Environment Protection and Biodiversity Conservation Act 1999 (consolidated as of March 5, 2010), Australia

24 What is a Commonwealth marine area?

Each of the following is a Commonwealth marine area:

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

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Section 24A

(i)

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

(ii)

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

(b)

the seabed under waters covered by paragraph (a);

(c)

airspace over waters covered by paragraph (a);

(d)

any waters over the continental shelf, except:

(i)

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

(ii)

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

(iii) waters covered by paragraph (a);

(e)

any seabed under waters covered by paragraph (d);

(f)

any airspace over waters covered by paragraph (d);

(g)

any other area of sea or seabed that is included in a Commonwealth reserve.

24A Offences relating to marine areas

Actions in Commonwealth marine areas affecting the environment

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

(a)

the person takes an action; and

(b)

the action is taken in a Commonwealth marine area; and

(c)

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

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

(1A) Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

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Actions in Commonwealth marine areas likely to affect the

environment

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

(a)

the person takes an action; and

(b)

the action is taken in a Commonwealth marine area; and

(c)

the action is likely to have a significant impact on the environment.

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

(2A) Strict liability applies to paragraph (2)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

Actions outside Commonwealth marine areas affecting those areas

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

(a)

the person takes an action; and

(b)

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

(c)

the action results or will result in a significant impact on the environment in an area; and

(d)

the area is a Commonwealth marine area.

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

(3A) Strict liability applies to paragraphs (3)(b) and (d).

Note: For strict liability, see section 6.1 of the Criminal Code.

Actions likely to affect environment in Commonwealth marine areas

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

(a)

the person takes an action; and

(b)

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

(c)

the action is likely to have a significant impact on the environment in an area; and

(d)

the area is a Commonwealth marine area.

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

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Section 24A

(4A) Strict liability applies to paragraphs (4)(b) and (d).

Note: For strict liability, see section 6.1 of the Criminal Code.

Fishing with impact in State or Territory waters managed by Commonwealth

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

(a)

the person takes an action that:

(i)

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

(ii)

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

(b)

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

(c)

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

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

(5A) Strict liability applies to paragraph (5)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

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

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

(a)

the person takes an action that:

(i)

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

(ii)

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

(b)

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

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(c) the action is likely to have a significant impact on the environment in those coastal waters.

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

(6A) Strict liability applies to paragraph (6)(b).

Note: For strict liability, see section 6.1 of the Criminal Code.

Penalties

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

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

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

Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.

Defences—general

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

(a)

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

(b)

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

(c)

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

(d)

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

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

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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:

(a)

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

(b)

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

(c)

is permitted under a law of the State or Territory.

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

Defence—fishing outside Commonwealth marine areas

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

(a)

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

(b)

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

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

Subdivision 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:

(a)

for an individual—5,000 penalty units;

(b)

for a body corporate—50,000 penalty units.

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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:

(a)

has or will have a significant impact on the environment in the Great Barrier Reef Marine Park; or

(b)

is likely to have a significant impact on the environment in the Great Barrier Reef Marine Park.

Civil penalty:

(a)

for an individual—5,000 penalty units;

(b)

for a body corporate—50,000 penalty units.

Exceptions to prohibition

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

(a)

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

(b)

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

(c)

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

(d)

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

(e)

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

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

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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:

(a)

the person takes an action; and

(b)

the action is taken in the Great Barrier Reef Marine Park; and

(c)

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

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:

(a)

the person takes an action; and

(b)

the action is taken in the Great Barrier Reef Marine Park; and

(c)

the action is likely to have a significant impact on the environment.

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:

(a)

the person takes an action; and

(b)

the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and

(c)

the action results in or will result in a significant impact on the environment in an area; and

(d)

the area is the Great Barrier Reef Marine Park.

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:

(a)

the person takes an action; and

(b)

the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and

(c)

the action is likely to have a significant impact on the environment in an area; and

(d)

the area is the Great Barrier Reef Marine Park.

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:

(a)

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

(b)

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

(c)

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

(d)

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

(e)

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

Note: 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 25

Subdivision G—Additional matters of national environmental significance

25 Requirement for approval of prescribed actions

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

Civil penalty:

(a)

for an individual—5,000 penalty units;

(b)

for a body corporate—50,000 penalty units.

(2)

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

(a)

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

(b)

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

(c)

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

(d)

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

(3)

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

(a)

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

(i)

the action; and

(ii)

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

(b)

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

(c)

consider the comments (if any); and

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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:

(i)

the action to be prescribed; and

(ii)

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

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

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

(4)

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

(5)

This section applies only to actions:

(a)

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

(b)

taken in a Commonwealth marine area; or

(c)

taken for the purpose of trade or commerce:

(i)

between Australia and another country; or

(ii)

between 2 States; or

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

(d)

taken by a constitutional corporation; or

(e)

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

(6)

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

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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.

(2)

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

(3)

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

(a)

taken in a Territory; or

(b)

taken in a Commonwealth marine area; or

(c)

taken for the purpose of trade or commerce:

(i)

between Australia and another country; or

(ii)

between 2 States; or

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

(d)

taken by a constitutional corporation; or

(e)

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

(4)

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

(5)

In this section:

regulatory provision means:

(a)

a civil penalty provision set out in this Division; or

(b)

a provision of this Division that creates an offence.

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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:

(a)

a person (the primary person) takes the action; and

(b)

as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and

(c)

the secondary action is not taken at the direction or request of the primary person; and

(d)

the significant impact referred to in the provision is a consequence of the secondary action.

Defence to offences

(2) For the purposes of subsection (1), the following provisions do not apply to the primary action:

(a)

subsections 15A(1) and (2);

(b)

subsections 15C(1) to (10);

(c)

subsections 17B(1) and (2);

(d)

subsections 18A(1) and (2);

(e)

subsections 20A(1) and (2);

(f)

subsections 22A(1) to (6);

(g)

subsections 24A(1) to (6);

(h)

subsections 24C(1), (3), (5) and (7).

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:

(a)

subsection 12(1);

(b)

subsections 15B(1) to (5) and (7);

(c)

subsection 16(1);

(d)

subsections 18(1) to (6);

(e)

subsection 20(1);

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Section 25B

(f)

subsections 21(1) to (3);

(g)

subsections 23(1) to (3); (ga) subsections 24B(1) and (2);

(h)

subsection 25(1).

Subdivision I—Evidentiary certificates

25B Evidentiary certificates

Contravention

(1)

The Minister may issue a written certificate:

(a)

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

(b)

setting out particulars of that contravention.

(2)

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

(3)

To avoid doubt, a certificate under subsection (1) may be issued even if any relevant proceedings under section 475, 480A, 480K or 481 have been instituted.

Proposal

(4)

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

(5)

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

(a)

the person proposes to engage in the conduct concerned; and

(b)

the conduct would contravene the civil penalty provision concerned.

(6)

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

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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

(1)

In any proceedings under section 475, 480A, 480K or 481, a certificate under subsection 25B(1) is prima facie evidence of the matters in the certificate.

(2)

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

(3)

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

(4)

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

(5)

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

25E Variation of certificate

(1)

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

(2)

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

25F Revocation of certificate

(1)

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

(2)

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

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Section 26

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

Subdivision A—Protection of environment from actions involving Commonwealth land

26 Requirement for approval of activities involving Commonwealth land

Actions on Commonwealth land

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

Civil penalty:

(a)

for an individual—1,000 penalty units;

(b)

for a body corporate—10,000 penalty units.

Actions outside Commonwealth land affecting that land

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

(a)

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

(b)

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

Civil penalty:

(a)

for an individual—1,000 penalty units;

(b)

for a body corporate—10,000 penalty units.

Exceptions to prohibitions

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

(a)

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

(b)

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

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(d)

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

(e)

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

(f)

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

Note 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:

(a)

the person takes an action; and

(b)

the action is taken on Commonwealth land; and

(c)

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

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

(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:

(a)

the person takes an action; and

(b)

the action is taken on Commonwealth land; and

(c)

the action is likely to have a significant impact on the environment.

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Section 27A

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:

(a)

the person takes an action; and

(b)

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

(c)

the action results or will result in a significant impact on the environment in an area; and

(d)

the area is Commonwealth land.

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:

(a)

the person takes an action; and

(b)

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

(c)

the action is likely to have a significant impact on the environment in an area; and

(d)

the area is Commonwealth land.

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:

(a)

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

(b)

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

(c)

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

(d)

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

(e)

the person taking the action is a Commonwealth agency.

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

Note 2: 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:

(a)

for an individual—1,000 penalty units;

(b)

for a body corporate—10,000 penalty units.

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Section 27C

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

(a)

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

(b)

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

(c)

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

(d)

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

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:

(a)

the person takes an action; and

(b)

the action is taken outside the Australian jurisdiction; and

(c)

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

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:

(a)

the person takes an action; and

(b)

the action is taken outside the Australian jurisdiction; and

(c)

the action is likely to have a significant impact on the environment in a place; and

(d)

the place is a Commonwealth Heritage place; and

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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:

(a)

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

(b)

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

(c)

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

(d)

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

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

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Subdivision B—Protection of the environment from Commonwealth actions

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

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

Civil penalty:

(a)

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

(b)

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

Note 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:

(a)

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

(b)

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

(c)

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

(d)

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

(e)

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

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(3)

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

(a)

Australia’s defence or security; or

(b)

preventing, mitigating or dealing with a national emergency.

(4)

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

(5)

The Minister may make a declaration under subsection (4) relating to a Commonwealth agency’s actions only if he or she is satisfied that:

(a)

in taking the actions to which the declaration relates, the agency must comply with the law of a State or Territory (including a law of a State that is applied to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act 1970), that has either or both of the following objects (whether express or implied):

(i)

to protect the environment;

(ii)

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

(b)

the impacts that the actions have, will have or are likely to have on the environment, are adequately addressed under the State or Territory law.

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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(3) In this section:

regulatory provision means:

(a)

a civil penalty provision set out in this Division; or

(b)

a provision of this Division that creates an offence.

Subdivision 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:

(a)

a person (the primary person) takes the action; and

(b)

as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and

(c)

the secondary action is not taken at the direction or request of the primary person; and

(d)

the significant impact referred to in the provision is a consequence of the secondary action.

Defence to offences

(2) For the purposes of subsection (1), the following provisions do not apply to the primary action:

(a)

subsections 27A(1) to (4);

(b)

subsections 27C(1) and (2).

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:

(a)

subsections 26(1) and (2);

(b)

subsection 27B(1);

(c)

subsection 28(1).

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Part 4—Cases in which environmental approvals are not needed

Division 1—Actions covered by bilateral agreements

29 Actions declared by agreement not to need approval

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

(a)

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

(b)

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

(c)

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

(d)

either of the following applies:

(i)

in the case of a bilaterally accredited management arrangement—the management arrangement is in force under a law of the State or Territory identified in or under the bilateral agreement;

(ii)

in the case of a bilaterally accredited authorisation process—the authorisation process is set out in a law of the State or Territory, and the law and the authorisation process are identified in or under the bilateral agreement; and

(e)

the action is taken in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process.

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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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

(1)

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

(2)

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

(3)

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

Note: A provision of a bilateral agreement only has effect in relation to a Commonwealth area 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:

(a)

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

(b)

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

(c)

the action is one of a class of actions declared by a bilateral agreement between the Commonwealth and the State or

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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

(d)

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

(e)

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

(f)

either of the following applies:

(i)

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

(ii)

in the case of a bilaterally accredited authorisation process—the authorisation process is set out in a law of the State or self-governing Territory, and the law and the authorisation process are identified in or under the bilateral agreement; and

(g)

the action is taken in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process.

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:

(a)

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

(b)

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

(c)

one of the following applies:

(i)

in the case of an accredited management arrangement— the management arrangement is in operation under a law of the Commonwealth identified in or under the declaration;

(ii)

in the case of an accredited authorisation process—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

(d)

the action is taken in accordance with the accredited management arrangement or accredited authorisation process.

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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:

(a)

the management arrangement is in operation under a law of the Commonwealth identified in or under the declaration; and

(b)

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

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:

(a)

the management arrangement or authorisation process and the law under which it is in operation, or in which it is set out, meet the criteria prescribed by the regulations; and

(b)

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

(i)

have or will have; or

(ii)

are likely to have;

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

(c) actions approved or taken in accordance with the management 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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(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:

(a)

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

(b)

if, within those 15 sitting days of a House, notice of a motion to oppose accreditation of the management arrangement or authorisation process is given in that House—subject to subsection (5A), within 15 sitting days of that House after the notice is given.

(5A) If:

(a)

notice of a motion to oppose accreditation of the management arrangement or authorisation process is given in a House of the Parliament within 15 sitting days after the management arrangement or authorisation process is laid before the House under this section; and

(b)

the notice is withdrawn or otherwise disposed of within 15

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:

(a)

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

(b)

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

Extended time after dissolution or prorogation

(8) If:

(a)

notice of a motion to oppose the accreditation of the management arrangement or authorisation process is given in a House of the Parliament (the opposing House); and

(b)

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

(i)

the House of Representatives is dissolved or expires; or

(ii)

the Parliament is prorogued; and

(c)

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

(i)

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

(ii)

the motion has been called on, moved and seconded and

has not been withdrawn or otherwise disposed of; the management 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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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

(4)

16C section 27B the environment in a Commonwealth Heritage place outside the Australian jurisdiction 16D subsections the environment in a Commonwealth Heritage 27C(1) and place outside the Australian jurisdiction

(2)

17 section 28 the environment

Subdivision C—Prerequisites for making declarations

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

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

(a)

accords with the objects of this Act; and

(b)

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

34B Declarations relating to declared World Heritage properties

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

(a)

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

(b)

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

(c)

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

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(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:

(a)

the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the World Heritage Convention; and

(b)

the Minister is satisfied that the management arrangement or authorisation process will promote the management of the property in accordance with the Australian World Heritage management principles.

34BA Declarations relating to National Heritage places

(1)

The Minister may make a declaration under section 33 relating to a National Heritage place only if:

(a)

the Minister is satisfied that the declaration will promote the management of the place in accordance with the National Heritage management principles; and

(b)

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 such a declaration 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.

34C Declarations relating to declared Ramsar wetlands

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

(a)

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

(b)

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

(c)

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

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(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:

(a)

the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the Ramsar Convention; and

(b)

the Minister is satisfied that the management arrangement or authorisation process will promote the management of the wetland in accordance with the Australian Ramsar management principles.

34D Declarations relating to listed threatened species and ecological communities

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

(a)

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

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

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

(c)

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

(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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(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; 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 or community to which the declaration relates; and

(c)

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

(d)

the Minister has had regard to any approved conservation advice for the species or community.

34E Declarations relating to migratory species

(1)

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

(a)

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

(i)

the Bonn Convention;

(ii)

CAMBA;

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

(b)

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

(c)

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

(2)

The Minister may accredit a management arrangement or authorisation process under section 33 for the purposes of a declaration relating to a listed migratory species only if:

(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with the Commonwealth’s obligations under whichever of the

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following conventions or agreements because of which the species is listed:

(i)

the Bonn Convention;

(ii)

CAMBA;

(iii) JAMBA;

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

(b) the Minister is satisfied that the management 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

(1)

The Minister may make a declaration under section 33 relating to a Commonwealth Heritage place only if:

(a)

the Minister is satisfied that the declaration will promote the management of the place in accordance with the Commonwealth Heritage management principles; and

(b)

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 such a declaration 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 Commonwealth Heritage management principles.

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.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 2 Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes

Section 36

Revocation does not affect some actions

(2) If:

(a)

a declaration made under section 33 is revoked; and

(b)

before the revocation, an action was being taken that could be taken without approval under Part 9 because its taking was covered by the declaration; and

(c)

the action had not been completed before the revocation;

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:

(a)

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

(b)

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

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

Publishing declarations

(2) The Minister must publish a declaration made under section 33, an instrument accrediting a management 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:

(a)

a management arrangement or an authorisation process is an accredited management arrangement or an accredited authorisation process; and

(b)

the management arrangement or authorisation process is amended, or is proposed to be amended; and

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes Division 2

Section 36A

(c)

the Minister is satisfied that the amendments are, or will be, minor; and

(d)

the Minister is satisfied that the management arrangement or authorisation process as amended meets, or will meet, the requirements of:

(i)

paragraphs 33(3)(a), (b) and (c); and

(ii)

section 34A; and

(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.

(2)

If the Minister makes a determination under subsection (1):

(a)

the management arrangement or authorisation process as amended is, for the purposes of this Act, taken to be an accredited management arrangement or accredited authorisation process; and

(b)

subsections 33(1) to (8) do not apply in relation to the amendments to the management arrangement or authorisation process, or the management arrangement or authorisation process as amended; and

(c)

actions taken after the determination is made in accordance with the accredited management arrangement or accredited authorisation process as amended do not require approval under Part 9 for the purposes of a specified provision of Part 3.

(3)

The Minister must publish a determination under subsection (1) in accordance with the regulations (if any).

(4)

A determination under subsection (1) is not a legislative instrument.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 3 Actions covered by Ministerial declarations and bioregional plans

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:

(a)

the action is an action, or one of a class of actions, declared by the Minister under section 37A not to require approval under Part 9 for the purposes of the provision (because the taking of the action is in accordance with a particular bioregional plan); and

(b)

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

(c)

the action is taken:

(i)

in the bioregion to which the plan applies; and

(ii)

in accordance with the plan.

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.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations and bioregional plans Division 3

Subdivision C—Prerequisites for making declarations

37B General considerations

(1)

In deciding whether to make a declaration under section 37A, the Minister must consider the following, so far as they are not inconsistent with any other requirements of this Subdivision:

(a)

matters relevant to any matter protected by a provision of Part 3 that the Minister considers is relevant to the action or class of actions to which the declaration relates;

(b)

economic and social matters.

(2)

In considering those matters, the Minister must take into account the principles of ecologically sustainable development.

(3)

The Minister must not make a declaration under section 37A in relation to an action or class of actions and a provision of Part 3 if the Minister considers that the action, or an action in the class, if taken, would have unacceptable or unsustainable impacts on a matter protected by the provision.

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:

(a)

accords with the objects of this Act; and

(b)

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

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:

(a)

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

(b)

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

(c)

the Minister is satisfied that the declaration is not inconsistent with a plan that has been prepared for the

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 3 Actions covered by Ministerial declarations and bioregional plans

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:

(a)

the Minister is satisfied that the declaration will promote the management of the place in accordance with the National Heritage management principles; and

(b)

the Minister is satisfied that the declaration is not inconsistent with:

(i)

an agreement to which the Commonwealth is a party in relation to the National Heritage place; or

(ii)

a plan that has been prepared for the management of the National Heritage place under section 324S or as described in section 324X.

37F Declarations relating to declared Ramsar wetlands

The Minister may make a declaration under section 37A relating to a declared Ramsar wetland only if:

(a)

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

(b)

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

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:

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by Ministerial declarations and bioregional plans Division 3

(b)

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

(c)

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

(d)

the Minister has had regard to any approved conservation advice for the species or community.

37H Declarations relating to listed migratory species

The Minister may make a declaration under section 37A relating to a listed migratory species only if:

(a)

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

(i)

the Bonn Convention;

(ii)

CAMBA;

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

(b)

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

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:

(a)

a nuclear fuel fabrication plant;

(b)

a nuclear power plant;

(c)

an enrichment plant;

(d)

a reprocessing facility.

Chapter 2 Protecting the environment Part 4 Cases in which environmental approvals are not needed Division 3 Actions covered by Ministerial declarations and bioregional plans

Section 37K

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:

(a)

a declaration made under section 37A is revoked; and

(b)

before the revocation, an action was being taken that could be taken without approval under Part 9 because its taking was covered by the declaration; and

(c)

the action had not been completed before the revocation;

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:

(a)

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

(b)

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

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

Publishing declarations

(2) 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.

Protecting the environment Chapter 2 Cases in which environmental approvals are not needed Part 4 Actions covered by conservation agreements Division 3A

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:

(a)

the action is included in a class of actions declared in a conservation agreement, in accordance with section 306A, not to require approval under Part 9 for the purposes of the provision; and

(b)

the conservation agreement is in operation when the action is taken; and

(c)

the action is taken in accordance with the conditions (if any) specified in the declaration.

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

Section 38

Division 4—Forestry operations in certain regions

Subdivision A—Regions covered by regional forest agreements

38 Part 3 not to apply to certain RFA forestry operations

(1)

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

(2)

In this Division:

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

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

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

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

39 Object of this Subdivision

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

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.

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

Note 1: This section does not apply to some forestry operations. See section 42.

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

(2) In this Division:

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

(a)

the planting of trees;

(b)

the managing of trees before they are harvested;

(c)

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

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

RFA region has the meaning given by section 41.

(3)

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

(4)

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

(5)

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

(6)

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

(a)

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

(b)

by a constitutional corporation.

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

Section 41

41 What is an RFA region?

Regions that are RFA regions

(1)

Each of the following is an RFA region:

(a)

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

(b)

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

(c)

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

(d)

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

(e)

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

(f)

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

(g)

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

(h)

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

(2)

The regulations may amend subsection (1).

Regulations may amend list of regions

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

Prerequisites for prescribing RFA regions

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

Subdivision C—Limits on application

42 This Division does not apply to some forestry operations

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

(a)

in a property included in the World Heritage List; or

(b)

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

(c)

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

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

Section 43

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:

(a)

the action is taken in a zone (within the meaning of the Great Barrier Reef Marine Park Act 1975) of the Great Barrier Reef Marine Park; and

(b)

it is for a purpose for which, under the zoning plan for the zone made under the Great Barrier Reef Marine Park Act 1975, the zone may be used or entered without permission.

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

Division 6—Actions with prior authorisation

43A Actions with prior authorisation

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

(a)

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

(b)

before the commencement of this Act, the action was authorised by a specific environmental authorisation; and

(c)

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

(d)

at the time the action is taken, the specific environmental authorisation continues to be in force.

(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:

(a)

the action that is authorised by the authorisation following the renewal or extension is the same as the action that was authorised by the authorisation before the commencement of this Act; and

(b)

the renewal or extension could properly be made or given without any further consideration of the environmental impacts of the action.

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):

(a)

to protect the environment;

(b)

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

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

Section 43B

specific environmental authorisation means an environmental authorisation that:

(a)

identifies the particular action by reference to acts and matters uniquely associated with that action; or

(b)

was issued or granted following a consideration of the particular action by reference to acts and matters uniquely associated with that action.

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

(1)

A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.

(2)

However, subsection (1) does not apply to an action if:

(a)

before the commencement of this Act, the action was authorised by a specific environmental authorisation; and

(b)

at the time the action is taken, the specific environmental authorisation continues to be in force.

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:

(a)

an enlargement, expansion or intensification of use;

(b)

either:

(i)

any change in the location of where the use of the land, sea or seabed is occurring; or

(ii)

any change in the nature of the activities comprising the

use; that results in a substantial increase in the impact of the use on the land, sea or seabed.

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

Chapter 3—Bilateral agreements

Part 5—Bilateral agreements

Division 1—Object of Part

44 Object of this Part

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

(a)

protect the environment; and

(b)

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

(c)

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

(d)

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

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

Section 45

Division 2—Making bilateral agreements

Subdivision A—Power to make bilateral agreements

45 Minister may make agreement

Making bilateral agreement

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

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

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

What is a bilateral agreement?

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

(a)

provides for one or more of the following:

(i)

protecting the environment;

(ii)

promoting the conservation and ecologically sustainable use of natural resources;

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

(b)

is expressed to be a bilateral agreement.

Publishing notice of intention to enter into agreement

(3) As soon as practicable after starting the process of developing a draft bilateral agreement with a State or self-governing Territory, the Minister must publish, in accordance with the regulations (if any), notice of his or her intention to develop a draft bilateral agreement with the State or Territory.

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

Publishing bilateral agreements and related material

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

(a)

the agreement; and

(b)

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

(c)

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

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

Declaration of actions not needing approval

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

(a)

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

(b)

an agency of the State or Territory; in accordance with a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of

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

What is a bilaterally accredited management 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:

(a)

the management arrangement is in force under a law of the State or Territory that is a party to the agreement and the law is identified in or under the agreement; and

(b)

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

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

Section 46

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:

(a)

the authorisation process is set out in a law of the State or Territory that is a party to the agreement, and the law and the process are identified in or under the agreement; and

(b)

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

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:

(a)

the management arrangement or authorisation process and the law under which it is in force, or in which it is set out, meet the criteria prescribed by the regulations; and

(b)

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

(i)

have or will have; or

(ii)

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

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

(c) actions approved in accordance with the management 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.

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

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:

(a)

in the case of a management arrangement—the management arrangement; or

(b)

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).

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:

(a)

before, or within 15 sitting days after, a copy of the management arrangement or authorisation process is laid before each House of the Parliament; or

(b)

if, within those 15 sitting days of a House, notice of a motion to disallow the management arrangement or authorisation process is given in that House—subject to subsection (5A), within 15 sitting days of that House after the notice is given.

(5A) If:

(a)

notice of a motion to disallow accreditation of the management arrangement or authorisation process is given in a House of the Parliament within 15 sitting days after the management arrangement or authorisation process is laid before the House under this section; and

(b)

the notice is withdrawn or otherwise disposed of within 15

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

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

Section 46

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:

(a)

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

(b)

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

Extended time after dissolution or prorogation

(8) If:

(a)

notice of a motion to disallow the management arrangement or authorisation process is given in a House of the Parliament (the disallowing House); and

(b)

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

(i)

the House of Representatives is dissolved or expires; or

(ii)

the Parliament is prorogued; and

(c)

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

(i)

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

(ii)

the motion has been called on, moved and seconded and

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).

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

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:

(a)

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

(b)

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

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

Requirements for bilateral agreement making declaration

(10) 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:

(a)

to act in accordance with the management arrangement; and

(b)

not to approve the taking of actions that would be inconsistent with the management arrangement.

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:

(a)

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

(b)

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

(c)

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

This does not limit subsection (1).

Report on actions that do not need further assessment

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

48 Other provisions of bilateral agreements

(1) A bilateral agreement may include:

(a)

provisions for State accreditation of Commonwealth processes and decisions; and

(b)

other provisions for achieving the object of this Part; and

(c)

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

(d)

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

(e)

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

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(i)

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

(ii)

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

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

(iv)

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

(v)

provisions for expiry of the agreement; and

(f)

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

(g)

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

Consistency with Act and regulations

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

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:

(a)

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

(b)

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

(c)

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

(d)

actions taken in the Territory (if applicable).

Agreements including declarations about assessment

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

(a)

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

(b)

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

(c)

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

(d)

actions taken in the Territory (if applicable).

Auditing

(4) A bilateral agreement does not have effect for the purposes of this Act unless it includes a provision recognising that, under the

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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.

(2)

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

(3)

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

Subdivision B—Prerequisites for making bilateral agreements

49A Consultation on draft agreement

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

(a)

has published in accordance with the regulations:

(i)

a draft of the agreement; and

(ii)

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

(b)

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

(c)

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

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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:

(a)

accords with the objects of this Act; and

(b)

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

51 Agreements relating to declared World Heritage properties

(1)

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

(a)

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

(b)

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

(c)

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

(2)

The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a declared World Heritage property only if:

(a)

the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the World Heritage Convention; and

(b)

the Minister is satisfied that the management arrangement or authorisation process will promote the management of the property in accordance with the Australian World Heritage management principles.

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

(1)

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

(a)

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

(b)

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

(c)

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

(2)

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

(a)

the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the Ramsar Convention; and

(b)

the Minister is satisfied that the management arrangement or authorisation process will promote the management of the wetland in accordance with the Australian Ramsar management principles.

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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(a)

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

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

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

(c)

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

(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:

(a)

the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under:

(i)

the Biodiversity Convention; or

(ii)

the Apia Convention; or

(iii) CITES; and

(b)

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

(c)

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

(d)

the Minister has had regard to any approved conservation advice for the species or community.

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54 Agreements relating to migratory species

(1)

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

(a)

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

(i)

the Bonn Convention;

(ii)

CAMBA;

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

(b)

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

(c)

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

(2)

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

(a)

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

(i)

the Bonn Convention;

(ii)

CAMBA;

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

(b)

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

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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:

(a)

relates to a nuclear action; and

(b)

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

(i)

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

(ii)

by a constitutional corporation.

56 Agreements relating to prescribed actions

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

(a)

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

(b)

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

(i)

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

(ii)

by a constitutional corporation.

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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(b)

the Minister is satisfied that the amendment will not have a significant effect on the operation of the principal agreement; and

(c)

the Minister makes a determination, in writing, to that effect.

(2)

If the Minister makes a determination under paragraph (1)(c):

(a)

the following provisions of this Part do not apply in relation to the amendment to the principal agreement:

(i)

subsection 45(3);

(ii)

paragraphs 45(4)(b) and (c);

(iii) section 49A; and

(b)

the Minister must publish the principal agreement, as amended by the amending agreement, at the same time as publishing the amending agreement under paragraph 45(4)(a).

(3)

A determination made under paragraph (1)(c) is not a legislative instrument.

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Division 3—Suspending and ending the effect of bilateral agreements

Subdivision A—Suspension and cancellation of effect

57 Representations about suspension or cancellation

Representations

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

Minister must decide whether agreement has been contravened

(2) The Minister must:

(a)

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

(b)

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

Publication of decision and reasons

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

Minister need not decide on vexatious referrals

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

(a)

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

(b)

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

(c)

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

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58 Consultation before cancellation or suspension

(1)

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

(a)

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

(b)

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

(i)

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

(ii)

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

(2)

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

59 Suspension or cancellation

Minister may give notice of suspension or cancellation

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

(a)

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

(b)

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

(i)

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

(ii)

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

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

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

(a)

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

(b)

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

Notice of cancellation

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

Effect suspended or cancelled in accordance with notice

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

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:

(a)

notice of the suspension or cancellation; and

(b)

reasons for the suspension or cancellation.

60 Emergency suspension of effect of bilateral agreement

(1)

This section applies if the Minister is satisfied that:

(a)

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

(b)

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

(2)

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

(a)

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

(b)

published in accordance with the regulations.

(3)

The suspension continues for the shorter of the following periods:

(a)

3 months;

(b)

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

(4)

Subsection (3) has effect subject to section 62.

(5)

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

(6)

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

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61 Cancellation during suspension

(1)

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

(2)

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

(3)

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

62 Revocation of notice of suspension or cancellation

(1)

This section applies if the Minister:

(a)

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

(b)

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

(i)

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

(ii)

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

(2)

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

(a)

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

(b)

published in accordance with the regulations. However, the Environment Minister must not revoke the notice of

cancellation after cancellation of the effect of the agreement occurs.

(3)

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

(4)

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

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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:

(a)

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

(b)

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

Notice of cancellation

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

Effect suspended or cancelled in accordance with notice

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

Publishing notice and reasons

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

(a)

notice of the suspension or cancellation; and

(b)

reasons for the suspension or cancellation.

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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