This compilation was prepared on 5 March 2010 taking into account amendments up to Act No. 8 of 2010
Volume 1 includes: Table of Contents Sections 1 – 266
The text of any of those amendments not in force on that date is appended in the Notes section
The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section
Volume 2 includes: Table of Contents Sections 266B – 528 Schedule 1 Note 1 Table of Acts Act Notes Table of Amendments Notes 2 and 3 Table A
Prepared by the Office of Legislative Drafting and Publishing, Attorney-General’s Department, Canberra
Chapter 1—Preliminary 1
Part 1—Preliminary 1 1 Short title [see Note 1].......................................................................1 2 Commencement [see Note 1].............................................................1 3 Objects of Act....................................................................................1 3A Principles of ecologically sustainable development ..........................3 4 Act to bind Crown.............................................................................3 5 Application of Act.............................................................................4 6 Extended application of Act to match extended management
of fisheries under the Fisheries Management Act 1991.....................6 7 Application of the Criminal Code .....................................................7 8 Native title rights not affected ...........................................................7 9 Relationship with other Acts .............................................................8 10 Relationship with State law...............................................................8
Part 2—Simplified outline of this Chapter 9 11 Simplified outline of this Chapter......................................................9
Subdivision A—World Heritage 10 12 Requirement for approval of activities with a significant
impact on a declared World Heritage property................................10 13 What isa declared World Heritage property?.................................11 14 Declaring a property to be a declared World Heritage
property ...........................................................................................11 15 Amending or revoking a declaration of a declared World Heritage property.............................................................................13 15A Offences relating to declared World Heritage properties.................14
Subdivision AA—National Heritage 15 15B Requirement for approval of activities with a significant impact on a National Heritage place................................................15 15C Offences relating to National Heritage places .................................17
Subdivision B—Wetlands of international importance 22 16 Requirement for approval of activities with a significant
impact on a declared Ramsar wetland .............................................22 17 What isa declared Ramsar wetland? ..............................................23 17A Making and revoking declarations of wetlands ...............................23
17B Offences relating to declared Ramsar wetlands...............................25
Subdivision C—Listed threatened species and communities 26 18 Actions with significant impact on listed threatened species
or endangered community prohibited without approval..................26 18A Offences relating to threatened species etc......................................28 19 Certain actions relating to listed threatened species and listed
threatened ecological communities not prohibited ..........................29
Subdivision D—Listed migratory species 30 20 Requirement for approval of activities with a significant
impact on a listed migratory species................................................30 20A Offences relating to listed migratory species...................................31 20B Certain actions relating to listed migratory species not
prohibited ........................................................................................32
Subdivision E—Protection of the environment from nuclear
actions 32 21 Requirement for approval of nuclear actions...................................32 22 What isa nuclear action? ................................................................34 22A Offences relating to nuclear actions.................................................35
Subdivision F—Marine environment 37 23 Requirement for approval of activities involving the marine
environment.....................................................................................37
24 What isa Commonwealth marine area?..........................................39
24A Offences relating to marine areas ....................................................40
Subdivision FA—Great Barrier Reef Marine Park 44 24B Requirement for approval of activities in the Great Barrier Reef Marine Park.............................................................................44 24C Offences relating to Great Barrier Reef Marine Park ......................46
Subdivision G—Additional matters of national environmental significance 48 25 Requirement for approval of prescribed actions..............................48
Subdivision H—Actions that are taken to be covered by this Division 50 25A Actions that are taken to be covered by this Division......................50
Subdivision HA—Limitation on liability for actions of third parties 51 25AA Limitation on liability for actions of third parties............................51
Subdivision I—Evidentiary certificates 52 25B Evidentiary certificates....................................................................52 25C Certificate to be given to person......................................................53 25D Evidentiary effect of certificate.......................................................53 25E Variation of certificate.....................................................................53 25F Revocation of certificate..................................................................53
Subdivision A—Protection of environment from actions involving Commonwealth land 54 26 Requirement for approval of activities involving
Commonwealth land........................................................................54 27 What is Commonwealth land?.........................................................55 27A Offences relating to Commonwealth land.......................................55
Subdivision AA—Protection of Commonwealth Heritage places outside the Australian jurisdiction 57 27B Requirement for approval of actions with significant impact on Commonwealth Heritage places overseas...................................57 27C Offences relating to Commonwealth Heritage places overseas ...........................................................................................58
Subdivision B—Protection of the environment from Commonwealth actions 60 28 Requirement for approval of activities of Commonwealth agencies significantly affecting the environment.............................60
Subdivision C—Actions that are taken to be covered by this Division 61 28AA Actions that are taken to be covered by this Division......................61
Subdivision D—Limitation on liability for actions of third parties 62 28AB Limitation on liability for actions of third parties............................62
Division 1—Actions covered by bilateral agreements 63 29 Actions declared by agreement not to need approval ......................63 30 Extended operation in State and Northern Territory waters.............64 31 Extended operation in non-self-governing Territories.....................64
Division 2—Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes 66
Subdivision A—Effect of declarations 66 32 Actions declared by Minister not to need approval .........................66
Subdivision B—Making declarations 67 33 Making declaration that actions do not need approval under Part 9 ...............................................................................................67 34 What is matter protected by a provision of Part 3? .........................71
Subdivision C—Prerequisites for making declarations 73 34A Minister may only make declaration if prescribed criteria are met...................................................................................................73
34B Declarations relating to declared World Heritage properties...........73 34BA Declarations relating to National Heritage places............................74 34C Declarations relating todeclared Ramsar wetlands.........................74 34D Declarations relating to listed threatened species and
ecological communities...................................................................75 34E Declarations relating to migratory species.......................................76 34F Declarations relating to Commonwealth Heritage places................77
Subdivision D—Other rules about declarations 77 35 Revoking declarations.....................................................................77 36 Other rules about declarations.........................................................78 36A Minor amendments of accredited management arrangement
or accredited authorisation process..................................................78
Division 3—Actions covered by Ministerial declarations and bioregional plans 80
Subdivision A—Effect of declarations 80 37 Actions declared by Minister not to need approval .........................80
Subdivision B—Making declarations 80 37A Making declarations that actions do not need approval under Part 9 ...............................................................................................80
Subdivision C—Prerequisites for making declarations 81 37B General considerations ....................................................................81 37C Minister may make declaration only if prescribed criteria are
met...................................................................................................81 37D Declarations relating to declared World Heritage properties...........81 37E Declarations relating to National Heritage places............................82 37F Declarations relating todeclared Ramsar wetlands.........................82 37G Declarations relating to listed threatened species and
ecological communities...................................................................82 37H Declarations relating tolisted migratory species.............................83 37J No declarations relating to nuclear actions......................................83
Subdivision D—Other rules about declarations 84 37K Revoking declarations.....................................................................84 37L Other rules about declarations.........................................................84
Division 3A—Actions covered by conservation agreements 85 37M Actions declared by conservation agreement not to need approval...........................................................................................85
Division 4—Forestry operations in certain regions 86
Subdivision A—Regions covered by regional forest agreements 86 38 Part 3 not to apply to certain RFA forestry operations ....................86
regional forest agreement 86 39 Object of this Subdivision ...............................................................86 40 Forestry operations in regions not yet covered by regional
forest agreements.............................................................................86 41 What is an RFA region?...................................................................88
Subdivision C—Limits on application 89 42 This Division does not apply to some forestry operations...............89
Division 5—Actions in the Great Barrier Reef Marine Park 90 43 Actions taken in accordance with zoning plan.................................90
Division 6—Actions with prior authorisation 91 43A Actions with prior authorisation......................................................91 43B Actions which are lawful continuations of use of land etc. .............92
Chapter 3—Bilateral agreements 93
Division 1—Object of Part 93 44 Object of this Part............................................................................93
Division 2—Making bilateral agreements 94
Subdivision A—Power to make bilateral agreements 94 45 Minister may make agreement.........................................................94 46 Agreement may declare actions do not need approval under
Part 9 ...............................................................................................95 47 Agreement may declare classes of actions do not need
assessment .......................................................................................99 48 Other provisions of bilateral agreements.......................................100 48A Mandatory provisions....................................................................101 49 Certain limits on scope of bilateral agreements.............................103
Subdivision B—Prerequisites for making bilateral agreements 103 49A Consultation on draft agreement....................................................103 50 Minister may only enter into agreement if prescribed criteria
are met...........................................................................................104 51 Agreements relating to declared World Heritage properties..........104 51A Agreements relating to National Heritage places ..........................104 52 Agreements relating to declared Ramsar wetlands........................105 53 Agreements relating to listed threatened species and
ecological communities.................................................................105 54 Agreements relating to migratory species......................................107 55 Agreements relating to nuclear actions..........................................108 56 Agreements relating to prescribed actions.....................................108
Subdivision C—Minor amendments of bilateral agreements 108 56A Ministerial determination of minor amendments to bilateral agreements.....................................................................................108
Division 3—Suspending and ending the effect of bilateral agreements 110
Subdivision A—Suspension and cancellation of effect 110 57 Representations about suspension or cancellation.........................110 58 Consultation before cancellation or suspension.............................111 59 Suspension or cancellation ............................................................111 60 Emergency suspension of effect of bilateral agreement.................113 61 Cancellation during suspension.....................................................114 62 Revocation of notice of suspension or cancellation.......................114 63 Cancellation or suspension at request of other party .....................115 64 Cancellation or suspension of bilateral agreement does not affect certain actions......................................................................116
Subdivision B—Expiry of bilateral agreements 116 65 Expiry and review of bilateral agreements ....................................116 65A Expiry of bilateral agreement does not affect certain actions........117
Part 6—Simplified outline of this Chapter 118 66 Simplified outline of this Chapter..................................................118
Division 1—Referral of proposals to take action 120 67 What isa controlled action?..........................................................120 67A Prohibition on taking controlled action without approval..............120 68 Referral byperson proposing to take action..................................120 68A Actions proposed to be taken under a contract etc.........................121 69 State or Territory may refer proposal to Minister..........................122 70 Minister may request referral of proposal......................................122 71 Commonwealth agency may refer proposal to Minister................123 72 Form and content of referrals ........................................................124 73 Informing person proposing totake action of referral...................124 73A Informing Great Barrier Reef Marine Park Authority of proposal affecting Great Barrier Reef Marine Park.......................124 74 Inviting provision of information on referred proposal .................124 74A Minister may request referral of a larger action.............................127 74AA Offence of taking action before decision made in relation to referral etc. ....................................................................................127
Division 1A—Decision that action is clearly unacceptable 130 74B Application of this Division ..........................................................130 74C Informing person proposing to take action that action is
clearly unacceptable ......................................................................130 74D Procedure if Minister isrequested to reconsider referral...............131
Division 2—Ministerial decision whether action needs approval 133 75 Does the proposed action need approval?......................................133 76 Minister may request more information for making decisions ......135 77 Notice and reasons for decision.....................................................136 77A Action to be taken in a particular manner......................................137
Division 3—Reconsideration of decisions 139 78 Reconsideration of decision...........................................................139 78A Request for reconsideration of decision by person other than
State or Territory Minister.............................................................142 78B Minister must inform interested persons of request and invite comments ......................................................................................143 78C Minister must reconsider decision and give notice of outcome .........................................................................................144 79 Reconsideration of decision on request by a State or Territory ........................................................................................145
Division 1—Simplified outline of this Part 147 80 Simplified outline of this Part........................................................147
Division 2—Application of this Part 148 81 Application....................................................................................148 82 What are the relevant impacts of an action?..................................148 83 This Part does not apply if action covered by bilateral
agreement ......................................................................................149 84 This Part does not apply if action covered by declaration .............150
Division 3—Decision on assessment approach 152
Subdivision A—Simplified outline of this Division 152 85 Simplified outline of this Division.................................................152
Subdivision B—Deciding on approach for assessment 152 87 Minister must decide on approach for assessment.........................152 88 Timing of decision on assessment approach..................................154 89 Minister may request more information for making decision........155 90 Directing an inquiry after starting an assessment ..........................155 91 Notice of decision on assessment approach...................................156
Division 3A—Assessment on referral information 158 92 Application of this Division ..........................................................158 93 Recommendation report ................................................................158
Division 4—Assessment on preliminary documentation 160 94 Application of this Division ..........................................................160 95 Direction to publish referral information and invitation to comment—no further information required...................................160 95A Direction to publish referral information and invitation to comment—further information required........................................161 95B Procedure after end of period for comment...................................162 95C Recommendation report ................................................................163
Division 5—Public environment reports 164 96 Application....................................................................................164 96A Minister must give designated proponent written guidelines for preparation of draft public environment report........................164 96B Standard guidelines .......................................................................165 97 Tailored guidelines........................................................................165 98 Designated proponent must invite comment on draft public environment report ........................................................................167 99 Finalising public environment report.............................................168 100 Recommendation report ................................................................168
Division 6—Environmental impact statements 170 101 Application....................................................................................170 101A Minister must give designated proponent written guidelines for preparation of draft environmental impact statement...............170 101B Standard guidelines .......................................................................171 102 Tailored guidelines........................................................................171 103 Designated proponent must invite comment on draft environmental impact statement....................................................173 104 Finalising environmental impact statement...................................174 105 Recommendation report ................................................................175
Division 7—Inquiries 176
Subdivision A—Preliminary 176 106 Simplified outline..........................................................................176
Subdivision B—Establishment of inquiries 176 107 Appointing commissioners and setting terms of reference............176 108 Publicising inquiry.........................................................................178
Subdivision C—Conduct of inquiries 178 109 Procedure of inquiries....................................................................178 110 Inquiry to be public .......................................................................178 111 Calling witnesses...........................................................................179 112 Dealingwithwitnesses..................................................................180 113 Dealing with documents given tocommission..............................181 114 Inspections of land, buildings and places ......................................181 115 Entering premises by consent........................................................182
116 Entering premises under warrant...................................................183 117 Warrants by telephone or other electronic means..........................183 118 Identitycards.................................................................................185 119 Contempt.......................................................................................185 120 Protection of commissioners and witnesses...................................186
Subdivision D—Inquiry reports 188 121 Timing of report ............................................................................188 122 Publication of report......................................................................188
Subdivision E—Commissioners’ terms and conditions 188 123 Basis of appointment.....................................................................188 124 Remuneration................................................................................189 125 Leave of absence ...........................................................................189 126 Resignation....................................................................................189 127 Termination of appointment..........................................................189 128 Disclosure of interests ...................................................................190 129 Other terms and conditions............................................................191
Subdivision A—General 192 130 Timing of decision on approval.....................................................192 131 Inviting comments from other Ministers before decision..............193 131AA Inviting comments before decision from person proposing to take action and designated proponent............................................194 131A Inviting public comment before decision ......................................196 132 Requesting further information for approval decision...................196 132A Requesting notice from appropriate State or Territory Minister about certain actions........................................................197 133 Grant of approval...........................................................................198 134 Conditions of approval..................................................................200 135 Certain approvals and conditions must not give preference ..........204 135A Publication of recommendation reports.........................................205
Subdivision B—Considerations for approvals and conditions 206 136 General considerations ..................................................................206 137 Requirements for decisions about World Heritage........................208 137A Requirements for decisions about National Heritage places..........208 138 Requirements for decisions about Ramsar wetlands......................208 139 Requirements for decisions about threatened species and endangered communities...............................................................209 140 Requirements for decisions about migratory species.....................209 140A No approval forcertain nuclear installations.................................210
Division 2—Requirement to comply with conditions 211 142 Compliance with conditions on approval ......................................211 142A Offence of breaching conditions on approval................................211 142B Strict liability offence for breach of approval condition................212
revocation of approvals 214 143 Variation of conditions attached to approval.................................214 144 Suspension of approval..................................................................216 145 Revocation of approval..................................................................217 145A Reinstating suspended or revoked approval...................................219
Division 4—Transfer of approvals 221 145B Transfer with Minister’s consent...................................................221
Division 5—Extension of period of effect of approval 223 145C Application to Minister to extend period of effect of approval.........................................................................................223 145D Minister must decide whether or not to extend approval period.............................................................................................223 145E Minister may request further information for making decision..........................................................................................224
Subdivision A—Assessment of actions to be taken in accordance with policy, plan or program 225 146 Minister mayagree onstrategic assessment..................................225
endorsed policy, plan or program 227
146A Definition ......................................................................................227
146B Minister may approve taking of actions in accordance with
endorsed policy, plan or program..................................................227
146C Inviting comments from other Ministers before deciding whether or not to approve taking of actions in accordance with endorsed policy,plan orprogram..........................................228
146D Effect of approval of taking of actions in accordance with endorsed policy, plan or program..................................................229
accordance with endorsed policy, plan or program 230 146E Minister must complywith this Subdivision.................................230 146F General considerations ..................................................................230 146G Approvals relating to declared World Heritage properties ............231 146H Approvals relating to National Heritage places.............................231 146J Approvals relating to declared Ramsar wetlands...........................231
146K Approvals relating to listed threatened species and ecological communities ..................................................................................231 146L Approvals relating to listed migratory species...............................232 146M No approvals relating to nuclear actions........................................232
Division 2—Assessment of Commonwealth-managed fisheries 233 147 Simplified outline of this Division.................................................233 148 Assessment before management plan is determined......................233 149 Assessment before determination that no plan required................234 150 Assessment of all fisheries without plans must be started
within 5 years ................................................................................234 151 Assessment of all Torres Strait fisheries to be started within 5 years ...........................................................................................235 152 Further assessment if impacts greater than previously assessed .........................................................................................236 153 Minister must make declaration if he or she endorses plan or policy.............................................................................................237 154 This Division does not limit Division 1.........................................237
Division 1—Rules about timing 238 155 This Chapter ceases to apply to lapsed proposals..........................238 156 General rules about time limits......................................................239
Division 1A—Variation of proposals to take actions 240 156A Request to vary proposal to take an action....................................240 156B Minister must decide whether or not to accept a varied
proposal .........................................................................................241 156C Minister may request further information in relation to a varied proposal..............................................................................241 156D Effect of Minister’s decision to accept or not accept a varied proposal .........................................................................................242 156E Notice of decision..........................................................................242
Division 1B—Change of person proposing to take action 244 156F Change of person proposing to take action....................................244
Division 2—Actions in area offshore from a State or the Northern Territory 246 157 Actions treated as though they were in a State or the Northern Territory.........................................................................246
Division 3—Exemptions 247 158 Exemptions from Part 3 and this Chapter......................................247
Division 3A—Approval process decisions not affected by listing events that happen after section 75 decision made 248 158A Approval process decisions not affected by listing events that happen after section 75 decision made..........................................248
Subdivision A—Minister’s advice on authorising actions 251 159 Simplified outline of this Subdivision...........................................251 160 Requirement to take account of Minister’s advice.........................252 161 Seeking the Minister’s advice........................................................254 161A Minister may decide that advice is not required............................255 161B Certain provisions of other Acts not to apply if Minister
decides that advice is not required.................................................255 162 Assessment of the action...............................................................256 163 Providing advice............................................................................256 164 Reporting on response to advice....................................................257
Territory 257 166 This Subdivision applies if Ministers agree it should....................257 167 Making an agreement....................................................................258 168 Content of an agreement................................................................259 169 Application of a Division of Part 8................................................260 170 Application of Subdivision A of Division 1 of Part 10..................261
Division 5—Publication of information relating to assessments 263 170A Publication of information relating to assessments........................263 170B Information critical to protecting matters of national
environmental significance not to be disclosed.............................264 170BA Designated proponent may request Minister to permit commercial-in-confidence information not to be disclosed...........264
Division 6—Withdrawal of referrals 267 170C Withdrawal of referral of proposal to take an action .....................267
Part 11A—Interpretation 268 170D References to business days are references to Canberra business days.................................................................................268
Division 1—Identifying and monitoring biodiversity 269 171 Identifying andmonitoring biodiversity........................................269 172 Inventories of listed threatened species etc. on
Commonwealth land......................................................................270
173 Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas ........................................................270
174 Inventories and surveys to be updated...........................................271
Division 2—Bioregional plans 272 176 Bioregional plans...........................................................................272 177 Obligations under this Act unaffected by lack of bioregional
plans ..............................................................................................273
Subdivision A—Listing 274 178 Listing of threatened species .........................................................274 179 Categories of threatened species....................................................275 180 Native species of marine fish.........................................................276 181 Listing of threatened ecological communities...............................276 182 Critically endangered, endangered and vulnerable
communities ..................................................................................277 183 Listing of key threatening processes..............................................278 184 Minister may amend lists...............................................................278 186 Amending list of threatened native species ...................................278 187 Amending list of ecological communities .....................................280 188 Amending list of key threatening processes ..................................281 189 Minister must consider advice from Scientific Committee............282 189A Certain information may be kept confidential ...............................283 189B Disclosure of Scientific Committee’s assessments and advice......284 190 Scientific Committee may provide advice about species or
communities becoming threatened ................................................285 192 Rediscovery of threatened species that were extinct......................286 193 Species posing a serious threat to human health............................286 194 Lists must be publicly available ....................................................286
Subdivision AA—The nomination and listing process 287 194A Simplified outline..........................................................................287 194B Definitions.....................................................................................288 194C Meaning of assessment period.......................................................288 194D Minister may determine conservation themes for an
assessment period..........................................................................289 194E Minister to invite nominations for each assessment period ...........289 194F Minister to give nominations to Scientific Committee..................290 194G Scientific Committee to prepare proposed priority
assessment list ...............................................................................292
194H Matters to be included in proposed priority assessment list...........293
194J Statement to be given to Minister with proposed priority
assessment list ...............................................................................293
194K The finalised priority assessment list.............................................294
194L Publication of finalised priority assessment list.............................295
194M Scientific Committee to invite comments on items in finalised priority assessment list....................................................295 194N Scientific Committee to assess items on finalised priority assessment list and give assessments to Minister ..........................296 194P Time by which assessments to be provided to Minister.................297 194Q Decision about inclusion of an item in the Subdivision A List......298 194R ScientificCommittee mayobtain advice.......................................299 194S Co-ordination with Australian Heritage Council— Committee undertaking assessment...............................................299 194T Co-ordination with Australian Heritage Council— Committee given assessment to Minister ......................................301
Subdivision B—Permit system 301 195 Subdivision does not apply to cetaceans........................................301 196 Killing or injuring member of listed threatened species or
community.....................................................................................302 196A Strict liability for killing or injuring member of listed threatened species or community...................................................302 196B Taking etc. member of listed threatened species or community.....................................................................................303 196C Strict liability for taking etc. member of listed threatened species orcommunity....................................................................303 196D Trading etc. member of listed threatened species or community taken in Commonwealth area .....................................304 196E Strict liability for trading etc. member of listed threatened
species or community taken in Commonwealth area.....................304 197 Certain actions are not offences.....................................................305 198 Operation of sections 18 and 18A not affected..............................307 199 Failing to notify taking of listed threatened species or listed
ecological community ...................................................................307 200 Application for permits..................................................................309 201 Minister may issue permits............................................................309 202 Conditions of permits....................................................................310 203 Contravening conditions of a permit .............................................311 204 Authoritiesunder permits..............................................................311 205 Transferof permits........................................................................312 206 Suspension or cancellation ofpermits...........................................312 206A Review of decisions about permits................................................312 207 Fees ...............................................................................................312
Subdivision BA—Protecting critical habitat 312 207A Register of critical habitat..............................................................312 207B Offence of knowingly damaging critical habitat............................313 207C Sale or lease of Commonwealth land containing critical
habitat............................................................................................314
Subdivision C—Miscellaneous 314 208A Minister may accredit plans, regimes or policies...........................314 208 Regulations....................................................................................315
Division 2—Migratory species 317
Subdivision A—Listing 317 209 Listed migratory species................................................................317
Subdivision B—Permit system 318 210 Subdivision does not apply to members of listed threatened
species or cetaceans.......................................................................318 211 Killing or injuring member of listed migratory species.................318 211A Strict liability for killing or injuring member of listed
migratory species...........................................................................318 211B Taking etc. member oflisted migratory species............................319 211C Strict liability for taking etc. member of listed migratory
species ...........................................................................................319 211D Trading etc. member of listed migratory species taken in Commonwealth area......................................................................320 211E Strict liability for trading etc. member of listed migratory
species taken in Commonwealth area............................................320 212 Certain actions are not offences.....................................................321 213 Operation of sections 20 and 20A not affected..............................323 214 Failing to notify taking etc. of listed migratory species.................323 215 Application for permits..................................................................324 216 Minister may issue permits............................................................325 217 Conditions of permits....................................................................326 218 Contravening conditions of a permit .............................................326 219 Authoritiesunder permits..............................................................326 220 Transferof permits........................................................................327 221 Suspension or cancellation ofpermits...........................................327 221A Review of decisions about permits................................................327 222 Fees ...............................................................................................328
Subdivision C—Miscellaneous 328 222A Minister may accredit plans, regimes or policies...........................328 223 Regulations....................................................................................329
Subdivision A—Application of Division 330 224 Application of Division.................................................................330
cetacean habitat areas 331 225 Australian Whale Sanctuary..........................................................331 226 Prescribed waters...........................................................................331 227 Coastal waters................................................................................332
228 Minister may make declaration for coastal waters.........................332 228A Important cetacean habitat areas....................................................332
Subdivision C—Offences 333 229 Killing or injuring a cetacean ........................................................333 229A Strict liability for killing or injuring a cetacean.............................333 229B Intentionally taking etc. a cetacean................................................334 229C Strict liability for taking etc. a cetacean.........................................335 229D Treating cetaceans.........................................................................336 230 Possession of cetaceans.................................................................337 231 Certain actions are not offences.....................................................338 232 Action to be taken on killing etc. cetaceans...................................339
Subdivision E—Miscellaneous offences 341 236 Offences relating to foreign whaling vessels.................................341
Subdivision F—Permit system 342 237 Application for permits..................................................................342 238 Minister may issue permits............................................................342 239 Conditions of permits....................................................................344 240 Contravening conditions of a permit .............................................344 241 Authoritiesunder permits..............................................................344 242 Transferof permits........................................................................345 243 Suspension or cancellation ofpermits...........................................345 243A Review of decisions about permits................................................345 244 Fees ...............................................................................................346
Subdivision G—Miscellaneous 346 245 Minister may accredit plans, regimes or policies...........................346 246 Vesting of whales in Commonwealth............................................347 247 Regulations....................................................................................347
Division 4—Listed marine species 349
Subdivision A—Listing 349 248 Listed marine species ....................................................................349 249 Minister may amend list................................................................349 250 Adding marine species to the list...................................................350 251 Minister must consider advice from Scientific Committee............350 252 Minister to make lists available to the public ................................351
Subdivision B—Permit system 351 253 Subdivision does not apply to members of certain species and cetaceans.................................................................................351 254 Killing or injuring member of listed marine species......................351 254A Strict liability for killing or injuring member of listed marine species ...........................................................................................352 254B Taking etc. member of listed marine species.................................352
xviii Environment Protection and Biodiversity Conservation Act 1999
254C Strict liability for taking etc. member of listed marine species......353 254D Trading etc. member of listed marine species taken in Commonwealth area......................................................................353 254E Strict liability for trading etc. member of listed marine species taken in Commonwealth area............................................354 255 Certain actions are not offences.....................................................354 256 Failing to notify taking etc. of listed marine wildlife.....................356 257 Application for permits..................................................................358 258 Minister may issue permits............................................................358 259 Conditions of permits....................................................................359 260 Contravening conditions of a permit .............................................359 261 Authoritiesunder permits..............................................................360 262 Transferof permits........................................................................360 263 Suspension or cancellation ofpermits...........................................360 263A Review of decisions about permits................................................361 264 Fees ...............................................................................................361
265 Minister may accredit plans, regimes or policies...........................361
266 Regulations....................................................................................362
An Act relating to the protection of the environment and the conservation of biodiversity, and for related purposes
This Act may be cited as the Environment Protection and Biodiversity Conservation Act 1999.
(1) The objects of this Act are:
(ca) to provide for the protection and conservation of heritage; and
(d) to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and
Chapter 1 Preliminary Part 1 Preliminary
Section 3
(2) In order to achieve its objects, the Act:
Preliminary Chapter 1 Preliminary Part 1
Section 3A
conservation and wise use of Ramsar wetlands of
international importance; and
(fa) includes provisions to identify places for inclusion in the National Heritage List and Commonwealth Heritage List and to enhance the protection, conservation and presentation of those places; and
(g) promotes a partnership approach to environmental protection and biodiversity conservation through:
(iii) recognising and promoting indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity; and
(iv) the involvement of the community in management planning.
3A Principles of ecologically sustainable development
The following principles are principles of ecologically sustainable development:
4 Act to bind Crown
This Act binds the Crown in each of its capacities.
Environment Protection and Biodiversity Conservation Act 1999
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Section 5
5 Application of Act
Extension to external Territories
(1) This Act extends to each external Territory.
Limited extraterritorial application
(2) This Act applies to acts, omissions, matters and things in the Australian jurisdiction, and does not apply to acts, omissions, matters and things outside the Australian jurisdiction except so far as the contrary intention appears.
Application limited to Australians outside exclusive economic zone
(3) A provision of this Act that has effect in relation to a place that is outside the outer limits of the exclusive economic zone and is not on or in the continental shelf applies only in relation to:
Application to everyone in Australia and exclusive economic zone
(4) A provision of this Act that has effect in relation to a place that is within the outer limits of the exclusive economic zone (whether the place is in the zone or in Australia or an external Territory) or that is on or in the continental shelf applies in relation to:
(a) all persons (including persons who are not Australian citizens); and
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Section 5
Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the Acts Interpretation Act 1901.
Definitions
(5) In this Act:
Australian aircraft means:
Australian jurisdiction means the land, waters, seabed and airspace in, under or above:
Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the Acts Interpretation Act 1901.
Australian vessel means:
Environment Protection and Biodiversity Conservation Act 1999
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Section 6
6 Extended application of Act to match extended management of fisheries under the Fisheries Management Act 1991
relation to fish or other things taken in the course of the activities) as if the area of water were wholly within:
Note: This section is subject to subsection 5(3).
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Section 7
Example 1: Fishing activities in an area of water that is not a Commonwealth area generally do not contravene Part 13. However, because of this subsection, that Part applies to fishing activities to which this section applies as if the area of water were within a Commonwealth area. The fishing activities may therefore contravene that Part.
Example 2: If fish taken in the course of fishing activities in an area of water that is not within the Australian jurisdiction are brought into Australia, this generally constitutes an import (being an import by way of introduction from the sea) of the fish into Australia, which may contravene Part 13A. However, because of this subsection, that Part applies to the fish as if the area of water were within the Australian jurisdiction. The bringing of the fish into Australia therefore does not constitute an import for the purposes of that Part.
Example 3: This section allows a plan of management to be accredited under Part 13 in respect of the entire area of water to which the plan relates (even if some of the area is outside the Australian jurisdiction, a Commonwealth area or a Commonwealth marine area).
(3) In this section:
fishing has the same meaning as in the Fisheries Management Act 1991.
7 Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part 2.5 of the Criminal Code (which deals with corporate criminal responsibility) is excluded from applying to offences against this Act by subsection 498B(9).
8 Native title rights not affected
(1) To avoid doubt, nothing in this Act affects the operation of section 211 of the Native Title Act 1993 in relation to a provision of this Act.
Note: Section 211 of the Native Title Act 1993 provides that holders of native title rights covering certain activities do not need authorisation required by other laws to engage in those activities.
(2) This Act does not affect the operation of:
Environment Protection and Biodiversity Conservation Act 1999
Chapter 1 Preliminary Part 1 Preliminary
Section 9
9 Relationship with other Acts
Aboriginal Land Rights (Northern Territory) Act 1976
(1A) Subsection 70(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 does not prevent a person exercising powers or performing functions or duties under Division 4 or 5 of Part 15, or Division 5 of Part 19, of this Act from entering or remaining on land:
Airports Act 1996 not affected
(1) This Act does not affect the operation of the Airports Act 1996.
Antarctic Treaty (Environment Protection) Act 1980 not affected
(2) To avoid doubt, nothing in this Act affects the operation of subsection 7(1) of the Antarctic Treaty (Environment Protection) Act 1980 or regulations made for the purposes of that subsection.
10 Relationship with State law
This Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears.
Protecting the environment Chapter 2 Simplified outline of this Chapter Part 2
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11 Simplified outline of this Chapter
The following is a simplified outline of this Chapter:
This Chapter provides a basis for the Minister to decide whether an action that has, will have or is likely to have a significant impact on certain aspects of the environment should proceed.
It does so by prohibiting a person from taking an action without the Minister having given approval or decided that approval is not needed. (Part 9 deals with the giving of approval.)
Approval is not needed to take an action if any of the following declare that the action does not need approval:
Also, an action does not need approval if it is taken in accordance with Regional Forest Agreements or it is for a purpose for which, under a zoning plan for a zone made under the Great Barrier Reef Marine Park Act 1975, the zone may be used or entered without permission.
Environment Protection and Biodiversity Conservation Act 1999
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12 Requirement for approval of activities with a significant impact on a declared World Heritage property
(1) A person must not take an action that:
Civil penalty:
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(4) In this section:
cultural heritage has the meaning given by the World Heritage Convention.
natural heritage has the meaning given by the World Heritage Convention.
13 What is a declared World Heritage property?
Properties on World Heritage List
(1) A property included in the World Heritage List is a declared World Heritage property as long as the property is included in the List.
Properties not yet on World Heritage List
(2) A property specified in a declaration made under section 14 (with any amendments made under section 15) is a declared World Heritage property for the period for which the declaration is in force.
14 Declaring a property to be a declared World Heritage property
Making declarations
(1) The Minister may declare a specified property to be a declared World Heritage property by notice in the Gazette if:
Note 1: The Minister may make more than one declaration relating to the same property. See subsection 33(1) of the Acts Interpretation Act 1901.
Note 2: The Minister may make an extra declaration to cover property that is an extension of a property previously submitted to the World Heritage Committee.
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Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration relating to property wholly or partly within a State or self-governing Territory, the Minister must inform the appropriate Minister of the State or Territory of the proposal to make the declaration, and give him or her a reasonable opportunity to comment on the proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply with subsection (2) if:
Failure to comply with subsection (2)
(4) The validity of a declaration is not affected by a failure to comply with subsection (2) in relation to the making of the declaration.
When a declaration is in force
(5) A declaration:
(iii) if the declaration specifies a property submitted to the World Heritage Committee for inclusion in the World Heritage List—the Committee either includes the property in the List or decides the property should not be included in the List.
Specified period for which declaration is in force
(6) The Minister must specify in a declaration the period for which it is to be in force. The period must not be longer than the period the Minister believes:
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Declarations because of threat in force for a year or less
(7) The Minister must not specify that a declaration of a property is to be in force for more than 12 months if:
15 Amending or revoking a declaration of a declared World Heritage property
Revoking declarations specifying nominated property
(1) The Minister must, by notice in the Gazette, revoke a declaration made under section 14 specifying a property that has been submitted to the World Heritage Committee for inclusion in the World Heritage List if the Commonwealth decides to withdraw the submission of the property for inclusion in the List.
Amending declarations specifying nominated property
(2) The Minister must, by notice in the Gazette, amend a declaration made under section 14 specifying a property that has been submitted to the World Heritage Committee for inclusion in the World Heritage List so as to remove from the specification any part of the property that the Commonwealth decides to withdraw from the submission.
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Revoking declarations specifying property not yet nominated
(3) The Minister must, by notice in the Gazette, revoke a declaration made under section 14 specifying a property that is not submitted to the World Heritage Committee for inclusion in the World Heritage List if:
15A Offences relating to declared World Heritage properties
(1) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
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Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(4) Subsections (1) and (2) do not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
15B Requirement for approval of activities with a significant impact on a National Heritage place
(1) A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place.
Civil Penalty:
(2) A person must not, for the purposes of trade or commerce:
(a) between Australia and another country; or
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Section 15B
impact on the National Heritage values of a National Heritage place.
Civil Penalty:
(3) A person must not take an action in:
that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place.
Civil Penalty:
(4) A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place.
Civil Penalty:
Note: For indigenous heritage value, see section 528.
(5) A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
Civil Penalty:
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15C Offences relating to National Heritage places
(1) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraphs (1)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
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(2) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraphs (2)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(d) and (e).
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) A person is guilty of an offence if:
(iii) between a State and Territory; or
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(iv) between 2 Territories; and
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(d) and (e).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5A) Strict liability applies to paragraphs (5)(d) and (e).
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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(6A) Strict liability applies to paragraphs (6)(d) and (e).
Note: For strict liability, see section 6.1 of the Criminal Code.
(7) A person is guilty of an offence if:
Note 1: For indigenous heritage value, see section 528.
Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(7A) Strict liability applies to paragraphs (7)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(8) A person is guilty of an offence if:
Note 1: For indigenous heritage value, see section 528.
Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(8A) Strict liability applies to paragraphs (8)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) A person is guilty of an offence if:
and (bb) the place is a National Heritage place; and
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(c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(9A) Strict liability applies to paragraphs (9)(ba), (bb) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(10) A person is guilty of an offence if:
and (bb) the place is a National Heritage place; and
(c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(10A) Strict liability applies to paragraphs (10)(ba), (bb) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(13) An offence against any of subsections (1) to (10) (inclusive) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(14) Subsections (9) and (10) only apply to actions whose prohibition is appropriate and adapted to give effect to Australia’s obligations under Article 8 of the Biodiversity Convention. (However, those subsections may not apply to certain actions because of subsection (16).)
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(16) Subsections (1) to (10) (inclusive) do not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
16 Requirement for approval of activities with a significant impact on a declared Ramsar wetland
(1) A person must not take an action that:
Civil penalty:
(2) Subsection (1) does not apply to an action if:
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action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
(3) In this Act:
ecological character has the same meaning as in the Ramsar Convention.
17 What is a declared Ramsar wetland?
Areas designated for listing
(1) A wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article is a declared Ramsar wetland as long as the wetland or part is not:
Areas declared by the Minister
(2) A wetland, or part of a wetland, is also a declared Ramsar wetland for the period for which a declaration of the wetland as a declared Ramsar wetland is in force.
17A Making and revoking declarations of wetlands
Declaring threatened wetlands of international importance
(1) The Minister may declare a specified wetland to be a declared Ramsar wetland by notice in the Gazette if the Minister is satisfied that:
(a) the wetland is of international significance or is likely to be of international significance because of its ecology, botany, zoology, limnology or hydrology; and
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(b) the ecological character of some or all of the wetland is under threat.
Note: The Minister may make more than one declaration of the same wetland under this section. See subsection 33(1) of the Acts Interpretation Act 1901.
Consulting State or Territory before making declaration
(2) Before the Minister makes a declaration relating to a wetland wholly or partly within a State or self-governing Territory, the Minister must inform the appropriate Minister of the State or Territory of the proposal to make the declaration, and give him or her a reasonable opportunity to comment on the proposal.
Consultation not required if threat is imminent
(3) However, the Minister need not comply with subsection (2) if he or she is satisfied that the threat mentioned in paragraph (1)(b) is imminent.
Failure to comply with subsection (2)
(4) The validity of a declaration is not affected by a failure to comply with subsection (2) in relation to the making of the declaration.
When a declaration is in force
(5) A declaration comes into force on the day it is published in the Gazette and remains in force for the period specified in the declaration, unless it is revoked earlier.
Specifying period for which declaration is in force
(6) The Minister must specify in a declaration the period for which it is to be in force. The period must not be longer than the shorter of the following periods:
(a) the period the Minister believes the Commonwealth needs to:
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(b) 12 months.
Revocation of declaration of threatened wetland
(7) The Minister must, by notice in the Gazette, revoke a declaration of a wetland if:
17B Offences relating to declared Ramsar wetlands
(1) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
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Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(4) Subsections (1) and (2) do not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Species that are extinct in the wild
(1) A person must not take an action that:
Civil penalty:
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Critically endangered species
(2) A person must not take an action that:
Civil penalty:
Endangered species
(3) A person must not take an action that:
Civil penalty:
Vulnerable species
(4) A person must not take an action that:
Civil penalty:
Critically endangered communities
(5) A person must not take an action that:
(a) has or will have a significant impact on a listed threatened ecological community included in the critically endangered category; or
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(b) is likely to have a significant impact on a listed threatened ecological community included in the critically endangered category.
Civil penalty:
Endangered communities
(6) A person must not take an action that:
Civil penalty:
18A Offences relating to threatened species etc.
(1) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person is guilty of an offence if:
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(c) the species is a listed threatened species, or the community is a listed threatened ecological community.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(4) Subsections (1) and (2) do not apply to an action if:
Note 1: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Note 2: Section 19 sets out other defences. The defendant bears an evidential burden in relation to the matters in that section too. See subsection 13.3(3) of the Criminal Code.
(1) A subsection of section 18 or 18A relating to a listed threatened species does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the
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purposes of any subsection of that section that relates to a listed threatened species.
Subdivision D—Listed migratory species
(1) A person must not take an action that:
Civil penalty:
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(2) Subsection (1) does not apply to an action if:
20A Offences relating to listed migratory species
(1) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability , see section 6.1 of the Criminal Code.
(2) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(c).
Note: For strict liability , see section 6.1 of the Criminal Code.
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(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(4) Subsections (1) and (2) do not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
20B Certain actions relating to listed migratory species not prohibited
A subsection of section 20 or 20A does not apply to an action, to the extent that it is covered by subsection 517A(7).
Subdivision E—Protection of the environment from nuclear actions
(1) A constitutional corporation, the Commonwealth or Commonwealth agency must not take a nuclear action that has,
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will have or is likely to have a significant impact on the environment.
Civil penalty:
(2) A person must not, for the purposes of trade or commerce:
take a nuclear action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(3) A person must not take in a Territory a nuclear action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(4) Subsections (1), (2) and (3) do not apply to an action if:
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(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
(1) In this Act:
nuclear action means any of the following:
nuclear installation means any of the following:
Note: A nuclear waste storage or disposal facility could include a facility for storing spent nuclear fuel, depending on the regulations.
radioactive waste means radioactive material for which no further use is foreseen.
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reprocessing means a process or operation to extract radioactive isotopes from spent nuclear fuel for further use.
spent nuclear fuel means nuclear fuel that has been irradiated in a nuclear reactor core and permanently removed from the core.
(2) In this Act:
large-scale disposal facility for radioactive waste means, if regulations are made for the purposes of this definition, a facility prescribed by the regulations.
22A Offences relating to nuclear actions
(1) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) A person is guilty of an offence if:
(iii) between a State and a Territory; or
(iv) between 2 Territories; and
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(c) the nuclear action results or will result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
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Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(8) Subsections (1), (2), (3), (4), (5) and (6) do not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Subdivision F—Marine environment
Actions in Commonwealth marine areas affecting the environment
(1) A person must not take in a Commonwealth marine area an action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
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Actions outside Commonwealth marine areas affecting those areas
(2) A person must not take outside a Commonwealth marine area but in the Australian jurisdiction an action that:
Civil penalty:
Fishing in State or Territory waters managed by Commonwealth
(3) A person must not take in the coastal waters (as defined in the Fisheries Management Act 1991) of a State or the Northern Territory an action:
Civil penalty:
Exceptions to prohibitions
(4) Subsection (1), (2) or (3) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or
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Note: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.
Exception—fishing in Commonwealth waters managed by State
(5) Subsection (1) does not apply to an action if the action:
Exception—fishing outside Commonwealth marine areas
(6) Subsection (2) does not apply to an action that:
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:
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24A Offences relating to marine areas
Actions in Commonwealth marine areas affecting the environment
(1) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
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Actions in Commonwealth marine areas likely to affect the
environment
(2) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions outside Commonwealth marine areas affecting those areas
(3) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions likely to affect environment in Commonwealth marine areas
(4) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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(4A) Strict liability applies to paragraphs (4)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Fishing with impact in State or Territory waters managed by Commonwealth
(5) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(5A) Strict liability applies to paragraph (5)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Fishing with likely impact in State or Territory waters managed by Commonwealth
(6) A person is guilty of an offence if:
Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1
(c) the action is likely to have a significant impact on the environment in those coastal waters.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(6A) Strict liability applies to paragraph (6)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalties
(7) An offence against subsection (1), (2), (3), (4), (5) or (6) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
Defences—general
(8) Subsection (1), (2), (3), (4), (5) or (6) does not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
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Section 24B
Defence—fishing in Commonwealth waters managed by State
(9) Subsections (1) and (2) do not apply to an action if the action:
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:
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 FA—Great Barrier Reef Marine Park
24B Requirement for approval of activities in the Great Barrier Reef Marine Park
Actions in Great Barrier Reef Marine Park affecting the environment
(1) A person must not take in the Great Barrier Reef Marine Park an action that has, will have or is likely to have, a significant impact on the environment.
Civil penalty:
Protecting the environment Chapter 2 Requirements for environmental approvals Part 3 Requirements relating to matters of national environmental significance Division 1
Actions outside Great Barrier Reef Marine Park affecting the environment in the Marine Park
(2) A person must not take outside the Great Barrier Reef Marine Park but in the Australian jurisdiction an action that:
Civil penalty:
Exceptions to prohibition
(3) Subsection (1) or (2) does not apply to an action if:
Note: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.
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Section 24C
24C Offences relating to Great Barrier Reef Marine Park
Actions in Great Barrier Reef Marine Park affecting the environment
(1) A person commits an offence if:
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions in Great Barrier Reef Marine Park likely to affect the environment
(3) A person commits an offence if:
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(4) Strict liability applies to paragraph (3)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions outside Great Barrier Reef Marine Park affecting environment in the Marine Park
(5) A person commits an offence if:
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
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(6) Strict liability applies to paragraphs (5)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Actions outside Great Barrier Reef Marine Park likely to affect environment in the Marine Park
(7) A person commits an offence if:
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
(8) Strict liability applies to paragraphs (7)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
Defences
(9) Subsection (1), (3), (5) or (7) does not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
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Subdivision G—Additional matters of national environmental significance
25 Requirement for approval of prescribed actions
(1) A person must not take an action that is prescribed by the regulations for the purposes of this subsection.
Civil penalty:
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(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:
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).
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Section 25A
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.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
regulatory provision means:
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Subdivision HA—Limitation on liability for actions of third parties
25AA Limitation on liability for actions of third parties
(1) A provision mentioned in subsection (2) or (3) does not apply to an action (the primary action) if:
Defence to offences
(2) For the purposes of subsection (1), the following provisions do not apply to the primary action:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Exception to civil penalties
(3) For the purposes of subsection (1), the following provisions do not apply to the primary action:
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Section 25B
Subdivision I—Evidentiary certificates
25B Evidentiary certificates
Contravention
Proposal
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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.
25D Evidentiary effect of certificate
25E Variation of certificate
25F Revocation of certificate
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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:
Actions outside Commonwealth land affecting that land
(2) A person must not take outside Commonwealth land an action that:
Civil penalty:
Exceptions to prohibitions
(3) Subsection (1) or (2) does not apply to an action if:
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Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth land, because the heritage values of a place are part of the environment. See the definition of environment in section 528.
Note 2: 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:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person is guilty of an offence if:
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Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(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.
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Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
(6) Subsection (1), (2), (3) or (4) does not apply to an action if:
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: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth land, because the heritage values of a place are part of the environment. See the definition of environment in section 528.
Note 3: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.
Subdivision AA—Protection of Commonwealth Heritage places outside the Australian jurisdiction
27B Requirement for approval of actions with significant impact on Commonwealth Heritage places overseas
(1) A person must not take outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment in a Commonwealth Heritage place outside the Australian jurisdiction.
Civil Penalty:
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Section 27C
(2) Subsection (1) does not apply to an action if:
Note: Subdivision F of Division 1 and Subdivision A of this Division protect the environment in Commonwealth Heritage places inside the Australian jurisdiction because those places are in Commonwealth marine areas or on Commonwealth land.
27C Offences relating to Commonwealth Heritage places overseas
(1) A person is guilty of an offence if:
environment in a place; and (ca) the place is a Commonwealth Heritage place; and
(d) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(ca).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person is guilty of an offence if:
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(e) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 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.
(4) Section 14.1 (standard geographical jurisdiction) of the Criminal Code does not apply to an offence created by this section.
Note: Section 5 affects the extra-territorial operation of this section.
(5) Subsections (1) and (2) do not apply to an action if:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
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Section 28
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:
Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place from an action taken by the Commonwealth or a Commonwealth agency, because the heritage values of a place are part of the environment. See the definition of environment in section 528.
Note 2: This section 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:
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Subdivision C—Actions that are taken to be covered by this Division
28AA 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.
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.
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Section 28AB
(3) In this section:
regulatory provision means:
Subdivision D—Limitation on liability for actions of third parties
28AB Limitation on liability for actions of third parties
(1) A provision mentioned in subsection (2) or (3) does not apply to an action (the primary action) if:
Defence to offences
(2) For the purposes of subsection (1), the following provisions do not apply to the primary action:
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Exception to civil penalties
(3) For the purposes of subsection (1), the following provisions do not apply to the primary action:
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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:
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,
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Section 30
bilateral agreements do not operate in relation to actions in Commonwealth areas or in the Great Barrier Reef Marine Park, 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.
30 Extended operation in State and Northern Territory waters
Note: A provision of a bilateral agreement only has effect in relation to a Commonwealth area or the Great Barrier Reef Marine Park 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:
Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by bilateral agreements Division 1
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 arrangement or a bilaterally accredited authorisation process); and
Note: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended.
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Division 2—Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes
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:
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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 arrangement or authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration, do not require approval under Part 9 for the purposes of a specified provision of Part 3.
Note 1: Subdivisions C and D set out rules about prerequisites for making a declaration and limits on making a declaration.
Note 2: Section 35 provides for revocation of a declaration.
What is an accredited management arrangement?
(2) A management arrangement is an accredited management arrangement 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:
What is an accredited authorisation process?
(2A) An authorisation process is an accredited authorisation process 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:
(a) the authorisation process is set out in a law of the Commonwealth, and the law and the authorisation process are identified in or under the declaration; and
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(b) the authorisation process has been accredited in writing by the Minister in accordance with this section for the purposes of the declaration.
Accrediting management arrangement or authorisation process
(3) For the purposes of subsection (2) or (2A), the Minister may accredit by written instrument a management arrangement or authorisation process for the purposes of a declaration. However, the Minister may do so only if the Minister is satisfied that:
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 arrangement or authorisation process 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 arrangement or authorisation process.
Note: Subdivision C sets out more prerequisites for accrediting a management arrangement or authorisation process.
Tabling of management arrangement or authorisation process before accreditation
(4) The Minister must cause to be laid before each House of the Parliament:
(a) a copy of:
(i) in the case of a management arrangement—the management arrangement; or
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Section 33
(ii) in the case of an authorisation process—the relevant part of the law in which the authorisation process is set out;
that the Minister is considering accrediting for the purposes of subsection (2) or (2A); and
(b) a notice that the Minister proposes to accredit the management arrangement or authorisation process for the purposes of a declaration under this section.
Limitations on accreditation during period for opposition
(5) The Minister must not accredit a management arrangement or authorisation process for the purposes of subsection (2) or (2A) under a bilateral agreement:
(5A) If:
sitting days of that House after the notice is given; then, subject to paragraph (5)(a), the Minister may accredit the management arrangement or authorisation process after the motion is withdrawn or otherwise disposed of.
No accreditation after accreditation opposed
(6) The Minister must not accredit the management arrangement or authorisation process if either House of the Parliament passes a resolution opposing accreditation of the management arrangement or authorisation process following a motion of which notice has been given within 15 sitting days after the management
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arrangement or relevant part of the law 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 arrangement or authorisation process if, at the end of 15 sitting days after notice of a motion to oppose accreditation of the management arrangement or authorisation process that was given in a House of the Parliament within 15 sitting days after the management arrangement or relevant part of the law was laid before the House under this section:
Extended time after dissolution or prorogation
(8) If:
has not been withdrawn or otherwise disposed of; the management arrangement or relevant part of the law is taken for the purposes of subsections (5), (5A), (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).
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Section 34
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 15A | the world heritage values of a declared World |
Heritage property | ||
1B | section 15B | the National Heritage values of a National |
Heritage place | ||
1C | section 15C | the National Heritage values of a National |
Heritage place |
2 | section 16 | the ecological character of a declared Ramsar |
wetland | ||
2A | section 17B | the ecological character of a declared Ramsar |
wetland | ||
3 | subsection | a listed threatened species in the extinct in the |
18(1) | wild category | |
4 | subsection | a listed threatened species in the critically |
18(2) | endangered category | |
5 | subsection | a listed threatened species in the endangered |
18(3) | category | |
6 | subsection | a listed threatened species in the vulnerable |
18(4) | category | |
7 | subsection | a listed threatened ecological community in the |
18(5) | critically endangered category | |
8 | subsection | a listed threatened ecological community in the |
18(6) | endangered category |
8A | subsection | a listed threatened species (except a species |
18A(1) or | included in the extinct category of the list | |
(2) | 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) |
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Matter protected by provisions of Part 3
Item | Provision | Matter protected |
---|---|---|
9 | section 20 | a listed migratory species |
9A | section 20A | a listed migratory species |
10 | section 21 | the environment |
10A section 22A the environment
11 subsection the environment 23(1) 12 subsection the environment in a Commonwealth marine 23(2) area 13 subsection the environment in the coastal waters (as
23(3) defined in the Fisheries Management Act 1991) in which the action is taken of the State or Territory
13A subsection the environment 24A(1) or
(2)
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
(6) 1991) in which the action is taken of the State or Territory 13D subsection the environment 24B(1) 13E subsection the environment in the Great Barrier Reef 24B(2) Marine Park
13F subsections the environment 24C(1) and
(3)
13G subsections the environment in the Great Barrier Reef 24C(5) and Marine Park
(7) 14 section 25 a thing prescribed by the regulations for the purposes of this item in relation to an action to which section 25 applies
15 subsection the environment 26(1)
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Section 34A
Matter protected by provisions of Part 3 Item Provision Matter protected
16 subsection the environment on Commonwealth land
26(2) 16A subsection the environment
27A(1) or
(2)
16B subsection the environment on Commonwealth land 27A(3) or
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:
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:
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Section 34BA
(2) The Minister may accredit a management arrangement or authorisation process under section 33 for the purposes of a declaration relating to a declared World Heritage property only if:
34BA Declarations relating to National Heritage places
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:
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Section 34D
(2) The Minister may accredit a management arrangement or authorisation process under section 33 for the purposes of a declaration relating to a declared Ramsar wetland only if:
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:
(ca) the Minister has had regard to any approved conservation advice for the species or community; and
(d) the declaration meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or authorisation process 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 arrangement or authorisation process is not inconsistent with Australia’s obligations under:
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Section 34E
(iii) CITES; and
34E Declarations relating to migratory species
(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with the Commonwealth’s obligations under whichever of the
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Section 34F
following conventions or agreements because of which the species is listed:
(iii) JAMBA;
(iv) an international agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species to which the declaration relates.
34F Declarations relating to Commonwealth Heritage places
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.
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Revocation does not affect some actions
(2) If:
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 arrangement or authorisation process under section 33, or revoking a declaration under section 35, relating to an action taken:
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 arrangement or authorisation process under section 33, or an instrument under section 35 revoking a declaration, in accordance with the regulations.
36A Minor amendments of accredited management arrangement or accredited authorisation process
(1) If:
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Section 36A
(iii) subsection 34B(2), 34BA(2), 34C(2), 34D(2), 34E(2) or
34F(2) (as the case requires); the Minister may, by instrument in writing, determine that this section applies to the amendments.
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Section 37
Division 3—Actions covered by Ministerial declarations and bioregional plans
Subdivision A—Effect of declarations
37 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:
Note: Division 2 of Part 12 deals with bioregional plans.
Subdivision B—Making declarations
37A Making declarations that actions do not need approval under Part 9
Subject to Subdivisions C and D, the Minister may, by legislative instrument, declare that an action or class of actions specified in the declaration, wholly or partly by reference to the fact that the taking of the action or class of actions is in accordance with a bioregional plan, do not require approval under Part 9 for the purposes of a specified provision of Part 3.
Note 1: Subdivisions C and D set out rules about prerequisites for making a declaration and limits on making a declaration.
Note 2: Section 37K provides for revocation of a declaration.
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Subdivision C—Prerequisites for making declarations
37B General considerations
37C Minister may make declaration only if prescribed criteria are met
The Minister may make a declaration under section 37A only if the Minister is satisfied that the declaration:
37D Declarations relating to declared World Heritage properties
The Minister may make a declaration under section 37A relating to a declared World Heritage property only if:
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Section 37E
management of the declared World Heritage property under
section 316 or as described in section 321.
37E Declarations relating to National Heritage places
The Minister may make a declaration under section 37A relating to a National Heritage place only if:
37F Declarations relating to declared Ramsar wetlands
The Minister may make a declaration under section 37A relating to a declared Ramsar wetland only if:
37G Declarations relating to listed threatened species and ecological communities
The Minister may make a declaration under section 37A 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:
(iii) CITES; and
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37H Declarations relating to listed migratory species
The Minister may make a declaration under section 37A relating to a listed migratory species only if:
37J No declarations relating to nuclear actions
The Minister must not make a declaration relating to an action consisting of, or involving the construction or operation of, any of the following nuclear installations:
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Subdivision D—Other rules about declarations
37K Revoking declarations
Revoking declarations
(1) The Minister may, by legislative instrument, revoke a declaration made under section 37A.
Revocation does not affect some actions
(2) If:
this Act continues to operate in relation to the action as if the declaration had not been revoked.
37L Other rules about declarations
Minister must not give preference
(1) In making a declaration under section 37A, or revoking a declaration under section 37K, relating to an action taken:
section 99 of the Constitution) to one State or part of a State over another State or part of a State.
Publishing declarations
(2) Within 10 business days after the Minister makes a declaration under section 37A, or an instrument under section 37K revoking a declaration, the Minister must publish the declaration or instrument in accordance with the regulations.
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Division 3A—Actions covered by conservation agreements
37M Actions declared by conservation agreement 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:
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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
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.
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.
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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:
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.
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41 What is an RFA region?
Regions that are RFA regions
Regulations may amend list of regions
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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:
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Division 5—Actions in the Great Barrier Reef Marine Park
43 Actions taken in accordance with zoning plan
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:
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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:
(1A) For the purposes of paragraphs (1)(c) and (d), a renewal or extension of a specific environmental authorisation is taken to be a new specific environmental authorisation unless:
Note: If a renewal or extension of a specific environmental authorisation is taken to be a new specific environmental authorisation, the condition in paragraph (1)(c) or (d) would not be met.
(2) In this Act:
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):
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specific environmental authorisation means an environmental authorisation that:
43B Actions which are lawful continuations of use of land etc.
Note: In that case, section 43A applies instead.
(3) For the purposes of this section, neither of the following is a continuation of a use of land, sea or seabed:
use; that results in a substantial increase in the impact of the use on the land, sea or seabed.
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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:
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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:
Publishing notice of intention to enter into agreement
(3) As soon as practicable after starting the process of developing a draft bilateral agreement with a State or self-governing Territory, the Minister must publish, in accordance with the regulations (if any), notice of his or her intention to develop a draft bilateral agreement with the State or Territory.
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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:
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:
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 arrangement?
(2) A management arrangement is a bilaterally accredited management arrangement 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:
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What is a bilaterally accredited authorisation process?
(2A) An authorisation process is a bilaterally accredited authorisation process 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:
Accrediting management arrangement or authorisation process
(3) For the purposes of subsection (2) or (2A), the Minister may accredit in writing a management arrangement or an authorisation process 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:
to which the agreement makes a declaration under subsection (1); and
(c) actions approved in accordance with the management arrangement or authorisation process 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 arrangement or authorisation process.
Note: Subdivision B sets out more prerequisites for accrediting a management arrangement or an authorisation process.
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Tabling of management arrangement or authorisation process before accreditation
(4) The Minister must cause to be laid before each House of the Parliament a copy of:
the law in which the authorisation process is set out; that the Minister is considering accrediting for the purposes of subsection (2) or (2A).
Limitations on accreditation during period for disallowance
(5) The Minister must not accredit a management arrangement or authorisation process for the purposes of subsection (2) or (2A) under a bilateral agreement:
(5A) If:
sitting days of that House after the notice is given; then, subject to paragraph (5)(a), the Minister may accredit the management arrangement or authorisation process after the motion is withdrawn or otherwise disposed of.
Disallowance motion passed
(6) The Minister must not accredit the management arrangement or authorisation process if either House of the Parliament passes a resolution disallowing the accreditation of the management
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arrangement or authorisation process following a motion of which notice has been given within 15 sitting days after the management arrangement or relevant part of the law has been laid before the House.
Disallowance motion not defeated in time
(7) The Minister must not accredit the management arrangement or authorisation process if, at the end of 15 sitting days after notice of a motion to disallow the management arrangement or authorisation process that was given in a House of the Parliament within 15 sitting days after the management arrangement or relevant part of the law was laid before the House:
Extended time after dissolution or prorogation
(8) If:
has not been withdrawn or otherwise disposed of; the management arrangement or relevant part of the law is taken for the purposes of subsections (5), (5A), (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).
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No preference
(9) In accrediting a management arrangement or authorisation process for the purposes of a bilateral agreement making a declaration relating to an action:
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) If the declaration is for actions approved in accordance with a bilaterally accredited management arrangement, 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:
47 Agreement may declare classes of actions do not need assessment
Declaration of actions that do not need further assessment
(1) A bilateral agreement may declare that actions in a class of actions identified wholly or partly by reference to the fact that they have been assessed in a specified manner need not be assessed under Part 8.
Note: A declaration described in subsection (1) can accredit practices, procedures, systems of the State or self-governing Territory for environmental assessment.
Prerequisite to declaration
(2) The Minister may enter into a bilateral agreement declaring that actions assessed in a specified manner need not be assessed under Part 8 only if he or she is satisfied that assessment of an action in the specified manner will include assessment of the impacts the action:
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(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:
This does not limit subsection (1).
Report on actions that do not need further assessment
(4) If a bilateral agreement has (or could have) the effect that an action need not be assessed under Part 8 but the action must still be approved under Part 9, the agreement must provide for the Minister to receive a report including, or accompanied by, enough information about the relevant impacts of the action to let the Minister make an informed decision whether or not to approve under Part 9 (for the purposes of each controlling provision) the taking of the action.
48 Other provisions of bilateral agreements
(1) A bilateral agreement may include:
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(iii) provisions for review of all or part of the agreement; or
Consistency with Act and regulations
(2) A provision of a bilateral agreement has no effect for the purposes of this Act to the extent that it is inconsistent with this Act or the regulations. A provision of a bilateral agreement is not inconsistent with this Act or the regulations if it is possible to comply with both the provision on the one hand and the Act or regulations on the other hand.
Relationship with sections 46 and 47
(3) Subsection (1) does not limit sections 46 and 47.
48A Mandatory provisions
Application
(1) A bilateral agreement with a State or self-governing Territory including a declaration that is described in section 46 or 47 and covers actions described in subsection (2) or (3) does not have effect for the purposes of this Act unless the agreement also includes the undertaking required by subsection (2) or (3) (as appropriate).
Agreements including declarations about approvals
(2) A bilateral agreement including a declaration described in section 46 must include an undertaking by the State or Territory to
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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 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:
Agreements including declarations about assessment
(3) A bilateral agreement including a declaration described in section 47 must include an undertaking by the State or Territory to ensure that the environmental impacts that the following actions covered by the declaration have, will have or are likely to have (other than the relevant impacts of those actions) will be assessed to the greatest extent practicable:
Auditing
(4) A bilateral agreement does not have effect for the purposes of this Act unless it includes a provision recognising that, under the
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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 Certain limits on scope of bilateral agreements
(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.
(1A) A provision of a bilateral agreement does not have any effect in relation to an action in the Great Barrier Reef Marine Park, unless the agreement expressly provides otherwise.
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:
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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:
51 Agreements relating to declared World Heritage properties
51A Agreements relating to National Heritage places
(1) The Minister may enter into a bilateral agreement containing a provision relating to a National Heritage place only if:
(a) the Minister is satisfied that the agreement will promote the management of the place in accordance with the National Heritage management principles; and
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(b) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of such a bilateral agreement only if he or she is satisfied that the management arrangement or authorisation process will promote the management of the place concerned in accordance with the National Heritage management principles.
52 Agreements relating to declared Ramsar wetlands
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:
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(ca) the Minister has had regard to any approved conservation advice for the species or community; and
(d) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process 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:
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54 Agreements relating to migratory species
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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 arrangement or an authorisation process, containing a provision that:
56 Agreements relating to prescribed actions
The Minister must not enter into a bilateral agreement containing a provision that:
Subdivision C—Minor amendments of bilateral agreements
56A Ministerial determination of minor amendments to bilateral agreements
(1) This section applies if:
(a) the Minister intends to develop a draft amendment to a bilateral agreement (the principal agreement); and
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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:
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:
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58 Consultation before cancellation or suspension
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:
he or she may give the appropriate Minister of the State or Territory a written notice described in subsection (2) or (3).
Example 1: The Minister could give notice if the agreement declared that certain actions affecting the world heritage values of a declared world heritage property did not require approval under Part 9 if approved by the State, and the State approved an action that was not consistent with the protection, conservation and presentation of those values.
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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:
Notice of cancellation
(3) A notice may state that the effect of the agreement, or specified provisions of the agreement, for the purposes of this Act or specified provisions of this Act is cancelled, either generally or in relation to actions in a specified class, on a specified day at least 10 business days (in the capital city of the State or Territory) after the day on which the notice is given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified provision of an agreement is suspended or cancelled for the purposes of this Act, or of a specified provision of this Act, either generally or in relation to actions in a specified class, in accordance with the notice. This subsection has effect subject to sections 61 and 62.
Reasons for giving notice
(5) When giving a notice, the Environment Minister must give the appropriate Minister of the State or Territory a written statement of reasons for the giving of the notice.
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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:
60 Emergency suspension of effect of bilateral agreement
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61 Cancellation during suspension
62 Revocation of notice of suspension or cancellation
cancellation after cancellation of the effect of the agreement occurs.
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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:
Notice of cancellation
(3) A notice may state that the effect of the agreement, or specified provisions of the agreement, for the purposes of this Act or specified provisions of this Act is cancelled, either generally or in relation to actions in a specified class, on a specified day after the day on which the notice is given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified provision of an agreement is suspended or cancelled for the purposes of this Act, or of a specified provision of this Act, either generally or in relation to actions in a specified class, in accordance with the notice.
Publishing notice and reasons
(5) As soon as practicable after the suspension or cancellation occurs, the Minister must publish in accordance with the regulations:
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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 arrangement or an authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process 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.
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 at the time when the agreement provides for it to cease to so have effect.
Note: The parties to a bilateral agreement may also agree to revoke it.
(2) The Minister must cause a review of the operation of a bilateral agreement to be carried out at least once every 5 years while the agreement remains in effect. The Minister must give a copy of the report of each review to the appropriate Minister of the State or Territory that is party to the agreement.
Note: A bilateral agreement may also provide for review of its operation.
(3) The Minister must publish the report on each subsection (2) review in accordance with the regulations.
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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 been approved in accordance with a management arrangement or an authorisation process that was a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement.
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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:
An assessment may be done using:
(ca) information included in the referral; or
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(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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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 (or would, but for section 25AA or 28AB, be) prohibited by the provision. The provision is a controlling provision for the action.
67A Prohibition on taking controlled action without approval
A person must not take a controlled action unless an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the relevant provision of Part 3.
Note: A person can be restrained from contravening this section by an injunction under section 475.
68 Referral by person proposing to take action
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68A Actions proposed to be taken under a contract etc.
(1) This section applies in relation to an action that is proposed to be taken under a contract or an agreement, arrangement or understanding, other than:
Note: A person proposing to take an action under a subcontract, or an agreement, arrangement or understanding entered into for the purposes of a contract or another agreement, arrangement or understanding, is not required or permitted to refer the proposal to take the action to the Minister under section 68.
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69 State or Territory may refer proposal to Minister
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:
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.
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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:
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:
71 Commonwealth agency may refer proposal to Minister
Note: Section 68 applies instead.
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72 Form and content of referrals
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:
73A Informing Great Barrier Reef Marine Park Authority of proposal affecting Great Barrier Reef Marine Park
If:
Great Barrier Reef Marine Park; the Minister must, as soon as practicable after receiving the referral, give a copy of the referral to the Great Barrier Reef Marine Park Authority.
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:
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Inviting comments from the Australian Heritage Council
(1A) If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 15B or 15C could be a controlling provision for the proposed action because of National Heritage values of a National Heritage place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.
Note: Sections 15B and 15C protect the National Heritage values of National Heritage places.
(1B) If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 23, 24A, 24B, 24C, 26, 27A, 27B, 27C or 28 could be a controlling provision for the proposed action because of heritage values of a place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.
Note: Sections 23, 24A, 24B, 24C, 26, 27A, 27B, 27C and 28 protect the environment, which includes the heritage values of places. See the definition of environment in section 528.
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, if he or she 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):
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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:
Note: If the action is also the subject of a permit application under section 200, 215, 237 or 257 and the application is made at the same time as the referral, the referral and invitation for comments that must be published under this subsection may be published together with the application and invitation for comments that must be published under section 200, 215, 237 or 257.
Non-disclosure of commercial-in-confidence information
(3A) The Environment Minister may refuse to cause to be published on the internet, under subsection (3), so much of the information included in a referral as the Minister is satisfied is commercial-in-confidence.
(3B) The Environment Minister must not be satisfied that particular information included in a referral is commercial-in-confidence unless a person demonstrates to the Minister that:
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74A Minister may request referral of a larger action
74AA Offence of taking action before decision made in relation to referral etc.
Referral made: taking action while decision making process still going on
(1) A person commits an offence if:
(i) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister by the person under section 68; or
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(ii) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister under section 69 or 71 and the person has been informed of the referral under section 73; and
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) does not apply to the taking of an action by a person if:
Note: A defendant bears an evidential burden in relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal Code.
Referral requested: taking action before requested referral is made
(3) A person commits an offence if:
(a) the person takes an action; and
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Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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Division 1A—Decision that action is clearly unacceptable
74B Application of this Division
74C Informing person proposing to take action that action is clearly unacceptable
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Note 1: Section 170C sets out the procedure for withdrawing a referral.
Note 2: A referral of a proposal to take a modified action will be a new referral for the purposes of this Chapter.
74D Procedure if Minister is requested to reconsider referral
(1) This section applies if the Minister receives a request under paragraph 74C(3)(c) to reconsider a referral.
Inviting public comment
(2) The Minister must, within 10 business days after receiving the request, publish on the internet:
Report about relevant impacts of action
(3) Within 10 business days after the end of the period for comment under paragraph (2)(c), the Secretary must:
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In preparing the report, the Secretary must have regard to the comments referred to in subparagraph (b)(ii).
Decision following reconsideration
Note: The person proposing to take the action may request reasons for the refusal and the Minister must give them. See section 13 of the Administrative Decisions (Judicial Review) Act 1977.
(6) If the Minister makes a decision under paragraph (4)(b):
Note: If the Minister had already complied with section 74 in relation to the referral before the Minister made the decision under paragraph 74B(1)(b) in relation to the referral, the Minister is not required to comply with section 74 again.
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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:
Note: The Minister may revoke a decision made under subsection (1) about an action and substitute a new decision. See section 78.
(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:
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:
(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.
Note: Impact is defined in section 527E.
(2A) For the purposes of subsection (2), if the provision of Part 3 is subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 26(1) or 27A(1), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or Commonwealth land:
(2AA) For the purposes of subsection (2), if the provision of Part 3 is subsection 24B(1) or 24C(1) or (3), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park:
(2B) Without otherwise limiting any adverse impacts that the Minister must consider under paragraph (2)(a), the Minister must not consider any adverse impacts of:
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
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(b) the person proposing to take the action agrees to the designation.
Timing of decision and designation
(5) The Minister must make the decisions under subsection (1) and, if applicable, the designation under subsection (3), within 20 business days after the Minister receives the referral of the proposal to take the action.
Note: If the Minister decides, under subsection 75(1), that the action is a controlled action, the Minister must, unless the Minister has requested more information under subsection 76(3) or section 89, decide on the approach to be used for assessment of the relevant impacts of the action on the same day as the Minister makes the decision under subsection 75(1)—see subsection 88(2).
Time does not run while further information being sought
(6) If the Minister has requested more information under subsection 76(1) or (2) 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:
Running of time may be suspended by agreement
(7) The Minister and the person proposing to take the action may agree in writing that days within a period worked out in accordance with the agreement are not to be counted as business days for the purposes of subsection (5). If the agreement is made, those days are not to be counted for the purposes of that subsection.
76 Minister may request more information for making decisions
(1) 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:
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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:
(iii) if the Minister decided that the action is a controlled action because of Division 1 of Part 3 (which deals with
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matters of national environmental significance)—the appropriate Minister of each State or self-governing Territory in which the action is to be taken; and
(b) publish notice of the decision in accordance with the regulations.
Note 1: Section 156 sets out rules about time limits.
Note 2: Subparagraph (1)(a)(iii) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Notice must identify any applicable controlling provisions
(2) If the decision is that the action is a controlled action, the notice must identify each of the controlling provisions.
Reasons for decision
(4) The Minister must give reasons for the decision to a person who:
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, 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.
(1A) For the purposes of subsection (1), it does not matter whether or not the Minister believes that the action will be taken in accordance with:
(a) an accredited management arrangement or an accredited authorisation process for the purposes of a declaration under section 33; or
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(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:
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Division 3—Reconsideration of decisions
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:
not foreseen at the time of the first decision and relates to the impacts that the action:
(b) the following requirements are met:
will not be, taken in the manner identified; or (ba) the following requirements are met:
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or authorisation process is no longer in force under, or set out in, a law of a State or a self-governing Territory identified in or under the agreement; or
(c) the following requirements are met:
(ca) the following requirements are met:
(d) the Minister is requested under section 79 to reconsider the decision.
Note 1: Subsection 75(1) provides for decisions about whether an action is a controlled action and what the controlling provisions for the action are.
Note 2: A person (other than a Minister of a State or self-governing Territory) may request the Minister to reconsider a decision made under subsection 75(1) about an action on the basis of a matter referred to in any of paragraphs 78(1)(a) to (ca). See section 78A.
Note 3: If the Minister decides to revoke a decision under subsection (1) and substitute a new decision for it, the Minister is not required to carry out the processes referred to in sections 73 and 74 again before making the new 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
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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:
General effect of change of decision
(4) When the first decision is revoked and a new decision is substituted for it:
Change of designation of proponent
(5) If the Minister believes a person (the first proponent) designated under section 75 as proponent of an action is no longer an appropriate person to be the designated proponent of the action, the Minister may revoke the designation and designate another person (the later proponent) as proponent of the action.
Consent to designation
(6) The Minister may designate the other person as proponent of the action only if:
Effect of change of designated proponent
(7) If the Minister revokes the designation of the first proponent and designates the later proponent:
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78A Request for reconsideration of decision by person other than State or Territory Minister
(1) A person (other than a Minister of a State or self-governing Territory) may request the Minister to reconsider a decision made under subsection 75(1) about an action on the basis of a matter referred to in any of paragraphs 78(1)(a) to (ca).
Note: Section 79 deals with requests for reconsideration by a Minister of a State or self-governing Territory.
(a) because of paragraph (3)(a), Part 8 has ceased to apply in relation to an action; and
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(b) the Minister confirms the decision that is the subject of the
request under subsection (1); then:
78B Minister must inform interested persons of request and invite comments
(1) The Minister (the Environment Minister) must comply with this section if he or she receives a request under section 78A to reconsider a decision made under subsection 75(1) about an action.
Informing designated proponent of request and inviting comments
Inviting other Commonwealth Ministers to provide information
(4) The Environment Minister must:
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a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action.
Inviting comments from appropriate State or Territory Minister
(5) If the request relates to an action proposed to be taken in a State or self-governing Territory and 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), the Environment Minister must:
Note: Subsection (5) also applies in relation to a request that relates to an action that is to be taken in an area offshore from a State or the Northern Territory. See section 157.
Inviting public comment
(6) The Environment Minister must publish on the internet:
78C Minister must reconsider decision and give notice of outcome
Reconsideration of decision
(1) As soon as practicable after the end of the time within which information or comments may be given under section 78B in relation to a request under section 78A to reconsider a decision about an action, the Minister must:
(a) reconsider the decision; and
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(b) either:
Notice of outcome of reconsideration
Reasons for outcome of reconsideration
(4) The Minister must give reasons for the outcome of the reconsideration to a person who:
Minister to provide reasons. The Minister must do so as soon as practicable, and in any case within 28 days after receiving the request.
79 Reconsideration of decision on request by a State or Territory
(1) This section applies if the Minister (the Environment Minister) has made a decision under subsection 75(1) 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 a self-governing Territory.
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Note 1: Division 1 of Part 3 deals with requirements for approvals for actions involving matters of national environmental significance.
Note 2: This section also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Note: Section 156 sets out rules about time limits.
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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;
(aa) an assessment on referral information (see Division 3A);
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Division 2—Application of this Part
81 Application
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:
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, 2, 3 or 3A 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:
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)
83 This Part does not apply if action covered by bilateral agreement
(1) This Part does not apply in relation to an action if:
Note 1: Subsection (1) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Note 2: Section 47 deals with bilateral agreements making declarations described in paragraph (1)(b).
Note 2A: An action will be in a class of actions declared not to need assessment under this Part only if the action has been assessed in a manner specified in the bilateral agreement.
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Note 3: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended. Also, under section 49, bilateral agreements do not operate in relation to actions in Commonwealth areas or in the Great Barrier Reef Marine Park, 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.
84 This Part does not apply if action covered by declaration
When this Part does not apply
(1) This Part does not apply in relation to an action if:
Note: An action will be in a class of actions declared not to need assessment under this Part only if the action has been assessed in a manner specified in the declaration.
Declaration
(2) The Minister may declare in writing that actions in a specified class of actions assessed by the Commonwealth or a Commonwealth agency in a specified manner do not require assessment under this Part.
Prerequisites for making a declaration
(3) The Minister may make a declaration only if he or she is satisfied that:
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(c) if the taking of an action assessed in the specified manner must be approved under Part 9, he or she will receive a report including, or accompanied by, enough information about the relevant impacts of the action to let him or her make an informed decision whether or not to approve under Part 9 (for the purpose of each controlling provision) the taking of the action.
Further requirements for making a declaration
(3A) Sections 34A, 34B, 34BA, 34C, 34D, 34E and 34F apply in relation to the making of a declaration under this section in the same way that they apply to the making of a declaration under section 33.
Specified manner of assessment
(4) The manner of assessment that may be specified in a declaration includes assessment by a Commonwealth agency under a law of the Commonwealth. This does not limit subsection (2).
Publishing declaration
(5) The Minister must publish a declaration in accordance with the regulations.
Revoking declaration
(6) The Minister may, by instrument in writing published in accordance with the regulations, revoke a declaration.
Minister must not give preference
(7) In making or revoking a declaration relating to an action taken:
section 99 of the Constitution) to one State or part of a State over another State or part of a State.
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Division 3—Decision on assessment approach Subdivision A—Simplified outline of this Division 85 Simplified outline of this Division
The following is a simplified outline of this Division:
The Minister must choose one of the following ways of assessing the relevant impacts of an action the Minister has decided is a controlled action:
Subdivision B—Deciding on approach for assessment
87 Minister must decide on approach for assessment
Minister must choose one assessment approach
(1) The Minister must decide which one of the following approaches must be used for assessment of the relevant impacts of an action that the Minister has decided is a controlled action:
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(e) assessment by inquiry under Division 7.
Considerations in making choice
(3) In making the decision, the Minister must consider:
Accredited assessment process
(4) The Minister may decide on an assessment by an accredited assessment process only if the Minister is satisfied that:
Assessment on referral information
(4A) The Minister may decide on an assessment on referral information under Division 3A only if the Minister is satisfied (after considering the matters in subsection (3)) that the action meets the criteria prescribed in the regulations for the purposes of this subsection.
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Assessment on preliminary documentation
(5) The Minister may decide on an assessment on preliminary documentation under Division 4 only if the Minister is satisfied (after considering the matters in subsection (3)) that that approach will allow the Minister to make an informed decision whether or not to approve under Part 9 (for the purposes of each controlling provision) the taking of the action.
Guidelines for choosing assessment approach
(6) The Minister may publish in the Gazette guidelines setting out criteria for deciding which approach must be used for assessing the relevant impacts of an action.
88 Timing of decision on assessment approach
Initial decision
(1) The Minister must decide on the approach to be used for assessment of the relevant impacts of the action within 20 business days after the Minister receives the referral of the proposal to take the action.
Note: Section 156 sets out rules about time limits.
When initial decision must be made
(2) The Minister must make the decision under subsection (1) on the same day as the Minister has decided, under subsection 75(1), that the action is a controlled action, unless the Minister has requested more information under subsection 76(3) or section 89 for the purposes of deciding on the approach to be used for assessment of the relevant impacts of the action.
Time does not run while further information sought
(4) If the Minister has requested more information in relation to the action under subsection 76(1), (2) or (3) or section 89, a day is not to be counted as a business day for the purposes of subsection (1) if it is:
(a) on or after the day the Minister requested the information; and
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(b) on or before the day on which the Minister receives the last of the information requested.
Running of time may be suspended by agreement
(5) The Minister and the designated proponent of the action may agree in writing that days within a period worked out in accordance with the agreement are not to be counted as business days for the purposes of subsection (1). If the agreement is made, those days are not to be counted for the purposes of that subsection.
89 Minister may request more information for making decision
90 Directing an inquiry after starting an assessment
Application
(1) This section applies if:
(a) the Minister has made a decision (the first decision) under section 87 that the relevant impacts of an action must be assessed by:
(i) assessment by public environment report under Division 5; or
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(ii) assessment by environmental impact statement under Division 6; and
(b) the designated proponent publishes:
Revoking and substituting decision
(2) The Minister may revoke the first decision and make another decision (the new decision) under section 87 (in substitution for the first decision) that the relevant impacts of the action must be assessed by an inquiry under Division 7.
Effect of revocation and substitution
(3) When the first decision is revoked and the new decision is substituted for it:
91 Notice of decision on assessment approach
(1) Within 10 business days after making a decision on the approach to be used for assessment of the relevant impacts of an action, the Minister must:
(a) give written notice of the decision to:
(i) the person proposing to take the action; and (ia) the designated proponent of the action (if the designated
proponent is not the person proposing to take the action); and
(ii) if the action is to be taken in a State or self-governing Territory and a controlling provision for the action is in Division 1 of Part 3 (which deals with matters of national environmental significance)—the appropriate Minister of the State or Territory; and
(b) publish notice of the decision in accordance with the regulations.
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Note 1: Section 156 sets out rules about time limits.
Note 2: Subparagraph (1)(a)(ii) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(2) If the Minister decided that the relevant impacts of the action are to be assessed by an accredited assessment process, the written notice and the published notice must specify the process.
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Division 3A—Assessment on referral information
92 Application of this Division
This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by assessment on referral information under this Division.
93 Recommendation report
(3A) The Secretary may refuse to publish on the internet, under subsection (3), so much of the draft recommendation report as:
(3B) The Secretary must not be satisfied that a part of the draft recommendation report is commercial-in-confidence unless a person demonstrates to the Secretary that:
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Division 4—Assessment on preliminary documentation
94 Application of this Division
This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by assessment on preliminary documentation under this Division.
95 Direction to publish referral information and invitation to comment—no further information required
Note: If the designated proponent does not comply with the direction, the Minister may take action under section 155.
(4) A direction given under subsection (2) is not a legislative instrument.
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95A Direction to publish referral information and invitation to comment—further information required
Note: If the designated proponent does not comply with the direction, the Minister may take action under section 155.
(5) A direction given under subsection (3) is not a legislative instrument.
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Section 95B
95B Procedure after end of period for comment
Procedure if comments are received
Procedure if no comments are received
Definition
(5) In this section:
period for comment means the period within which comments may be given under 95(2)(c) or 95A(3)(d), as the case requires.
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95C Recommendation report
Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.
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Division 5—Public environment reports
96 Application
This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by a public environment report under this Division.
96A Minister must give designated proponent written guidelines for preparation of draft public environment report
Note: Similar considerations apply in relation to tailored guidelines: see subsection 97(2).
(4) The Minister must give the PER guidelines to the designated proponent:
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96B Standard guidelines
(1) The Minister may prepare one or more sets of standard guidelines, in writing, for the preparation of draft public environment reports about the relevant impacts of actions.
Note: See also subsection 96A(3).
97 Tailored guidelines
(1) The Minister must prepare tailored guidelines, in writing, for the preparation of a draft public environment report about the relevant impacts of an action if the Minister decides that standard guidelines are not appropriate for the preparation of the draft report in relation to that action.
(1A) Tailored guidelines must set out requirements for the content and presentation of the draft report in relation to the action.
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Note: Paragraph (3)(a) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(3A) Tailored guidelines may also provide for the draft report to include information about other certain and likely impacts of the action if:
(4) Division 2 does not limit:
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98 Designated proponent must invite comment on draft public environment report
Designated proponent’s obligations
(1) The designated proponent of the action must:
(a) prepare a draft public environment report in accordance with the PER guidelines about:
(ab) give the draft report to the Minister; and
Approval of publication of draft report
(2) The Minister may only approve the publication of the draft report if he or she is satisfied that the draft report is in accordance with the PER guidelines.
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Section 99
Period for comment
(3) The period specified in the invitation to comment must be the period specified in writing given by the Minister to the designated proponent. The Minister must not specify a period of less than 20 business days.
99 Finalising public environment report
100 Recommendation report
(1) The Secretary must prepare, and give to the Minister, a recommendation report relating to the action. The report must include recommendations on:
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(2) The recommendation report must be given to the Minister after the Minister receives the finalised public environment report under section 99 and before the end of the period applicable under paragraph 130(1B)(d) in relation to the action.
Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.
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Section 101
Division 6—Environmental impact statements
101 Application
This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by an environmental impact statement under this Division.
101A Minister must give designated proponent written guidelines for preparation of draft environmental impact statement
Note: Similar considerations apply in relation to tailored guidelines: see subsection 102(2).
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(4) The Minister must give the EIS guidelines to the designated proponent:
101B Standard guidelines
(1) The Minister may prepare one or more sets of standard guidelines, in writing, for the preparation of draft environmental impact statements about the relevant impacts of actions.
Note: See also subsection 101A(3).
102 Tailored guidelines
(1) The Minister must prepare tailored guidelines, in writing, for the preparation of a draft environmental impact statement about the relevant impacts of an action if the Minister decides that standard guidelines are not appropriate for the preparation of the draft statement in relation to that action.
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(1A) Tailored guidelines must set out requirements for the content and presentation of the draft statement in relation to the action.
Note: Paragraph (3)(a) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(3A) Tailored guidelines may also provide for the draft statement to include information about other certain and likely impacts of an action if:
(a) the referral of the proposal to take the action is, because of section 37AB of the Great Barrier Reef Marine Park Act 1975, taken to be an application for a permission for the purposes of that Act; and
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(b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the draft statement includes information about those other impacts for the purposes of deciding whether to grant the permission.
103 Designated proponent must invite comment on draft environmental impact statement
Designated proponent’s obligations
(1) The designated proponent of the action must:
(a) prepare a draft environmental impact statement in accordance with the EIS guidelines about:
(ab) give the draft statement to the Minister; and
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Section 104
Approval of publication of draft statement
(2) The Minister may only approve the publication of the draft statement if he or she is satisfied that the draft statement is in accordance with the EIS guidelines.
Period for comment
(3) The period specified in the invitation to comment must be the period specified in writing given by the Minister to the designated proponent. The Minister must not specify a period of less than 20 business days.
104 Finalising environmental impact statement
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105 Recommendation report
Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.
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Section 106
Division 7—Inquiries Subdivision A—Preliminary 106 Simplified outline
The following is a simplified outline of this Division:
This Division provides for the Minister to appoint commissions to carry out inquiries in a flexible way into the impacts of actions.
Commissioners have powers to call witnesses, obtain documents and inspect places for the purposes of their inquiries.
Commissioners must report to the Minister and publish their reports.
Subdivision B—Establishment of inquiries
107 Appointing commissioners and setting terms of reference
(1) If the Minister decides that the relevant impacts of an action must be assessed by inquiry under this Division, the Minister must:
the Minister. | |
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Note 1: | The Minister may revoke an appointment and amend terms of reference. See subsection 33(3) of the Acts Interpretation Act 1901. |
Note 2: | Subdivision E contains more provisions about the basis on which a |
commissioner holds office.
(2) If the Minister appoints 2 or more commissioners for an inquiry, the Minister must appoint one of them to preside at the inquiry.
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Note: Paragraph (4)(a) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(4A) For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action if:
(5) The Minister may also specify in the terms of reference the manner in which the commission is to carry out the inquiry.
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Section 108
108 Publicising inquiry
environmental impact statements). However, in this case the commission must publish as described in subsection (1) notice of the fact that the draft report or draft statement has already been published.
Subdivision C—Conduct of inquiries
109 Procedure of inquiries
110 Inquiry to be public
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given to the commission in writing, except so far as the commission directs otherwise.
(3) If the commission believes that it is desirable in the public interest, the commission may:
111 Calling witnesses
Summoning witnesses
(1) A commissioner may, by writing signed by the commissioner, summon a person to appear before the commission at a time and place specified in the summons to give evidence and produce any documents mentioned in the summons.
Failure of witness to attend
(2) A person served with a summons to appear as a witness at an inquiry by a commission must not:
Note: A defendant bears an evidential burden in relation to the excuse or release from further attendance mentioned in paragraph (2)(b). See subsection 13.3(3) of the Criminal Code.
Offence
(3) A person who contravenes subsection (2) is guilty of an offence punishable on conviction by imprisonment for not more than 6 months, a fine of not more than 30 penalty units, or both.
Allowances for witnesses
(4) A person summoned by a commission to appear as a witness at an inquiry is entitled to be paid by the Commonwealth such
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allowances for travelling and other expenses as are prescribed by the regulations.
112 Dealing with witnesses
Power to administer oath or affirmation
(1) A commissioner may administer an oath or affirmation to a person appearing as a witness before the commission.
Note: This means that proceedings before the commission are judicial proceedings for the purposes of Part III of the Crimes Act 1914, which creates various offences relating to judicial proceedings.
Refusal to be sworn or to answer questions
(2) A person appearing as a witness at an inquiry by a commission must not:
Offence
(3) A person who contravenes subsection (2) is guilty of an offence punishable on conviction by imprisonment for not more than 6 months, a fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
No privilege against self-incrimination
(4) An individual is not excused from answering a question or producing a document on the ground that answering the question or producing the document would tend to incriminate the individual or to expose the individual to a penalty.
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Answers and documents cannot be used in criminal proceedings
(5) However, none of the following is admissible in evidence in criminal proceedings against the individual (except proceedings under section 491):
Sworn witnesses may also give written evidence on oath
(6) A commission may permit a person who is appearing as a witness before the commission and has been sworn or has made an affirmation to give evidence by tendering a written statement and verifying it by oath or affirmation.
113 Dealing with documents given to commission
Inspecting and copying documents produced or given at inquiry
(1) A commissioner, or a person assisting a commission and authorised by a commissioner to do so, may:
Keeping documents produced or given at inquiry
(2) A commission may keep for a reasonable period a document produced or given to the commission.
114 Inspections of land, buildings and places
(1) If a commissioner, or a person authorised by a commissioner, enters any land, building or place by consent as described in section 115 or under a warrant issued under section 116, the commissioner or person may:
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Section 115
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
115 Entering premises by consent
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116 Entering premises under warrant
(1) A commissioner may apply to a magistrate for a warrant authorising the commissioner or a person authorised by the commissioner to enter any land, building or place if the commissioner has reason to believe that it is necessary or desirable for the purposes of an inquiry for the commissioner or person to enter the land, building or place for the purposes of the inquiry.
Note: Section 117 allows applications for warrants to be made by telephone.
117 Warrants by telephone or other electronic means
Application
(1) A commissioner may apply to a magistrate for a warrant by telephone, telex, facsimile or other electronic means:
Voice communication
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
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Section 117
Information
(3) An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of warrant
(4) The magistrate may complete and sign the same form of warrant that would be issued under section 116 if, after considering the information and having received and considered any further information he or she required, the magistrate is satisfied that:
Notification
(5) If the magistrate decides to issue the warrant, the magistrate must inform the applicant, by telephone, telex, facsimile or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
Form of warrant
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the magistrate:
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Attachment
(8) The magistrate must attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.
Presumption
(9) If:
in evidence; the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
118 Identity cards
Penalty: 1 penalty unit.
119 Contempt
(1) A person is guilty of an offence punishable on conviction by a fine of not more than 30 penalty units if:
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Section 120
Penalty: 30 penalty units.
120 Protection of commissioners and witnesses
Protection of commissioners
(1) In performing his or her duties as a commissioner, a commissioner has the same protection and immunity as a Justice of the High Court.
Rights and obligations of witnesses
(2) A person appearing before a commission as a witness at an inquiry:
Interfering with witness is an offence
(3) A person must not:
appear as a witness at an inquiry or because of any submission or evidence the witness gave to a commission.
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Interference with a witness’ employment
(4) An employer must not dismiss an employee, or prejudice an employee in his or her employment, because the employee appeared as a witness or gave any submission or evidence at an inquiry by a commission.
Interference with employee who proposes to give evidence
(5) An employer must not dismiss or threaten to dismiss an employee or prejudice, or threaten to prejudice, an employee in his or her employment, because the employee proposes to appear as a witness or to give a submission or evidence at an inquiry by a commission.
Offences
(6) A person who contravenes subsection (3), (4) or (5) is guilty of an offence punishable on conviction by imprisonment for not more than 6 months, a fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Burden of proof in proceedings relating to witness
(7) In proceedings arising out of subsection (4), the employer has the burden of proving that the employee was not dismissed or prejudiced because the employee appeared as a witness or gave a submission or evidence at an inquiry by a commission, if it is established that:
Burden of proof in proceedings relating to employee proposing to give evidence
(8) In any proceedings arising out of subsection (5), the employer has the burden of proving that the employee was not dismissed, prejudiced in his or her employment or threatened with dismissal or prejudice because the employee proposed to appear as a witness
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Section 121
or give evidence at an inquiry by a commission, if it is established that:
Relationship of subsections (3), (4) and (5)
(9) Subsections (4) and (5) do not limit subsection (3).
Subdivision D—Inquiry reports
121 Timing of report
The commission must report to the Minister on the inquiry within the period specified by the Minister in the terms of reference.
122 Publication of report
Subdivision E—Commissioners’ terms and conditions
123 Basis of appointment
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124 Remuneration
125 Leave of absence
126 Resignation
A commissioner may resign his or her appointment by giving the Minister a written resignation.
127 Termination of appointment
(a) the commissioner:
(i) becomes bankrupt; or
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Section 128
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
128 Disclosure of interests
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129 Other terms and conditions
A commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
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Section 130
Part 9—Approval of actions
Division 1—Decisions on approval and conditions
Subdivision A—General
130 Timing of decision on approval
Basic rule
(1) The Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.
(1A) The Minister must make the decision within the relevant period specified in subsection (1B) that relates to the controlled action, or such longer period as the Minister specifies in writing.
(1B) The relevant period, in relation to a controlled action, is as follows:
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business day after the Minister receives the report of the commission.
What is an assessment report?
(2) An assessment report is a report given to the Minister as described in:
Notice of extension of time
(4) If the Minister specifies a longer period for the purposes of subsection (1A), he or she must:
Time does not run while further information is sought
(5) If, under section 132, the Minister has requested more information for the purposes of making a decision whether or not to approve the taking of an action, a day is not to be counted as a business day for the purposes of subsection (1B) if it is:
131 Inviting comments from other Ministers before decision
(1) Before the Minister (the Environment Minister) decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she must:
(a) inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the
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Section 131AA
action of the decision the Environment Minister proposes to make; and
(b) invite the other Minister to give the Environment Minister comments on the proposed decision within 10 business days.
(2) A Minister invited to comment may make comments that:
with the principles of ecologically sustainable development. This does not limit the comments such a Minister may give.
131AA Inviting comments before decision from person proposing to take action and designated proponent
(a) a copy of whichever of the following documents applies to the action:
(iii) a recommendation report given to the Minister under section 95C, 100 or 105; and
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Section 131A
131A Inviting public comment before decision
Before the Minister decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she may publish on the internet:
132 Requesting further information for approval decision
If the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to approve for the purposes of a controlling provision the taking of an action, the Minister may request any of the following to provide specified information relevant to making the decision:
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(d) if:
(iii) the relevant impacts of the action have been assessed
under a law of the State or Territory; the appropriate Minister of that State or Territory;
(e) any other person the Minister considers appropriate.
132A Requesting notice from appropriate State or Territory Minister about certain actions
(1) This section applies to an action that is to be taken in a State or self-governing Territory only if the action:
Note: This section also applies in relation to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(2) However, this section does not apply to an action if:
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Section 133
(3) Before the Minister (the Environment Minister) decides whether or not to approve for the purposes of a controlling provision the taking of the action, and what conditions (if any) to attach to an approval, the Environment Minister may request the appropriate Minister of the State or Territory to give the Environment Minister a notice stating the method that has been used to assess the certain and likely impacts of the action on things other than matters protected by the controlling provisions for the action.
133 Grant of approval
Approval
(1) After receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person.
(1A) If the referral of the proposal to take the action included alternative proposals relating to any of the matters referred to in subsection 72(3), the Minister may approve, for the purposes of subsection (1), one or more of the alternative proposals in relation to the taking of the action.
Content of approval
(2) An approval must:
Note: The period for which the approval has effect may be extended. See Division 5.
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Persons who may take action covered by approval
(2A) An approval granted under this section is an approval of the taking of the action specified in the approval by any of the following persons:
Notice of approval
(3) The Minister must:
Limit on publication of approval
(4) However, the Minister must not provide under subsection (3) a copy of so much of the approval as:
provide. The Minister may consider the defence or security of the Commonwealth when determining what is in the national interest. This does not limit the matters the Minister may consider.
Notice of refusal of approval
(7) If the Minister refuses to approve for the purposes of a controlling provision the taking of an action by the person who proposed to take the action, the Minister must give the person notice of the refusal.
Note: Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, the person may request reasons for the refusal, and the Minister must give them.
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Section 134
Definition
(8) In this section:
assessment documentation, in relation to a controlled action,
means:
134 Conditions of approval
Condition to inform persons taking action of conditions attached to approval
(1A) An approval of the taking of an action by a person (the first person) is subject to the condition that, if the first person
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authorises, permits or requests another person to undertake any part of the action, the first person must take all reasonable steps to ensure:
For the purposes of this Chapter, the condition imposed by this subsection is attached to the approval.
Generally
(1) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:
Conditions to protect matters from the approved action
(2) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:
This subsection does not limit subsection (1).
Examples of kinds of conditions that may be attached
(3) The conditions that may be attached to an approval include: (aa) conditions requiring specified activities to be undertaken for:
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Section 134
(ab) conditions requiring a specified financial contribution to be made to a person for the purpose of supporting activities of a kind mentioned in paragraph (aa); and
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This subsection does not limit the kinds of conditions that may be attached to an approval.
Certain conditions require consent of holder of approval
(3A) The following kinds of condition cannot be attached to the approval of an action unless the holder of the approval has consented to the attachment of the condition:
(3B) If the holder of the approval has given consent, for the purposes of subsection (3A), to the attachment of a condition:
Conditions attached under paragraph (3)(c)
(3C) A condition attached to an approval under paragraph (3)(c) may require a person taking the action to comply with conditions specified in an instrument of a kind referred to in that paragraph:
even if the instrument does not yet exist at the time the approval takes effect.
Considerations in deciding on condition
(4) In deciding whether to attach a condition to an approval, the Minister must consider:
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Section 135
(a) any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State or self-governing Territory or another law of the Commonwealth on the taking of the action; and
(aa) information provided by the person proposing to take the action or by the designated proponent of the action; and
(b) the desirability of ensuring as far as practicable that the condition is a cost-effective means for the Commonwealth and a person taking the action to achieve the object of the condition.
Effect of conditions requiring compliance with conditions specified in another instrument
(4A) If:
subsection (1); the principal condition is taken to require the person to comply with the other conditions only to the extent that they are not in excess of that power.
Validity of decision
(5) A failure to consider information as required by paragraph (4)(aa) does not invalidate a decision about attaching a condition to the approval.
135 Certain approvals and conditions must not give preference
(1) This section deals with the approval:
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(2) The Minister must not grant the approval, or attach a condition to the approval, that has the effect of giving preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.
135A Publication of recommendation reports
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Section 136
Subdivision B—Considerations for approvals and conditions
136 General considerations
Mandatory considerations
(1) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:
Factors to be taken into account
(2) In considering those matters, the Minister must take into account:
(bc) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:
(c) if Division 5 (public environment reports) of Part 8 applies to the action:
(i) the finalised public environment report relating to the action given to the Minister under section 99; and
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(ii) the recommendation report relating to the action given to the Minister under section 100; and
(ca) if Division 6 (environmental impact statements) of Part 8 applies to the action:
Note: The Minister must also take into account any relevant comments given to the Minister in response to an invitation under paragraph 131AA(1)(b). See subsection 131AA(6).
Person’s environmental history
(4) In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval, having regard to:
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Section 137
Minister not to consider other matters
(5) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted by this Division to consider.
137 Requirements for decisions about World Heritage
In deciding whether or not to approve, for the purposes of section 12 or 15A, the taking of an action and what conditions to attach to such an approval, the Minister must not act inconsistently with:
137A Requirements for decisions about National Heritage places
In deciding whether or not to approve for the purposes of section 15B or 15C the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with:
138 Requirements for decisions about Ramsar wetlands
In deciding whether or not to approve for the purposes of section 16 or 17B the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention.
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139 Requirements for decisions about threatened species and endangered communities
the Minister must, in deciding whether to so approve the taking of the action, have regard to any approved conservation advice for the species or community.
140 Requirements for decisions about migratory species
In deciding whether or not to approve for the purposes of section 20 or 20A the taking of an action relating to a listed migratory species, and what conditions to attach to such an approval, the Minister must not act inconsistently with Australia’s obligations under whichever of the following conventions and agreements because of which the species is listed:
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Section 140A
140A No approval for certain nuclear installations
The Minister must not approve an action consisting of or involving the construction or operation of any of the following nuclear installations:
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Division 2—Requirement to comply with conditions
142 Compliance with conditions on approval
(1) A person whose taking of an action has been approved under this Part must not contravene any condition attached to the approval.
Civil penalty:
(1A) Subsection (1) does not apply to a person who is not the holder of the approval if:
Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code.
(2) A contravention of a condition attached to an approval under this Part does not invalidate the approval.
142A Offence of breaching conditions on approval
(1) A person whose taking of an action has been approved under this Part is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
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Section 142B
(3) A person whose taking of an action has been approved under this Part is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4) An offence against subsection (1) or (3) 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.
Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
142B Strict liability offence for breach of approval condition
(1) A person whose taking of an action has been approved under this Part is guilty of an offence if:
Penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: 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 3: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.
Note 4: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.
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(2) Subsection (1) does not apply to a person who is not the holder of the approval if:
Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Chapter 4 Environmental assessments and approvals Part 9 Approval of actions Division 3 Variation of conditions and suspension and revocation of approvals
Section 143
Division 3—Variation of conditions and suspension and revocation of approvals
143 Variation of conditions attached to approval
(1) The Minister may, by written instrument, revoke, vary or add to any conditions (other than the condition referred to in subsection 134(1A)) attached to an approval under this Part of an action if:
add a condition to protect the matter from the impact; or (ba) all of the following conditions are satisfied:
(iii) the Minister believes it is necessary to revoke, vary or add a condition to protect the matter from the impact; or
(c) the holder of the approval agrees to the proposed revocation, variation or addition, or the Minister has extended the period for which the approval has effect under section 145D, and the Minister is satisfied that any conditions attached to the approval after the proposed revocation, variation or addition are necessary or convenient for:
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(whether or not the damage has been, will be or is likely to be caused by the action).
Note: If the holder is not satisfied with changed conditions attached to the approval of the holder’s action, he or she can ask the Minister to reverse the change by making another change to the conditions under this section.
(6) However, the Minister must not publish so much of the instrument as:
publish. The Minister may consider the defence or security of the Commonwealth when determining what is in the national interest. This does not limit the matters the Minister may consider.
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Section 144
144 Suspension of approval
(2A) The Minister may, by written instrument, suspend the effect of an approval under this Part for the purposes of a specified provision of Part 3 for a specified period (which must not start before the day on which the instrument is made) if:
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145 Revocation of approval
(2A) The Minister may, by written instrument, revoke an approval under this Part of an action for the purposes of a specified provision of Part 3 if he or she believes that:
(a) the impacts that the action has had, will have or is likely to have were not accurately identified in information available to the Minister when the approval was given; and
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Section 145
(b) the information did not accurately identify those impacts because of negligence or a deliberate act or omission by the person proposing to take the action or the designated proponent of the action.
(2B) The Minister may, by written instrument, revoke an approval under this Part for the purposes of a specified provision of Part 3 if:
(a) give a copy of it to the person who was the holder of the approval; and
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(b) publish the instrument in accordance with the regulations.
145A Reinstating suspended or revoked approval
Application
(1) This section applies if the Minister has, by written instrument:
Requesting reinstatement of approval
(2) Within 2 months after receiving a copy of the instrument under this Division, the person who was the holder of the approval may request the Minister to reinstate the approval.
Deciding whether to reinstate approval
(3) Within 20 business days of receiving the request, the Minister must decide whether or not to reinstate the approval.
Considerations for decision
(4) Subdivision B of Division 1 applies to the decision whether or not to reinstate the approval in the same way as it applies to a decision whether or not to approve the taking of an action.
Extra time for decision
(5) A day is not to be counted for the purposes of subsection (3) if:
Requesting information for decision
(6) If the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision
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Section 145A
whether or not to reinstate the approval, the Minister may request the person who was the holder of the approval to provide specified information relevant to making the decision.
Reversal of decision to suspend or revoke approval
(7) If the Minister decides to reinstate the approval, it and any conditions attached to it immediately before the suspension or revocation have effect on and after the day of the decision (subject to any future suspension or revocation under this Division).
Notice of decision about reversal
(8) The Minister must:
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Division 4—Transfer of approvals
145B Transfer with Minister’s consent
Transfer by written agreement
(1) A person (the transferor) who is the holder of an approval under this Part for the purposes of a provision of Part 3 may transfer the approval to another person (the transferee) by written agreement, subject to the Minister’s consent.
Transfer ineffective until Minister consents
(2) The transfer does not have effect for the purposes of this Act until the Minister consents in writing to the transfer. To avoid doubt, the Minister’s consent to a transfer cannot take effect before the Minister gives the consent.
Effect of consent
(3) If the Minister consents to the transfer:
Considerations in deciding whether to consent
(4) In deciding whether or not to consent to the transfer, the Minister may consider:
(a) whether the transferee would be a suitable person to be granted the approval, having regard to:
(i) the transferee’s history in relation to environmental matters; and
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(ii) if the transferee is a body corporate—the history of its executive officers in relation to environmental matters; and
(iii) if the transferee is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers; and
(b) whether the transferee can comply with the conditions attached to the approval.
Giving copies of consents to transferor and transferee
(5) The Minister must give the transferor and the transferee a copy of the consent each.
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Division 5—Extension of period of effect of approval
145C Application to Minister to extend period of effect of approval
145D Minister must decide whether or not to extend approval period
(1) Within 20 business days after receiving an application under subsection 145C(1), the Minister must decide, in writing, whether or not to extend the approval period.
Note: The Minister may request further information for the purpose of making a decision under this subsection. See section 145E.
(2) The Minister may decide to extend the approval period only if the Minister is satisfied that the extension will not result in a substantial increase in, or substantial change in the nature of, the adverse impacts (if any) the action:
on the matter protected by each provision of Part 3 for which the approval has effect.
(3) In considering the matter referred to in subsection (2), the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Division:
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Section 145E
(4) As soon as possible after deciding whether or not to extend the approval period, the Minister must:
145E Minister may request further information for making decision
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Part 10—Strategic assessments
Division 1—Strategic assessments generally
Subdivision A—Assessment of actions to be taken in accordance with policy, plan or program
146 Minister may agree on strategic assessment
(1) The Minister may agree in writing with a person responsible for the adoption or implementation of a policy, plan or program that an assessment be made of the impacts of actions under the policy, plan or program on a matter protected by a provision of Part 3.
(1A) The agreement may also provide for the assessment of other certain and likely impacts of actions under the policy, plan or program if:
Note: Paragraph (1A)(a) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(1B) The agreement must provide for:
(a) the preparation of terms of reference for a report on the impacts to which the agreement relates; or
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Section 146
(b) all of the following:
(iii) the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference.
(2) The agreement must provide for:
Note 1: If the impacts of actions under a policy, plan or program are assessed under an agreement under this Part, the Minister may decide on a less onerous approach for an assessment relating to an individual action under the policy, plan or program. See section 87.
Note 2: If the Minister endorses a policy, plan or program embodied in a management arrangement or an authorisation process, the Minister may declare under section 33, or make a bilateral agreement declaring,
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that actions approved in accordance with the management arrangement or authorisation process do not need approval for the purposes of a specified provision of Part 3.
(3) If the agreement relates to actions to be taken in a State or self-governing Territory, the Minister must tell the appropriate Minister of the State or Territory:
Subdivision B—Approval of taking of actions in accordance with endorsed policy, plan or program
146A Definition
In this Subdivision and Subdivision C:
endorsed policy, plan or program means a policy, plan or program that has been endorsed by the Minister in accordance with an agreement as mentioned in paragraph 146(2)(f).
146B Minister may approve taking of actions in accordance with endorsed policy, plan or program
(1) Subject to Subdivision C, the Minister may approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program.
Note: Subdivision C sets out matters that the Minister must take into account in deciding whether or not to approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program.
(2) An approval of the taking of an action or a class of actions in accordance with an endorsed policy, plan or program must:
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Section 146C
(2A) An approval of the taking of an action or a class of actions in accordance with an endorsed policy, plan or program may specify the person or persons who may take the action or an action in the class of actions.
provide. The Minister may consider the defence or security of the Commonwealth when determining what is in the national interest. This does not limit the matters the Minister may consider.
(5) An approval given under subsection (1) is not a legislative instrument.
146C Inviting comments from other Ministers before deciding whether or not to approve taking of actions in accordance with endorsed policy, plan or program
(1) Before the Minister (the Environment Minister) decides whether or not to approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program, he or she must:
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(2) A Minister who is invited to comment may make comments:
This does not limit the comments such a Minister may give.
146D Effect of approval of taking of actions in accordance with endorsed policy, plan or program
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Section 146E
that is taken to have been given under Part 9 because of paragraph (1)(b).
Note: Section 134 deals with conditions of approvals, Division 2 of Part 9 deals with compliance with conditions, Division 3 of Part 9 deals with variation of conditions and suspension and revocation of approvals and Division 4 of Part 9 deals with transfer of approvals.
(4) Subsection 145A(4) applies in relation to a decision whether or not to reinstate an approval of the taking of an action that is taken to have been given under Part 9 because of paragraph (1)(b), as if:
Subdivision C—Considerations for approving taking of actions in accordance with endorsed policy, plan or program
146E Minister must comply with this Subdivision
The Minister must comply with this Subdivision in deciding:
Note: For the meaning of endorsed policy, plan or program, see section 146A.
146F General considerations
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146G Approvals relating to declared World Heritage properties
If the approval relates to a declared World Heritage property, the Minister must not act inconsistently with:
146H Approvals relating to National Heritage places
If the approval relates to a National Heritage place, the Minister must not act inconsistently with:
146J Approvals relating to declared Ramsar wetlands
If the approval relates to a declared Ramsar wetland, the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention.
146K Approvals relating to listed threatened species and ecological communities
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Section 146L
(3) The Minister must have regard to any approved conservation advice for the species or community.
146L Approvals relating to listed migratory species
If the approval relates to a listed migratory species, the Minister must not act inconsistently with whichever of the following conventions or agreements because of which the species is listed:
146M No approvals relating to nuclear actions
The Minister must not approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program if the action, or an action in the class of actions, consists of, or involves the construction or operation of, any of the following nuclear installations:
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Division 2—Assessment of Commonwealth-managed fisheries
147 Simplified outline of this Division
The following is a simplified outline of this Division:
The Australian Fisheries Management Authority must make agreements under Division 1 for the assessment of actions in fisheries managed under the Fisheries Management Act 1991. An agreement must be made whenever it is proposed to make a management plan or a determination not to have a plan. An agreement must be made within 5 years of the commencement of this Act for all fisheries that did not have plans at that commencement.
The Minister administering the Torres Strait Fisheries Act 1984 must make agreements under Division 1 for the assessment of actions permitted by policies or plans for managing fishing in Torres Strait. All policies or plans must be covered by an agreement within 5 years after the commencement of this Act.
A further agreement for assessment must be made if the impact of the actions is significantly greater than assessed under an earlier agreement.
If the Minister endorses a policy or plan assessed under an agreement under Division 1, the Minister must make a declaration that actions under the policy or plan do not need approval under Part 9 for the purposes of section 23 or 24A (which protect the marine environment).
148 Assessment before management plan is determined
Plans under the Fisheries Management Act 1991
(1) Before the Australian Fisheries Management Authority determines a plan of management for a fishery under section 17 of the Fisheries Management Act 1991, the Authority must:
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Section 149
Plans under the Torres Strait Fisheries Act 1984
(2) Before the Minister administering the Torres Strait Fisheries Act 1984 determines a plan of management for a fishery under section 15A of that Act, he or she must:
149 Assessment before determination that no plan required
Before the Australian Fisheries Management Authority determines under subsection 17(1A) of the Fisheries Management Act 1991 that a plan of management is not warranted for a fishery, the Authority must:
150 Assessment of all fisheries without plans must be started within 5 years
Fisheries managed under the Fisheries Management Act 1991
(1) This section applies to fisheries (as defined in the Fisheries Management Act 1991):
(a) that are managed under that Act (whether as a result of arrangements under section 71 or 72 of that Act or not); and
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(b) for which there were not plans of management in force under that Act when this Act commenced.
Two-thirds of fisheries to be covered by agreements in 3 years
(2) Before the day that is the third anniversary of this Act commencing, the Australian Fisheries Management Authority must make agreements with the Minister under section 146 for assessment of the impacts of actions on each matter protected by a provision of Part 3, being actions that are permitted under the Authority’s policies for managing at least 2/3 of the fisheries.
All fisheries to be covered by agreements in 5 years
(3) Before the day that is the fifth anniversary of this Act commencing, the Australian Fisheries Management Authority must make agreements with the Minister under section 146 for assessment of the impacts of actions on each matter protected by a provision of Part 3, being actions that are permitted under the Authority’s policies for managing the fisheries.
Agreement not needed if fishery already subject to agreement
(4) However, subsection (3) does not require another agreement to be made in relation to a fishery if an agreement relating to the fishery has been made, before the day mentioned in that subsection, by the Authority and the Minister under section 146 because of subsection 148(1) or section 149.
151 Assessment of all Torres Strait fisheries to be started within 5 years
Fisheries managed under the Torres Strait Fisheries Act 1984
(1) This section applies to actions that:
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Section 152
Policies for all actions to be covered by agreements in 5 years
(2) Before the day that is the fifth anniversary of this Act commencing, the Minister administering the Torres Strait Fisheries Act 1984 must make agreements under section 146 with the Minister administering this section for assessment of the impacts of the actions on each matter protected by a provision of Part 3, being actions that are permitted by policies under that Act.
Agreement not needed if fishery already subject to agreement
(3) However, subsection (2) does not require another agreement to be made in relation to actions if an agreement covering them has been made under section 146, before the day mentioned in that subsection, by the Ministers mentioned in that subsection because of subsection 148(2).
152 Further assessment if impacts greater than previously assessed
Application
(1) This section applies if the Minister (the Environment Minister) and the Minister administering the Fisheries Management Act 1991 agree that the impacts that actions:
have, will have or are likely to have on a matter protected by a provision of Part 3 are significantly greater than the impacts identified in the most recent report provided to the Environment Minister under an agreement made under section 146 relating to the fishery, policy or plan.
Further assessment for management arrangements under the Fisheries Management Act 1991
(2) The Australian Fisheries Management Authority must make another agreement with the Minister under section 146 in relation to the Authority’s policy for managing the fishery.
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Further assessment for policy or plan for Torres Strait fishing
(3) The Minister administering the Torres Strait Fisheries Act 1984 must make another agreement under section 146 in relation to the policy or plan for managing fishing (as defined in the Torres Strait Fisheries Act 1984) in an area of Australian jurisdiction (as defined in that Act).
153 Minister must make declaration if he or she endorses plan or policy
Note: The declaration and accreditation will allow actions that would otherwise be prohibited by sections 23 and 24A to be taken without approval if they are taken in accordance with the accredited arrangement. See section 32.
154 This Division does not limit Division 1
This Division does not limit Division 1.
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Section 155
Part 11—Miscellaneous rules about assessments and approvals
Division 1—Rules about timing
155 This Chapter ceases to apply to lapsed proposals
(1) If:
Minister believes is a reasonable period; the Minister may give the person a written notice inviting the person to satisfy the Minister within a specified reasonable period that assessment of the action should continue or that the Minister should make a decision about approving the action.
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how documents may be served and when they are taken to be served.
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156 General rules about time limits
Note: The Minister must make a statement to Parliament about some failures to comply with time limits. See section 518.
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Section 156A
Division 1A—Variation of proposals to take actions
156A Request to vary proposal to take an action
(1) If:
original proposal; the person may, subject to subsection (2), request the Minister to accept a variation (a varied proposal) of the original proposal.
Note: Provisions that have ceased to apply in relation to the original proposal under subsection (4) will start to apply to that proposal, or to the varied proposal, after the Minister has decided whether or not to accept the varied proposal. See section 156D.
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156B Minister must decide whether or not to accept a varied proposal
(1) Within 20 business days after receiving a request under subsection 156A(1) to accept a varied proposal to take an action, the Minister must decide whether or not to accept the varied proposal.
Note: The Minister may request further information for the purpose of making a decision under this subsection. See section 156C.
156C Minister may request further information in relation to a varied proposal
(a) on or after the day the Minister requested the information; and
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Section 156D
(b) on or before the day on which the Minister receives the last of the information requested.
156D Effect of Minister’s decision to accept or not accept a varied proposal
156E Notice of decision
(a) the request to accept the varied proposal related to an action that is to be taken in a State or self-governing Territory; and
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subsection (1), give written notice of the decision to the appropriate Minister of the State or Territory.
(3) If the Minister decided to accept the varied proposal, the Minister must, within the period referred to in subsection (1), publish the request to accept the varied proposal and notice of the decision in accordance with the regulations.
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Section 156F
Division 1B—Change of person proposing to take action
156F Change of person proposing to take action
Notice of change of person proposing to take action
(1) At any time:
taking of the action under section 133; the person (the first person) proposing to take the action and another person (the second person) may notify the Minister, in writing, that:
Note: A person who is the holder of an approval under Part 9 may transfer the approval to another person under section 145B.
When notice cannot be given
(2) Subsection (1) does not apply if:
Notice must include prescribed information
(3) A notice under subsection (1) must include the information (if any) prescribed by the regulations.
Effect of notice
(4) If a notice is given to the Minister under subsection (1):
(a) any provisions of this Chapter that, apart from this paragraph, would have applied to the first person in relation to the action
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cease to apply to that person and start to apply to the second person; and
(b) for the purposes of the application of those provisions:
(iii) anything done in relation to the first person in relation to the action is taken to have been done in relation to the second person.
Publication of notice
(5) Within 10 business days after receiving a notice under subsection (1), the Minister must publish a copy of the notice in accordance with the regulations.
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Section 157
Division 2—Actions in area offshore from a State or the Northern Territory
157 Actions treated as though they were in a State or the Northern Territory
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Division 3—Exemptions
158 Exemptions from Part 3 and this Chapter
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Section 158A
Division 3A—Approval process decisions not affected by listing events that happen after section 75 decision made
158A Approval process decisions not affected by listing events that happen after section 75 decision made
(1) In this section:
approval process decision means any of the following decisions:
listing event means any of the following events:
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Section 158A
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Section 158A
(5) This section has effect despite any other provision of this Act and despite any other law.
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Division 4—Application of Chapter to actions that are not controlled actions
Subdivision A—Minister’s advice on authorising actions
159 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
A Commonwealth agency or employee must consider advice from the Minister before authorising one of the following actions with a significant impact on the environment:
The agency or employee must inform the Minister of the proposal to authorise the action.
The environmental impacts of the action must be assessed in accordance with a declaration made by the Minister accrediting a Commonwealth assessment process, or by one of the following methods chosen by the Minister:
(a) a specially accredited process;
(aa) an assessment on referral information under Division 3A;
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Section 160
The Minister must give the agency or employee advice on protecting the environment from the action, within 30 days of receiving the report of the assessment.
160 Requirement to take account of Minister’s advice
Requirement
(1) Before a Commonwealth agency or employee of the Commonwealth gives an authorisation (however described) of an action described in subsection (2), the agency or employee must obtain and consider advice from the Minister in accordance with this Subdivision.
Note: The giving of an authorisation for an action may be constituted by the renewal of an authorisation of the action or the variation of an authorisation for a different action.
Minister may decide advice is not required
(1A) Subsection (1) does not apply in relation to an authorisation of an action if:
Relevant actions
(2) Subsection (1) applies in relation to:
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will have or are likely to have a significant impact on the environment; and
(2A) Regulations may prescribe an action for the purposes of paragraph (2)(d):
authorisation of the action is to be granted. This does not limit the ways in which regulations may prescribe an action.
This section does not apply to actions like those already assessed
(3) Subsection (1) does not apply in relation to a particular authorisation (the later authorisation) if the agency or employee has complied with, or is complying with, this Subdivision in relation to another authorisation or proposed authorisation and is satisfied of one or both of the matters in subsection (4).
Which actions are like actions?
(4) For the purposes of subsection (3), the agency or employee must be satisfied that:
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Section 161
(iii) do not significantly add to those corresponding impacts.
State law excluded in relation to aviation
(5) A law of a State or Territory does not apply in relation to the assessment of the certain or likely environmental impacts of an action described in paragraph (2)(b) if subsection (1) applies in relation to authorisation of the action, or would apply apart from subsection (3).
161 Seeking the Minister’s advice
Requirement for referral
(1) If a Commonwealth agency or employee of the Commonwealth proposing to give an authorisation (however described) of an action thinks the agency or employee is required by section 160 (disregarding subsection 160(1A)) to obtain and consider the Minister’s advice before giving the authorisation, the agency or employee must:
Minister may request referral
(2) The Minister may request a Commonwealth agency or employee of the Commonwealth to:
action; if the Minister thinks the agency or employee is required by section 160 (disregarding subsection 160(1A)) to obtain and consider the Minister’s advice before giving the authorisation.
Complying with Minister’s request
(3) The Commonwealth agency or employee must comply with the Minister’s request.
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Content of referral
(4) A referral must include the information prescribed by the regulations.
161A Minister may decide that advice is not required
(1) If:
the Minister may decide, in writing, that this Subdivision does not apply in relation to the referral or the action.
161B Certain provisions of other Acts not to apply if Minister decides that advice is not required
(1) This section applies in relation to a provision of another Act that is expressed to apply if:
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Section 162
(2) The provision does not apply in relation to an action if:
Note: See, for example, subsections 94(6A) and 95(3A) of the Airports Act 1996 and subsections 16(5) and 29(5) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
162 Assessment of the action
Part 8 (except sections 82, 83 and 84) and the other provisions of this Act (so far as they relate to that Part) apply in relation to the action proposed to be authorised as if:
163 Providing advice
(1) The Minister must give advice on the following matters to the Commonwealth agency or employee of the Commonwealth who referred the proposal to give an authorisation of the action:
(a) whether the agency or employee should give the authorisation;
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(2) The Minister must give the advice within 30 business days of receiving:
(a) a report mentioned in subsection 84(3) relating to the action; or (aa) a finalised recommendation report under Division 3A of Part 8 (as applied by section 162) relating to the action; or
(ab) the documents given to the Minister under subsection 95B(1) (as applied by section 162), or the statement given to the Minister under subsection 95B(3) (as applied by section 162), as the case requires, relating to the action; or
(ac) a finalised public environment report under Division 5 of Part 8 (as applied by section 162) relating to the action; or (ad) a finalised environmental impact statement under Division 6 of Part 8 (as applied by section 162) relating to the action; or
(b) a report of an inquiry under Division 7 of Part 8 (as applied by section 162) relating to the action.
164 Reporting on response to advice
As soon as practicable after considering the Minister’s advice, the Commonwealth agency or employee of the Commonwealth must give the Minister a report stating:
Subdivision C—Assessment under agreement with State or Territory
166 This Subdivision applies if Ministers agree it should
(1) This Subdivision applies if the Minister and a Minister of a State or self-governing Territory agree that it should apply in relation to an action that:
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Section 167
167 Making an agreement
Power to make agreement
(1) The Minister may make a written agreement with a Minister of a State or self-governing Territory to apply this Subdivision in relation to an action to be taken in the State or Territory.
Prerequisites for making agreement
(2) The Minister may agree only if he or she is satisfied that the action is not a controlled action.
Minister must not make an agreement that gives preference
(3) The Minister must not enter into an agreement that has the effect of giving preference (within the meaning of section 99 of the
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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:
168 Content of an agreement
Generally
(1) An agreement to apply this Subdivision in relation to an action must:
Agreement applying Division 5 of Part 8
(3) An agreement that specifies that Division 5 of Part 8 (about public environment reports) is to apply in relation to an action may deal with how the Minister will exercise his or her power:
Agreement applying Division 6 of Part 8
(4) An agreement that specifies that Division 6 of Part 8 (about environmental impact statements) is to apply in relation to an action may deal with how the Minister will exercise his or her power:
Chapter 4 Environmental assessments and approvals Part 11 Miscellaneous rules about assessments and approvals Division 4 Application of Chapter to actions that are not controlled actions
Section 169
Agreement applying Division 7 of Part 8
(5) An agreement that specifies that Division 7 of Part 8 (about inquiries) is to apply in relation to an action may deal with how the Minister will exercise his or her power under section 107:
Agreement applying Part 10
(6) An agreement that specifies that Subdivision A of Division 1 of Part 10 is to apply may:
169 Application of a Division of Part 8
Provisions that apply
(1) If the agreement states that a particular Division of Part 8 is to apply in relation to the assessment of an action, the following provisions of this Act (the applied provisions) apply in relation to the action as set out in subsection (2):
Environmental assessments and approvals Chapter 4 Miscellaneous rules about assessments and approvals Part 11 Application of Chapter to actions that are not controlled actions Division 4
Modification of applied provisions
(2) The applied provisions apply in relation to the action as if:
Modification of Division 4 of Part 8
(3) Also, if the agreement states that Division 4 of Part 8 is to apply in relation to the action, that Division applies in relation to the action as if paragraphs 95(2)(a) and (b) and 95A(3)(a), (b) and (c) merely referred to specified information relating to the action.
Minister must give copy of report to State or Territory Minister
(4) The Minister must give a copy of the report he or she receives from the Secretary or commission of inquiry under the applied provisions in relation to the action to each Minister of a State or Territory who is party to the agreement.
170 Application of Subdivision A of Division 1 of Part 10
If an agreement to apply this Subdivision states that Subdivision A of Division 1 of Part 10 is to apply:
(a) that Subdivision applies as if:
Chapter 4 Environmental assessments and approvals Part 11 Miscellaneous rules about assessments and approvals Division 4 Application of Chapter to actions that are not controlled actions
Section 170
(b) the Minister must give a copy of the report provided to the Minister under the agreement made under section 146, and of any recommendations made by the Minister under the agreement, to each Minister of a State or Territory who is party to the agreement to apply this Subdivision.
Environmental assessments and approvals Chapter 4 Miscellaneous rules about assessments and approvals Part 11 Publication of information relating to assessments Division 5
Section 170A
Division 5—Publication of information relating to assessments
170A Publication of information relating to assessments
The Secretary must publish on the internet every week notice of the following:
(da) each draft recommendation report and invitation (if any) published in the immediately preceding week under Division 3A of Part 8 (about assessment on referral information);
Chapter 4 Environmental assessments and approvals Part 11 Miscellaneous rules about assessments and approvals Division 5 Publication of information relating to assessments
Section 170B
(ia) each recommendation report given to the Minister in the immediately preceding week under section 95C, 100 or 105;
(j) any other matter prescribed by the regulations.
170B Information critical to protecting matters of national environmental significance not to be disclosed
Civil penalty: 100 penalty units.
170BA Designated proponent may request Minister to permit commercial-in-confidence information not to be disclosed
Environmental assessments and approvals Chapter 4 Miscellaneous rules about assessments and approvals Part 11 Publication of information relating to assessments Division 5
Section 170BA
assessment documentation, in relation to an action to which Division 4, 5 or 6 of Part 8 applies, means:
(i) the draft environmental impact statement relating to the action given to the Minister under paragraph 103(1)(ab); and
Chapter 4 Environmental assessments and approvals Part 11 Miscellaneous rules about assessments and approvals Division 5 Publication of information relating to assessments
Section 170BA
(ii) the finalised environmental impact statement relating to the action given to the Minister under section 104.
Environmental assessments and approvals Chapter 4 Miscellaneous rules about assessments and approvals Part 11 Withdrawal of referrals Division 6
Division 6—Withdrawal of referrals
170C Withdrawal of referral of proposal to take an action
(1) Subject to subsection (2), a person who:
may withdraw the referral, by written notice to the Minister.
Chapter 5 Conservation of biodiversity and heritage Part 11A Interpretation
Section 170D
Chapter 5—Conservation of biodiversity and heritage
Part 11A—Interpretation
170D References to business days are references to Canberra business days
A reference in this Chapter to a business day is a reference to a day that is a business day (as defined in section 528) in Canberra.
Conservation of biodiversity and heritage Chapter 5 Identifying and monitoring biodiversity and making bioregional plans Part 12 Identifying and monitoring biodiversity Division 1
Part 12—Identifying and monitoring biodiversity and making bioregional plans
Division 1—Identifying and monitoring biodiversity
171 Identifying and monitoring biodiversity
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Section 172
(5) The giving of assistance may be made subject to such conditions as the Minister thinks fit.
172 Inventories of listed threatened species etc. on Commonwealth land
173 Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas
(1) The Minister may prepare a survey covering a Commonwealth marine area that identifies, and states the extent of the range of, cetaceans, listed threatened species, listed threatened ecological communities, listed migratory species and listed marine species in the area if:
(a) the Minister is satisfied that the area is of importance for the conservation of biodiversity; and
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(b) the area is not covered by a plan that:
174 Inventories and surveys to be updated
The Minister must take reasonable steps to ensure that the inventories and surveys prepared under this Division are maintained in an up-to-date form.
Chapter 5 Conservation of biodiversity and heritage Part 12 Identifying and monitoring biodiversity and making bioregional plans Division 2 Bioregional plans
Section 176
Division 2—Bioregional plans
176 Bioregional plans
(4A) A bioregional plan prepared under subsection (1) or (2) is not a legislative instrument.
(5) Subject to this Act, the Minister must have regard to a bioregional plan in making any decision under this Act to which the plan is relevant.
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177 Obligations under this Act unaffected by lack of bioregional plans
Obligations imposed by this Act are not affected, in their application in relation to Commonwealth areas, by a lack of bioregional plans for those areas.
Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 1 Listed threatened species and ecological communities
Section 178
Part 13—Species and communities
Division 1—Listed threatened species and ecological communities
Subdivision A—Listing
178 Listing of threatened species
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(c) the vulnerable category; is not eligible to be included in that or any other category, or is eligible to be, or under subsection 186(3), (4) or (5) can be, included in another category, the Minister must, within 6 months
after the commencement of this Act, amend the list accordingly in accordance with this Subdivision.
179 Categories of threatened species
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Section 180
fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.
180 Native species of marine fish
181 Listing of threatened ecological communities
(1) The Minister must, by instrument published in the Gazette, establish a list of threatened ecological communities divided into the following categories:
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(c) vulnerable.
182 Critically endangered, endangered and vulnerable communities
(a) it is not critically endangered nor endangered; and
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Section 183
(b) it is facing a high risk of extinction in the wild in the medium-term future, as determined in accordance with the prescribed criteria.
183 Listing of key threatening processes
184 Minister may amend lists
(1) Subject to this Subdivision, the Minister may, by legislative instrument, amend a list referred to in section 178, 181 or 183 by:
(a) including items in the list in accordance with Subdivision AA; or
(aa) including items in the list in accordance with subsection 186(3), (4) or (5); or
(2) Part 6 of the Legislative Instruments Act 2003 does not apply to an instrument made under subsection (1).
186 Amending list of threatened native species
Including native species in a category
(1) Subject to subsections (3), (4) and (5), the Minister must not include (whether as a result of a transfer or otherwise) a native species in a particular category unless satisfied that the native species is eligible to be included in that category.
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(2) In deciding whether to include a native species in a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:
Deleting native species from a category
(2A) The Minister must not delete (whether as a result of a transfer or otherwise) a native species from a particular category unless satisfied that:
(2B) In deciding whether to delete a native species from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:
Including similar species to an eligible species
(3) The Minister may include a native species in the critically endangered category if satisfied that:
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Section 187
187 Amending list of ecological communities
Including ecological communities in a category
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Deleting ecological communities from a category
188 Amending list of key threatening processes
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Section 189
(c) it adversely affects 2 or more listed threatened species (other than conservation dependent species) or 2 or more listed threatened ecological communities.
189 Minister must consider advice from Scientific Committee
(1) In deciding whether to make an amendment covered by paragraph 184(1)(aa), (b) or (d), the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Scientific Committee on the proposed amendment.
(1A) Subsection (1) has effect subject to section 192.
(1B) If advice from the Scientific Committee for the purposes of subsection (1) is to the effect that a particular native species, or a particular ecological community, is eligible to be included in the relevant list in a particular category, the advice must also contain:
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the only matters the Scientific Committee may consider are matters relating to:
(3A) In preparing advice for a proposed amendment to:
the only matters the Scientific Committee may consider are matters relating to:
189A Certain information may be kept confidential
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Section 189B
189B Disclosure of Scientific Committee’s assessments and advice
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(c) the disclosure is made to that person (or a person within that group).
(4) After a member of the Scientific Committee has ceased under subsection (2) to have a duty not to disclose:
by subsection 189(1); the member must give a copy of the assessment or advice to anyone who asks for it.
(5) If:
the member must take reasonable steps to ensure that the copy given to the person does not include a more detailed description than is necessary for sufficient compliance with this Act under that section.
190 Scientific Committee may provide advice about species or communities becoming threatened
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Section 192
192 Rediscovery of threatened species that were extinct
193 Species posing a serious threat to human health
194 Lists must be publicly available
The Minister must ensure that:
Note: The copies of the lists made publicly available may not contain certain information kept confidential under section 189A.
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Subdivision AA—The nomination and listing process 194A Simplified outline
The following is a simplified outline of this Subdivision:
This Subdivision sets out the usual process for including an item in a list referred to in section 178, 181 or 183, or transferring an item from one category in one of those lists to another category in the list.
The usual process involves an annual cycle that revolves around 12-month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 194C).
The usual process involves the following steps for each assessment period for a list:
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Section 194B
(g) the Minister decides whether an item that has been assessed should be included in the list referred to in section 178, 181 or 183 (see section 194Q).
The steps mentioned in paragraphs (a) to (d) will generally be completed before the start of the assessment period.
194B Definitions
(1) In this Subdivision:
assessment period has the meaning given by subsection 194C(1).
eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 194G(3).
finalised priority assessment list for an assessment period has the meaning given by subsection 194K(4).
includes has a meaning affected by subsection (2).
proposed priority assessment list for an assessment period has the meaning given by subsection 194G(1).
Subdivision A List means a list referred to in section 178, 181 or
183.
(2) A reference in this Subdivision to including an item in a list referred to in section 178 or 181 includes a reference to transferring the item from one category in the list to another category in the list.
(1) For the purposes of this Subdivision, each of the following is an assessment period for a Subdivision A List:
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194D Minister may determine conservation themes for an assessment period
194E Minister to invite nominations for each assessment period
(1) Before the start of each assessment period for a Subdivision A List, the Minister must publish a notice inviting people to nominate items for inclusion in the Subdivision A List.
Note: Nominations can be for the transfer of an item already on a list covered by section 178 or 181 from one category in the list to another category in the list (see subsection 194B(2)).
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Section 194F
194F Minister to give nominations to Scientific Committee
Nominations in relation to first assessment period
(1) Within 30 business days after the cut-off date specified in the notice under subsection 194E(1) for the first assessment period, the Minister must give the Scientific Committee the nominations that the Minister:
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Nominations in relation to later assessment periods
(2) Within 30 business days after the cut-off date (the current cut-off date) specified in the notice under subsection 194E(1) for an assessment period (other than the first) for a Subdivision A List, the Minister must give the Scientific Committee the nominations that were received by the Minister in the period:
Subdivision A List; other than any such nominations that the Minister has rejected under subsection (3).
Minister may reject nominations
Definition
(5) In this section:
nomination means a nomination of an item for inclusion in a Subdivision A List.
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Section 194G
194G Scientific Committee to prepare proposed priority assessment list
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194H Matters to be included in proposed priority assessment list
194J Statement to be given to Minister with proposed priority assessment list
(1) When the Scientific Committee gives the Minister the proposed priority assessment list for an assessment period for a Subdivision A List, the Committee must also give the Minister a statement setting out such information as the Committee considers appropriate relating to:
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Section 194K
(2) The statement must also identify, as items nominated by the Scientific Committee, any items that are included in the proposed priority assessment list because the Committee itself wishes to nominate them (see paragraph 194G(3)(b)).
194K The finalised priority assessment list
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(6) The finalised priority assessment list is not a legislative instrument.
194L Publication of finalised priority assessment list
194M Scientific Committee to invite comments on items in finalised priority assessment list
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Section 194N
(iii) reasons supporting those views; and
(4) The regulations must provide for the following:
194N Scientific Committee to assess items on finalised priority assessment list and give assessments to Minister
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194P Time by which assessments to be provided to Minister
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Section 194Q
(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.
194Q Decision about inclusion of an item in the Subdivision A List
Minister to decide whether or not to include item
(1) After receiving from the Scientific Committee an assessment under section 194N of an item, the Minister must:
Note 1: Under this subsection the Minister can transfer an item already on a Subdivision A List to a different category in the List (see subsection 194B(1)).
Note 2: Sections 186, 187 and 188 contain rules about including items in a Subdivision A List.
(a) the Minister must have regard to:
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(b) the Minister may seek, and have regard to, information or advice from any source.
Additional requirements if Minister decides to include item
(7) If the Minister includes the item in the Subdivision A List, he or she must, within a reasonable time:
Additional requirements if Minister decides not to include item
(8) If the Minister decides not to include the item in the Subdivision A List, the Minister must, within 10 business days after making the decision:
194R Scientific Committee may obtain advice
In performing its functions under this Subdivision, the Scientific Committee may obtain advice from a person with expertise relevant to the inclusion of an item in a Subdivision A List.
194S Co-ordination with Australian Heritage Council—Committee undertaking assessment
(1) This section applies if:
(i) the Australian Heritage Council is undertaking, or has undertaken, an assessment of a place under Subdivision
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Section 194S
BA or BB of Division 1A of Part 15 or under Subdivision BA or BB of Division 3A of Part 15; and
(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).
assessment; the Committee must take that assessment into account in finalising the assessment that the Committee gives the Minister.
(7) If, under section 324JR, 324JS, 341JQ or 341JR, the Australian Heritage Council gives the Scientific Committee a proposed assessment, or an assessment, that deals with a particular matter because the Committee is undertaking an assessment that deals
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with that matter, a member of the Committee may discuss that matter with a member of the Council.
(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have effect despite section 189B.
194T Co-ordination with Australian Heritage Council—Committee given assessment to Minister
Subdivision B—Permit system
195 Subdivision does not apply to cetaceans
This Subdivision does not apply to a member of a listed threatened species that is a cetacean.
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Section 196
196 Killing or injuring member of listed threatened species or community
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
196A Strict liability for killing or injuring member of listed threatened species or community
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).
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Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
196B Taking etc. member of listed threatened species or community
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
196C Strict liability for taking etc. member of listed threatened species or community
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
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Section 196D
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
196D Trading etc. member of listed threatened species or community taken in Commonwealth area
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
196E Strict liability for trading etc. member of listed threatened species or community taken in Commonwealth area
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
197 Certain actions are not offences
Sections 196, 196A, 196B, 196C, 196D, 196E and 207B do not apply to:
(da) an action that:
(db) in the case of sections 196B, 196C, 196D and 196E—an action that is trading, keeping or moving a member of a listed threatened species or a listed ecological community, if:
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Section 197
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Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
198 Operation of sections 18 and 18A not affected
To avoid doubt, sections 196, 196A, 196B, 196C, 196D, 196E and 197 do not affect the operation of section 18 or 18A.
199 Failing to notify taking of listed threatened species or listed ecological community
(1) This section applies to an action taken by a person if all of the following conditions are met:
(a) the person’s action either:
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Section 199
Note 1: Section 197 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 196, 196A, 196B, 196C, 196D or 196E.
Note 2: A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 204 by the holder of the permit to take the action.
Note 3: The conditions of a permit may require the holder of the permit to give certain notices.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
(5) A person is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units if the person:
(a) fails to do an act; and
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(b) the failing to do the act results in a contravention of subsection (2).
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
200 Application for permits
Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).
201 Minister may issue permits
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Section 202
concerned is incidental to, and not the purpose of, the taking of the action and:
(iii) the holder of the permit will take all reasonable steps to minimise the impact of the action on that species or ecological community; or
(3A) The Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the listed threatened species or listed threatened ecological community concerned.
202 Conditions of permits
(1) A permit is subject to such conditions as are specified in the permit or as are imposed under subsection (2).
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203 Contravening conditions of a permit
The holder of a permit is guilty of an offence punishable on conviction by a fine not exceeding 300 penalty units if:
204 Authorities under permits
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Section 205
205 Transfer of permits
On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
206 Suspension or cancellation of permits
The Minister may, in accordance with the regulations:
206A Review of decisions about permits
207 Fees
Such fees as are prescribed (if any) are payable in respect of the following:
Subdivision BA—Protecting critical habitat
207A Register of critical habitat
(1) The Minister must cause to be kept in accordance with the regulations (if any) a register in which the Minister may list habitat identified by the Minister in accordance with the regulations as
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being critical to the survival of a listed threatened species or listed threatened ecological community.
(1A) In considering whether to list habitat, the Minister must take into account the potential conservation benefit of listing the habitat.
(1B) Subsection (1) does not limit the matters:
(3A) Particular material included in the register does not have to be made available for public inspection if the Minister considers that the interests of relevant landholders could be impeded or compromised by:
(4) Habitat listed in the register in relation to a species or ecological community is critical habitat for the species or ecological community.
207B Offence of knowingly damaging critical habitat
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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Section 207C
Note 2: This section does not apply in the circumstances described in section 197. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
207C Sale or lease of Commonwealth land containing critical habitat
Subdivision C—Miscellaneous
208A Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:
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if the Minister is satisfied that:
Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited under this section is, or is proposed to be, amended, the Minister may determine under section 303AB that the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection (1) of this section.
(2) An instrument under subsection (1) is not a legislative instrument.
208 Regulations
The regulations may:
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Section 208
communities may be killed or taken otherwise than in contravention of this Division; and
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Division 2—Migratory species
Subdivision A—Listing
209 Listed migratory species
The list must not include any other species.
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Section 210
(8) In this Act:
migratory species has the meaning given by Article I of the Bonn Convention.
Subdivision B—Permit system
210 Subdivision does not apply to members of listed threatened species or cetaceans
This Subdivision does not apply to a member of a listed migratory species that is a member of a listed threatened species or a cetacean.
211 Killing or injuring member of listed migratory species
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
211A Strict liability for killing or injuring member of listed migratory species
(1) A person is guilty of an offence if:
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Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
211B Taking etc. member of listed migratory species
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
211C Strict liability for taking etc. member of listed migratory species
(1) A person is guilty of an offence if:
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Section 211D
(c) the member is in or on a Commonwealth area.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
211D Trading etc. member of listed migratory species taken in Commonwealth area
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
211E Strict liability for trading etc. member of listed migratory species taken in Commonwealth area
(1) A person is guilty of an offence if:
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Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 212. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
212 Certain actions are not offences
Sections 211, 211A, 211B, 211C, 211D and 211E do not apply to:
(da) an action that:
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Section 212
(db) in the case of sections 211B, 211C, 211D and 211E—an action that is trading, keeping or moving a member of a listed migratory species, if:
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Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
213 Operation of sections 20 and 20A not affected
To avoid doubt, sections 211, 211A, 211B, 211C, 211D, 211E and 212 do not affect the operation of section 20 or 20A.
214 Failing to notify taking etc. of listed migratory species
(1) This section applies to an action taken by a person if all of the following conditions are met:
Note 1: Section 212 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 211, 211A, 211B, 211C, 211D or 211E.
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Section 215
Note 2: A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 219 by the holder of the permit to take the action.
Note 3: The conditions of a permit may require the holder of the permit to give certain notices.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
(5) A person is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units if the person:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
215 Application for permits
(1) A person may, in accordance with the regulations, apply to the Minister for a permit to be issued under section 216.
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Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).
216 Minister may issue permits
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Section 217
of the listed migratory species concerned, or a population of that species; or
(d) the specified action is necessary in order to control pathogens and is conducted in a way that will, so far as is practicable, keep to a minimum any impact on the listed migratory species concerned.
(4) In making a decision on the application, the Minister must consider the comments (if any) received:
217 Conditions of permits
218 Contravening conditions of a permit
The holder of a permit is guilty of an offence punishable on conviction by a fine not exceeding 300 penalty units if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
219 Authorities under permits
(1) Subject to subsection (2), the holder of a permit may give to a person written authority to take for or on behalf of the holder any action authorised by the permit. The authority may be given generally or as otherwise provided by the instrument of authority.
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220 Transfer of permits
On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
221 Suspension or cancellation of permits
The Minister may, in accordance with the regulations:
221A Review of decisions about permits
(1) Subject to subsection (2), an application may be made to the Administrative Appeals Tribunal for review of a decision:
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Section 222
(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).
222 Fees
Such fees as are prescribed (if any) are payable in respect of the following:
Subdivision C—Miscellaneous
222A Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:
if the Minister is satisfied that:
(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps
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to ensure that members of listed migratory species are not killed or injured as a result of the fishing; and
(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the conservation status of a listed migratory species or a population of that species.
Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited under this section is, or is proposed to be, amended, the Minister may determine under section 303AB that the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection (1) of this section.
(2) An instrument under subsection (1) is not a legislative instrument.
223 Regulations
The regulations may:
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Section 224
Division 3—Whales and other cetaceans
Subdivision A—Application of Division
224 Application of Division
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Subdivision B—Australian Whale Sanctuary and important cetacean habitat areas
225 Australian Whale Sanctuary
Note: This subsection is subject to subsection 5(3).
226 Prescribed waters
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Section 227
227 Coastal waters
Note: Generally the baseline is the lowest astronomical tide along the coast but it also includes lines enclosing bays and indentations that are not bays and straight baselines that depart from the coast.
(3) Any part of the territorial sea that is adjacent to the Jervis Bay Territory is, for the purposes of subsection (2), taken to be adjacent to New South Wales.
228 Minister may make declaration for coastal waters
228A Important cetacean habitat areas
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Subdivision C—Offences
229 Killing or injuring a cetacean
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(1A) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
229A Strict liability for killing or injuring a cetacean
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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Section 229B
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
229B Intentionally taking etc. a cetacean
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
interfere with a cetacean includes harass, chase, herd, tag, mark or brand the cetacean.
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trade a cetacean:
Note: For provisions relating to export or import, see Part 13A.
229C Strict liability for taking etc. a cetacean
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a) and (b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
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Section 229D
229D Treating cetaceans
Treating unlawfully killed or taken cetaceans
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 231. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) An offence against subsection (1) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
Treating unlawfully imported cetaceans
(2A) A person commits an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: 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.
(2B) An offence against subsection (2A) is punishable on conviction by imprisonment for not more than 5 years or a fine not exceeding 1,000 penalty units, or both.
(3) In this Act:
treat a cetacean means divide or cut up, or extract any product
from, the cetacean.
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230 Possession of cetaceans
Possession of unlawfully killed cetaceans
(1) A person is guilty of an offence if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) An offence against subsection (1) is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
Possession of unlawfully imported cetaceans
(3) A person commits an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: 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.
(4) An offence against subsection (3) is punishable on conviction by imprisonment for not more than 5 years or a fine not exceeding 1,000 penalty units, or both.
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Section 231
231 Certain actions are not offences
Sections 229, 229A, 229B, 229C, 229D and 230 do not apply to:
(a) an action authorised by a permit that was issued under section 238 and is in force; or
(aa) an action that is whale watching carried out in accordance with regulations referred to in paragraph 238(3)(c), but only if:
(b) an action provided for by, and taken in accordance with, a recovery plan, or a wildlife conservation plan, made or adopted under Division 5 and in force; or
(ba) an action that is covered by an approval in operation under Part 9 for the purposes of subsection 23(1) or (2), 24A(1), (2), (3) or (4), 24B(1) or (2) or 24C(1), (3), (5) or (7); or
(bb) an action that:
(bc) an action that:
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(ga) an action that is taken in accordance with a permit issued under regulations made under the Great Barrier Reef Marine Park Act 1975 and in force; or
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
232 Action to be taken on killing etc. cetaceans
(1) This section applies to an action taken by a person if all of the following conditions are met:
(a) the person’s action:
(i) results in the injury or death of a cetacean, or consists of taking a cetacean, in the Australian Whale Sanctuary (but not the coastal waters, or a part of the coastal waters of a State or the Northern Territory for which a declaration under section 228 is in force) or in waters
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Section 232
beyond the outer limits of the Australian Whale Sanctuary; or
(ii) consists of treating a cetacean killed, injured or taken in contravention of section 229, 229A, 229B or 229C;
Note 1: Section 231 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 229, 229A, 229B, 229C or 229D.
Note 2: A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 241 by the holder of the permit to take the action.
Note 3: The conditions of a permit may require the holder of the permit to give certain notices.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
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(5) A person is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units if the person:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Subdivision E—Miscellaneous offences
236 Offences relating to foreign whaling vessels
(1) The master of a foreign whaling vessel is guilty of an offence if the vessel is brought into a port in Australia or an external Territory and the master has not obtained the written permission of the Minister for the vessel to be brought into the port.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the Criminal Code.
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Section 237
(5) In this Act:
foreign whaling vessel means a vessel, other than an Australian vessel, designed, equipped or used for:
master, in relation to a foreign whaling vessel, means the person (other than a ship’s pilot) in charge or command of the vessel.
Subdivision F—Permit system
237 Application for permits
Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).
238 Minister may issue permits
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(3) The Minister must not issue the permit unless satisfied that:
(3AA) If the specified action would or could relate to a species of cetacean that is a listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species of cetacean.
(3A) In making a decision on the application, the Minister must consider the comments (if any) received:
(4) The Minister must not grant a permit authorising its holder to kill a cetacean or to take a cetacean for live display.
Chapter 5 Conservation of biodiversity and heritage Part 13 Species and communities Division 3 Whales and other cetaceans
Section 239
(5) In this Act:
whale watching means any activity conducted for the purpose of observing a cetacean, including but not limited to being in the water for the purposes of observing or swimming with a cetacean, or otherwise interacting with a cetacean.
239 Conditions of permits
240 Contravening conditions of a permit
The holder of a permit is guilty of an offence punishable upon conviction by a fine not exceeding 300 penalty units if:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
241 Authorities under permits
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242 Transfer of permits
On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
243 Suspension or cancellation of permits
The Minister may, in accordance with the regulations:
243A Review of decisions about permits
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Section 244
244 Fees
Such fees as are prescribed (if any) are payable in respect of the following:
Subdivision G—Miscellaneous
245 Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:
if the Minister is satisfied that:
(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps to ensure that cetaceans are not killed or injured as a result of the fishing; and
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(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the conservation status of a species of cetacean or a population of that species.
Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited under this section is, or is proposed to be, amended, the Minister may determine under section 303AB that the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection (1) of this section.
(2) An instrument under subsection (1) is not a legislative instrument.
246 Vesting of whales in Commonwealth
(1) If:
contravention of this Division; the cetacean vests, by force of this section, in the Commonwealth.
(2) The Commonwealth is not liable in any action, suit or proceedings in respect of any matter relating to a cetacean at any time before the taking of possession of the cetacean by the Commonwealth.
247 Regulations
The regulations may:
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Section 247
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Division 4—Listed marine species
Subdivision A—Listing
248 Listed marine species
249 Minister may amend list
(1) Subject to this Subdivision, the Minister may, by instrument published in the Gazette, amend the list:
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Section 250
250 Adding marine species to the list
251 Minister must consider advice from Scientific Committee
(1) In deciding whether to add an item to, or delete an item from, the list, the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Scientific Committee on the scientific aspects of the addition or deletion of the item concerned.
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(2) The Minister must:
necessary instrument to be published in the Gazette; within 90 days after receiving the Scientific Committee’s advice on the addition or deletion of the item.
(3) A member of the Scientific Committee has a duty not to disclose to any other person the advice, or any information relating to the advice, before the end of that period of 90 days unless the disclosure:
252 Minister to make lists available to the public
The Minister must, in accordance with the regulations (if any), make copies of up-to-date lists available for purchase, for a reasonable price, at a prescribed place in each State and self-governing Territory.
Subdivision B—Permit system
253 Subdivision does not apply to members of certain species and cetaceans
This Subdivision does not apply to a member of a listed marine species that is a member of a listed migratory species, a member of a listed threatened species or a cetacean.
254 Killing or injuring member of listed marine species
(1) A person is guilty of an offence if:
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Section 254A
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
254A Strict liability for killing or injuring member of listed marine species
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b), (c) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
254B Taking etc. member of listed marine species
(1) A person is guilty of an offence if:
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Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
254C Strict liability for taking etc. member of listed marine species
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
254D Trading etc. member of listed marine species taken in Commonwealth area
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
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Section 254E
Note 2: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by imprisonment for not more than 2 years or a fine not exceeding 1,000 penalty units, or both.
254E Strict liability for trading etc. member of listed marine species taken in Commonwealth area
(1) A person is guilty of an offence if:
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: This section does not apply in the circumstances described in section 255. A defendant bears an evidential burden in relation to those circumstances. See subsection 13.3(3) of the Criminal Code.
(2) Strict liability applies to paragraphs (1)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) The offence is punishable on conviction by a fine not exceeding 500 penalty units.
255 Certain actions are not offences
Sections 254, 254A, 254B, 254C, 254D and 254E do not apply to:
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(d) an action that:
(da) an action that:
(db) in the case of sections 254B, 254C, 254D and 254E—an action that is trading, keeping or moving a member of a listed marine species, if:
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Section 256
Note: A defendant bears an evidential burden in relation to the matters in this section. See subsection 13.3(3) of the Criminal Code.
256 Failing to notify taking etc. of listed marine wildlife
(1) This section applies to an action taken by a person if all of the following conditions are met:
(a) the person’s action either:
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Note 1: Section 255 sets out most of the circumstances in which an action described in paragraph (1)(a) will not be an offence against section 254, 254A, 254B, 254C, 254D or 254E.
Note 2: A person is authorised by a permit to take an action if the person is the holder of the permit or the person is given an authority under section 261 by the holder of the permit to take the action.
Note 3: The conditions of a permit may require the holder of the permit to give certain notices.
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
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Section 257
(5) A person is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units if a person:
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
257 Application for permits
Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).
258 Minister may issue permits
(a) the specified action will significantly contribute to the conservation of the listed marine species concerned or other listed marine species; or
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(4) In making a decision on the application, the Minister must consider the comments (if any) received:
259 Conditions of permits
260 Contravening conditions of a permit
The holder of a permit is guilty of an offence punishable upon conviction by a fine not exceeding 300 penalty units if:
(a) he or she does, or fails to do, an act or thing; and
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Section 261
(b) doing, or failing to do, the act or thing results in a contravention of a condition of the permit.
261 Authorities under permits
262 Transfer of permits
On the application, in accordance with the regulations, of the holder of a permit, the Minister may, in accordance with the regulations, transfer the permit to another person.
263 Suspension or cancellation of permits
The Minister may, in accordance with the regulations:
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263A Review of decisions about permits
264 Fees
Such fees as are prescribed (if any) are payable in respect of the following:
Subdivision C—Miscellaneous
265 Minister may accredit plans, regimes or policies
(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:
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Section 266
if the Minister is satisfied that:
Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).
Note 2: If a plan, regime or policy that is accredited under this section is, or is proposed to be, amended, the Minister may determine under section 303AB that the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection (1) of this section.
(2) An instrument under subsection (1) is not a legislative instrument.
266 Regulations
The regulations may:
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(e) provide for any matter incidental to or connected with any of the above paragraphs.