A section 17 the ecological character of a declared Ramsar B wetland

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

Section 34

Matter protected by provisions of Part 3

Item	Provision
3	subsection
	18(1)
4	subsection
	18(2)
5	subsection
	18(3)
6	subsection
	18(4)
7	subsection
	18(5)
8	subsection
	18(6)
8A	subsection
	18A(1) or
	(2)
9	section 20
9A	section 20
	A
10	section 21
10A	section 22
	A
11	subsection
	23(1)
12	subsection
	23(2)
13	subsection
	23(3)

Matter protected

a listed threatened species in the extinct in the

wild category a listed threatened species in the critically endangered category

a listed threatened species in the endangered

category a listed threatened species in the vulnerable category

a listed threatened ecological community in the

critically endangered category a listed threatened ecological community in the endangered category

a listed threatened species (except a species included in the extinct category of the list referred to in section 178 or a conservation dependent species) and a listed threatened ecological community (except an ecological community included in the vulnerable category of the list referred to in section 181)

a listed migratory species a listed migratory species

the environment the environment

the environment

the environment in a Commonwealth marine

area the environment in the coastal waters (as defined in the Fisheries Management Act 1991) in which the action is taken of the State or Territory

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

Matter protected by provisions of Part 3

Item	Provision	Matter protected
13A	subsection 24A(1) or (2)	the environment

13B	subsection	the environment in a Commonwealth marine
	24A(3) or	area
	(4)

13C	subsection	the environment in the coastal waters (as
	24A(5) or	defined in the Fisheries Management Act 1991)
	(6)	in which the action is taken of the State or
		Territory
14 15	section 25 subsection 26(1)	a thing prescribed by the regulations for the purposes of this item in relation to an action to which section 25 applies the environment

16 16A	subsection 26(2) subsection 27A(1) or (2)	the environment on Commonwealth land the environment
16B 17	subsection 27A(3) or (4) section 28	the environment on Commonwealth land the environment

Subdivision C—Prerequisites for making declarations

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.

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

Section 34B

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:

(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:

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 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

(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

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

Section 34E

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.

(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

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

(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.

Subdivision D—Other rules about declarations

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.

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;

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

Section 36

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

Division 4—Forestry operations in certain regions

Subdivision A—Regions covered by regional forest agreements

38 Part 3 not to apply to certain RFA forestry operations

(1)

Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.

(2)

In this Division:

RFA or regional forest agreement has the same meaning as in the Regional Forest Agreements Act 2002.

RFA forestry operation has the same meaning as in the Regional Forest Agreements Act 2002.

Note: This section does not apply to some RFA forestry operations. See section 42.

Subdivision B—Regions subject to a process of negotiating a regional forest agreement

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 Division:

forestry operations means any of the following done for commercial purposes:

(a)

the planting of trees;

(b)

the managing of trees before they are harvested;

(c)

the harvesting of forest products; and includes any related land clearing, land preparation and regeneration (including burning) and transport operations. For the

purposes of paragraph (c), forest products means live or dead trees, ferns or shrubs, or parts thereof.

RFA region has the meaning given by section 41.

(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:

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

(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.

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.

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

Section 42

Regulations may amend list of regions

(2) The regulations may amend subsection (1).

Prerequisites for prescribing RFA regions

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

Subdivision C—Limits on application

42 This Division does not apply to some forestry operations

Subdivisions A and B of this Division, and subsection 6(4) of the Regional Forest Agreements Act 2002, do not apply to RFA forestry operations, or to forestry operations, that are:

(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)

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

Division 5—Actions in the Great Barrier Reef Marine Park

43 Actions taken in accordance with permission

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

(a)

the action is taken in the Great Barrier Reef Marine Park established by the Great Barrier Reef Marine Park Act 1975; and

(b)

the person is authorised to take the action in the place where he or she takes it, by any of the following instruments made or issued under that Act (including instruments made or issued under an instrument (including regulations) made or issued under that Act):

(i)

a zoning plan;

(ii)

a plan of management;

(iii) a permission;

(iv)

an authority;

(v)

an approval;

(vi)

a permit.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 6 Actions with prior authorisation

Section 43A

Division 6—Actions with prior authorisation

43A Actions with prior authorisation

(1)

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

(a)

the action consists of a use of land, sea or seabed; and

(b)

the action was specifically authorised under a law of the Commonwealth, a State or a self-governing Territory before the commencement of this Act; and

(c)

immediately before the commencement of this Act, no further environmental authorisation was necessary to allow the action to be taken lawfully.

(2)

In this section:

environmental authorisation means an authorisation under a law of the Commonwealth, a State or a self-governing Territory that has either or both of the following objects (whether express or implied):

(a)

to protect the environment;

(b)

to promote the conservation and ecologically sustainable use of natural resources.

43B Actions which are lawful continuations of use of land etc.

(1)

A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act. For this purpose, an enlargement, expansion or intensification of use is not a continuation of a use.

(2)

However, subsection (1) does not apply to an action that was specifically authorised under a law of the Commonwealth, a State or a self-governing Territory before the commencement of this Act.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions with prior authorisation Division 6

Note: Section 43A applies to actions that were specifically authorised under a law before the commencement of this Act.

Chapter 3 Bilateral agreements Part 5 Bilateral agreements Division 1 Object of Part

Section 44

Chapter 3—Bilateral agreements

Part 5—Bilateral agreements

Division 1—Object of Part

44 Object of this Part

The object of this Part is to provide for agreements between the Commonwealth and a State or self-governing Territory that:

(a)

protect the environment; and

(b)

promote the conservation and ecologically sustainable use of natural resources; and

(c)

ensure an efficient, timely and effective process for environmental assessment and approval of actions; and

(d)

minimise duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State or Territory (and vice versa).

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

Division 2—Making bilateral agreements

Subdivision A—Power to make bilateral agreements

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, the Minister must publish, in accordance with the regulations (if

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

Section 46

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:

(i)

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

(ii)

identified in or under the agreement; and

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

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

Accrediting management plan

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

(a)

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

(b)

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

(i)

have or will have; or

(ii)

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

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

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

The Minister must publish in accordance with the regulations (if any) the instrument accrediting the management plan. Note: Subdivision B sets out more prerequisites for accrediting a plan.

Tabling of management plan before accreditation

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

No accreditation before end of period for disallowance

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

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

Section 46

(a)

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

(b)

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

Disallowance motion passed

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

Disallowance motion not defeated in time

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

(a)

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

(b)

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

Extended time after dissolution or prorogation

(8) If:

(a)

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

(b)

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

(i)

the House of Representatives is dissolved or expires; or

(ii)

the Parliament is prorogued; and

(c)

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

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

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

(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.

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

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

Section 47

been assessed in a specified manner need not be assessed under

Part 8.
Note:	A declaration described in subsection (1) can accredit practices, procedures, systems of the State or self-governing Territory for environmental assessment.

Prerequisite to declaration

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

(a) has or will have; or

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

Assessment approaches that may be accredited

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

(a)

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

(b)

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

(c)

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

This does not limit subsection (1).

Report on actions that do not need further assessment

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

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

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.

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.

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Section 48A

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;

(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

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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.

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

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Section 49A

given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1999.

Subdivision B—Prerequisites for making bilateral agreements

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.

50 Minister may only enter into agreement if prescribed criteria are met

The Minister may enter into a bilateral agreement only if the Minister is satisfied that the agreement:

(a)

accords with the objects of this Act; and

(b)

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

51 Agreements relating to declared World Heritage properties

(1) The Minister may enter into a bilateral agreement containing a provision relating to a declared World Heritage property only if:

(a) the Minister is satisfied that the provision is not inconsistent with Australia’s obligations under the World Heritage Convention; and

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(b)

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

(c)

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

(2) The Minister may accredit a management plan under section 46 for the purposes of a bilateral agreement containing a provision relating to a declared World Heritage property only if:

(a)

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

(b)

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

52 Agreements relating to declared Ramsar wetlands

(1)

The Minister may enter into a bilateral agreement containing a provision relating to a declared Ramsar wetland only if:

(a)

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

(b)

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

(c)

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

(2)

The Minister may accredit a management plan under section 46 for the purposes of a bilateral agreement containing a provision relating to a declared Ramsar wetland only if:

(a)

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

(b)

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

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Section 53

53 Agreements relating to listed threatened species and ecological communities

(1)

The Minister may enter into a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:

(a)

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

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

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

(c)

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

(d)

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

(2)

The Minister may accredit a management plan under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:

(a)

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

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

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

(c)

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

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

54 Agreements relating to migratory species

(1)

The Minister may enter into a bilateral agreement containing a provision relating to a listed migratory species only if:

(a)

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

(i)

the Bonn Convention;

(ii)

CAMBA;

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

(b)

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

(c)

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

(2)

The Minister may accredit a management plan under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed migratory species only if:

(a)

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

(i)

the Bonn Convention;

(ii)

CAMBA;

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

(b)

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

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Section 55

55 Agreements relating to nuclear actions

The Minister must not enter into a bilateral agreement, or accredit for the purposes of a bilateral agreement a management plan, containing a provision that:

(a)

relates to a nuclear action; and

(b)

has the effect of giving preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State, in relation to the taking of a nuclear action:

(i)

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

(ii)

by a constitutional corporation.

56 Agreements relating to prescribed actions

The Minister must not enter into a bilateral agreement containing a provision that:

(a)

relates to an action prescribed for the purposes of subsection 25(1); and

(b)

has the effect of giving preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State, in relation to the taking of the action:

(i)

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

(ii)

by a constitutional corporation.

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Division 3—Suspending and ending the effect of bilateral agreements

Subdivision A—Suspension and cancellation of effect

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.

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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

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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.

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Section 60

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.

(5)

As soon as practicable after the Minister (the Environment Minister) gives the appropriate Minister of the State or Territory

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(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:

(a)

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

(b)

published in accordance with the regulations.

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However, the Environment Minister must not revoke the notice of cancellation after cancellation of the effect of the agreement occurs.

(3)

Suspension or cancellation of the effect of the agreement does not occur if the notice of suspension or cancellation is revoked before the suspension or cancellation would otherwise occur.

(4)

Suspension of the effect of the agreement ends when the notice of suspension is revoked.

63 Cancellation or suspension at request of other party

Minister must give notice of cancellation or suspension

(1) The Minister must give the appropriate Minister of a State or self-governing Territory that is party to a bilateral agreement a notice under subsection (2) or (3) if the appropriate Minister has requested a notice under that subsection in accordance with the agreement.

Notice of suspension

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

(a)

starting on a specified day after the day on which the notice is given; and

(b)

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

Notice of cancellation

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

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Effect suspended or cancelled in accordance with notice

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

Publishing notice and reasons

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

(a)

notice of the suspension or cancellation; and

(b)

reasons for the suspension or cancellation.

64 Cancellation or suspension of bilateral agreement does not affect certain actions

Application

(1) This section explains how this Act operates in relation to an action that a person was able to take without approval under Part 9 for the purposes of a provision of Part 3 because of Division 1 of Part 4 and a provision of a bilateral agreement immediately before the cancellation or suspension of the operation of the provision of the agreement for the purposes of this Act or of any provision of this Act.

Actions approved in specified manner may be taken

(2) If the action was able to be taken without approval under Part 9 because its taking had already been approved in accordance with a management plan that is a bilaterally accredited management plan for the purposes of the agreement, this Act continues to operate in relation to the action as if the suspension or cancellation had not occurred.

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Section 65

Subdivision B—Expiry of bilateral agreements

65 Expiry and review of bilateral agreements

(1) A bilateral agreement ceases to have effect for the purposes of this Act:

(a)

5 years after it is entered into; or

(b)

at an earlier time when the agreement provides for it to cease

to have effect for the purposes of this Act. Note: The parties to a bilateral agreement may also agree to revoke it.

(2) The Minister must:

(a)

cause a review of the operation of a bilateral agreement to be carried out; and

(b)

give a report of the review to the appropriate Minister of the

State or Territory that is party to the agreement;

before the agreement ceases to have effect as a result of this

section.

Note: A bilateral agreement may also provide for review of its operation.

(3) The Minister must publish the report in accordance with the regulations.

65A Expiry of bilateral agreement does not affect certain actions

Application of subsection (2)

(1) Subsection (2) explains how this Act operates in relation to an action that a person was able to take without approval under Part 9 for the purposes of a provision of Part 3 because of Division 1 of Part 4 and a provision of a bilateral agreement immediately before the agreement ceases to have effect for the purposes of this Act under section 65.

Actions already approved may be taken

(2) This Act continues to operate in relation to the action as if the agreement had not ceased to have effect if the action was able to be taken without approval under Part 9 because its taking had already

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been approved in accordance with a management plan that was a bilaterally accredited management plan for the purposes of the agreement.

Chapter 4 Environmental assessments and approvals Part 6 Simplified outline of this Chapter

Section 66

Chapter 4—Environmental assessments and approvals

Part 6—Simplified outline of this Chapter

66 Simplified outline of this Chapter

The following is a simplified outline of this Chapter:

This Chapter deals with assessment and approval of actions that Part 3 prohibits without approval (controlled actions). (It does not deal with actions that a bilateral agreement declares not to need approval.)

A person proposing to take an action, or a government body aware of the proposal, may refer the proposal to the Minister so he or she can decide:

(a)

whether his or her approval is needed to take the action; and

(b)

how to assess the impacts of the action to be able to make an informed decision whether or not to approve the action.

An assessment may be done using:

(a)

a process laid down under a bilateral agreement; or

(b)

a process specified in a declaration by the Minister; or

(c)

a process accredited by the Minister; or

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Section 66

(d)	preliminary documentation provided by the
	proponent; or
(e)	a public environment report; or
(f)	an environmental impact statement; or
(g)	a public inquiry.

Once the report of the assessment is given to the Minister, he or she must decide whether or not to approve the action, and what conditions to attach to any approval.

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Section 67

Part 7—Deciding whether approval of actions is needed

Division 1—Referral of proposals to take action

67 What is a controlled action?

An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be prohibited by the provision. The provision is a controlling provision for the action.

68 Referral by person proposing to take action

(1)

A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.

(2)

A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.

(3)

In a referral under this section, the person must state whether or not the person thinks the action the person proposes to take is a controlled action.

(4)

If the person states that the person thinks the action is a controlled action, the person must identify in the statement each provision that the person thinks is a controlling provision.

(5)

Subsections (1) and (2) do not apply in relation to a person proposing to take an action if the person has been informed by the Minister under section 73 that the proposal has been referred to the Minister.

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69 State or Territory may refer proposal to Minister

(1)

A State, self-governing Territory or agency of a State or self-governing Territory that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the State, Territory or agency has administrative responsibilities relating to the action.

(2)

This section does not apply in relation to a proposal by a State, self-governing Territory or agency of a State or self-governing Territory to take an action.

Note: Section 68 applies instead.

70 Minister may request referral of proposal

(1) If the Minister believes a person proposes to take an action that the Minister thinks may be or is a controlled action, the Minister may request:

(a)

the person; or

(b)

a State, self-governing Territory or agency of a State or self-governing Territory that the Minister believes has administrative responsibilities relating to the action;

to refer the proposal to the Minister within 15 business days or a longer period agreed by the Minister and the requested person, State, Territory or agency (as appropriate).

Note 1: If the proposal to take the action is not referred, the person cannot get an approval under Part 9 to take the action. If taking the action without approval contravenes Part 3, an injunction could be sought to prevent or stop the action, or the person could be ordered to pay a pecuniary penalty.

Note 2: Section 156 sets out rules about time limits.

(2) In making a request, the Minister must act in accordance with the regulations (if any).

Deemed referral of proposal

(3) If:

(a) the Minister has made a request under subsection (1); and

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Section 71

(b)

the period for compliance with the request has ended; and

(c)

the requested person has not referred the proposal to the

Minister in accordance with the request; the Minister may, within 20 business days after the end of that period, determine in writing that this Act has effect as if:

(d)

if paragraph (1)(a) applies—the requested person had referred the proposal to the Minister under subsection 68(1) at the time the determination was made; or

(e)

if paragraph (1)(b) applies—the requested person had referred the proposal to the Minister under subsection 69(1) at the time the determination was made.

(4)

A determination under subsection (3) has effect accordingly.

(5)

A copy of a determination under subsection (3) is to be given to the requested person.

(6)

Subsection 68(3) and section 72 do not apply to a referral covered by subsection (3) of this section.

(7)

Despite subsection 74(4), section 74 applies to a referral covered by subsection (3) of this section.

(8)

Subsection 74(3) applies to a referral covered by subsection (3) of this section as if the reference in paragraph 74(3)(a) to the referral were a reference to the determination concerned.

71 Commonwealth agency may refer proposal to Minister

(1)

A Commonwealth agency (except the Minister) that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the agency has administrative responsibilities relating to the action.

(2)

This section does not apply in relation to a proposal by the

Commonwealth or a Commonwealth agency to take an action. Note: Section 68 applies instead.

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72 Form and content of referrals

(1)

A referral of a proposal to take an action must be made in a way prescribed by the regulations.

(2)

A referral of a proposal to take an action must include the information prescribed by the regulations.

73 Informing person proposing to take action of referral

As soon as practicable after receiving a referral under section 69 or 71 of a proposal by a person to take an action, the Minister must:

(a)

inform the person of the referral; and

(b)

invite the person to give the Minister relevant information about whether the action is a controlled action, within 10 business days.

74 Inviting provision of information on referred proposal

Inviting other Commonwealth Ministers to provide information

(1) As soon as practicable after receiving a referral of a proposal to take an action, the Minister (the Environment Minister) must:

(a)

inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the proposal; and

(b)

invite each other Minister informed to give the Environment Minister within 10 business days information that relates to the proposed action and is relevant to deciding whether or not the proposed action is a controlled action.

Inviting comments from appropriate State or Territory Minister

(2) As soon as practicable after receiving, from the person proposing to take an action or from a Commonwealth agency, a referral of a proposal to take an action in a State or self-governing Territory, the Environment Minister must:

(a) inform the appropriate Minister of the State or Territory; and

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Section 74A

(b) invite that Minister to give the Environment Minister comments within 10 business days on whether the proposed action is a controlled action;

if the Environment Minister thinks the action may have an impact on a matter protected by a provision of Division 1 of Part 3 (about matters of national environmental significance).

Note: Subsection (2) also applies in relation to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.

Inviting public comment

(3) As soon as practicable after receiving a referral of a proposal to take an action, the Environment Minister must cause to be published on the Internet:

(a)

the referral; and

(b)

an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the action is a controlled action.

Section does not apply if proponent says action is controlled action

(4) This section does not apply in relation to a referral of a proposal to take an action by the person proposing to take the action if the person states in the referral that the person thinks the action is a controlled action.

74A Minister may request referral of a larger action

(1)

If the Minister receives a referral in relation to a proposal to take an action by a person, and the Minister is satisfied the action that is the subject of the referral is a component of a larger action the person proposes to take, the Minister may decide to not accept the referral.

(2)

If the Minister decides to not accept a referral under subsection (1), the Minister:

(a) must give written notice of the decision to the person who referred the proposal to the Minister; and

Environmental assessments and approvals Chapter 4 Deciding whether approval of actions is needed Part 7 Referral of proposals to take action Division 1

(b)

must give written notice of the decision to the person who is proposing to take the action that was the subject of the referral; and

(c)

may, under section 70, request of the person proposing to take the action that was the subject of the referral, that they refer the proposal, to take the larger action, to the Minister.

(3)

To avoid doubt, sections 73 and 74 do not apply to a referral that has not been accepted in accordance with subsection (1).

(4)

If the Minister decides to accept a referral under subsection (1), the Minister must, at the time of making a decision under section 75:

(a)

give written notice of the decision to the person who referred the proposal to the Minister;

(b)

publish in accordance with the regulations (if any), a copy or summary of the decision.

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Section 75

Division 2—Ministerial decision whether action needs approval

75 Does the proposed action need approval?

Is the action a controlled action?

(1) The Minister must decide:

(a)

whether the action that is the subject of a proposal referred to the Minister is a controlled action; and

(b)

which provisions of Part 3 (if any) are controlling provisions for the action.

(1AA) To avoid doubt, the Minister is not permitted to make a decision under subsection (1) in relation to an action that was the subject of a referral that was not accepted under subsection 74A(1).

Minister must consider public comment

(1A) In making a decision under subsection (1) about the action, the Minister must consider the comments (if any) received:

(a)

in response to the invitation (if any) under subsection 74(3) for anyone to give the Minister comments on whether the action is a controlled action; and

(b)

within the period specified in the invitation.

Considerations in decision

(2) If, when the Minister makes a decision under subsection (1), it is relevant for the Minister to consider the impacts of an action:

(a)

the Minister must consider all adverse impacts (if any) the action:

(i)

has or will have; or

(ii)

is likely to have; on the matter protected by each provision of Part 3; and

(b)

must not consider any beneficial impacts the action:

(i) has or will have; or

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

Designating a proponent of the action

(3) If the Minister decides that the action is a controlled action, the Minister must designate a person as proponent of the action.

Consent to designation

(4) The Minister may designate a person who does not propose to take the action only if:

(a)

the person agrees to being designated; and

(b)

the person proposing to take the action agrees to the designation.

Timing of decision and designation

(5) The Minister must make the decisions and designation:

(a)

within 20 business days of the referral; or

(b)

if the person proposing to take the action referred the proposal and stated in the referral that the person thought the action was a controlled action—within 10 business days of the referral.

Note: Section 156 sets out rules about time limits.

Time does not run while further information being sought

(6) If the Minister has requested more information under section 76 for the purposes of making a decision, a day is not to be counted as a business day for the purposes of subsection (5) if it is:

(a)

on or after the day the Minister requested the information; and

(b)

on or before the day on which the Minister receives the last of the information requested.

Running of time may be suspended by agreement

(7) The Minister and the person proposing to take the action may agree in writing that days within a period worked out in accordance with

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the agreement are not to be counted as business days for the purposes of subsection (5). If the agreement is made, those days are not to be counted for the purposes of that subsection.

76 Minister may request more information for making decision

If the Minister believes on reasonable grounds that the referral of a proposal to take an action does not include enough information for the Minister to decide:

(a)

whether the action is a controlled action; or

(b)

which provisions of Part 3 (if any) are controlling provisions

for the action; the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

77 Notice and reasons for decision

Giving notice

(1) Within 10 business days after deciding whether an action that is the subject of a proposal referred to the Minister is a controlled action or not, the Minister must:

(a)

give written notice of the decision to:

(i)

the person proposing to take the action; and

(ii)

if the Minister has designated as proponent of the action a person who does not propose to take the action—that person; and

(iii) if the Minister decided that the action is a controlled action because of Division 1 of Part 3 (which deals with matters of national environmental significance)—the appropriate Minister of each State or self-governing Territory in which the action is to be taken; and

(b)

publish notice of the decision in accordance with the regulations.

Note 1: Section 156 sets out rules about time limits.

Note 2: Subparagraph (1)(a)(iii) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.

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Notice must identify any applicable controlling provisions

(2) If the decision is that the action is a controlled action, the notice must identify each of the controlling provisions.

Reasons for decision

(4) The Minister must give reasons for the decision to a person who:

(a)

has been given the notice; and

(b)

within 28 days of being given the notice, has requested the

Minister to provide reasons. The Minister must do so as soon as practicable, and in any case within 28 days of receiving the request.

77A Action to be taken in a particular manner

(1) If, in deciding whether the action is a controlled action or not, the Minister has made a decision (the component decision) that a particular provision of Part 3 is not a controlling provision for the action because the Minister believes it will be taken in a particular manner (whether or not in accordance with an accredited management plan for the purposes of a declaration under section 33 or a bilaterally accredited management plan for the purposes of a bilateral agreement), the notice, to be provided under section 77, must set out the component decision, identifying the provision and the manner.

Note: The Minister may decide that a provision of Part 3 is not a controlling provision for an action because he or she believes that the action will be taken in a manner that will ensure the action will not have (and is not likely to have) an adverse impact on the matter protected by the provision.

(2) A person must not take an action, that is the subject of a notice that includes a particular manner under subsection (1), in a way that is inconsistent with the manner specified in the notice.

Civil penalty:

(a) for an individual—1,000 penalty units, or such lower amount as is prescribed by the regulations;

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(b) for a body corporate—10,000 penalty units, or such lower amount as is prescribed by the regulations.

78 Reconsideration of decision

Limited power to vary or substitute decisions

(1) The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if:

(a)

the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action:

(i) has or will have; or

(ii)

is likely to have; on a matter protected by a provision of Part 3; or (aa) the Minister is satisfied that the revocation and substitution is warranted by a substantial change in circumstances that was

not foreseen at the time of the first decision and relates to the impacts that the action:

(i)

has or will have; or

(ii)

is likely to have; on a matter protected by a provision of Part 3; or

(b)

if the first decision was that the action was not a controlled action because the Minister believed the action would be taken in the manner identified under subsection 77A(1) in the notice given under section 77—the Minister is satisfied that the action is not being, or will not be, taken in the manner identified; or

(c)

if the first decision was that the action was not a controlled action because of a provision of a bilateral agreement or a declaration under section 33 and a management plan that is a bilaterally accredited management plan for the purposes of the agreement or an accredited management plan for the purposes of the declaration:

(i) the provision of the agreement or declaration no longer operates in relation to the action; or

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(ii) the management plan is no longer in force under a law of the Commonwealth, a State or a self-governing Territory identified in or under the agreement or declaration; or

(d) the Minister is requested under section 79 to reconsider the decision.

Reversing decision that provision of Part 3 is not controlling provision

(2) A provision of Part 3 letting an action be taken if the Minister has decided that a particular provision (the prohibiting provision) of that Part is not a controlling provision for the action does not prevent the Minister from acting under subsection (1) to revoke a decision that the prohibiting provision is not a controlling provision for an action and substitute a decision that the prohibiting provision is a controlling provision for the action.

Decision not to be revoked after approval granted or refused or action taken

(3) The Minister must not revoke the first decision after:

(a)

the Minister has granted or refused an approval of the taking of the action; or

(b)

the action is taken.

General effect of change of decision

(4) When the first decision is revoked and a new decision is substituted for it:

(a)

any provisions of this Chapter that applied in relation to the action because of the first decision cease to apply in relation to the action; and

(b)

any provisions of this Chapter that are relevant because of the new decision apply in relation to the action.

Change of designation of proponent

(5) If the Minister believes a person (the first proponent) designated under section 75 as proponent of an action is no longer an

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Section 79

appropriate person to be the designated proponent of the action, the Minister may revoke the designation and designate another person (the later proponent) as proponent of the action.

Consent to designation

(6) The Minister may designate the other person as proponent of the action only if:

(a)

he or she consents to it and the person proposing to take the action agrees to it; or

(b)

the other person is the person proposing to take the action.

Effect of change of designated proponent

(7) If the Minister revokes the designation of the first proponent and designates the later proponent:

(a)

the provisions of this Chapter that applied to the first proponent cease to apply to the first proponent in relation to the action but apply to the later proponent; and

(b)

for the purposes of those provisions the later proponent is taken to have done anything the first proponent did in relation to the action; and

(c)

for the purposes of those provisions anything done in relation to the first proponent in relation to the action is taken to have been done in relation to the later proponent.

79 Reconsideration of decision on request by a State or Territory

(1) This section applies if:

(a)

the Minister (the Environment Minister) makes a decision about whether a provision of Division 1 of Part 3 is a controlling provision for an action proposed to be taken in a State or self-governing Territory; and

(b)

the person proposing to take the action did not refer the proposal to the Minister with a statement that the person thought the action was a controlled action.

Note 1: Division 1 of Part 3 deals with requirements for approvals for actions involving matters of national environmental significance.

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Note 2: This section also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.

(2) Within 5 business days of being notified of the decision, a Minister of the State or Territory may request the Environment Minister to reconsider the Environment Minister’s decisions made under subsection 75(1).

Note: Subsection 75(1) provides for decisions about whether the action is a controlled action and what the controlling provisions for the action are.

(3) Within 20 business days after receiving a request to reconsider a decision, the Environment Minister must:

(a)

reconsider the decision; and

(b)

either confirm it or revoke it and substitute a new decision for it; and

(c)

give written notice of the outcome of the reconsideration and reasons for the outcome to:

(i)

the Minister who requested the reconsideration; and

(ii)

the person proposing to take the action; and

(iii) the designated proponent of the action; and

(d)

after giving notice as described in paragraph (c), publish notice of the outcome and the reasons for it in accordance with the regulations.

Note: Section 156 sets out rules about time limits.

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Section 80

Part 8—Assessing impacts of controlled actions Division 1—Simplified outline of this Part 80 Simplified outline of this Part

The following is a simplified outline of this Part:

This Part provides for the assessment of impacts of controlled actions, to provide information for decisions whether or not to approve the taking of the actions. However, this Part does not apply to actions that a bilateral agreement or Ministerial declaration says are to be assessed in another way.

For actions that are to be assessed under this Part, the Minister must choose one of the following methods of assessment:

(a)

an accredited assessment process;

(b)

an assessment on preliminary documentation (see Division 4);

(c)

a public environment report (see Division 5);

(d)

an environmental impact statement (see Division 6);

(e)

a public inquiry (see Division 7).

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Division 2—Application of this Part

81 Application

(1)

This Part applies to the assessment of the relevant impacts of an action that the Minister has decided under Division 2 of Part 7 is a controlled action.

(2)

This section has effect subject to sections 83 and 84.

(3)

This section does not limit section 82.

82 What are the relevant impacts of an action?

If the Minister has decided the action is a controlled action

(1) If the Minister has decided under Division 2 of Part 7 that an action is a controlled action, the relevant impacts of the action are the impacts that the action:

(a)

has or will have; or

(b)

is likely to have; on the matter protected by each provision of Part 3 that the

Minister has decided under that Division is a controlling provision for the action.

If the Minister has not decided whether the action is controlled

(2) If an action is a controlled action or would be apart from Division 1 or 2 of Part 4 (which provide that approval under Part 9 is not needed for an action covered by a bilateral agreement or declaration)—the relevant impacts of the action are impacts that the action:

(a)

has or will have; or

(b)

is likely to have; on the matter protected by each provision of Part 3 that is a

controlling provision for the action or would be apart from whichever of those Divisions is relevant.

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Relationship between subsections (1) and (2)

(3) Subsection (1) has effect despite subsection (2).