Environment and Heritage Legislation Amendment Act (No. 1) 2006

No. 165, 2006

An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for other purposes

[Assented to 12 December 2006]

The Parliament of Australia enacts:

This Act may be cited as the Environment and Heritage Legislation Amendment Act (No. 1) 2006.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	12 December 2006
2. Schedule 1, items 1 to 606	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	items 1–604, 606: 19 February 2007 (see F2007L0411) item 605: 1 January 2007 (see F2006L04046)
3. Schedule 1, item 607	At the end of the period of 5 years beginning on the day on which item 550 of Schedule 1 commences.	19 February 2012
4. Schedule 1, items 608 to 780	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	items 608–762, 764–780: 19 February 2007 (see F2007L0411) item 763: 15 January 2007 (see F2007L00129)
5. Schedule 1, item 781	Immediately after the Heritage of Western Australia Act 1990 of Western Australia starts to apply in the Territory of Christmas Island. The Minister must announce by notice in the Gazette the day on which the Heritage of Western Australia Act 1990 of Western Australia starts to apply in the Territory of Christmas Island. The notice is not a legislative instrument.	1 July 2022
6. Schedule 1, item 782	Immediately after the Heritage of Western Australia Act 1990 of Western Australia starts to apply in the Territory of Cocos (Keeling) Islands. The Minister must announce by notice in the Gazette the day on which the Heritage of Western Australia Act 1990 of Western Australia starts to apply in the Territory of Cocos (Keeling) Islands. The notice is not a legislative instrument.
7. Schedule 1, items 783 to 807	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	19 February 2007 (see F2007L0411)
8. Schedule 1, item 808	At the end of the period of 5 years beginning on the day on which item 550 of Schedule 1 commences.	19 February 2012
9. Schedule 1, items 809 to 835	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	19 February 2007 (see F2007L0411)
10. Schedule 1 item 836	At the end of the period of 5 years beginning on the day on which item 550 of Schedule 1 commences.	19 February 2012
11. Schedule 1, item 837	A day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	1 January 2007 (see F2006L04046)
12. Schedule 1 item 838	At the end of the period of 5 years beginning on the day on which item 550 of Schedule 1 commences.	19 February 2012
13. Schedule 1, items 839 and 840	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	item 839: 1 January 2007 (see F2006L04046) item 840: 19 February 2007 (see F2007L0411)
14. Schedule 1, items 841 to 845	At the end of the period of 5 years beginning on the day on which item 550 of Schedule 1 commences.	19 February 2012
15. Schedule 1, items 846 to 869	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	items 846–851, 854–869: 19 February 2007 (see F2007L0411) items 852, 853: 1 January 2007 (see F2006L04046)
16. Schedule 2	The day on which this Act receives the Royal Assent.	12 December 2006

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of Acts

Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999

1 After section 5

Insert:

6 Extended application of Act to match extended management of fisheries under the Fisheries Management Act 1991

(1) This section applies if:

(a) under the Fisheries Management Act 1991, a plan of management in force under that Act applies to particular fishing activities in a particular area of water; and

(b) the area of water is not within, or is not wholly within:

(i) the Australian jurisdiction; or

(ii) a Commonwealth area; or

(iii) a Commonwealth marine area; and

(i) an area of water, 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; or

(ii) an area of water within the limits of a State or the Northern Territory.

(2) If, apart from this subsection, a provision of this Act would, or would not, apply in relation to the fishing activities (or in relation to fish or other things taken in the course of the activities) because the area of water mentioned in subsection (1) is not within, or is not wholly within:

(a) the Australian jurisdiction; or

(b) a Commonwealth area; or

that provision has effect in relation to the fishing activities (and in relation to fish or other things taken in the course of the activities) as if the area of water were wholly within:

(d) the Australian jurisdiction; or

(e) a Commonwealth area; or

(f) a Commonwealth marine area;

as the case requires.

Note: This section is subject to subsection 5(3).

Example 1: Fishing activities in an area of water that is not a Commonwealth area generally do not contravene Part 13. However, because of this subsection, that Part applies to fishing activities to which this section applies as if the area of water were within a Commonwealth area. The fishing activities may therefore contravene that Part.

Example 2: If fish taken in the course of fishing activities in an area of water that is not within the Australian jurisdiction are brought into Australia, this generally constitutes an import (being an import by way of introduction from the sea) of the fish into Australia, which may contravene Part 13A. However, because of this subsection, that Part applies to the fish as if the area of water were within the Australian jurisdiction. The bringing of the fish into Australia therefore does not constitute an import for the purposes of that Part.

Example 3: This section allows a plan of management to be accredited under Part 13 in respect of the entire area of water to which the plan relates (even if some of the area is outside the Australian jurisdiction, a Commonwealth area or a Commonwealth marine area).

(3) In this section:

fishing has the same meaning as in the Fisheries Management Act 1991.

2 Section 7

After “Criminal Code”, insert “(except Part 2.5)”.

3 At the end of section 7

Add:

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: Part 2.5 of the Criminal Code (which deals with corporate criminal responsibility) is excluded from applying to offences against this Act by subsection 498B(9).

4 Paragraph 15A(1)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on the world heritage values of a property; and

5 After subsection 15A(1)

Insert:

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

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

6 Paragraph 15A(2)(b)

Repeal the paragraph, substitute:

(b) the action is likely to have a significant impact on the world heritage values of a property; and

7 After subsection 15A(2)

Insert:

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

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

8 At the end of subsection 15A(3)

Add:

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.

9 Subsection 15B(7)

Repeal the subsection.

10 Subsection 15B(8)

Omit “and (7)”.

11 Paragraph 15C(1)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on the heritage values of a place; and

(d) the place is a National Heritage place.

12 After subsection 15C(1)

Insert:

(1A) Strict liability applies to paragraphs (1)(c) and (d).

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

13 Paragraphs 15C(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) the action is likely to have a significant impact on the heritage values of a place; and

(d) the place is a National Heritage place.

14 After subsection 15C(2)

Insert:

(2A) Strict liability applies to paragraphs (2)(c) and (d).

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

15 Paragraph 15C(3)(c)

Repeal the paragraph, substitute:

(d) the heritage values are National Heritage values of the place; and

(e) the place is a National Heritage place.

16 After subsection 15C(3)

Insert:

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

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

17 Paragraphs 15C(4)(c) and (d)

Repeal the paragraphs, substitute:

(d) the heritage values are National Heritage values of the place; and

(e) the place is a National Heritage place.

18 After subsection 15C(4)

Insert:

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

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

19 Paragraph 15C(5)(c)

Repeal the paragraph, substitute:

(d) the heritage values are National Heritage values of the place; and

(e) the place is a National Heritage place.

20 After subsection 15C(5)

Insert:

(5A) Strict liability applies to paragraphs (5)(d) and (e).

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

21 Paragraphs 15C(6)(c) and (d)

Repeal the paragraphs, substitute:

(d) the heritage values are National Heritage values of the place; and

(e) the place is a National Heritage place.

22 After subsection 15C(6)

Insert:

(6A) Strict liability applies to paragraphs (6)(d) and (e).

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

23 Paragraph 15C(7)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on the heritage values, to the extent that they are indigenous heritage values, of a place; and

(d) the place is a National Heritage place.

24 After subsection 15C(7)

Insert:

(7A) Strict liability applies to paragraphs (7)(c) and (d).

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

25 Paragraphs 15C(8)(b) and (c)

Repeal the paragraphs, substitute:

(b) the action is likely to have a significant impact on the heritage values, to the extent that they are indigenous heritage values, of a place; and

(d) the place is a National Heritage place.

26 After subsection 15C(8)

Insert:

(8A) Strict liability applies to paragraphs (8)(c) and (d).

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

27 Paragraph 15C(9)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on the heritage values of a place; and

(ba) the heritage values are National Heritage values of the place; and

(bb) the place is a National Heritage place; and

28 After subsection 15C(9)

Insert:

(9A) Strict liability applies to paragraphs (9)(ba), (bb) and (c).

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

29 Paragraph 15C(10)(b)

Repeal the paragraph, substitute:

(b) the action is likely to have a significant impact on the heritage values of a place; and

(ba) the heritage values are National Heritage values of the place; and

(bb) the place is a National Heritage place; and

30 Paragraph 15C(10)(c)

Omit “Convention; and”, substitute “Convention.”.

31 Paragraph 15C(10)(d)

Repeal the paragraph.

32 After subsection 15C(10)

Insert:

(10A) Strict liability applies to paragraphs (10)(ba), (bb) and (c).

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

33 Subsections 15C(11) and (12)

Repeal the subsections.

34 Subsection 15C(13)

Omit “(12)”, substitute “(10)”.

35 At the end of subsection 15C(13)

Add:

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.

36 Subsection 15C(15)

Repeal the subsection.

37 Subsection 15C(16)

Omit “(12)”, substitute “(10)”.

38 Paragraph 17B(1)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on the ecological character of a wetland; and

39 After subsection 17B(1)

Insert:

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

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

40 Paragraph 17B(2)(b)

Repeal the paragraph, substitute:

(b) the action is likely to have a significant impact on the ecological character of a wetland; and

41 After subsection 17B(2)

Insert:

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

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

42 At the end of subsection 17B(3)

Add:

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.

43 Paragraph 18A(1)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on:

(i) a species; or

(ii) an ecological community; and

44 After subsection 18A(1)

Insert:

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

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

45 Paragraph 18A(2)(b)

Repeal the paragraph, substitute:

(b) the action is likely to have a significant impact on:

(i) a species; or

(ii) an ecological community; and

46 After subsection 18A(2)

Insert:

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

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

47 At the end of subsection 18A(3)

Add:

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.

48 At the end of section 19

Add:

(4) A subsection of section 18 or 18A does not apply to an action, to the extent that it is covered by subsection 517A(7).

49 Paragraph 20A(1)(b)

Repeal the paragraph, substitute:

(b) the action results or will result in a significant impact on a species; and

50 After subsection 20A(1)

Insert:

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

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

51 Paragraph 20A(2)(b)

Repeal the paragraph, substitute:

(b) the action is likely to have a significant impact on a species; and

52 After subsection 20A(2)

Insert:

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

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

53 At the end of subsection 20A(3)

Add:

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.

54 At the end of Subdivision D of Division 1 of Part 3

Add:

20B Certain actions relating to listed migratory species not prohibited

A subsection of section 20 or 20A does not apply to an action, to the extent that it is covered by subsection 517A(7).

55 At the end of subsection 22A(7)

Add:

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.

56 At the end of section 24

Add:

; (g) any other area of sea or seabed that is included in a Commonwealth reserve.

57 After subsection 24A(1)

Insert:

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

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

58 Paragraph 24A(2)(c)

Omit “and the person is reckless as to that fact”.

59 After subsection 24A(2)

Insert:

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

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

60 Paragraph 24A(3)(c)

Repeal the paragraph, substitute:

(d) the area is a Commonwealth marine area.

61 After subsection 24A(3)

Insert:

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

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

62 Paragraph 24A(4)(c)

Repeal the paragraph, substitute:

(d) the area is a Commonwealth marine area.

63 After subsection 24A(4)

Insert:

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

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

64 After subsection 24A(5)

Insert:

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

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

65 Paragraph 24A(6)(c)

Omit “and the person is reckless as to that fact”.

66 After subsection 24A(6)

Insert:

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

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

67 At the end of subsection 24A(7)

Add:

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.

68 After Subdivision H of Division 1 of Part 3

Insert:

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

(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);

(d) subsections 18A(1) and (2);

(e) subsections 20A(1) and (2);

(f) subsections 22A(1) to (6);

(g) subsections 24A(1) to (6).

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);

(d) subsections 18(1) to (6);

(e) subsection 20(1);

(f) subsections 21(1) to (3);

(g) subsections 23(1) to (3);

(h) subsection 25(1).

69 Subsection 25B(3)

After “475”, insert “, 480A, 480K”.

70 Subsection 25D(1)

After “475”, insert “, 480A, 480K”.

71 After subsection 27A(1)

Insert:

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

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

72 Paragraph 27A(2)(c)

Omit “and the person is reckless as to that fact”.

73 After subsection 27A(2)

Insert:

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

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

74 Paragraph 27A(3)(c)

Repeal the paragraph, substitute:

(d) the area is Commonwealth land.

75 After subsection 27A(3)

Insert:

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

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

76 Paragraph 27A(4)(c)

Repeal the paragraph, substitute:

(d) the area is Commonwealth land.

77 After subsection 27A(4)

Insert:

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

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

78 At the end of subsection 27A(5)

Add:

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.

79 Paragraph 27C(1)(c)

Repeal the paragraph, substitute:

(ca) the place is a Commonwealth Heritage place; and

80 After subsection 27C(1)

Insert:

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

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

81 Paragraphs 27C(2)(c) and (d)

Repeal the paragraphs, substitute:

(d) the place is a Commonwealth Heritage place; and

82 After subsection 27C(2)

Insert:

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

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

83 Subsection 28(5)

Repeal the subsection, substitute:

(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.

84 At the end of Division 2 of Part 3

Add:

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

(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);

85 Division 3 of Part 3

Repeal the Division.

86 Paragraph 29(1)(b)

Omit “management plan that is a bilaterally accredited management plan”, substitute “management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process”.

87 Paragraph 29(1)(d)

Repeal the paragraph, substitute:

(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

88 Paragraph 29(1)(e)

Omit “management plan”, substitute “management arrangement or bilaterally accredited authorisation process”.

89 Paragraph 31(c)

Omit “management plan”, substitute “management arrangement or a bilaterally accredited authorisation process”.

90 Paragraph 31(f)

Repeal the paragraph, substitute:

(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

91 Paragraph 31(g)

Omit “management plan”, substitute “management arrangement or bilaterally accredited authorisation process”.

92 Division 2 of Part 4 (heading)

Repeal the heading, substitute:

Division 2—Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes

93 Paragraph 32(a)

Omit “management plan”, substitute “management arrangement or an accredited authorisation process”.

94 Paragraph 32(c)

Repeal the paragraph, substitute:

(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

95 Paragraph 32(d)

Omit “management plan”, substitute “management arrangement or accredited authorisation process”.

96 Subsection 33(1)

Omit “a management plan that is an accredited management plan”, substitute “a management arrangement or authorisation process that is an accredited management arrangement or an accredited authorisation process”.

97 Subsection 33(2)

Repeal the subsection, substitute:

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

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

98 Subsection 33(3)

Omit “, the Minister may accredit by written instrument a management plan”, substitute “or (2A), the Minister may accredit by written instrument a management arrangement or authorisation process”.

Note: The heading to subsection 33(3) is altered by omitting “management plan” and substituting “management arrangement or authorisation process”.

99 Paragraph 33(3)(a)

Repeal the paragraph, substitute:

(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

100 Paragraph 33(3)(b)

Omit “plan”, substitute “management arrangement or authorisation process”.

101 Paragraph 33(3)(c)

Omit “management plan”, substitute “management arrangement or authorisation process”.

102 Subsection 33(3)

Omit “management plan” (last occurring), substitute “management arrangement or authorisation process”.

103 Subsection 33(3) (note)

Omit “plan”, substitute “management arrangement or authorisation process”.

104 Subsection 33(4)

Repeal the subsection, substitute:

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

(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.

105 Subsection 33(5)

Omit “management plan”, substitute “management arrangement or authorisation process”.

106 Subsection 33(5)

After “(2)”, insert “or (2A)”.

107 Paragraph 33(5)(a)

Omit “management plan”, substitute “management arrangement or authorisation process”.

108 Paragraph 33(5)(b)

Omit “management plan”, substitute “management arrangement or authorisation process”.

109 Paragraph 33(5)(b)

After “House—”, insert “subject to subsection (5A),”.

Note: The heading to subsection 33(5) is replaced by the heading “Limitations on accreditation during period for opposition”.

110 After subsection 33(5)

Insert:

(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.

111 Subsections 33(6) and (7)

Repeal the subsections, substitute:

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 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.

112 Paragraph 33(8)(a)

Omit “management plan”, substitute “management arrangement or authorisation process”.

113 Subsection 33(8)

Omit “management plan” (last occurring), substitute “management arrangement or relevant part of the law”.

114 Subsection 33(8)

After “(5),”, insert “(5A),”.

115 Sections 34B to 34D

Omit “management plan” (wherever occurring), substitute “management arrangement or authorisation process”.

116 After paragraph 34D(1)(c)

Insert:

(ca) the Minister has had regard to any approved conservation advice for the species or community; and

117 At the end of subsection 34D(2)

Add:

; and (d) the Minister has had regard to any approved conservation advice for the species or community.

118 Sections 34E and 34F

Omit “management plan” (wherever occurring), substitute “management arrangement or authorisation process”.

119 Paragraphs 35(2)(a) and (b)

Repeal the paragraphs, substitute:

(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

120 Section 36

Omit “management plan” (wherever occurring), substitute “management arrangement or authorisation process”.

121 At the end of Subdivision D of Division 2 of Part 4

Add:

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

(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.

122 After Division 2 of Part 4

Insert:

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

(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.

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 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

(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;

(d) a reprocessing facility.

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

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.

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

123 Paragraph 43A(1)(b)

Repeal the paragraph, substitute:

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

124 Paragraph 43A(1)(c)

After “no further”, insert “specific”.

125 At the end of subsection 43A(1)

Add:

; and (d) at the time the action is taken, the specific environmental authorisation continues to be in force.

126 After subsection 43A(1)

Insert:

(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.

127 Subsection 43A(2)

Omit “this section”, substitute “this Act”.

128 Subsection 43A(2)

Insert:

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.

129 Subsection 43B(1)

Omit “For this purpose, an enlargement, expansion or intensification of use is not a continuation of a use.”.

130 Subsection 43B(2)

Repeal the subsection, substitute:

(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.

131 Subsection 46(1)

132 Subsection 46(2)

Repeal the subsection, substitute:

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.

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.

133 Subsection 46(3)

Omit “, the Minister may accredit in writing a management plan”, substitute “or (2A), the Minister may accredit in writing a management arrangement or an authorisation process”.

Note: The heading to subsection 46(3) is altered by omitting “management plan” and substituting “management arrangement or authorisation process”.

134 Paragraph 46(3)(a)

Repeal the paragraph, substitute:

(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

135 Paragraph 46(3)(b)

Omit “management plan”, substitute “management arrangement or authorisation process”.

136 Paragraph 46(3)(c)

Omit “management plan”, substitute “management arrangement or authorisation process”.

137 Subsection 46(3)

Omit “management plan” (last occurring), substitute “management arrangement or authorisation process”.

138 Subsection 46(3) (note)

Omit “plan”, substitute “management arrangement or an authorisation process”.

139 Subsection 46(4)

Repeal the subsection, substitute:

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).

140 Subsection 46(5)

Omit “management plan”, substitute “management arrangement or authorisation process”.

141 Subsection 46(5)

After “(2)”, insert “or (2A)”.

142 Paragraph 46(5)(a)

Omit “the plan”, substitute “the management arrangement or authorisation process”.

143 Paragraph 46(5)(b)

Omit “management plan”, substitute “management arrangement or authorisation process”.

144 Paragraph 46(5)(b)

After “House—”, insert “subject to subsection (5A),”.

Note: The heading to subsection 46(5) is replaced by the heading “Limitations on accreditation during period for disallowance”.

145 After subsection 46(5)

Insert:

(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.

146 Subsections 46(6) and (7)

Repeal the subsections, substitute:

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 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.

147 Paragraph 46(8)(a)

Omit “management plan”, substitute “management arrangement or authorisation process”.

148 Subsection 46(8)

Omit “management plan” (last occurring), substitute “management arrangement or relevant part of the law”.

149 Subsection 46(8)

After “(5),”, insert “(5A),”.

150 Subsection 46(9)

Omit “management plan”, insert “management arrangement or authorisation process”.

151 Subsection 46(10)

Omit “The”, substitute “If the declaration is for actions approved in accordance with a bilaterally accredited management arrangement, the”.

152 Paragraphs 46(10)(a) and (b)

Omit “a management plan that is a bilaterally accredited management plan for the purposes of the agreement”, substitute “the management arrangement”.

153 Subsection 51(2)

Omit “management plan”, substitute “management arrangement or an authorisation process”.

154 Paragraphs 51(2)(a) and (b)

Omit “the plan”, substitute “the management arrangement or authorisation process”.

155 Subsection 51A(2)

Omit “management plan”, substitute “management arrangement or an authorisation process”.

156 Subsection 51A(2)

Omit “the plan”, substitute “the management arrangement or authorisation process”.

157 Subsection 52(2)

Omit “management plan”, substitute “management arrangement or an authorisation process”.

158 Paragraphs 52(2)(a) and (b)

Omit “the plan”, substitute “the management arrangement or authorisation process”.

159 After paragraph 53(1)(c)

Insert:

(ca) the Minister has had regard to any approved conservation advice for the species or community; and

160 Subsection 53(2)

Omit “management plan”, substitute “management arrangement or an authorisation process”.

161 Paragraphs 53(2)(a), (b) and (c)

Omit “the plan”, substitute “the management arrangement or authorisation process”.

162 At the end of subsection 53(2)

Add:

; and (d) the Minister has had regard to any approved conservation advice for the species or community.

163 Subsection 54(2)

Omit “management plan”, substitute “management arrangement or an authorisation process”.

164 Paragraphs 54(2)(a) and (b)

Omit “the plan”, substitute “the management arrangement or authorisation process”.

165 Section 55

Omit “management plan”, substitute “management arrangement or an authorisation process”.

166 At the end of Division 2 of Part 5

Add:

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

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

(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.

167 Subsection 64(2)

Omit “management plan that is a bilaterally accredited management plan”, substitute “management arrangement or an authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process”.

168 Subsections 65(1) and (2) (including the notes)

Repeal the subsections, substitute:

(1) A bilateral agreement ceases to have effect for the purposes of this Act at the time when the agreement provides for it to cease to so have effect.

Note: The parties to a bilateral agreement may also agree to revoke it.

(2) The Minister must cause a review of the operation of a bilateral agreement to be carried out at least once every 5 years while the agreement remains in effect. The Minister must give a copy of the report of each review to the appropriate Minister of the State or Territory that is party to the agreement.

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

169 Subsection 65(3)

After “the report”, insert “on each subsection (2) review”.

170 Subsection 65A(2)

Omit “management plan that was a bilaterally accredited management plan”, substitute “management arrangement or an authorisation process that was a bilaterally accredited management arrangement or a bilaterally accredited authorisation process”.

171 After paragraph 66(c)

Insert:

(ca) information included in the referral; or

172 Section 67

After “would be”, insert “(or would, but for section 25AA or 28AB, be)”.

173 After section 67

Insert:

67A Prohibition on taking controlled action without approval

A person must not take a controlled action unless an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the relevant provision of Part 3.

Note: A person can be restrained from contravening this section by an injunction under section 475.

174 At the end of section 68

Add:

(6) This section is affected by section 68A.

175 After section 68

Insert:

68A Actions proposed to be taken under a contract etc.

(1) This section applies in relation to an action that is proposed to be taken under a contract or an agreement, arrangement or understanding, other than:

(a) a subcontract; or

(b) an agreement, arrangement or understanding entered into for the purposes of a contract or another agreement, arrangement or understanding.

Note: A person proposing to take an action under a subcontract, or an agreement, arrangement or understanding entered into for the purposes of a contract or another agreement, arrangement or understanding, is not required or permitted to refer the proposal to take the action to the Minister under section 68.

(2) For the purposes of section 68 and subject to subsection (3), a reference to, or relating to, a person proposing to take the action is a reference to, or relating to, any of the following persons:

(a) a party to the contract, agreement, arrangement or understanding for whose benefit the action is proposed to be taken;

(b) a person who:

(i) requested or procured, or proposes to request or procure, the creation of the contract, agreement, arrangement or understanding; and

(ii) is to be responsible for controlling and directing the taking of the proposed action.

(3) If a person (the first person) referred to in paragraph (2)(a) or (b) refers a proposal to take the action to the Minister under section 68:

(a) no other person is required or permitted to refer a proposal to take the action to the Minister under section 68; and

(b) for the purposes of this Chapter, a reference to, or relating to, the person proposing to take the action is a reference to, or relating to, the first person.

(4) For the purposes of this section, a reference to a contract or subcontract or an agreement, arrangement or understanding includes a reference to a proposed contract, proposed subcontract, proposed agreement, proposed arrangement or proposed understanding.

(5) Nothing in this section is intended to affect the capacity of a person to refer a proposal to take an action to the Minister under subsection 68(1) or (2) on behalf of the person proposing to take the action.

176 Subsection 70(7)

Repeal the subsection.

177 Subsection 71(1)

Omit “(except the Minister)”.

178 At the end of section 72

Add:

(3) A referral of a proposal to take an action may include alternative proposals relating to any of the following:

(a) the location where the action is to be taken;

(b) the time frames within which the action is to be taken;

179 After subsection 74(1)

Insert:

Inviting comments from the Australian Heritage Council

(1A) If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 15B or 15C could be a controlling provision for the proposed action because of National Heritage values of a National Heritage place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.

Note: Sections 15B and 15C protect the National Heritage values of National Heritage places.

(1B) If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 23, 24A, 26, 27A, 27B, 27C or 28 could be a controlling provision for the proposed action because of heritage values of a place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.

Note: Sections 23, 24A, 26, 27A, 27B, 27C and 28 protect the environment, which includes the heritage values of places. See the definition of environment in section 528.

180 Subsection 74(2)

Omit all the words after “self‑governing Territory,” (not including the note), substitute:

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

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

(b) invite that Minister to give the Environment Minister within 10 business days:

(i) comments on whether the proposed action is a controlled action; and

(ii) information relevant to deciding which approach would be appropriate to assess the relevant impacts of the action (including if the action could be assessed under a bilateral agreement).

181 At the end of subsection 74(3)

Add:

Note: If the action is also the subject of a permit application under section 200, 215, 237 or 257 and the application is made at the same time as the referral, the referral and invitation for comments that must be published under this subsection may be published together with the application and invitation for comments that must be published under section 200, 215, 237 or 257.

182 After subsection 74(3)

Insert:

Non‑disclosure of commercial‑in‑confidence information

(3A) The Environment Minister may refuse to cause to be published on the Internet, under subsection (3), so much of the information included in a referral as the Minister is satisfied is commercial‑in‑confidence.

(3B) The Environment Minister must not be satisfied that particular information included in a referral is commercial‑in‑confidence unless a person demonstrates to the Minister that:

(a) release of the information would cause competitive detriment to the person; and

(b) the information is not in the public domain; and

(d) the information is not readily discoverable.

183 Subsection 74(4)

Repeal the subsection.

184 At the end of Division 1 of Part 7

Add:

74AA Offence of taking action before decision made in relation to referral etc.

Referral made: taking action while decision making process still going on

(1) A person commits an offence if:

(a) the person takes an action; and

(b) either:

(i) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister by the person under section 68; or

(ii) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister under section 69 or 71 and the person has been informed of the referral under section 73; and

(d) the Minister has not decided under subsection 74A(1) not to accept the referral; and

(e) provisions of this Chapter are not stopped by Division 1A from applying in relation to the referral; and

(f) provisions of this Chapter are not stopped by section 155 from applying because of the referral in relation to the action (or a larger action of which the action is a component); and

(g) no decision that the action (or a larger action of which the action is a component) is not a controlled action is in operation under section 75 in relation to the referral; and

(h) no decision is in operation under Part 9 in relation to the referral approving, or not approving, the taking of the action (or a larger action of which the action is a component).

Penalty: 500 penalty units.

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

(2) Subsection (1) does not apply to the taking of an action by a person if:

(a) the taking of the action is reasonably necessary in order to comply with a requirement or request made under this Part or Part 8 or 9 in relation to the action (or a larger action of which the action is a component); and

(b) before taking the action, the person gave the Minister written notice of the taking of the action; and

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

Referral requested: taking action before requested referral is made

(3) A person commits an offence if:

(a) the person takes an action; and

(b) the Minister, under section 70, has requested the referral by the person of a proposal to take the action (or a larger action of which the action is a component) to the Minister; and

(d) the referral has not been made.

Penalty: 500 penalty units.

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

185 After Division 1 of Part 7

Insert:

Division 1A—Decision that action is clearly unacceptable

74B Application of this Division

(1) This Division applies to the referral of a proposal to take an action if, within 20 business days after the Minister receives the referral:

(a) the Minister considers, on the basis of the information in the referral, that it is clear that the action would have unacceptable impacts on a matter protected by a provision of Part 3; and

(b) the Minister decides that this Division should apply to the referral.

(2) If this Division applies to a referral, any other provisions of this Chapter that would, apart from this subsection, have applied to the referral cease to apply to the referral.

(3) Subsection (2) has effect subject to paragraph 74D(6)(a).

74C Informing person proposing to take action that action is clearly unacceptable

(1) As soon as practicable after making the decision under paragraph 74B(1)(b) in relation to a referral, the Minister must give written notice of the decision to:

(a) the person proposing to take the action that is the subject of the referral; and

(b) the person who referred the proposal to the Minister (if that person is not the person proposing to take the action that is the subject of the referral).

(2) The notice must:

(a) state that the Minister considers that the action would have unacceptable impacts on a matter protected by a provision of Part 3; and

(b) set out the reasons for the Minister’s decision.

(3) After receiving the notice under subsection (1), the person proposing to take the action may:

(a) withdraw the referral and take no further action in relation to the proposed action; or

(b) withdraw the referral and refer a new proposal to take a modified action to the Minister in accordance with Division 1; or

Note 1: Section 170C sets out the procedure for withdrawing a referral.

Note 2: A referral of a proposal to take a modified action will be a new referral for the purposes of this Chapter.

74D Procedure if Minister is requested to reconsider referral

(1) This section applies if the Minister receives a request under paragraph 74C(3)(c) to reconsider a referral.

Inviting public comment

(2) The Minister must, within 10 business days after receiving the request, publish on the Internet:

(a) a notice stating that the Minister proposes not to approve the taking of the action that is the subject of the referral; and

(b) the reasons for the Minister’s decision; and

(c) an invitation for anyone to give the Secretary, within 10 business days (measured in Canberra), comments in writing on:

(i) the impacts that the action would have on a matter protected by a provision of Part 3; and

(ii) the Minister’s proposal to refuse to approve the taking of the action.

Report about relevant impacts of action

(3) Within 10 business days after the end of the period for comment under paragraph (2)(c), the Secretary must:

(a) prepare a written report about the relevant impacts that the action has or will have, or is likely to have, on a matter protected by a provision of Part 3; and

(b) give the Minister:

(i) the report; and

(ii) a copy of any comments received by the Secretary within the period for comment.

In preparing the report, the Secretary must have regard to the comments referred to in subparagraph (b)(ii).

Decision following reconsideration

(4) Within 20 business days after receiving the report under subsection (3), the Minister must:

(a) if the Minister still considers that it is clear that the action would have unacceptable impacts on a matter protected by a provision of Part 3—decide to refuse to approve the taking of the action; or

(b) decide that the referral is to be dealt with under the provisions of this Chapter that, because of subsection 74B(2), have ceased to apply to the referral.

(5) If the Minister decides to refuse to approve the taking of the action, the Minister must, within 10 business days after making the decision, give notice of the decision to:

(a) the person proposing to take the action; and

(b) the person who referred the proposal to the Minister (if that person is not the person proposing to take the action).

Note: The person proposing to take the action may request reasons for the refusal and the Minister must give them. See section 13 of the Administrative Decisions (Judicial Review) Act 1977.

(6) If the Minister makes a decision under paragraph (4)(b):

(a) the provisions of this Chapter that, because of subsection 74B(2), have ceased to apply to the referral start to apply to the referral; and

(b) for the purposes of the application of those provisions, a day is not to be counted as a business day if it is:

(i) on or after the day the Minister received the referral; and

(ii) on or before the day the Minister makes the decision under paragraph (4)(b).

Note: If the Minister had already complied with section 74 in relation to the referral before the Minister made the decision under paragraph 74B(1)(b) in relation to the referral, the Minister is not required to comply with section 74 again.

186 At the end of subsection 75(1)

Add:

Note: The Minister may revoke a decision made under subsection (1) about an action and substitute a new decision. See section 78.

187 Paragraph 75(1A)(a)

Omit “(if any)”.

188 At the end of subsection 75(2)

Add:

Note: Impact is defined in section 527E.

189 After subsection 75(2)

Insert:

(2A) For the purposes of subsection (2), if the provision of Part 3 is subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 26(1) or 27A(1), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or Commonwealth land:

(a) has or will have; or

(b) is likely to have;

on the matter.

(2B) Without otherwise limiting any adverse impacts that the Minister must consider under paragraph (2)(a), the Minister must not consider any adverse impacts of:

(a) any RFA forestry operation to which, under Division 4 of Part 4, Part 3 does not apply; or

(b) any forestry operations in an RFA region that may, under Division 4 of Part 4, be undertaken without approval under Part 9.

190 Subsection 75(5)

Repeal the subsection (not including the heading), substitute:

(5) The Minister must make the decisions under subsection (1) and, if applicable, the designation under subsection (3), within 20 business days after the Minister receives the referral of the proposal to take the action.

Note: If the Minister decides, under subsection 75(1), that the action is a controlled action, the Minister must, unless the Minister has requested more information under subsection 76(3) or section 89, decide on the approach to be used for assessment of the relevant impacts of the action on the same day as the Minister makes the decision under subsection 75(1)—see subsection 88(2).

191 Subsection 75(6)

Omit “section 76”, substitute “subsection 76(1) or (2)”.

192 Section 76

Before “If the Minister”, insert “(1)”.

Note: The heading to section 76 is altered by omitting “decision” and substituting “decisions”.

193 At the end of section 76

Add:

(2) Before the Minister makes the decisions under subsection 75(1) in relation to the action, the Minister may request the person proposing to take the action to provide information about whether or not the action is a component of a larger action that is proposed to be taken by the person.

(3) If the Minister believes on reasonable grounds that the information given to the Minister in relation to the action is not enough to allow the Minister to make an informed decision on the approach to be used for assessment of the relevant impacts of the action, the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

(4) Without limiting subsection (3), if the action is to be taken in a State or self‑governing Territory, the Minister may request the person proposing to take the action to provide information about:

(a) whether the relevant impacts of the action have been, or are being, assessed by the State or Territory; and

(b) if so, the method of assessment that was, or is being, used and what stage the assessment has reached.

(5) The Minister may make a request under subsection (3) even if the Minister has not yet made the decisions under subsection 75(1) in relation to the action.

194 Subsection 77A(1)

Repeal the subsection, substitute:

(1) If, in deciding whether the action is a controlled action or not, the Minister has made a decision (the component decision) that a particular provision of Part 3 is not a controlling provision for the action because the Minister believes it will be taken in a particular manner, the notice, to be provided under section 77, must set out the component decision, identifying the provision and the manner.

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

(1A) For the purposes of subsection (1), it does not matter whether or not the Minister believes that the action will be taken in accordance with:

(a) an accredited management arrangement or an accredited authorisation process for the purposes of a declaration under section 33; or

(b) a bioregional plan to which a declaration made under section 37A relates; or

(c) a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of a bilateral agreement.

195 Before section 78

Insert:

Division 3—Reconsideration of decisions

196 Paragraphs 78(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) the following requirements are met:

(i) the first decision was that the action was not a controlled action because the Minister believed the action would be taken in the manner identified under subsection 77A(1) in the notice given under section 77;

(ii) the Minister is satisfied that the action is not being, or will not be, taken in the manner identified; or

(ba) the following requirements are met:

(i) the first decision was that the action was not a controlled action because of a provision of a bilateral agreement and 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;

(ii) the provision of the agreement no longer operates in relation to the action, or the management arrangement or authorisation process is no longer in force under, or set out in, a law of a State or a self‑governing Territory identified in or under the agreement; or

(i) the first decision was that the action was not a controlled action because of a declaration under section 33 and a management arrangement or an authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration;

(ii) the declaration no longer operates in relation to the action, or the management arrangement or authorisation process is no longer in operation under, or set out in, a law of the Commonwealth identified in or under the declaration; or

(ca) the following requirements are met:

(i) the first decision was that the action was not a controlled action because of a declaration under section 37A and a bioregional plan to which the declaration relates;

(ii) the declaration no longer operates in relation to the action, or the bioregional plan is no longer in force; or

197 At the end of subsection 78(1)

Add:

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

Note 2: A person (other than a Minister of a State or self‑governing Territory) may request the Minister to reconsider a decision made under subsection 75(1) about an action on the basis of a matter referred to in any of paragraphs 78(1)(a) to (ca). See section 78A.

Note 3: If the Minister decides to revoke a decision under subsection (1) and substitute a new decision for it, the Minister is not required to carry out the processes referred to in sections 73 and 74 again before making the new decision.

198 After section 78

Insert:

78A Request for reconsideration of decision by person other than State or Territory Minister

(1) A person (other than a Minister of a State or self‑governing Territory) may request the Minister to reconsider a decision made under subsection 75(1) about an action on the basis of a matter referred to in any of paragraphs 78(1)(a) to (ca).

Note: Section 79 deals with requests for reconsideration by a Minister of a State or self‑governing Territory.

(2) A request under subsection (1) must:

(a) be in writing; and

(b) set out the basis on which the person thinks the decision should be reconsidered; and

(3) If a request is made under subsection (1) in relation to a decision that an action is a controlled action, or that particular provisions are controlling provisions for an action, then:

(a) if the request is made by the designated proponent of the action—Part 8 ceases to apply in relation to the action until the Minister makes a decision in relation to the request; but

(b) if the request is made by another person—the application of Part 8 in relation to the action is not affected by the making of the request (subject to the outcome of the reconsideration).

(4) If:

(a) because of paragraph (3)(a), Part 8 has ceased to apply in relation to an action; and

(b) the Minister confirms the decision that is the subject of the request under subsection (1);

then:

(c) the application of Part 8 in relation to the action resumes (as does any assessment process under that Part that had previously commenced in relation to the action); and

(d) for the purposes of the resumed application of Part 8, a day is not to be counted as a business day if it is:

(i) on or after the day the Minister received the request; and

(ii) on or before the day the Minister confirms the decision.

78B Minister must inform interested persons of request and invite comments

(1) The Minister (the Environment Minister) must comply with this section if he or she receives a request under section 78A to reconsider a decision made under subsection 75(1) about an action.

Informing designated proponent of request and inviting comments

(2) If the request is made by a person other than the designated proponent of the action, the Environment Minister must:

(a) inform the designated proponent of the request in accordance with subsection (3); and

(b) invite the designated proponent to give the Environment Minister, within 10 business days, comments on the request.

(3) For the purpose of paragraph (2)(a), the Environment Minister must inform the designated proponent of the request by giving the designated proponent such information relating to the request as the Minister considers appropriate. The Minister need not (for example) reveal the identity of the person who made the request.

Inviting other Commonwealth Ministers to provide information

(4) The Environment Minister must:

(a) inform any other Minister who the Environment Minister believes has administrative responsibilities relating to the action of the request; and

(b) invite each Minister informed to give the Environment Minister, within 10 business days, information about whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action.

Inviting comments from appropriate State or Territory Minister

(5) If the request relates to an action proposed to be taken in a State or self‑governing Territory and the Environment Minister thinks the action may have an impact on a matter protected by a provision of Division 1 of Part 3 (about matters of national environmental significance), the Environment Minister must:

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

(b) invite that Minister to give the Environment Minister, within 10 business days:

(i) comments on whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action; and

(ii) any other information that the Minister of the State or Territory considers relevant to the reconsideration.

Note: Subsection (5) also applies in relation to a request that relates to an action that is to be taken in an area offshore from a State or the Northern Territory. See section 157.

Inviting public comment

(6) The Environment Minister must publish on the Internet:

(a) the request; and

(b) an invitation for anyone to give the Environment Minister, within 10 business days (measured in Canberra), comments in writing on whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action.

78C Minister must reconsider decision and give notice of outcome

Reconsideration of decision

(1) As soon as practicable after the end of the time within which information or comments may be given under section 78B in relation to a request under section 78A to reconsider a decision about an action, the Minister must:

(a) reconsider the decision; and

(b) either:

(i) confirm the decision; or

(ii) revoke the decision in accordance with subsection 78(1), and substitute a new decision for it.

Notice of outcome of reconsideration

(2) The Minister must give written notice of the outcome of the reconsideration to:

(a) the person who requested the reconsideration; and

(b) the person proposing to take the action (if that person is not the person referred to in paragraph (a)); and

(c) the designated proponent of the action (if the designated proponent is not the person referred to in paragraph (a) or (b)); and

(d) if the reconsideration relates to an action referred to in subsection 78B(5)—the appropriate Minister of the State or Territory.

(3) After giving notice as described in subsection (2), the Minister must publish notice of the outcome of the reconsideration. The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way the Minister considers appropriate.

Reasons for outcome of reconsideration

(4) The Minister must give reasons for the outcome of the reconsideration to a person who:

(a) has been given notice of the outcome of the reconsideration under paragraph (2)(a), (b) or (c); and

(b) within 28 days after being given the notice, has requested the Minister to provide reasons.

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

199 Subsections 79(1) and (2)

Repeal the subsections, substitute:

(1) This section applies if the Minister (the Environment Minister) has made a decision under subsection 75(1) about whether a provision of Division 1 of Part 3 is a controlling provision for an action proposed to be taken in a State or a self‑governing Territory.

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

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

(2) Within 10 business days after the appropriate Minister of the State or Territory is notified of the decision under subparagraph 77(1)(a)(iii), that Minister may request the Environment Minister to reconsider the Environment Minister’s decisions made under subsection 75(1).

200 After paragraph 80(a)

Insert:

(aa) an assessment on referral information (see Division 3A);

201 Subsection 82(2)

Omit “Division 1 or 2”, substitute “Division 1, 2, 3 or 3A”.

202 At the end of section 82

Add:

(4) For the purposes of subsections (1) and (2), if subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 26(1) or 27A(1) is, or would be, a controlling provision for the action, then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or Commonwealth land:

(a) has or will have; or

(b) is likely to have;

on the matter.

203 After paragraph 85(a)

Insert:

(aa) an assessment on referral information;

204 Section 86

Repeal the section.

205 Subsection 87(1)

Omit “the action”, substitute “an action that the Minister has decided is a controlled action”.

206 After paragraph 87(1)(a)

Insert:

(aa) assessment on referral information under Division 3A;

207 Subsection 87(2)

Repeal the subsection.

208 Paragraph 87(3)(a)

Omit “or under section 86”.

209 Paragraph 87(3)(c)

Omit “subsection (2)”, substitute “subparagraph 74(2)(b)(ii)”.

210 After subsection 87(4)

Insert:

Assessment on referral information

(4A) The Minister may decide on an assessment on referral information under Division 3A only if the Minister is satisfied (after considering the matters in subsection (3)) that the action meets the criteria prescribed in the regulations for the purposes of this subsection.

211 Subsection 88(1)

Repeal the subsection (not including the heading or the note), substitute:

(1) The Minister must decide on the approach to be used for assessment of the relevant impacts of the action within 20 business days after the Minister receives the referral of the proposal to take the action.

212 Subsections 88(2) and (3)

Repeal the subsections, substitute:

When initial decision must be made

(2) The Minister must make the decision under subsection (1) on the same day as the Minister has decided, under subsection 75(1), that the action is a controlled action, unless the Minister has requested more information under subsection 76(3) or section 89 for the purposes of deciding on the approach to be used for assessment of the relevant impacts of the action.

213 Subsection 88(4)

Omit “under section 89 for the purposes of deciding on the approach to be used for assessment of the relevant impacts of the action”, substitute “in relation to the action under subsection 76(1), (2) or (3) or section 89”.

214 Section 89

Before “If the Minister”, insert “(1).

215 At the end of section 89

Add:

(2) Without limiting subsection (1), if the action is to be taken in a State or self‑governing Territory, the Minister may request the designated proponent of the action to provide information about:

(a) whether the relevant impacts of the action have been, or are being, assessed by the State or Territory; and

(b) if so, the method of assessment that was, or is being, used and what stage the assessment has reached.

(3) The Minister may make a request in relation to an action under this section even if the Minister has made a request under subsection 76(3) in relation to the action.

216 Subparagraph 91(1)(a)(i)

Repeal the subparagraph, substitute:

(i) the person proposing to take the action; and

(ia) the designated proponent of the action (if the designated proponent is not the person proposing to take the action); and

217 Division 4 of Part 8

Repeal the Division, substitute:

Division 3A—Assessment on referral information

92 Application of this Division

This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by assessment on referral information under this Division.

93 Recommendation report

(1) The Secretary must comply with this section within 30 business days after the Minister makes the decision under section 87.

(2) The Secretary must prepare a draft recommendation report that includes recommendations on:

(a) whether the taking of the action should be approved under Part 9; and

(b) if approval is recommended, any conditions that should be attached to the approval.

(3) The Secretary must publish on the Internet:

(a) the draft recommendation report; and

(b) an invitation for anyone to give the Secretary, within 10 business days (measured in Canberra), comments in writing relating to the draft recommendation report or the action.

(3A) The Secretary may refuse to publish on the Internet, under subsection (3), so much of the draft recommendation report as:

(a) is an exempt document under the Freedom of Information Act 1982 on the grounds of the security of the Commonwealth or its providing advice to the Minister; or

(b) the Secretary is satisfied is commercial‑in‑confidence.

(3B) The Secretary must not be satisfied that a part of the draft recommendation report is commercial‑in‑confidence unless a person demonstrates to the Secretary that:

(a) release of the information in that part would cause competitive detriment to the person; and

(b) the information in that part is not in the public domain; and

(c) the information in that part is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and

(d) the information in that part is not readily discoverable.

(4) After the end of the period for comment, the Secretary must finalise the draft recommendation report, taking account of any comments received within that period.

(5) As soon as practicable after finalising the draft recommendation report, the Secretary must give the Minister:

(a) the finalised recommendation report; and

(b) either:

(i) a copy of any comments received within the period for comment; or

(ii) if no comments were received within that period—a written statement to that effect.

Division 4—Assessment on preliminary documentation

94 Application of this Division

This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by assessment on preliminary documentation under this Division.

95 Direction to publish referral information and invitation to comment—no further information required

(1) This section applies if the Minister was satisfied, at the time of making the decision (the assessment approach decision) under section 87, that the Minister had enough information in relation to the action to allow the Minister to assess the relevant impacts of the action.

(2) At the same time as the Minister gives notice of the assessment approach decision to the designated proponent of the action under paragraph 91(1)(a), the Minister must give the designated proponent a written direction to publish, within the period specified in the direction (not being less than 10 business days), in accordance with the regulations:

(a) specified information included in the referral to the Minister of the proposal to take the action; and

(b) specified information relating to the action that was given to the Minister after the referral but before the Minister made the assessment approach decision; and

(c) an invitation for anyone to give the designated proponent, within the period specified in the direction, comments in writing relating to the information or the action.

(3) The designated proponent must comply with the direction.

Note: If the designated proponent does not comply with the direction, the Minister may take action under section 155.

(4) A direction given under subsection (2) is not a legislative instrument.

95A Direction to publish referral information and invitation to comment—further information required

(1) This section applies if the Minister was not satisfied, at the time of making the decision (the assessment approach decision) under section 87, that the Minister had enough information in relation to the action to allow the Minister to assess the relevant impacts of the action.

(2) Within 10 business days after the Minister gives notice of the assessment approach decision to the designated proponent of the action under paragraph 91(1)(a), the Minister must request the designated proponent to give the Minister specified information relevant to assessing the relevant impacts of the action, including information about strategies for mitigating any adverse impacts.

(3) Within 10 business days after receiving the information requested under subsection (2), the Minister must give the designated proponent a written direction to publish, within the period specified in the direction (not being less than 10 business days), in accordance with the regulations:

(a) specified information included in the referral to the Minister of the proposal to take the action; and

(b) specified information relating to the action that was given to the Minister after the referral but before the Minister made the assessment approach decision; and

(c) specified information relating to the action that was received in response to the Minister’s request under subsection (2); and

(d) an invitation for anyone to give the designated proponent, within the period specified in the direction, comments in writing relating to the information or the action.

(4) The designated proponent must comply with the direction.

Note: If the designated proponent does not comply with the direction, the Minister may take action under section 155.

(5) A direction given under subsection (3) is not a legislative instrument.

95B Procedure after end of period for comment

Procedure if comments are received

(1) If comments are received by the designated proponent within the period for comment, the designated proponent must, as soon as practicable after the end of that period:

(a) prepare a document that:

(i) sets out the information given to the Minister previously in relation to the action, with any changes or additions needed to take account of the comments; and

(ii) contains a summary of the comments received and how those comments have been addressed; and

(b) give the Minister:

(i) a copy of the document prepared under paragraph (a); and

(ii) a copy of the comments received.

(2) Within 10 business days after the designated proponent has given the Minister the documents referred to in paragraph (1)(b), the designated proponent must publish, in accordance with the regulations, a copy of the document prepared under paragraph (1)(a).

Procedure if no comments are received

(3) If no comments are received by the designated proponent within the period for comment, the designated proponent must, as soon as practicable after the end of that period, give the Minister a written statement to that effect.

(4) Within 10 business days after the designated proponent has given the Minister the statement referred to in subsection (3), the designated proponent must publish, in accordance with the regulations, a copy of the information referred to in paragraphs 95(2)(a) and (b) or 95A(3)(a), (b) and (c), as the case requires.

Definition

(5) In this section:

period for comment means the period within which comments may be given under 95(2)(c) or 95A(3)(d), as the case requires.

95C Recommendation report

(1) The Secretary must prepare, and give to the Minister, a recommendation report relating to the action. The report must include recommendations on:

(a) whether the taking of the action should be approved under Part 9; and

(b) if approval is recommended, any conditions that should be attached to the approval.

(2) The recommendation report must be given to the Minister after the Minister receives the documents under subsection 95B(1) or the statement under subsection 95B(3), as the case requires, and before the end of the period applicable under paragraph 130(1B)(c) in relation to the action.

Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.

218 After section 96

Insert:

96A Minister must give designated proponent written guidelines for preparation of draft public environment report

(1) The Minister must give the designated proponent of the action written guidelines for the preparation of a draft public environment report about the relevant impacts of the action. The guidelines so given are referred to as the PER guidelines.

(2) The PER guidelines must be:

(a) one or more sets of standard guidelines prepared under section 96B that the Minister decides are appropriate for the preparation of the draft report in relation to the action; or

(b) if the Minister decides that standard guidelines are not appropriate for the preparation of the draft report in relation to the action—tailored guidelines prepared under section 97.

(3) In deciding whether one or more sets of standard guidelines are appropriate for the preparation of the draft report in relation to the action, the Minister must seek to ensure that the draft report, if prepared in accordance with those guidelines, will:

(a) contain enough information about the action and its relevant impacts to allow the Minister to make an informed decision whether or not to approve under Part 9 (for the purposes of each controlling provision) the taking of the action; and

(b) address the matters (if any) prescribed by the regulations.

Note: Similar considerations apply in relation to tailored guidelines: see subsection 97(2).

(4) The Minister must give the PER guidelines to the designated proponent:

(a) within 20 business days after the assessment approach decision was made under section 87; or

(b) if the Minister, under section 97, invites a person to comment on a draft of tailored guidelines for the preparation of the draft report within a specified period—within 20 business days after:

(i) the end of that period; or

(ii) if there is more than one such period, the end of the later or latest of those periods.

96B Standard guidelines

(1) The Minister may prepare one or more sets of standard guidelines, in writing, for the preparation of draft public environment reports about the relevant impacts of actions.

Note: See also subsection 96A(3).

(2) A set of standard guidelines must set out requirements for the content and presentation of draft public environment reports about the relevant impacts of actions.

(3) Without limiting subsections (1) and (2), a set of standard guidelines may relate to:

(a) actions that are proposed to be taken by a specified industry sector; or

(b) actions for which a specified provision of Part 3 is a controlling provision.

(4) A set of standard guidelines made under this section is not a legislative instrument.

219 Subsection 97(1)

Repeal the subsection, substitute:

(1) The Minister must prepare tailored guidelines, in writing, for the preparation of a draft public environment report about the relevant impacts of an action if the Minister decides that standard guidelines are not appropriate for the preparation of the draft report in relation to that action.

(1A) Tailored guidelines must set out requirements for the content and presentation of the draft report in relation to the action.

Note: The heading to section 97 is replaced by the heading “Tailored guidelines”.

220 Subsection 97(2)

Omit “the guidelines”, substitute “tailored guidelines”.

221 Subsection 97(3)

Omit “The guidelines”, substitute “Tailored guidelines”.

222 Paragraph 97(4)(b)

Before “guidelines”, insert “tailored”.

223 Subsection 97(5)

Omit “the guidelines”, substitute “tailored guidelines”.

224 At the end of section 97

Add:

(6) Tailored guidelines made under this section are not a legislative instrument.

225 Paragraph 98(1)(a)

Repeal the paragraph, substitute:

(a) prepare a draft public environment report in accordance with the PER guidelines about:

(i) the relevant impacts of the action; and

(ii) if the PER guidelines are tailored guidelines that require the draft report to include information about other impacts—those other impacts; and

(ab) give the draft report to the Minister; and

226 Subparagraph 98(1)(c)(ii)

After “comments”, insert “in writing”.

227 Subparagraph 98(1)(c)(ii)

Omit “invitation; and”, substitute “invitation.”.

228 Paragraph 98(1)(d)

Repeal the paragraph.

229 Subsection 98(2)

Omit all the words after “satisfied”, substitute “that the draft report is in accordance with the PER guidelines”.

230 Sections 99 and 100

Repeal the sections, substitute:

99 Finalising public environment report

(1) After the end of the period specified in the invitation to comment under section 98, the designated proponent must finalise the draft public environment report.

(2) The finalised report must:

(a) take account of any comments received within the period for comment; and

(b) contain a summary of any such comments and how those comments have been addressed.

(3) As soon as practicable after finalising the draft report, the designated proponent must give the Minister:

(a) the finalised report; and

(b) either:

(i) a copy of any comments received within the period for comment; or

(ii) if no comments were received within that period—a written statement to that effect.

(4) Within 10 business days after the designated proponent has given the Minister the documents required under subsection (3), the designated proponent must publish the finalised report in accordance with the regulations.

100 Recommendation report

(1) The Secretary must prepare, and give to the Minister, a recommendation report relating to the action. The report must include recommendations on:

(a) whether the taking of the action should be approved under Part 9; and

(b) if approval is recommended, any conditions that should be attached to the approval.

(2) The recommendation report must be given to the Minister after the Minister receives the finalised public environment report under section 99 and before the end of the period applicable under paragraph 130(1B)(d) in relation to the action.

Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.

231 After section 101

Insert:

101A Minister must give designated proponent written guidelines for preparation of draft environmental impact statement

(1) The Minister must give the designated proponent of the action written guidelines for the preparation of a draft environmental impact statement about the relevant impacts of the action. The guidelines so given are referred to as the EIS guidelines.

(2) The EIS guidelines must be:

(a) one or more sets of standard guidelines prepared under section 101B that the Minister decides are appropriate for the preparation of the draft statement in relation to the action; or

(b) if the Minister decides that standard guidelines are not appropriate for the preparation of the draft statement in relation to the action—tailored guidelines prepared under section 102.

(3) In deciding whether one or more sets of standard guidelines are appropriate for the preparation of the draft statement in relation to the action, the Minister must seek to ensure that the draft statement, if prepared in accordance with those guidelines, will:

(b) address the matters (if any) prescribed by the regulations.

Note: Similar considerations apply in relation to tailored guidelines: see subsection 102(2).

(4) The Minister must give the EIS guidelines to the designated proponent:

(a) within 20 business days after the assessment approach decision was made under section 87; or

(b) if the Minister, under section 102, invites a person to comment on a draft of tailored guidelines for the preparation of the draft statement within a specified period—within 20 business days after:

(i) the end of that period; or

(ii) if there is more than one such period, the end of the later or latest of those periods.

101B Standard guidelines

(1) The Minister may prepare one or more sets of standard guidelines, in writing, for the preparation of draft environmental impact statements about the relevant impacts of actions.

Note: See also subsection 101A(3).

(2) A set of standard guidelines must set out requirements for the content and presentation of draft environmental impact statements about the relevant impacts of actions.

(3) Without limiting subsections (1) and (2), a set of standard guidelines may relate to:

(a) actions that are proposed to be taken by a specified industry sector; or

(b) actions for which a specified provision of Part 3 is a controlling provision.

(4) A set of standard guidelines made under this section is not a legislative instrument.

232 Subsection 102(1)

Repeal the subsection, substitute:

(1) The Minister must prepare tailored guidelines, in writing, for the preparation of a draft environmental impact statement about the relevant impacts of an action if the Minister decides that standard guidelines are not appropriate for the preparation of the draft statement in relation to that action.

(1A) Tailored guidelines must set out requirements for the content and presentation of the draft statement in relation to the action.

Note: The heading to section 102 is replaced by the heading “Tailored guidelines”.

233 Subsection 102(2)

Omit “the guidelines”, substitute “tailored guidelines”.

234 Subsection 102(3)

Omit “The guidelines”, substitute “Tailored guidelines”.

235 Paragraph 102(4)(b)

Before “guidelines”, insert “tailored”.

236 Subsection 102(5)

Omit “the guidelines”, substitute “tailored guidelines”.

237 At the end of section 102

Add:

(6) Tailored guidelines made under this section are not a legislative instrument.

238 Paragraph 103(1)(a)

Repeal the paragraph, substitute:

(a) prepare a draft environmental impact statement in accordance with the EIS guidelines about:

(i) the relevant impacts of the action; and

(ii) if the EIS guidelines are tailored guidelines that require the draft statement to include information about other impacts—those other impacts; and

(ab) give the draft statement to the Minister; and

239 Subparagraph 103(1)(c)(ii)

After “comments”, insert “in writing”.

240 Subparagraph 103(1)(c)(ii)

Omit “invitation; and”, substitute “invitation.”.

241 Paragraph 103(1)(d)

Repeal the paragraph.

242 Subsection 103(2)

Omit all the words after “satisfied”, substitute “that the draft statement is in accordance with the EIS guidelines”.

243 Sections 104 and 105

Repeal the sections, substitute:

104 Finalising environmental impact statement

(1) After the end of the period specified in the invitation to comment under section 103, the designated proponent must finalise the draft environmental impact statement.

(2) The finalised statement must:

(a) take account of any comments received within the period for comment; and

(b) contain a summary of any such comments and how those comments have been addressed.

(3) As soon as practicable after finalising the draft statement, the designated proponent must give the Minister:

(a) the finalised statement; and

(b) either:

(i) a copy of any comments received within the period for comment; or

(ii) if no comments were received within that period—a written statement to that effect.

105 Recommendation report

(1) The Secretary must prepare, and give to the Minister, a recommendation report relating to the action. The report must include recommendations on:

(a) whether the taking of the action should be approved under Part 9; and

(b) if approval is recommended, any conditions that should be attached to the approval.

(2) The recommendation report must be given to the Minister after the Minister receives the finalised environmental impact statement under section 104 and before the end of the period applicable under paragraph 130(1B)(d) in relation to the action.

Note: This is the period within which the Minister must decide whether or not to approve the taking of the action.

244 Subsections 130(1) to (1E)

Repeal the subsections, substitute:

Basic rule

(1) The Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.

(1A) The Minister must make the decision within the relevant period specified in subsection (1B) that relates to the controlled action, or such longer period as the Minister specifies in writing.

(1B) The relevant period, in relation to a controlled action, is as follows:

(a) if the action is the subject of an assessment report—the period of 30 business days beginning on the first business day after the Minister receives the assessment report;

(b) if Division 3A of Part 8 (assessment on referral information) applies to the action—the period of 20 business days beginning on the first business day after the Minister receives the finalised recommendation report under subsection 93(5);

(c) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action—the period of 40 business days beginning on the first business day after the Minister receives the documents under subsection 95B(1) or the statement under subsection 95B(3), as the case requires;

(d) if Division 5 (public environment reports) or Division 6 (environmental impact statements) of Part 8 applies to the action—the period of 40 business days beginning on the first business day after the Minister receives the finalised public environment report or the finalised environmental impact statement, as the case requires;

(e) if a commission has conducted an inquiry relating to the action—the period of 40 business days beginning on the first business day after the Minister receives the report of the commission.

245 Paragraph 130(2)(c)

Omit “processes); or”, substitute “processes).”.

246 Paragraphs 130(2)(d), (e) and (f)

Repeal the paragraphs.

247 Subsection 130(3)

Repeal the subsection.

248 Subsection 130(4)

Omit “paragraph (1)(a) or (b)”, substitute “subsection (1A)”.

249 Subsection 130(5)

Omit “subsection (1)”, substitute “subsection (1B)”.

250 Subsection 131(1)

After “approve”, insert “, for the purposes of a controlling provision,”.

251 After section 131

Insert:

131AA Inviting comments before decision from person proposing to take action and designated proponent

(1) Before the Minister decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she must:

(a) inform the person proposing to take the action, and the designated proponent of the action (if the designated proponent is not the person proposing to take the action), of:

(i) the decision the Minister proposes to make; and

(ii) if the Minister proposes to approve the taking of the action—any conditions the Minister proposes to attach to the approval; and

(b) invite each person informed under paragraph (a) to give the Minister, within 10 business days (measured in Canberra), comments in writing on the proposed decision and any conditions.

(2) If the Minister proposes not to approve, for the purposes of a controlling provision, the taking of the action, the Minister must provide to each person informed under paragraph (1)(a), with the invitation given under paragraph (1)(b):

(a) a copy of whichever of the following documents applies to the action:

(i) an assessment report;

(ii) a finalised recommendation report given to the Minister under subsection 93(5);

(iii) a recommendation report given to the Minister under section 95C, 100 or 105; and

(b) any information relating to economic and social matters that the Minister has considered; and

(c) any information relating to the history of a person in relation to environmental matters that the Minister has considered under subsection 136(4); and

(d) a copy of any document, or part of a document, containing information of a kind referred to in paragraph 136(2)(e) that the Minister has considered.

(3) The Minister is not required to provide under subsection (2):

(a) information that is in the public domain; or

(b) a copy of so much of a document as in the public domain; or

(c) in the case of information referred to in paragraph (2)(b) or (c)—any conclusions or recommendations relating to that information included in documents or other material prepared by the Secretary for the Minister.

(4) The Minister must not provide under subsection (2):

(a) a copy of so much of a document as:

(i) is an exempt document under the Freedom of Information Act 1982 on the grounds of the security of the Commonwealth or its providing advice to the Minister; or

(ii) the Minister is satisfied contains information that is commercial‑in‑confidence; or

(b) information that:

(i) is of such a nature that its inclusion in a document would cause that document to be an exempt document of the kind referred to in subparagraph (a)(i); or

(ii) the Minister is satisfied is commercial‑in‑confidence.

(5) The Minister must not be satisfied that information (including information in a document) is commercial‑in‑confidence unless a person demonstrates to the Minister that:

(a) release of the information would cause competitive detriment to the person; and

(b) the information is not in the public domain; and

(d) the information is not readily discoverable.

(6) In deciding whether or not to approve, for the purposes of a controlling provision, the taking of the action, the Minister must take into account any relevant comments given to the Minister in response to an invitation given under paragraph (1)(b).

(7) This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to:

(a) the Minister’s decision under section 133 whether or not to approve, for the purposes of a controlling provision, the taking of the action; and

(b) if the decision is to approve, for the purposes of a controlling provision, the taking of the action, and the Minister decides, under section 134, to attach conditions to the approval—the Minister’s decision under section 134 to attach those conditions to the approval.

131A Inviting public comment before decision

Before the Minister decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she may publish on the Internet:

(a) the proposed decision and, if the proposed decision is to approve the taking of the action, any conditions that the Minister proposes to attach to the approval; and

(b) an invitation for anyone to give the Minister, within 10 business days (measured in Canberra), comments in writing on the proposed decision and any conditions.

252 At the end of section 132

Add:

; (d) if:

(i) the action is to be taken in a State or self‑governing Territory; and

(ii) a controlling provision for the action is in Division 1 of Part 3 (about matters of national environmental significance); and

(iii) the relevant impacts of the action have been assessed under a law of the State or Territory;

the appropriate Minister of that State or Territory;

(e) any other person the Minister considers appropriate.

253 After section 132

Insert:

132A Requesting notice from appropriate State or Territory Minister about certain actions

(1) This section applies to an action that is to be taken in a State or self‑governing Territory only if the action:

(a) is to be taken by a person for the purposes of trade or commerce:

(i) between Australia and another country; or

(ii) between 2 States; or

(iii) between a State and a Territory; or

(iv) between 2 Territories; or

(b) is to be taken by a constitutional corporation; or

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

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

(2) However, this section does not apply to an action if:

(a) the action:

(i) is a nuclear action; or

(ii) is to be taken entirely in a Commonwealth marine area; or

(iii) is to be taken entirely on Commonwealth land; or

(iv) is to be taken by the Commonwealth or a Commonwealth agency; and

(b) the relevant impacts of the action have been assessed under Part 8.

(3) Before the Minister (the Environment Minister) decides whether or not to approve for the purposes of a controlling provision the taking of the action, and what conditions (if any) to attach to an approval, the Environment Minister may request the appropriate Minister of the State or Territory to give the Environment Minister a notice stating the method that has been used to assess the certain and likely impacts of the action on things other than matters protected by the controlling provisions for the action.

254 Subsection 133(1)

Omit “an assessment report”, substitute “the assessment documentation”.

255 After subsection 133(1)

Insert:

(1A) If the referral of the proposal to take the action included alternative proposals relating to any of the matters referred to in subsection 72(3), the Minister may approve, for the purposes of subsection (1), one or more of the alternative proposals in relation to the taking of the action.

256 Paragraph 133(2)(b)

After “action”, insert “(including any alternative proposals approved under subsection (1A))”.

257 Paragraph 133(2)(c)

Omit “who may take the action”, substitute “to whom the approval is granted”.

258 Paragraph 133(2)(f)

Omit “any”, substitute “the”.

259 At the end of subsection 133(2)

Add:

Note: The period for which the approval has effect may be extended. See Division 5.

260 After subsection 133(2)

Insert:

Persons who may take action covered by approval

(2A) An approval granted under this section is an approval of the taking of the action specified in the approval by any of the following persons:

(a) the holder of the approval;

(b) a person who is authorised, permitted or requested by the holder of the approval, or by another person with the consent or agreement of the holder of the approval, to take the action.

261 Paragraph 133(3)(a)

After “the person”, insert “named in the approval under paragraph 133(2)(c)”.

262 Subsections 133(5) and (6)

Repeal the subsections.

263 At the end of section 133

Add:

Definition

(8) In this section:

assessment documentation, in relation to a controlled action, means:

(a) if the action is the subject of an assessment report—that report; or

(b) if Division 3A of Part 8 (assessment on referral information) applies to the action:

(i) the referral of the proposal to take the action; and

(ii) the finalised recommendation report relating to the action given to the Minister under subsection 93(5); or

(i) the documents given to the Minister under subsection 95B(1), or the statement given to the Minister under subsection 95B(3), as the case requires, relating to the action; and

(ii) the recommendation report relating to the action given to the Minister under section 95C; or

(d) if Division 5 of Part 8 (public environment reports) applies to the action:

(i) the finalised public environment report relating to the action given to the Minister under section 99; and

(ii) the recommendation report relating to the action given to the Minister under section 100; or

(e) if Division 6 of Part 8 (environmental impact statements) applies to the action:

(i) the finalised environmental impact statement relating to the action given to the Minister under section 104; and

(ii) the recommendation report relating to the action given to the Minister under section 105.

264 Before subsection 134(1)

Insert:

Condition to inform persons taking action of conditions attached to approval

(1A) An approval of the taking of an action by a person (the first person) is subject to the condition that, if the first person authorises, permits or requests another person to undertake any part of the action, the first person must take all reasonable steps to ensure:

(a) that the other person is informed of any condition attached to the approval that restricts or regulates the way in which that part of the action may be taken; and

(b) that the other person complies with any such condition.

For the purposes of this Chapter, the condition imposed by this subsection is attached to the approval.

Note: The heading to section 134 is replaced by the heading “Conditions of approval”.

265 Paragraph 134(1)(a)

After “effect”, insert “(whether or not the protection is protection from the action)”.

266 Before paragraph 134(3)(a)

Insert:

(aa) conditions requiring specified activities to be undertaken for:

(i) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or

(ii) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage may or will be, or has been, caused by the action); and

(ab) conditions requiring a specified financial contribution to be made to a person for the purpose of supporting activities of a kind mentioned in paragraph (aa); and

Note: The heading to subsection 134(3) is replaced by the heading “Examples of kinds of conditions that may be attached”.

267 Paragraph 134(3)(a)

Omit “given by the person”, substitute “given by the holder of the approval”.

268 Subparagraph 134(3)(a)(iii)

Omit “the person”, substitute “a person”.

269 Paragraph 134(3)(b)

Omit “the person” (first occurring), substitute “the holder of the approval”.

270 Paragraph 134(3)(b)

Omit “the person” (second occurring), substitute “the holder”.

271 Paragraph 134(3)(c)

Omit “the person”, substitute “a person”.

272 Paragraph 134(3)(d)

Omit “the person”, substitute “any person”.

273 After paragraph 134(3)(g)

Insert:

; and (h) conditions relating to any alternative proposals in relation to the taking of the action covered by the approval (as permitted by subsection 133(1A)).

274 After subsection 134(3)

Insert:

Certain conditions require consent of holder of approval

(3A) The following kinds of condition cannot be attached to the approval of an action unless the holder of the approval has consented to the attachment of the condition:

(a) a condition referred to in paragraph (3)(aa), if the activities specified in the condition are not reasonably related to the action;

(b) a condition referred to in paragraph (3)(ab).

(3B) If the holder of the approval has given consent, for the purposes of subsection (3A), to the attachment of a condition:

(a) the holder cannot withdraw that consent after the condition has been attached to the approval; and

(b) any person to whom the approval is later transferred under section 145B is taken to have consented to the attachment of the condition, and cannot withdraw that consent.

Conditions attached under paragraph (3)(c)

(3C) A condition attached to an approval under paragraph (3)(c) may require a person taking the action to comply with conditions specified in an instrument of a kind referred to in that paragraph:

(a) as in force at a particular time; or

(b) as is in force or existing from time to time;

even if the instrument does not yet exist at the time the approval takes effect.

275 Paragraph 134(4)(a)

After “imposed”, insert “, or the Minister considers are likely to be imposed,”.

276 Paragraph 134(4)(b)

Omit “the person”, substitute “a person”.

277 After subsection 134(4)

Insert:

Effect of conditions requiring compliance with conditions specified in another instrument

(4A) If:

(a) a condition (the principal condition) attached to an approval under paragraph (3)(c) requires a person taking the action to comply with conditions (the other conditions) specified in an instrument of a kind referred to in that paragraph; and

(b) the other conditions are in excess of the power conferred by subsection (1);

the principal condition is taken to require the person to comply with the other conditions only to the extent that they are not in excess of that power.

278 At the end of Subdivision A of Division 1 of Part 9

Add:

135A Publication of recommendation reports

(1) This section applies in relation to the following reports:

(a) a finalised recommendation report given to the Minister under subsection 93(5);

(b) a recommendation report given to the Minister under section 95C, 100 or 105.

(2) Subject to subsections (3) and (4), the Secretary must provide a copy of a report to which this section applies to a person who asks for it (either at no charge or at a reasonable charge determined by the Secretary).

(3) The Secretary is not required to provide a copy of the report under subsection (2) to anyone until after the Minister has decided, for the purposes of each controlling provision, whether or not to approve the taking of the action concerned.

(4) The Secretary may refuse to provide, under subsection (2), a copy of so much of the report as:

(a) is an exempt document under the Freedom of Information Act 1982 on the grounds of the security of the Commonwealth or its providing advice to the Minister; or

(b) the Secretary is satisfied is commercial‑in‑confidence.

(5) The Secretary must not be satisfied that a part of the report is commercial‑in‑confidence unless a person demonstrates to the Secretary that:

(a) release of the information in that part would cause competitive detriment to the person; and

(b) the information in that part is not in the public domain; and

(c) the information in that part is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and

(d) the information in that part is not readily discoverable.

279 Paragraph 136(2)(b)

After “assessment report”, insert “(if any)”.

280 After paragraph 136(2)(b)

Insert:

(ba) if Division 3A of Part 8 (assessment on referral information) applies to the action—the finalised recommendation report relating to the action given to the Minister under subsection 93(5); and

(bc) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:

(i) the documents given to the Minister under subsection 95B(1), or the statement given to the Minister under subsection 95B(3), as the case requires, relating to the action; and

(ii) the recommendation report relating to the action given to the Minister under section 95C; and

281 Paragraph 136(2)(c)

Repeal the paragraph, substitute:

(i) the finalised public environment report relating to the action given to the Minister under section 99; and

(ii) the recommendation report relating to the action given to the Minister under section 100; and

(ca) if Division 6 (environmental impact statements) of Part 8 applies to the action:

(i) the finalised environmental impact statement relating to the action given to the Minister under section 104; and

(ii) the recommendation report relating to the action given to the Minister under section 105; and

282 Paragraph 136(2)(f)

Omit “by another Minister”.

283 At the end of paragraph 136(2)(f)

Add “or 131A”.

284 At the end of subsection 136(2)

Add:

; and (g) if a notice relating to the action was given to the Minister under subsection 132A(3)—the information in the notice.

Note: The Minister must also take into account any relevant comments given to the Minister in response to an invitation under paragraph 131AA(1)(b). See subsection 131AA(6).

285 Subsection 136(4)

Omit all the words after “an approval,” (second occurring), substitute:

having regard to:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and

(c) if the person is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers.

286 Subsection 136(5)

Omit “Subdivision”, substitute “Division”.

287 Section 139

Before “In deciding”, insert “(1)”.

288 At the end of section 139

Add:

(2) If:

(a) the Minister is considering whether to approve, for the purposes of a subsection of section 18 or section 18A, the taking of an action; and

(b) the action has or will have, or is likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community;

the Minister must, in deciding whether to so approve the taking of the action, have regard to any approved conservation advice for the species or community.

289 After subsection 142(1)

Insert:

(1A) Subsection (1) does not apply to a person who is not the holder of the approval if:

(a) the person was not informed of the condition; and

(b) the person could not reasonably have been expected to be aware of the condition.

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

290 At the end of subsection 142A(4)

Add:

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.

291 At the end of Division 2 of Part 9

Add:

142B Strict liability offence for breach of approval condition

(1) A person whose taking of an action has been approved under this Part is guilty of an offence if:

(a) the person takes an action or omits to take an action; and

(b) the action or omission contravenes a condition attached to the approval.

Penalty: 60 penalty units.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

Note 3: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

Note 4: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.

(2) Subsection (1) does not apply to a person who is not the holder of the approval if:

(a) the person was not informed of the condition; and

(b) the person could not reasonably have been expected to be aware of the condition.

Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.

(3) Subsection (1) is an offence of strict liability.

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

292 Subsection 143(1)

After “any conditions”, insert “(other than the condition referred to in subsection 134(1A))”.

293 After paragraph 143(1)(b)

Insert:

(ba) all of the following conditions are satisfied:

(i) the action has had a significant impact on a matter protected by a provision of Part 3 for which the approval has effect, or the Minister believes the action will have such an impact;

(ii) the Minister is satisfied that the impact is substantially greater than the impact that was identified in assessing the action;

(iii) the Minister believes it is necessary to revoke, vary or add a condition to protect the matter from the impact; or

294 Paragraph 143(1)(c)

Omit “the person whose taking of the action was approved”, substitute “the holder of the approval”.

295 Paragraph 143(1)(c)

After “or addition” (first occurring), insert “, or the Minister has extended the period for which the approval has effect under section 145D,”.

296 Subsection 143(2)

After “any condition”, insert “(other than the condition referred to in subsection 134(1A))”.

297 Subsection 143(3)

Omit all the words after “the Minister may”, substitute:

have regard to:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and

298 Paragraph 143(5)(a)

Omit “the person to whose action the approval relates”, substitute “the holder of the approval”.

299 Subsection 143(5) (note)

Omit “the person”, substitute “the holder”.

300 Subsection 143(5) (note)

Omit “the person’s”, substitute “the holder’s”.

301 After subsection 144(2)

Insert:

(2A) The Minister may, by written instrument, suspend the effect of an approval under this Part for the purposes of a specified provision of Part 3 for a specified period (which must not start before the day on which the instrument is made) if:

(a) either:

(i) the Minister believes on reasonable grounds that there has been a contravention of a condition attached to the approval; or

(ii) if a condition attached to the approval is to the effect that the approval is subject to a thing being done within a particular time—the Minister believes on reasonable grounds that the thing has not been done within that time; and

(b) the Minister is satisfied that:

(i) the approval would not have been granted without that condition being attached; or

(ii) because of the failure to comply with the requirement, the suspension is reasonably necessary to protect a matter protected by a provision of Part 3 for which the approval has effect.

302 Subsection 144(3)

Omit all the words after “the Minister may”, substitute:

have regard to:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and

303 Paragraph 144(5)(a)

Omit “the person to whose action the approval relates”, substitute “the holder of the approval”.

304 After subsection 145(2A)

Insert:

(2B) The Minister may, by written instrument, revoke an approval under this Part for the purposes of a specified provision of Part 3 if:

(a) either:

(i) the Minister believes on reasonable grounds that there has been a contravention of a condition attached to the approval; or

(b) the Minister is satisfied that:

(i) the approval would not have been granted without that condition being attached; or

(ii) because of the failure to comply with the requirement, the revocation is reasonably necessary to protect a matter protected by a provision of Part 3 for which the approval has effect.

305 Subsection 145(3)

Omit all the words after “the Minister may”, substitute:

have regard to:

(a) the person’s history in relation to environmental matters; and

(b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and

306 Paragraph 145(5)(a)

Omit “the person to whose action the approval related”, substitute “the person who was the holder of the approval”.

307 Subsection 145A(2)

After “the person”, insert “who was the holder of the approval”.

308 Paragraph 145A(5)(a)

After “the person”, insert “who was the holder of the approval”.

309 Subsection 145A(6)

After “the person”, insert “who was the holder of the approval”.

310 Subsection 145A(8)(a)

After “the person”, insert “who was the holder of the approval”.

311 Subsection 145B(1)

Omit “whose taking of an action has been approved”, substitute “who is the holder of an approval”.

312 Paragraph 145B(4)(a)

Repeal the paragraph, substitute:

(a) whether the transferee would be a suitable person to be granted the approval, having regard to:

(i) the transferee’s history in relation to environmental matters; and

(ii) if the transferee is a body corporate—the history of its executive officers in relation to environmental matters; and

(iii) if the transferee is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers; and

313 At the end of Part 9

Add:

Division 5—Extension of period of effect of approval

145C Application to Minister to extend period of effect of approval

(1) Subject to subsection (2), the holder of an approval under this Part may apply, in writing, to the Minister to extend the period (the approval period) for which the approval has effect.

(2) Subsection (1) does not apply if:

(a) the approval has been suspended or revoked under this Part and has not been reinstated; or

(b) the approval has otherwise ceased to have effect.

(3) An application under subsection (1) must include the information (if any) prescribed by the regulations.

145D Minister must decide whether or not to extend approval period

(1) Within 20 business days after receiving an application under subsection 145C(1), the Minister must decide, in writing, whether or not to extend the approval period.

Note: The Minister may request further information for the purpose of making a decision under this subsection. See section 145E.

(2) The Minister may decide to extend the approval period only if the Minister is satisfied that the extension will not result in a substantial increase in, or substantial change in the nature of, the adverse impacts (if any) the action:

(a) has or will have; or

(b) is likely to have;

on the matter protected by each provision of Part 3 for which the approval has effect.

(3) In considering the matter referred to in subsection (2), the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Division:

(a) matters relevant to any matter protected by a provision of Part 3 for which the approval has effect;

(b) economic and social matters.

(4) As soon as possible after deciding whether or not to extend the approval period, the Minister must:

(a) give a copy of the decision to the holder of the approval; and

(b) if the decision is to extend the approval period—publish the decision in accordance with the regulations.

145E Minister may request further information for making decision

(1) If the Minister believes on reasonable grounds that he or she does not have enough information to decide whether or not to extend the approval period, the Minister may request the holder of the approval to provide specified information relevant to making the decision.

(2) If the Minister has requested more information under subsection (1), a day is not to be counted as a business day for the purposes of subsection 145D(1) if it is:

(a) on or after the day the Minister requested the information; and

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

314 Before section 146

Insert:

Subdivision A—Assessment of actions to be taken in accordance with policy, plan or program

315 After subsection 146(1A)

Insert:

(1B) The agreement must provide for:

(a) the preparation of terms of reference for a report on the impacts to which the agreement relates; or

(b) all of the following:

(i) the preparation of draft terms of reference for a report on the impacts to which the agreement relates;

(ii) the publication of the draft terms of reference for public comment for a period of at least 28 days that is specified by the Minister;

(iii) the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference.

316 Paragraphs 146(2)(aa) to (ac)

Repeal the paragraphs.

317 Subsection 146(2) (note 2)

Repeal the note, substitute:

Note 2: If the Minister endorses a policy, plan or program embodied in a management arrangement or an authorisation process, the Minister may declare under section 33, or make a bilateral agreement declaring, that actions approved in accordance with the management arrangement or authorisation process do not need approval for the purposes of a specified provision of Part 3.

318 At the end of Division 1 of Part 10

Add:

Subdivision B—Approval of taking of actions in accordance with endorsed policy, plan or program

146A Definition

In this Subdivision and Subdivision C:

endorsed policy, plan or program means a policy, plan or program that has been endorsed by the Minister in accordance with an agreement as mentioned in paragraph 146(2)(f).

146B Minister may approve taking of actions in accordance with endorsed policy, plan or program

(1) Subject to Subdivision C, the Minister may approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program.

Note: Subdivision C sets out matters that the Minister must take into account in deciding whether or not to approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program.

(2) An approval of the taking of an action or a class of actions in accordance with an endorsed policy, plan or program must:

(a) be in writing; and

(b) specify the action or class of actions that may be taken in accordance with the endorsed policy, plan or program; and

(d) specify the period for which the approval has effect; and

(e) set out the conditions attached to the approval.

(2A) An approval of the taking of an action or a class of actions in accordance with an endorsed policy, plan or program may specify the person or persons who may take the action or an action in the class of actions.

(3) The Minister must:

(a) give a copy of the approval to the person responsible for the adoption or implementation of the endorsed policy, plan or program; and

(b) provide a copy of the approval to a person who asks for it (either at no charge or for a reasonable charge determined by the Minister).

(4) However, the Minister must not provide under subsection (3) a copy of so much of the approval as:

(a) is an exempt document under the Freedom of Information Act 1982 on the grounds of commercial confidence; or

(b) the Minister believes it is in the national interest not to provide.

The Minister may consider the defence or security of the Commonwealth when determining what is in the national interest. This does not limit the matters the Minister may consider.

(5) An approval given under subsection (1) is not a legislative instrument.

146C Inviting comments from other Ministers before deciding whether or not to approve taking of actions in accordance with endorsed policy, plan or program

(1) Before the Minister (the Environment Minister) decides whether or not to approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program, he or she must:

(a) inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the action or class of actions of the decision the Environment Minister proposes to make; and

(b) invite each Minister informed to give the Environment Minister, within 10 business days, comments on the proposed decision.

(2) A Minister who is invited to comment may make comments:

(a) that relate to economic and social matters relating to the action or class of actions to which the proposed decision relates; and

(b) that may be considered by the Environment Minister consistently with the principles of ecologically sustainable development.

This does not limit the comments such a Minister may give.

146D Effect of approval of taking of actions in accordance with endorsed policy, plan or program

(1) If an approval under section 146B is in force, the following provisions have effect:

(a) the Minister is taken to have decided under Division 2 of Part 7 that:

(i) each action specified in the approval under paragraph 146B(2)(b), or each action in a class of actions specified in the approval under that paragraph, is a controlled action; and

(ii) each provision of Part 3 specified in the approval under paragraph 146B(2)(c) is a controlling provision for each such controlled action;

(b) the Minister is taken to have approved under Part 9, for the purposes of each controlling provision for each controlled action, the taking of the action by any of the following:

(i) the person or persons (if any) specified in the approval under subsection 146B(2A) as the person or persons who may take the action;

(ii) any other person who may take the action in accordance with the endorsed policy, plan or program.

(2) Parts 7 and 8 and paragraph 170A(c) do not apply in relation to an action if an approval of the taking of the action, or an approval of the taking of a class of actions that includes the action, in accordance with an endorsed policy, plan or program is in force under section 146B.

(3) Subject to subsection (4), section 134 and Divisions 2, 3 and 4 of Part 9 apply in relation to an approval of the taking of an action that is taken to have been given under Part 9 because of paragraph (1)(b).

Note: Section 134 deals with conditions of approvals, Division 2 of Part 9 deals with compliance with conditions, Division 3 of Part 9 deals with variation of conditions and suspension and revocation of approvals and Division 4 of Part 9 deals with transfer of approvals.

(4) Subsection 145A(4) applies in relation to a decision whether or not to reinstate an approval of the taking of an action that is taken to have been given under Part 9 because of paragraph (1)(b), as if:

(a) the reference to Subdivision B of Division 1 of Part 9 were a reference to Subdivision C of this Division; and

(b) the reference to a decision whether or not to approve the taking of an action were a reference to a decision whether or not to approve, under this Subdivision, the taking of an action in accordance with an endorsed policy, plan or program.

Subdivision C—Considerations for approving taking of actions in accordance with endorsed policy, plan or program

146E Minister must comply with this Subdivision

The Minister must comply with this Subdivision in deciding:

(a) whether or not to approve, under section 146B, the taking of an action or a class of actions in accordance with an endorsed policy, plan or program; and

(b) in the case of a decision to approve the taking of such an action or class of actions, what conditions (if any) to attach to the approval.

Note: For the meaning of endorsed policy, plan or program, see section 146A.

146F General considerations

(1) 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 approval;

(b) economic and social matters.

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

146G Approvals relating to declared World Heritage properties

If the approval relates to a declared World Heritage property, the Minister must not act inconsistently with:

(a) Australia’s obligations under the World Heritage Convention; or

(b) the Australian World Heritage management principles; or

(c) a plan that has been prepared for the management of the declared World Heritage property under section 316 or as described in section 321.

146H Approvals relating to National Heritage places

If the approval relates to a National Heritage place, the Minister must not act inconsistently with:

(a) the National Heritage management principles; or

(b) an agreement to which the Commonwealth is party in relation to the National Heritage place; or

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

146J Approvals relating to declared Ramsar wetlands

If the approval relates to a declared Ramsar wetland, the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention.

146K Approvals relating to listed threatened species and ecological communities

(1) This section applies if the approval relates to a listed threatened species or a listed threatened ecological community.

(2) The Minister must not act inconsistently with:

(a) Australia’s obligations under:

(i) the Biodiversity Convention; or

(ii) the Apia Convention; or

(iii) CITES; or

(b) a recovery plan for the species or community or a threat abatement plan.

(3) The Minister must have regard to any approved conservation advice for the species or community.

146L Approvals relating to listed migratory species

If the approval relates to a listed migratory species, the Minister must not act inconsistently with whichever of the following conventions or agreements because of which the species is listed:

(a) the Bonn Convention;

(b) CAMBA;

(d) an international agreement approved under subsection 209(4).

146M No approvals relating to nuclear actions

The Minister must not approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program if the action, or an action in the class of actions, consists of, or involves the construction or operation of, any of the following nuclear installations:

(a) a nuclear fuel fabrication plant;

(b) a nuclear power plant;

(d) a reprocessing facility.

319 Subsection 152(2)

Omit all the words after “managing the fishery”.

320 Section 153

Repeal the section, substitute:

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

(1) This section applies if:

(a) the Minister makes an agreement under section 146 as required by this Division and endorses under the agreement:

(i) a plan of management under the Fisheries Management Act 1991 for a fishery; or

(ii) policies of the Australian Fisheries Management Authority for managing a fishery for which there is not a plan of management under the Fisheries Management Act 1991; or

(iii) a plan of management under the Torres Strait Fisheries Act 1984 for a fishery; or

(iv) policies for managing fishing under the Torres Strait Fisheries Act 1984; and

(b) the Minister accredits, under subsection 33(3) of this Act, as an accredited arrangement a management plan or regime consisting of the endorsed plan or policies.

(2) The Minister must make a declaration under section 33 that actions approved in accordance with the accredited arrangement do not require an approval under Part 9 for the purposes of subsection 23(1), (2) or (3) or subsection 24A(1), (2), (3), (4), (5) or (6).

Note: The declaration and accreditation will allow actions that would otherwise be prohibited by sections 23 and 24A to be taken without approval if they are taken in accordance with the accredited arrangement. See section 32.

321 After Division 1 of Part 11

Insert:

Division 1A—Variation of proposals to take actions

156A Request to vary proposal to take an action

(1) If:

(a) a proposal (the original proposal) by a person to take an action has been referred to the Minister under Division 1 of Part 7; and

(b) after the referral is made, the person wishes to change the original proposal;

the person may, subject to subsection (2), request the Minister to accept a variation (a varied proposal) of the original proposal.

(2) Subsection (1) does not apply if:

(a) the Minister has made a decision under section 74A to not accept the referral of the original proposal; or

(b) the Minister has made a decision under section 75 that the proposed action is not a controlled action; or

(c) a particular manner for taking the proposed action is identified under subsection 77A(1) in the notice given under section 77 in relation to the action; or

(d) the Minister has made a decision under section 133 approving or refusing to approve the taking of the proposed action; or

(e) the referral of the original proposal has been withdrawn under section 170C.

(3) A request under subsection (1) must:

(a) be made in a way prescribed by the regulations; and

(b) include the information prescribed by the regulations.

(4) If a request is made under subsection (1), any provisions of this Chapter that would, apart from this subsection, have applied in relation to the original proposal cease to apply to that proposal.

Note: Provisions that have ceased to apply in relation to the original proposal under subsection (4) will start to apply to that proposal, or to the varied proposal, after the Minister has decided whether or not to accept the varied proposal. See section 156D.

156B Minister must decide whether or not to accept a varied proposal

(1) Within 20 business days after receiving a request under subsection 156A(1) to accept a varied proposal to take an action, the Minister must decide whether or not to accept the varied proposal.

Note: The Minister may request further information for the purpose of making a decision under this subsection. See section 156C.

(2) The Minister must not decide to accept the varied proposal unless the Minister is satisfied that the character of the varied proposal is substantially the same as the character of the original proposal. This subsection does not limit the matters the Minister may consider in deciding whether or not to accept the varied proposal.

(3) In considering, for the purposes of subsection (2), whether or not the character of the varied proposal is substantially the same as the character of the original proposal, the Minister must have regard to the change (if any) in:

(a) the nature of the activities proposed to be carried out in taking the action; and

(b) the nature and extent of the impacts (if any) the action:

(i) has or will have; or

(ii) is likely to have;

on the matter protected by each provision of Part 3.

156C Minister may request further information in relation to a varied proposal

(1) If the Minister believes on reasonable grounds that a request under subsection 156A(1) to accept a varied proposal to take an action does not include enough information for the Minister to decide whether or not to accept the varied proposal, the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

(2) If the Minister has requested more information under subsection (1), a day is not to be counted as a business day for the purposes of subsection 156B(1) if it is:

(a) on or after the day the Minister requested the information; and

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

156D Effect of Minister’s decision to accept or not accept a varied proposal

(1) If the Minister decides to accept a varied proposal to take an action:

(a) any provisions of this Chapter that, because of subsection 156A(4), have ceased to apply in relation to the original proposal start to apply in relation to the varied proposal; and

(b) for the purpose of the application of those provisions, anything done in relation to the original proposal is taken to have been done in relation to the varied proposal.

(2) If the Minister decides not to accept a varied proposal to take an action, any provisions of this Chapter that, because of subsection 156A(4), have ceased to apply in relation to the original proposal start to apply in relation to that proposal.

(3) For the purpose of the application of the provisions of this Chapter in relation to the varied proposal under subsection (1), or in relation to the original proposal under subsection (2), a day is not to be counted as a business day if it is:

(a) on or after the day the Minister received the request under subsection 156A(1) to accept the varied proposal; and

(b) on or before the day the Minister made the decision under subsection 156B(1).

156E Notice of decision

(1) Within 10 business days after deciding under subsection 156B(1) whether or not to accept a varied proposal to take an action, the Minister must give written notice of the decision to:

(a) the person proposing to take the action; and

(b) the designated proponent of the action (if the designated proponent of the action is not the person proposing to take the action).

(2) If:

(a) the request to accept the varied proposal related to an action that is to be taken in a State or self‑governing Territory; and

(b) a controlling provision for the action is in Division 1 of Part 3 (which deals with matters of national environmental significance); and

the Minister must also, within the period referred to in subsection (1), give written notice of the decision to the appropriate Minister of the State or Territory.

(3) If the Minister decided to accept the varied proposal, the Minister must, within the period referred to in subsection (1), publish the request to accept the varied proposal and notice of the decision in accordance with the regulations.

Division 1B—Change of person proposing to take action

156F Change of person proposing to take action

Notice of change of person proposing to take action

(1) At any time:

(a) after a proposal by a person to take an action has been referred to the Minister under Division 1 of Part 7; and

(b) before the Minister has approved, or refused to approve, the taking of the action under section 133;

the person (the first person) proposing to take the action and another person (the second person) may notify the Minister, in writing, that:

(d) the second person proposes to take the action instead.

Note: A person who is the holder of an approval under Part 9 may transfer the approval to another person under section 145B.

When notice cannot be given

(2) Subsection (1) does not apply if:

(a) the Minister has made a decision under section 74A to not accept the referral of the proposal to take the action; or

(b) the Minister has made a decision under section 75 that the action is not a controlled action; or

(c) a particular manner for taking the action is identified under subsection 77A(1) in the notice given under section 77 in relation to the action.

Notice must include prescribed information

(3) A notice under subsection (1) must include the information (if any) prescribed by the regulations.

Effect of notice

(4) If a notice is given to the Minister under subsection (1):

(a) any provisions of this Chapter that, apart from this paragraph, would have applied to the first person in relation to the action cease to apply to that person and start to apply to the second person; and

(b) for the purposes of the application of those provisions:

(i) the second person is taken to be named in the referral of the proposal to take the action as the person proposing to take the action; and

(ii) the second person is taken to have done anything the first person did in relation to the action; and

(iii) anything done in relation to the first person in relation to the action is taken to have been done in relation to the second person.

Publication of notice

(5) Within 10 business days after receiving a notice under subsection (1), the Minister must publish a copy of the notice in accordance with the regulations.

322 After Division 3 of Part 11

Insert:

Division 3A—Approval process decisions not affected by listing events that happen after section 75 decision made

158A Approval process decisions not affected by listing events that happen after section 75 decision made

(1) In this section:

approval process decision means any of the following decisions:

(a) a decision under section 75 whether an action is a controlled action;

(b) a decision under section 75 whether a provision of Part 3 is a controlling provision for an action;

(d) a decision under section 87 on the approach for the assessment of the impacts of an action;

(e) a decision under section 133 whether to approve an action;

(f) a decision under section 134 to attach conditions to an approval of an action;

(g) a decision under section 143 to revoke, vary or add to conditions attached to an approval of an action;

(h) any other decision made under a provision of this Chapter that is specified in the regulations.

listing event means any of the following events:

(a) a property becoming a declared World Heritage property;

(b) a change in the world heritage values of a declared World Heritage property;

(d) a change in the National Heritage values included in the National Heritage List for a National Heritage place;

(e) a place becoming a Commonwealth Heritage place;

(f) a change in the Commonwealth Heritage values included in the Commonwealth Heritage List for a Commonwealth Heritage place;

(g) a wetland becoming a declared Ramsar wetland;

(h) a change in the boundaries of any of the following:

(i) a World Heritage property;

(ii) a National Heritage place;

(iii) a Commonwealth Heritage place;

(iv) a declared Ramsar wetland;

(i) a species becoming a listed threatened species;

(j) an ecological community becoming a listed threatened ecological community;

(k) a listed threatened species or a listed threatened ecological community becoming listed in another category representing a higher degree of endangerment;

(l) a species becoming a listed migratory species;

(m) any other event of a kind specified in the regulations.

(2) This section applies if:

(a) the Minister has, before or after the commencement of this section, decided under section 75 (the primary decision) whether an action (the relevant action) is a controlled action (whether the decision is that the action is a controlled action, or that the action is not a controlled action); and

(b) at a time that is after the commencement of this section and after the primary decision was made, a listing event occurs.

(3) The validity of the primary decision, or any other approval process decision made in relation to the relevant action before the listing event occurred, is not affected by the listing event, nor can it be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to, the listing event.

(4) After the listing event occurs, the listing event is to be disregarded:

(a) in making any further approval process decision in relation to the relevant action; and

(b) in doing anything under this Chapter, in relation to the relevant action, because of the making of an approval process decision in relation to the relevant action (whether that approval process decision is or was made before or after the listing event occurred).

(5) This section has effect despite any other provision of this Act and despite any other law.

323 After paragraph 159(a) (second occurring)

Insert:

(aa) an assessment on referral information under Division 3A;

324 After subsection 160(1)

Insert:

Minister may decide advice is not required

(1A) Subsection (1) does not apply in relation to an authorisation of an action if:

(a) the agency or employee has referred a proposal to give the authorisation to the Minister under subsection 161(1); and

(b) the Minister has decided under subsection 161A(1) that this Subdivision does not apply in relation to the referral or the action.

325 Subsection 161(1)

After “section 160”, insert “(disregarding subsection 160(1A))”.

326 Subsection 161(2)

After “section 160”, insert “(disregarding subsection 160(1A))”.

327 After section 161

Insert:

161A Minister may decide that advice is not required

(1) If:

(a) the Minister receives a referral under subsection 161(1) of a proposal by a Commonwealth agency or employee of the Commonwealth to give an authorisation of an action; and

(b) the Minister is satisfied, on the basis of the information in the referral, that the action does not have, will not have or is not likely to have a significant impact on the environment;

the Minister may decide, in writing, that this Subdivision does not apply in relation to the referral or the action.

(2) If the Minister decides that this Subdivision does not apply in relation to the referral or the action, this Act (other than Divisions 2 and 3 of Part 7) applies as if the Minister had decided under Division 2 of Part 7 that the action is not a controlled action.

(3) If the Minister decides that this Subdivision does not apply in relation to the referral or the action, the Minister must:

(a) give written notice of the decision to the agency or employee who referred the proposal to give an authorisation of the action; and

(b) publish notice of the decision in accordance with the regulations.

161B Certain provisions of other Acts not to apply if Minister decides that advice is not required

(1) This section applies in relation to a provision of another Act that is expressed to apply if:

(a) the advice of the Minister is sought under this Subdivision in relation to a proposal to give an authorisation (however described) of an action; or

(b) a proposal to give an authorisation (however described) of an action is referred to the Minister under this Subdivision.

(2) The provision does not apply in relation to an action if:

(a) a proposal to give an authorisation (however described) of the action has been referred to the Minister under section 161; and

(b) the Minister has decided under section 161A that this Subdivision does not apply in relation to the referral or the action.

Note: See, for example, subsections 94(6A) and 95(3A) of the Airports Act 1996 and subsections 16(5) and 29(5) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989.

328 Subsection 163(2)

Omit “30 days”, substitute “30 business days”.

329 Paragraph 163(2)(a)

Repeal the paragraph, substitute:

(a) a report mentioned in subsection 84(3) relating to the action; or

(aa) a finalised recommendation report under Division 3A of Part 8 (as applied by section 162) relating to the action; or

(ab) the documents given to the Minister under subsection 95B(1) (as applied by section 162), or the statement given to the Minister under subsection 95B(3) (as applied by section 162), as the case requires, relating to the action; or

(ac) a finalised public environment report under Division 5 of Part 8 (as applied by section 162) relating to the action; or

(ad) a finalised environmental impact statement under Division 6 of Part 8 (as applied by section 162) relating to the action; or

330 Subdivision B of Division 4 of Part 11

Repeal the Subdivision.

331 Paragraphs 168(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) specify that one of the following is to apply in relation to the action:

(i) Division 3A of Part 8;

(ii) Division 4 of Part 8;

(iii) Division 5 of Part 8;

(iv) Division 6 of Part 8;

(v) Division 7 of Part 8;

(vi) Subdivision A of Division 1 of Part 10; and

(b) if it specifies that Division 3A, 4, 5 or 6 of Part 8 is to apply in relation to the action—specify the person who is taken to be the designated proponent of the action for the purposes of that Division.

332 Subsection 168(2)

Repeal the subsection.

333 Paragraph 168(3)(a)

Omit “guidelines for the content”, substitute “tailored guidelines for the preparation”.

334 Paragraph 168(3)(b)

Omit “comment; or”, substitute “comment.”.

335 Paragraph 168(3)(c)

Repeal the paragraph.

336 Paragraph 168(4)(a)

Omit “guidelines for the content”, substitute “tailored guidelines for the preparation”.

337 Paragraph 168(4)(b)

Omit “comment; or”, substitute “comment.”.

338 Paragraph 168(4)(c)

Repeal the paragraph.

339 Subsection 168(6)

Before “Division 1”, insert “Subdivision A of”.

340 Paragraphs 168(6)(a) and (b)

Omit “Division” (wherever occurring), substitute “Subdivision”.

341 Subsection 169(3)

Repeal the subsection, substitute:

Modification of Division 4 of Part 8

(3) Also, if the agreement states that Division 4 of Part 8 is to apply in relation to the action, that Division applies in relation to the action as if paragraphs 95(2)(a) and (b) and 95A(3)(a), (b) and (c) merely referred to specified information relating to the action.

342 Section 170

Before “Division 1”, insert “Subdivision A of”.

Note: The heading to section 170 is altered by inserting “Subdivision A of” before “Division 1”.

343 Paragraph 170(a)

Omit “Division”, substitute “Subdivision”.

344 After paragraph 170A(d)

Insert:

(da) each draft recommendation report and invitation (if any) published in the immediately preceding week under Division 3A of Part 8 (about assessment on referral information);

345 Paragraph 170A(i)

Repeal the paragraph, substitute:

(i) each finalised recommendation report given to the Minister under Division 3A of Part 8 in the immediately preceding week;

(ia) each recommendation report given to the Minister in the immediately preceding week under section 95C, 100 or 105;

346 At the end of Division 5 of Part 11

Add:

170B Information critical to protecting matters of national environmental significance not to be disclosed

(1) The Minister may, by notice in writing to a person, direct the person not to disclose specified information when publishing a document or material as required or permitted by a specified provision of this Chapter, if the Minister considers that the information is critical to the protection of a matter protected by a provision of Division 1 of Part 3 (about matters of national environmental significance).

(2) A provision of this Chapter that is specified in a direction under subsection (1) has effect as if it did not require or permit the publication of the information specified in the direction.

(3) A person who is given a direction under subsection (1) must not contravene the direction.

Civil penalty: 100 penalty units.

170BA Designated proponent may request Minister to permit commercial‑in‑confidence information not to be disclosed

(1) This section applies in relation to the assessment documentation that must be published by the designated proponent of an action to which Division 4, 5 or 6 of Part 8 applies.

(2) The designated proponent may request the Minister, in writing, to permit the designated proponent not to publish so much of the assessment documentation relating to the action as the designated proponent considers is commercial‑in‑confidence.

(3) A request under subsection (2) must include the information prescribed by the regulations.

(4) If the Minister is satisfied that a part of the assessment documentation relating to the action is commercial‑in‑confidence, the Minister may, by written notice to the designated proponent, permit the designated proponent not to publish that part of the assessment documentation.

(5) The Minister must not be satisfied that a part of the assessment documentation relating to the action is commercial‑in‑confidence unless a person demonstrates to the Minister that:

(a) release of the information in that part would cause competitive detriment to the person; and

(b) the information in that part is not in the public domain; and

(c) the information in that part is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and

(d) the information in that part is not readily discoverable.

(6) If the Minister permits the designated proponent not to publish a part of the assessment documentation that the Minister considers is commercial‑in‑confidence, the provision of Division 4, 5 or 6 of Part 8 that requires the designated proponent to publish the assessment documentation has effect as if it did not require the publication of that part of the assessment documentation.

(7) In this section:

assessment documentation, in relation to an action to which Division 4, 5 or 6 of Part 8 applies, means:

(a) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:

(i) the information referred to in paragraphs 95(2)(a) and (b) or 95A(3)(a), (b) and (c), as the case requires; and

(ii) the document prepared under paragraph 95B(1)(a) or the information referred to in subsection 95B(4), as the case requires; or

(b) if Division 5 of Part 8 (public environment reports) applies to the action:

(i) the draft public environment report relating to the action given to the Minister under paragraph 98(1)(ab); and

(ii) the finalised public environment report relating to the action given to the Minister under section 99; or

(i) the draft environmental impact statement relating to the action given to the Minister under paragraph 103(1)(ab); and

(ii) the finalised environmental impact statement relating to the action given to the Minister under section 104.

347 At the end of Part 11

Add:

Division 6—Withdrawal of referrals

170C Withdrawal of referral of proposal to take an action

(1) Subject to subsection (2), a person who:

(a) has referred a proposal to take an action to the Minister under section 68; or

(b) is named as the person proposing to take an action in a proposal that is referred to the Minister under section 69 or 71;

may withdraw the referral, by written notice to the Minister.

(2) The referral cannot be withdrawn after the Minister has decided, under Part 9, whether or not to approve the taking of the action.

(3) If the Minister receives a notice withdrawing the referral, the Minister must publish notice of the withdrawal of the referral in accordance with the regulations.

(4) If the referral is withdrawn, the provisions of this Chapter that would, apart from this subsection, have applied to the action cease to apply to the action.

348 Before Part 12 in Chapter 5

Insert:

Part 11A—Interpretation

170D References to business days are references to Canberra business days

A reference in this Chapter to a business day is a reference to a day that is a business day (as defined in section 528) in Canberra.

349 Section 172

Repeal the section, substitute:

172 Inventories of listed threatened species etc. on Commonwealth land

(1) The Minister may prepare an inventory covering an area of Commonwealth land that identifies, and states the abundance of, the listed threatened species, listed threatened ecological communities, listed migratory species and listed marine species on the area of land if:

(a) the Minister is satisfied that the area of land is of importance for the conservation of biodiversity; and

(b) the area of land is not covered by a plan that:

(i) has an object (whether express or implied) of either protecting the environment or promoting the conservation of biodiversity; and

(ii) is in force under a law of the Commonwealth.

(2) A Commonwealth agency must provide all reasonable assistance in connection with the preparation of an inventory if:

(a) the inventory is to cover an area of Commonwealth land; and

(b) the agency has an interest in the area of land.

(3) For the purposes of paragraph (2)(b), a Commonwealth agency has an interest in an area of Commonwealth land if the agency:

(a) has a legal or equitable interest in the area; or

(b) occupies the area; or

350 Section 173

Repeal the section, substitute:

173 Surveys of cetaceans, listed threatened species etc. in Commonwealth marine areas

(1) The Minister may prepare a survey covering a Commonwealth marine area that identifies, and states the extent of the range of, cetaceans, listed threatened species, listed threatened ecological communities, listed migratory species and listed marine species in the area if:

(a) the Minister is satisfied that the area is of importance for the conservation of biodiversity; and

(b) the area is not covered by a plan that:

(i) has an object (whether express or implied) of either protecting the environment or promoting the conservation of biodiversity; and

(ii) is in force under a law of the Commonwealth.

(2) A Commonwealth agency must provide all reasonable assistance in connection with the preparation of a survey if:

(a) the survey is to cover a Commonwealth marine area; and

(b) the agency has an interest in the area.

(3) For the purposes of paragraph (2)(b), a Commonwealth agency has an interest in a Commonwealth marine area if the agency:

(a) has a legal or equitable interest in the area; or

(b) occupies the area; or

351 Section 175

Repeal the section.

352 After subsection 176(4)

Insert:

(4A) A bioregional plan prepared under subsection (1) or (2) is not a legislative instrument.

353 Subsection 179(6)

Repeal the subsection, substitute:

(6) A native species is eligible to be included in the conservation dependent category at a particular time if, at that time:

(a) the species is the focus of a specific conservation program the cessation of which would result in the species becoming vulnerable, endangered or critically endangered; or

(b) the following subparagraphs are satisfied:

(i) the species is a species of fish;

(ii) the species is the focus of a plan of management that provides for management actions necessary to stop the decline of, and support the recovery of, the species so that its chances of long term survival in nature are maximised;

(iii) the plan of management is in force under a law of the Commonwealth or of a State or Territory;

(iv) cessation of the plan of management would adversely affect the conservation status of the species.

(7) In subsection (6):

fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles.

354 Subsection 184(1)

Omit “instrument published in the Gazette”, substitute “legislative instrument”.

355 Paragraph 184(1)(a)

After “list”, insert “in accordance with Subdivision AA”.

356 After paragraph 184(1)(a)

Insert:

(aa) including items in the list in accordance with subsection 186(3), (4) or (5); or

357 Paragraph 184(1)(c)

After “list” (last occurring), insert “in accordance with Subdivision AA”.

358 Subsections 184(2), (3), (4) and (5)

Repeal the subsections, substitute:

(2) Part 6 of the Legislative Instruments Act 2003 does not apply to an instrument made under subsection (1).

359 Section 185

Repeal the section.

360 Subsections 186(1) and (2)

Repeal the subsections, substitute:

Including native species in a category

(1) Subject to subsections (3), (4) and (5), the Minister must not include (whether as a result of a transfer or otherwise) a native species in a particular category unless satisfied that the native species is eligible to be included in that category.

(2) In deciding whether to include a native species in a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:

(a) whether the native species is eligible to be included in that category; or

(b) the effect that including the native species in that category could have on the survival of the native species.

Deleting native species from a category

(2A) The Minister must not delete (whether as a result of a transfer or otherwise) a native species from a particular category unless satisfied that:

(a) the native species is no longer eligible to be included in that category; or

(b) the inclusion of the native species in that category is not contributing, or will not contribute, to the survival of the native species.

(2B) In deciding whether to delete a native species from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:

(a) whether the native species is eligible to be included in that category; or

(b) the effect that the inclusion of the native species in that category is having, or could have, on the survival of the native species.

Note: The following heading to subsection 186(3) is inserted “Including similar species to an eligible species”.

361 Section 187

Repeal the section, substitute:

187 Amending list of ecological communities

Including ecological communities in a category

(1) The Minister must not include (whether as a result of a transfer or otherwise) an ecological community in a particular category unless satisfied that the ecological community is eligible to be included in that category.

(2) In deciding whether to include an ecological community in a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:

(a) whether the ecological community is eligible to be included in that category; or

(b) the effect that including the ecological community in that category could have on the survival of the ecological community.

Deleting ecological communities from a category

(3) The Minister must not delete (whether as a result of a transfer or otherwise) an ecological community from a particular category unless satisfied that:

(a) the ecological community is no longer eligible to be included in that category; or

(b) the inclusion of the ecological community in that category is not contributing, or will not contribute, to the survival of the ecological community.

(4) In deciding whether to delete an ecological community from a particular category (whether as a result of a transfer or otherwise), the only matters the Minister may consider are matters relating to:

(a) whether the ecological community is eligible to be included in that category; or

(b) the effect that the inclusion of the ecological community in that category is having, or could have, on the survival of the ecological community.

362 Subsection 189(1)

Repeal the subsection, substitute:

(1) In deciding whether to make an amendment covered by paragraph 184(1)(aa), (b) or (d), the Minister must, in accordance with the regulations (if any), obtain and consider advice from the Scientific Committee on the proposed amendment.

(1A) Subsection (1) has effect subject to section 192.

(1B) If advice from the Scientific Committee for the purposes of subsection (1) is to the effect that a particular native species, or a particular ecological community, is eligible to be included in the relevant list in a particular category, the advice must also contain:

(a) a statement that sets out:

(i) the grounds on which the species or community is eligible to be included in the category; and

(ii) the main factors that are the cause of it being so eligible; and

(b) either:

(i) information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or

(ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community; and

363 Subsection 189(3)

Repeal the subsection, substitute:

(3) In preparing advice for a proposed amendment to delete an item:

(a) included in a category of a list referred to in section 178 or 181; and

(b) that had not been included in that category in accordance with subsection 186(3), (4) or (5);

the only matters the Scientific Committee may consider are matters relating to:

(d) the effect that the inclusion in the list of the native species or ecological community concerned is having, or could have, on the survival of that native species or ecological community.

(3A) In preparing advice for a proposed amendment to:

(a) include a native species in a category of the list referred to in section 178 in accordance with subsection 186(3), (4) or (5) because of the species’ resemblance to another species; or

(b) delete a native species from a category of the list referred to in section 178 that had been included in that category in accordance with subsection 186(3), (4) or (5) because of the species’ resemblance to another species;

the only matters the Scientific Committee may consider are matters relating to:

(d) the effect that the inclusion in the list of the first‑mentioned species is having, or could have, on the survival of either species.

364 Subsections 189(4), (5) and (6)

Repeal the subsections.

365 After section 189

Insert:

189A Certain information may be kept confidential

(1) This section applies if the Minister considers that the survival of a native species or ecological community could be threatened by the disclosure of some or all of the following information, or by the presence or actions of persons if some or all of the following information were disclosed publicly:

(a) the precise location of the species in the wild, or of the community;

(b) any other information about the species or community.

(2) It is sufficient compliance with this Act if only a general description of the location of the species or community is included in an instrument or other document created for the purposes of this Act.

189B Disclosure of Scientific Committee’s assessments and advice

(1) A member of the Scientific Committee has a duty not to disclose the following to a person other than the Minister, an employee in the Department whose duties relate to the Committee or another member of the Committee:

(a) an assessment under section 194N in relation to whether an item is eligible for inclusion (whether as a result of a transfer or otherwise) in a list referred to in section 178, 181 or 183, any information relating to the assessment or any information about the nomination (if any) that led to the making of the assessment;

(b) advice under section 189 concerning an amendment covered by subsection 189(1) or any information relating to the advice.

(2) However:

(a) the duty not to disclose a thing described in paragraph (1)(a) in relation to an item does not exist after:

(i) registration under Division 3 of Part 4 of the Legislative Instruments Act 2003 of an instrument made under section 189 in relation to the item; or

(ii) the Minister decides under paragraph 194Q(1)(b) not to include the item in a list referred to in section 178, 181 or 183; and

(b) the duty not to disclose a thing described in paragraph (1)(b) in relation to an amendment does not exist after:

(i) registration under Division 3 of Part 4 of the Legislative Instruments Act 2003 of an instrument made under section 189 relating to the amendment; or

(ii) the Minister decides under this Subdivision not to remove the item from a list referred to in section 178, 181 or 183.

(3) Subsection (1) does not apply to a disclosure of particular information if:

(a) the Chair of the Scientific Committee requests the Minister to give permission to disclose that information to a particular person (or persons within a particular group of persons); and

(b) the Minister gives that permission; and

(4) After a member of the Scientific Committee has ceased under subsection (2) to have a duty not to disclose:

(a) an assessment under section 194N in relation to whether an item is eligible for inclusion (whether as a result of a transfer or otherwise) in a list referred to in section 178, 181 or 183; or

(b) advice under section 189 concerning an amendment covered by subsection 189(1);

the member must give a copy of the assessment or advice to anyone who asks for it.

(5) If:

(a) a member of the Scientific Committee proposes to give a person under subsection (4):

(i) a copy of an assessment relating to an item concerning a native species or ecological community; or

(ii) a copy of advice relating to an amendment concerning a native species or ecological community; and

(b) the member is aware that, under section 189A, it would be sufficient compliance with this Act if the copy included only a general location of the species or community;

the member must take reasonable steps to ensure that the copy given to the person does not include a more detailed description than is necessary for sufficient compliance with this Act under that section.

366 Section 191

Repeal the section.

367 Section 194

Repeal the section, substitute:

194 Lists must be publicly available

The Minister must ensure that:

(a) up‑to‑date copies of the lists referred to in sections 178, 181 and 183 are available for free to the public on request; and

(b) an up‑to‑date copy of the lists are available on the Internet.

Note: The copies of the lists made publicly available may not contain certain information kept confidential under section 189A.

368 After Subdivision A of Division 1 of Part 13

Insert:

Subdivision AA—The nomination and listing process

194A Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for including an item in a list referred to in section 178, 181 or 183, or transferring an item from one category in one of those lists to another category in the list.

The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 194C).

The usual process involves the following steps for each assessment period for a list:

(a) the Minister may determine conservation themes (this step is optional) (see section 194D);

(b) the Minister invites people to nominate items for inclusion in the list referred to in section 178, 181 or 183, and gives the nominations to the Scientific Committee (see sections 194E and 194F);

(c) the Scientific Committee prepares, and gives to the Minister, a list of items (which will mostly be items that have been nominated) that it thinks should be assessed (see sections 194G to 194J);

(d) the Minister finalises the list of items that are to be assessed (see sections 194K and 194L);

(e) the Scientific Committee invites people to make comments about the item in the finalised list (see section 194M);

(f) the Scientific Committee assesses the item in the finalised list, and gives the assessments to the Minister (see sections 194N and 194P);

(g) the Minister decides whether an item that has been assessed should be included in the list referred to in section 178, 181 or 183 (see section 194Q).

The steps mentioned in paragraphs (a) to (d) will generally be completed before the start of the assessment period.

194B Definitions

(1) In this Subdivision:

assessment period has the meaning given by subsection 194C(1).

eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 194G(3).

finalised priority assessment list for an assessment period has the meaning given by subsection 194K(4).

includes has a meaning affected by subsection (2).

proposed priority assessment list for an assessment period has the meaning given by subsection 194G(1).

Subdivision A List means a list referred to in section 178, 181 or 183.

(2) A reference in this Subdivision to including an item in a list referred to in section 178 or 181 includes a reference to transferring the item from one category in the list to another category in the list.

194C Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an assessment period for a Subdivision A List:

(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph in relation to the Subdivision A List;

(b) each period of 12 months starting on an anniversary of the day so determined.

(2) The Minister must make a determination under paragraph (1)(a) within 3 months after the commencement of this section. The day so determined must not be more than 12 months after that commencement.

(3) A determination under paragraph (1)(a) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the determination.

194D Minister may determine conservation themes for an assessment period

(1) Before the Minister invites nominations for an assessment period for a Subdivision A List under section 194E, the Minister may determine one or more conservation themes that the Minister considers should be given priority in relation to the assessment period for the Subdivision A List.

(2) Without limiting subsection (1), the Minister may determine as a conservation theme that priority should be given to the conservation of:

(a) particular groups of species; or

(b) particular species; or

(3) The Minister may request advice from the Scientific Committee for the purpose of making a determination under subsection (1), and may have regard to any advice the Committee provides in response to the request.

(4) A determination under subsection (1) is a legislative instrument, but section 42 of the Legislative Instruments Act 2003 does not apply to the determination.

194E Minister to invite nominations for each assessment period

(1) Before the start of each assessment period for a Subdivision A List, the Minister must publish a notice inviting people to nominate items for inclusion in the Subdivision A List.

Note: Nominations can be for the transfer of an item already on a list covered by section 178 or 181 from one category in the list to another category in the list (see subsection 194B(2)).

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, items for inclusion in the Subdivision A List; and

(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and

(f) may also include:

(i) information related to any conservation themes that the Minister has determined under section 194D should be given priority in relation to the assessment period for the Subdivision A List; and

(ii) any other information that the Minister considers appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

194F Minister to give nominations to Scientific Committee

Nominations in relation to first assessment period

(1) Within 30 business days after the cut‑off date specified in the notice under subsection 194E(1) for the first assessment period, the Minister must give the Scientific Committee the nominations that the Minister:

(a) had received before the end of that cut‑off date; and

(b) had not already forwarded to the Scientific Committee, under section 191 (as in force before the commencement of this section), to assess; and

(d) does not reject under subsection (3).

Nominations in relation to later assessment periods

(2) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 194E(1) for an assessment period (other than the first) for a Subdivision A List, the Minister must give the Scientific Committee the nominations that were received by the Minister in the period:

(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 194E(1) for the immediately preceding assessment period for the Subdivision A List; and

(b) ending at the end of the current cut‑off date for the Subdivision A List;

other than any such nominations that the Minister has rejected under subsection (3).

Minister may reject nominations

(3) The Minister may, in writing, reject a nomination if the Minister considers that:

(a) the nomination is vexatious, frivolous or not made in good faith; or

(b) the Minister considers that regulations referred to in paragraph 194E(3)(b) or (c) have not been complied with in relation to the nomination.

(4) If a nomination is rejected under paragraph (3)(b), the Minister must, if practicable, notify the person who made the nomination of the rejection of the nomination and the reason for the rejection.

Definition

(5) In this section:

nomination means a nomination of an item for inclusion in a Subdivision A List.

194G Scientific Committee to prepare proposed priority assessment list

(1) Within 40 business days after the Scientific Committee receives the nominations as required by subsection 194F(1) in relation to an assessment period for a Subdivision A List, the Committee must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period for the Subdivision A List.

(2) The proposed priority assessment list for the Subdivision A List is to consist of such of the items that are eligible for assessment consideration in relation to the assessment period for the Subdivision A List as the Scientific Committee considers it appropriate to include in the proposed priority assessment list, having regard to:

(a) any conservation themes determined by the Minister under section 194D in relation to the assessment period for the Subdivision A List; and

(b) the Committee’s own views about what should be given priority in relation to the assessment period for the Subdivision A List; and

(d) any other matters that the Committee considers appropriate.

(3) An item is eligible for assessment consideration in relation to the assessment period for a Subdivision A List if:

(a) the item has been nominated by a nomination referred to in subsection (1); or

(b) the Committee itself wishes to nominate the item for inclusion in the Subdivision A List; or

(c) the item was eligible for assessment consideration, otherwise than because of this paragraph, in relation to the immediately preceding assessment period (if any) for the Subdivision A List but was not included in the finalised priority assessment list for that assessment period for the Subdivision A List.

(4) Without limiting the generality of the Scientific Committee’s discretion under subsection (2), the Committee does not have to include in the proposed priority assessment list an item that has been nominated if the Committee considers that:

(a) if the item is not on the Subdivision A List concerned—it is unlikely that the item is eligible to be included in the Subdivision A List; or

(b) if the nomination is for the transfer of the item to another category in the Subdivision A List concerned—it is unlikely that the item is eligible to be included in that other category of the Subdivision A List.

(5) For the purposes of subsection (4), the Committee is not required to have regard to any information beyond the information that was included in the nomination.

(6) The proposed priority assessment list is not a legislative instrument.

194H Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period for a Subdivision A List is to include, for each item in the proposed priority assessment list:

(a) a description of the item; and

(b) an assessment completion time; and

(2) The assessment completion time for an item must be either:

(a) a time that is at or before the end of the assessment period for the proposed priority assessment list; or

(b) if the Scientific Committee considers it likely that making an assessment in relation to the item will take a period that is longer than 12 months—the end of that longer period (calculated from the start of the assessment period for the proposed priority assessment list).

194J Statement to be given to Minister with proposed priority assessment list

(1) When the Scientific Committee gives the Minister the proposed priority assessment list for an assessment period for a Subdivision A List, the Committee must also give the Minister a statement setting out such information as the Committee considers appropriate relating to:

(a) for each item that is included in the proposed priority assessment list—why the Committee included the item in the list; and

(b) for each item that is not included in the proposed priority assessment list but that was eligible for assessment consideration because of paragraph 194G(3)(a) or (c)—why the Committee did not include the item in the proposed priority assessment list.

(2) The statement must also identify, as items nominated by the Scientific Committee, any items that are included in the proposed priority assessment list because the Committee itself wishes to nominate them (see paragraph 194G(3)(b)).

194K The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 194G, receives the proposed priority assessment list for an assessment period for a Subdivision A List, the Minister may, in writing, make changes to the proposed priority assessment list as mentioned in subsection (2).

(2) The changes the Minister may make are as follows:

(a) including an item in the proposed priority assessment list (and also including the matters referred to in subsection 194H(1));

(b) omitting an item from the proposed priority assessment list (and also omitting the matters referred to in subsection 194H(1));

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.

(4) At the end of the period of 20 business days referred to in subsection (1), the proposed priority assessment list, as changed (if at all) by the Minister, becomes the finalised priority assessment list for the assessment period for the Subdivision A List.

(5) The Minister must notify the Scientific Committee of all changes that the Minister makes to the proposed priority assessment list.

(6) The finalised priority assessment list is not a legislative instrument.

194L Publication of finalised priority assessment list

(1) The Scientific Committee must publish the finalised priority assessment list for an assessment period for a Subdivision A List on the Internet.

(2) The Scientific Committee must also publish the finalised priority assessment list in accordance with any requirements of the regulations.

194M Scientific Committee to invite comments on items in finalised priority assessment list

(1) In relation to each item included in the finalised priority assessment list for an assessment period for a Subdivision A List, the Scientific Committee must publish a notice inviting people to make comments on the item.

(2) The Scientific Committee may, under subsection (1), publish a single notice relating to all of the items on the finalised priority assessment list, or may publish a number of separate notices, each of which relates to one or more of the items.

(3) A notice under subsection (1), in relation to an item or items:

(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and

(b) must identify the item or items to which the notice relates; and

(c) if the Subdivision A List is the list referred to in section 178 or 181—must identify the category of the Subdivision A List in which the item or items are proposed to be included; and

(d) must invite people to make comments, to the Scientific Committee, setting out:

(i) if the Subdivision A List is the list referred to in section 178 or 181—views about whether the item or items are eligible for inclusion in that category of the Subdivision A List; and

(ii) if the Subdivision A List is the list referred to in section 183—views whether the item or items are eligible for inclusion in the Subdivision A List; and

(iii) reasons supporting those views; and

(e) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(f) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and

(g) may also invite people to comment on other matters that the Scientific Committee considers appropriate; and

(h) may also include any other information that the Scientific Committee considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

194N Scientific Committee to assess items on finalised priority assessment list and give assessments to Minister

(1) In relation to each item included in the finalised priority assessment list for an assessment period for a Subdivision A List, the Scientific Committee must (by the time required by section 194P):

(a) make a written assessment of:

(i) whether the item is eligible for inclusion in the Subdivision A List; and

(ii) if the Subdivision A List is the list referred to in section 178 or 181—the category of that List in which the item is eligible to be included; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).

(2) In making an assessment in relation to a place, the Scientific Committee, subject to subsections (3) and (4):

(a) must take into account the comments the Committee receives in response to the notice under subsection 194M(1) in relation to the item; and

(b) may seek, and have regard to, information or advice from any source.

(3) The Scientific Committee is not required to take a comment referred to in paragraph (2)(a) into account if:

(a) the Committee does not receive the comment until after the cut‑off date specified in the notice under subsection 194M(1) in relation to the item; or

(b) the Committee considers that regulations referred to in paragraph 194M(4)(b) have not been complied with in relation to the comment.

(4) In making an assessment, the only matters the Scientific Committee may consider are matters relating to:

(a) whether the item is eligible for inclusion in the Subdivision A List; or

(b) the effect that including the item in that List could have on the survival of the native species or ecological community concerned.

194P Time by which assessments to be provided to Minister

(1) Subsection 194N(1) must be complied with, in relation to an item included in the finalised priority assessment list for an assessment period for a Subdivision A List, by the assessment completion time specified in the finalised priority assessment list for the item, or by that time as extended under this section.

(2) The Scientific Committee may request the Minister to extend the assessment completion time (or that time as previously extended) if the Committee considers that it needs more time to make the assessment.

(3) The Minister may, in response to a request under subsection (2), extend the assessment completion time (or that time as previously extended) by such period (if any) as the Minister considers appropriate. However, the total length of all extensions of the assessment completion time must not be more than 5 years.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.

194Q Decision about inclusion of an item in the Subdivision A List

Minister to decide whether or not to include item

(1) After receiving from the Scientific Committee an assessment under section 194N of an item, the Minister must:

(a) include the item in the Subdivision A List concerned; or

(b) in writing, decide not to include the item in the Subdivision A List concerned.

Note 1: Under this subsection the Minister can transfer an item already on a Subdivision A List to a different category in the List (see subsection 194B(1)).

Note 2: Sections 186, 187 and 188 contain rules about including items in a Subdivision A List.

(2) If, under subsection (1), the Minister transfers an item to a category of the Subdivision A List, the Minister must at the same time delete the item from the category in which it was included before the transfer.

(3) Subject to subsection (4), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.

(4) The Minister may, in writing, extend or further extend the period for complying with subsection (1).

(5) Particulars of an extension or further extension under subsection (4) must be published on the Internet and in any other way required by regulations.

(6) For the purpose of deciding what action to take under subsection (1) in relation to the item:

(a) the Minister must have regard to:

(i) the Scientific Committee’s assessment of the item; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 194N(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Additional requirements if Minister decides to include place

(7) If the Minister includes the item in the Subdivision A List, he or she must, within a reasonable time:

(a) if the item was nominated by a person in response to a notice under subsection 194E(1)—advise the person that the item has been included in the Subdivision A List; and

(b) publish a copy of the instrument referred to in paragraph (1)(a) on the Internet; and

Additional requirements if Minister decides not to include item

(8) If the Minister decides not to include the item in the Subdivision A List, the Minister must, within 10 business days after making the decision:

(a) publish the decision on the Internet; and

(b) if the item was nominated by a person in response to a notice under subsection 194E(1)—advise the person of the decision, and of the reasons for the decision.

194R Scientific Committee may obtain advice

In performing its functions under this Subdivision, the Scientific Committee may obtain advice from a person with expertise relevant to the inclusion of an item in a Subdivision A List.

194S Co‑ordination with Australian Heritage Council—Committee undertaking assessment

(1) This section applies if:

(a) the Scientific Committee undertakes an assessment under this Subdivision; and

(b) before giving the assessment to the Minister, the Committee becomes aware that:

(i) the Australian Heritage Council is undertaking, or has undertaken, an assessment of a place under Subdivision BA or BB of Division 1A of Part 15 or under Subdivision BA or BB of Division 3A of Part 15; and

(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).

(2) A member of the Scientific Committee may discuss the matter with a member of the Australian Heritage Council.

(3) Before the Scientific Committee gives an assessment to the Minister under this Subdivision, the Committee must comply with subsection (4) or (6).

(4) If the Australian Heritage Council has not yet given the Minister an assessment that deals with that matter, the Scientific Committee must:

(a) give the Council a copy of the assessment that the Committee proposes to give to the Minister; and

(b) invite the Council to give the Committee its comments in relation to that matter; and

(c) take into account, in finalising the assessment that the Committee gives the Minister, any comments that the Council makes in relation to that matter in response to that invitation within 14 days, or such longer period as is specified in the invitation, after being given the invitation.

(5) If the Scientific Committee gives the Australian Heritage Council a copy of a proposed assessment under paragraph (4)(a), the Committee must also give the Council a copy of the assessment that the Committee gives the Minister.

(6) If:

(a) the Australian Heritage Council has already given the Minister an assessment that deals with that matter; and

(b) the Scientific Committee has been given a copy of that assessment;

the Committee must take that assessment into account in finalising the assessment that the Committee gives the Minister.

(7) If, under section 324JR, 324JS, 341JQ or 341JR, the Australian Heritage Council gives the Scientific Committee a proposed assessment, or an assessment, that deals with a particular matter because the Committee is undertaking an assessment that deals with that matter, a member of the Committee may discuss that matter with a member of the Council.

(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have effect despite section 189B.

194T Co‑ordination with Australian Heritage Council—Committee given assessment to Minister

(1) This section applies if:

(a) the Scientific Committee has given to the Minister an assessment under this Subdivision; and

(b) the Committee is or becomes aware that:

(i) the Australian Heritage Council is undertaking an assessment of a place under Subdivision BA or BB of Division 1A of Part 15 or under Subdivision BA or BB of Division 3A of Part 15; and

(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).

(2) The Scientific Committee must, within 7 days after giving the assessment to the Minister, or becoming aware, as referred to in paragraph (1)(b):

(a) ensure the Australian Heritage Council is aware of the existence of the paragraph (1)(a) assessment dealing with the matter; and

(b) give the Council a copy of the assessment.

(3) A member of the Scientific Committee may discuss the matter with a member of the Australian Heritage Council.

(4) Subsections (2) and (3) have effect despite section 189B.

369 Paragraph 196(1)(b)

Omit “native”.

370 Subsection 196(2)

Omit “paragraph (1)(d)”, substitute “paragraphs (1)(c) and (d)”.

Note: The heading to section 196 is altered by omitting “Recklessly killing” and substituting “Killing”.

371 Paragraph 196B(1)(a)

Omit “native”.

372 Subsection 196B(2)

Omit “paragraph (1)(c)”, substitute “paragraphs (1)(b) and (c)”.

Note: The heading to section 196B is altered by omitting “Recklessly taking” and substituting “Taking”.

373 Paragraph 196D(1)(a)

Omit “native”.

374 Subsection 196D(2)

Omit “paragraph (1)(c)”, substitute “paragraphs (1)(b) and (c)”.

375 Paragraph 197(c)

Omit “a subsection of section 18 or of section 18A”, substitute “subsection 18(1), (2), (3), (4), (5) or (6) or 18A(1) or (2)”.

376 Subparagraph 197(d)(i)

Omit “section 18 or 18A”, substitute “subsection 18(1), (2), (3), (4), (5), or (6) or 18A(1) or (2)”.

377 Subparagraph 197(d)(ii)

Omit “management plan that is an accredited management plan”, substitute “management arrangement or authorisation process that is an accredited management arrangement or an accredited authorisation process”.

378 After paragraph 197(d)

Insert:

(da) an action that:

(i) is an action, or one of a class of actions, declared by the Minister under section 37A not to require an approval under Part 9 for the purposes of subsection 18(1), (2), (3), (4), (5), or (6) or 18A(1) or (2); and

(ii) is taken in accordance with the bioregional plan to which the declaration relates; or

(db) in the case of sections 196B, 196C, 196D and 196E—an action that is trading, keeping or moving a member of a listed threatened species or a listed ecological community, if:

(i) when the member of the species or community was taken, the species or community was not a listed threatened species or a listed threatened ecological community, as the case requires; and

(ii) the trading, keeping or moving of the member of the species or community occurs during the period of 6 months that started when the species or community became a listed threatened species or a listed threatened ecological community, as the case requires; or

379 At the end of section 197

Add:

; or (l) an action, to the extent that it is covered by subsection 517A(7); or

(m) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or

(n) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or

(o) an action provided for by, and taken in accordance with, a traditional use of marine resources agreement that:

(i) was made and accredited in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975; and

(ii) is in force; or

(p) an action that is taken in accordance with a permit that:

(i) was issued under the Antarctic Treaty (Environment Protection) Act 1980 or under regulations made under that Act; and

(ii) is in force; or

(q) an action that consists of the transit of a member through a Commonwealth area in circumstances where the member was:

(i) obtained from an area that is not a Commonwealth area; or

(ii) taken from a Commonwealth area in circumstances covered by paragraph (a), (c), (d), (da), (db), (j), (k), (m), (n), (o) or (p).

380 Paragraph 199(1)(b)

After “or 196E”, insert “, otherwise than because of paragraph 197(db)”.

381 Subsection 199(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the action; or

(b) the action is in a class of actions:

(i) that is specified in an agreement or arrangement between the Secretary and a Commonwealth agency, or an agency of a State or self‑governing Territory; and

(ii) that the agreement or arrangement provides is to be notified to the Secretary by the agency.

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

382 Subsections 200(3), (4) and (5)

Repeal the subsections, substitute:

(3) As soon as practicable after receiving the application, the Minister must cause to be published on the Internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the permit should be issued.

Note: If the action is also the subject of a referral under Division 1 of Part 7 and the referral is made at the same time as the application, the application and invitation for comments that must be published under this subsection may be published together with the referral and invitation for comments that must be published under subsection 74(3).

383 Subsection 201(1)

Omit “subsection (3)”, substitute “subsections (3) and (3A)”.

384 After subsection 201(3)

Insert:

(3A) The Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the listed threatened species or listed threatened ecological community concerned.

385 Subsection 201(5)

Repeal the subsection, substitute:

(5) In making a decision on the application, the Minister must consider the comments (if any) received:

(a) in response to the invitation under subsection 200(3) for anyone to give the Minister comments on whether the permit should be issued; and

(b) within the period specified in the invitation.

386 Section 206A

Before “An”, insert “(1)”.

387 Section 206A

Omit “An”, substitute “Subject to subsection (2), an”.

388 At the end of section 206A

Add:

(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).

389 After subsection 207A(1)

Insert:

(1A) In considering whether to list habitat, the Minister must take into account the potential conservation benefit of listing the habitat.

(1B) Subsection (1) does not limit the matters:

(a) that the Minister may take into account in considering whether to list habitat; or

(b) that the regulations may require or permit the Minister to take into account in considering whether to list habitat.

390 After subsection 207A(3)

Insert:

(3A) Particular material included in the register does not have to be made available for public inspection if the Minister considers that the interests of relevant landholders could be impeded or compromised by:

(a) the disclosure of the material; or

(b) without limiting paragraph (a)—the presence or actions of persons if the material were disclosed.

391 Section 208A

Repeal the section, substitute:

208A Minister may accredit plans, regimes or policies

(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:

(a) a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or

(b) a plan of management within the meaning of section 15A of the Torres Strait Fisheries Act 1984; or

(i) made by a State or self‑governing Territory; and

(ii) in force under a law of the State or self‑governing Territory; or

(d) a regime determined in writing by the Australian Fisheries Management Authority under the Fisheries Administration Act 1991 for managing a fishery for which a plan of management (within the meaning of section 17 of the Fisheries Management Act 1991) is not in force; or

(e) a policy formulated by the Protected Zone Joint Authority under paragraph 34(b) of the Torres Strait Fisheries Act 1984 for managing a fishery for which a plan of management (within the meaning of section 15A of the Torres Strait Fisheries Act 1984) is not in force;

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps to ensure that members of listed threatened species (other than conservation dependent species) are not killed or injured as a result of the fishing; and

(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the survival or recovery in nature of the species.

Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).

Note 2: If a plan, regime or policy that is accredited under this section is, or is proposed to be, amended, the Minister may determine under section 303AB that the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection (1) of this section.

(2) An instrument under subsection (1) is not a legislative instrument.

392 Subsection 209(1)

Omit “, by instrument published in the Gazette”.

393 Paragraphs 209(3)(a) and (b)

Repeal the paragraphs, substitute:

(a) all migratory species that are:

(i) native species; and

(ii) from time to time included in the appendices to the Bonn Convention; and

(b) all migratory species from time to time included in annexes established under JAMBA and CAMBA; and

394 Subsection 209(4)

Omit “by instrument published in the Gazette”, substitute “by legislative instrument”.

395 Subsection 209(5)

Repeal the subsection.

396 Subsection 209(6)

Omit “, by instrument published in the Gazette,”.

397 At the end of section 209

Add:

(7) The list of migratory species made under subsection (1), and any amendments to the list made under paragraph (1)(b) or subsection (6), are legislative instruments, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the list or any amendments.

(8) In this Act:

migratory species has the meaning given by Article I of the Bonn Convention.

398 Paragraph 211(1)(b)

Omit “migratory”.

399 Subsection 211(2)

Omit “paragraph (1)(d)”, substitute “paragraphs (1)(c) and (d)”.

Note: The heading to section 211 is altered by omitting “Recklessly killing” and substituting “Killing”.

400 Paragraph 211B(1)(a)

Omit “migratory”.

401 Subsection 211B(2)

Omit “paragraph (1)(c)”, substitute “paragraphs (1)(b) and (c)”.

Note: The heading to section 211B is altered by omitting “Recklessly taking” and substituting “Taking”.

402 Paragraph 211D(1)(a)

Omit “migratory”.

403 Subsection 211D(2)

Omit “paragraph (1)(c)”, substitute “paragraphs (1)(b) and (c)”.

404 Paragraph 212(c)

Omit “or section 20A”, substitute “or 20A(1) or (2)”.

405 Subparagraph 212(d)(i)

Omit “section 20 or 20A”, substitute “subsection 20(1) or 20A(1) or (2)”.

406 Subparagraph 212(d)(ii)

Omit “management plan that is an accredited management plan”, substitute “management arrangement or an authorisation process that is an accredited management arrangement or an accredited authorisation process”.

407 After paragraph 212(d)

Insert:

(da) an action that:

(i) is an action, or one of a class of actions, declared by the Minister under section 37A not to require an approval under Part 9 for the purposes of subsection 20(1) or 20A(1) or (2); and

(ii) is taken in accordance with the bioregional plan to which the declaration relates; or

(db) in the case of sections 211B, 211C, 211D and 211E—an action that is trading, keeping or moving a member of a listed migratory species, if:

(i) when the member of the species was taken, the species was not a listed migratory species; and

(ii) the trading, keeping or moving of the member of the species occurs during the period of 6 months that started when the species became a listed migratory species; or

408 At the end of section 212

Add:

; or (l) an action, to the extent that it is covered by subsection 517A(7); or

(m) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or

(n) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or

(o) an action provided for by, and taken in accordance with, a traditional use of marine resources agreement that:

(i) was made and accredited in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975; and

(ii) is in force; or

(p) an action that is taken in accordance with a permit that:

(i) was issued under the Antarctic Treaty (Environment Protection) Act 1980 or under regulations made under that Act; and

(ii) is in force; or

(q) an action that consists of the transit of a member through a Commonwealth area in circumstances where the member was:

(i) obtained from an area that is not a Commonwealth area; or

(ii) taken from a Commonwealth area in circumstances covered by paragraph (a), (c), (d), (da), (db), (j), (k), (m), (n), (o) or (p).

409 Paragraph 214(1)(b)

After “or 211E”, insert “, otherwise than because of paragraph 212(db)”.

410 Subsection 214(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the action; or

(b) the action is in a class of actions:

(i) that is specified in an agreement or arrangement between the Secretary and a Commonwealth agency, or an agency of a State or self‑governing Territory; and

(ii) that the agreement or arrangement provides is to be notified to the Secretary by the agency.

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

411 Subsections 215(3), (4) and (5)

Repeal the subsections, substitute:

(3) As soon as practicable after receiving the application, the Minister must cause to be published on the Internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the permit should be issued.

412 Subsection 216(4)

Repeal the subsection, substitute:

(4) In making a decision on the application, the Minister must consider the comments (if any) received:

(a) in response to the invitation under subsection 215(3) for anyone to give the Minister comments on whether the permit should be issued; and

(b) within the period specified in the invitation.

413 Section 221A

Before “An”, insert “(1)”.

414 Section 221A

Omit “An”, substitute “Subject to subsection (2), an”.

415 At the end of section 221A

Add:

(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).

416 Section 222A

Repeal the section, substitute:

222A Minister may accredit plans, regimes or policies

(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:

(a) a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or

(b) a plan of management within the meaning of section 15A of the Torres Strait Fisheries Act 1984; or

(i) made by a State or self‑governing Territory; and

(ii) in force under a law of the State or self‑governing Territory; or

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps to ensure that members of listed migratory species are not killed or injured as a result of the fishing; and

(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the conservation status of a listed migratory species or a population of that species.

Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).

(2) An instrument under subsection (1) is not a legislative instrument.

417 Subsection 224(2)

Omit “(other than an export/import provision)”.

418 Subsection 224(4)

Repeal the subsection.

419 Subdivision B of Division 3 of Part 13 (heading)

Repeal the heading, substitute:

Subdivision B—Australian Whale Sanctuary and important cetacean habitat areas

420 Subsection 225(2)

Repeal the subsection, substitute:

(2) The Australian Whale Sanctuary comprises:

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

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

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

(b) any waters over the continental shelf, except:

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

(iii) waters covered by paragraph (a); and

Note: This subsection is subject to subsection 5(3).

421 After section 228

Insert:

228A Important cetacean habitat areas

(1) The Minister may, by legislative instrument, declare a specified area in the Australian Whale Sanctuary to be an important cetacean habitat area.

(2) The regulations may specify criteria to be applied by the Minister in determining whether to declare an area to be an important cetacean habitat area. If regulations are made for the purposes of this section, the Minister may declare an area to be an important cetacean habitat area only if he or she is satisfied that the area meets the criteria prescribed by the regulations.

422 After subsection 229(1)

Insert:

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

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

Note: The heading to section 229 is altered by omitting “Recklessly killing” and substituting “Killing”.

423 Subsection 229B(4)

Insert:

trade a cetacean:

(a) includes:

(i) buy the cetacean, agree to receive it under an agreement to buy, agree to accept it under such an agreement or acquire it by barter; or

(ii) sell the cetacean, offer it for sale, agree to sell it, have it in possession for the purpose of sale, deliver it for the purpose of sale, receive it for the purpose of sale or dispose of it by barter for the purpose of gain or advancement; or

(iii) cause or allow any of the acts referred to in subparagraph (i) or (ii) to be done; but

(b) does not include export the cetacean from Australia or an external Territory or import it into Australia or an external Territory.

Note: For provisions relating to export or import, see Part 13A.

424 Subsection 229D(2)

Omit “The offence”, substitute “An offence against subsection (1)”.

Note 1: The heading to section 229D is replaced by the heading “Treating cetaceans”.

Note 2: The following heading to subsection 229D(1) is inserted “Treating unlawfully killed or taken cetaceans”.

425 After subsection 229D(2)

Insert:

Treating unlawfully imported cetaceans

(2A) A person commits an offence if:

(a) the person treats a cetacean; and

(b) the cetacean has been unlawfully imported.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

(2B) An offence against subsection (2A) is punishable on conviction by imprisonment for not more than 5 years or a fine not exceeding 1,000 penalty units, or both.

426 Subsection 230(1)

Omit “Subject to section 231, a person”, substitute “A person”.

Note: The following heading to subsection 230(1) is inserted “Possession of unlawfully killed cetaceans”.

427 Subsection 230(2)

Omit “this section”, substitute “subsection (1)”.

428 At the end of section 230

Add:

Possession of unlawfully imported cetaceans

(3) A person commits an offence if:

(a) the person has in his or her possession:

(i) a cetacean; or

(ii) a part of a cetacean; or

(iii) a product derived from a cetacean; and

(b) the cetacean, part or product, as the case may be, has been unlawfully imported.

Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

(4) An offence against subsection (3) is punishable on conviction by imprisonment for not more than 5 years or a fine not exceeding 1,000 penalty units, or both.

429 After paragraph 231(a)

Insert:

(aa) an action that is whale watching carried out in accordance with regulations referred to in paragraph 238(3)(c), but only if:

(i) the whale watching is not carried out for a commercial purpose; or

(ii) the whale watching is carried out in an area that is not an important cetacean habitat area; or

430 After paragraph 231(b)

Insert:

(ba) an action that is covered by an approval in operation under Part 9 for the purposes of subsection 23(1) or (2) or 24A(1), (2), (3) or (4); or

(bb) an action that:

(i) is one of a class of actions declared by the Minister under section 33 not to require an approval under Part 9 for the purposes of subsection 23(1) or (2) or 24A(1), (2), (3) or (4); and

(ii) is taken in accordance with a management arrangement or an authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration; or

(bc) an action that:

(i) is an action, or one of a class of actions, declared by the Minister under section 37A not to require an approval under Part 9 for the purposes of subsection 23(1) or (2) or 24A(1), (2), (3) or (4); and

(ii) is taken in accordance with the bioregional plan to which the declaration relates; or

431 After paragraph 231(g)

Insert:

(ga) an action that is taken in accordance with a permit issued under regulations made under the Great Barrier Reef Marine Park Act 1975 and in force; or

432 At the end of section 231

Add:

; or (i) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or

(j) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or

(k) an action that consists of the transit of a cetacean through a Commonwealth area in circumstances where the cetacean was:

(i) obtained from an area that is not a Commonwealth area; or

(ii) taken from a Commonwealth area in circumstances covered by paragraph (a), (ba), (bb), (bc), (ga), (h), (i) or (j).

433 Subsection 232(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the action; or

(b) the action is in a class of actions:

(i) that are specified in an agreement or arrangement between the Secretary and a Commonwealth agency, or an agency of a State or self‑governing Territory; and

(ii) that the agreement or arrangement provides are to be notified to the Secretary by the agency.

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

434 Subdivision D of Division 3 of Part 13

Repeal the Subdivision.

435 Subsection 236(5) (paragraphs (a) and (b) of the definition of foreign whaling vessel)

Omit “whales”, substitute “cetaceans”.

436 Subsection 237(1) (note)

Repeal the note.

437 Subsections 237(3), (4) and (5)

Repeal the subsections, substitute:

(3) As soon as practicable after receiving the application, the Minister must cause to be published on the Internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the permit should be issued.

438 Subsection 238(1)

Omit “subsections (3) and (4)”, substitute “subsections (3) to (4)”.

439 Subsection 238(2)

Omit “, 230, 232A, 232B, 233 and 234”, substitute “and 230”.

440 Paragraph 238(3)(c)

Repeal the paragraph, substitute:

(i) the whale watching is carried out in accordance with the regulations (if any) made for the purposes of this section; or

(ii) the whale watching will not adversely affect the conservation status of a species of cetacean or a population of that species, and is not inconsistent with a recovery plan or wildlife conservation plan that is in force for a species of cetacean.

441 Paragraphs 238(3)(d) and (e)

Repeal the paragraphs.

442 Subsection 238(3) (note)

Repeal the note.

443 After subsection 238(3)

Insert:

(3AA) If the specified action would or could relate to a species of cetacean that is a listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species of cetacean.

444 Subsection 238(3A)

Repeal the subsection, substitute:

(3A) In making a decision on the application, the Minister must consider the comments (if any) received:

(a) in response to the invitation under subsection 237(3) for anyone to give the Minister comments on whether the permit should be issued; and

(b) within the period specified in the invitation.

445 Subsection 238(5) (definition of whale watching)

Repeal the definition, substitute:

whale watching means any activity conducted for the purpose of observing a cetacean, including but not limited to being in the water for the purposes of observing or swimming with a cetacean, or otherwise interacting with a cetacean.

446 Section 243A

Before “An”, insert “(1)”.

447 Section 243A

Omit “An”, substitute “Subject to subsection (2), an”.

448 At the end of section 243A

Add:

(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).

449 Section 245

Repeal the section, substitute:

245 Minister may accredit plans, regimes or policies

(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:

(a) a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or

(b) a plan of management within the meaning of section 15A of the Torres Strait Fisheries Act 1984; or

(i) made by a State or self‑governing Territory; and

(ii) in force under a law of the State or self‑governing Territory; or

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps to ensure that cetaceans are not killed or injured as a result of the fishing; and

(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the conservation status of a species of cetacean or a population of that species.

Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).

(2) An instrument under subsection (1) is not a legislative instrument.

450 Paragraph 254(1)(b)

Omit “marine”.

451 Subsection 254(2)

Omit “paragraph (1)(d)”, substitute “paragraphs (1)(c) and (d)”.

Note: The heading to section 254 is altered by omitting “Recklessly killing” and substituting “Killing”.

452 Paragraph 254B(1)(a)

Omit “marine”.

453 Subsection 254B(2)

Omit “paragraph (1)(c)”, substitute “paragraphs (1)(b) and (c)”.

Note: The heading to section 254 is altered by omitting “Recklessly taking” and substituting “Taking”.

454 Paragraph 254D(1)(a)

Omit “marine”.

455 Subsection 254D(2)

Omit “paragraph (1)(c)”, substitute “paragraphs (1)(b) and (c)”.

456 Subparagraph 255(d)(ii)

457 After paragraph 255(d)

Insert:

(da) an action that:

(i) is an action, or one of a class of actions, declared by the Minister under section 37A not to require an approval under Part 9 for the purposes of subsection 23(1) or (2), 24A(1), (2), (3) or (4), 26(1) or (2) or 27A(1), (2), (3) or (4); and

(ii) is taken in accordance with the bioregional plan to which the declaration relates; or

(db) in the case of sections 254B, 254C, 254D and 254E—an action that is trading, keeping or moving a member of a listed marine species, if:

(i) when the member of the species was taken, the species was not a listed marine species; and

(ii) the trading, keeping or moving of the member of the species occurs during the period of 6 months that started when the species became a listed marine species; or

458 At the end of section 255

Add:

; or (l) an action, to the extent that it is covered by subsection 517A(7); or

(m) an action provided for by, and done in accordance with, a conservation agreement in force under Part 14; or

(n) an action taken in a Commonwealth reserve in accordance with a management plan made under Part 15 and in operation for the reserve; or

(o) an action provided for by, and taken in accordance with, a traditional use of marine resources agreement that:

(i) was made and accredited in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975; and

(ii) is in force; or

(p) an action that is taken in accordance with a permit that:

(i) was issued under the Antarctic Treaty (Environment Protection) Act 1980 or under regulations made under that Act; and

(ii) is in force; or

(q) an action that consists of the transit of a member through a Commonwealth area in circumstances where the member was:

(i) obtained from an area that is not a Commonwealth area; or

(ii) taken from a Commonwealth area in circumstances covered by paragraph (a), (c), (d), (da), (db), (j), (k), (l), (m), (n), (o) or (p).

459 Paragraph 256(1)(b)

After “or 254E”, insert “, otherwise than because of paragraph 255(db)”.

460 Subsection 256(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not apply if:

(a) the person, or any other person or body, is required by or under a law of the Commonwealth to notify the Secretary of the action; or

(b) the action is in a class of actions:

(i) that is specified in an agreement or arrangement between the Secretary and a Commonwealth agency, or an agency of a State or self‑governing Territory; and

(ii) that the agreement or arrangement provides is to be notified to the Secretary by the agency.

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

461 Subsections 257(3), (4) and (5)

Repeal the subsections, substitute:

(3) As soon as practicable after receiving the application, the Minister must cause to be published on the Internet:

(a) details of the application; and

(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the permit should be issued.

462 Subsection 258(4)

Repeal the subsection, substitute:

(4) In making a decision on the application, the Minister must consider the comments (if any) received:

(a) in response to the invitation under subsection 257(3) for anyone to give the Minister comments on whether the permit should be issued; and

(b) within the period specified in the invitation.

463 Section 263A

Before “An”, insert “(1)”.

464 Section 263A

Omit “An”, substitute “Subject to subsection (2), an”.

465 At the end of section 263A

Add:

(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).

466 Section 265

Repeal the section, substitute:

265 Minister may accredit plans, regimes or policies

(1) The Minister may, by instrument in writing, accredit for the purposes of this Division:

(a) a plan of management within the meaning of section 17 of the Fisheries Management Act 1991; or

(b) a plan of management within the meaning of section 15A of the Torres Strait Fisheries Act 1984; or

(i) made by a State or self‑governing Territory; and

(ii) in force under a law of the State or self‑governing Territory; or

if the Minister is satisfied that:

(f) the plan, regime or policy requires persons engaged in fishing under the plan, regime or policy to take all reasonable steps to ensure that members of listed marine species are not killed or injured as a result of the fishing; and

(g) the fishery to which the plan, regime or policy relates does not, or is not likely to, adversely affect the conservation status of a listed marine species or a population of that species.

Note 1: The Minister may accredit a plan, regime or policy subject to conditions (see section 303AA).

(2) An instrument under subsection (1) is not a legislative instrument.

467 Division 4A of Part 13

Repeal the Division.

468 Division 5 of Part 13 (heading)

Repeal the heading, substitute:

Division 5—Conservation advice, recovery plans, threat abatement plans and wildlife conservation plans

469 Before Subdivision A of Division 5 of Part 13

Insert:

Subdivision AA—Approved conservation advice

266B Approved conservation advice for listed threatened species and listed threatened ecological communities

Minister to ensure there is approved conservation advice

(1) The Minister must ensure that there is approved conservation advice for each listed threatened species (except one that is extinct or that is a conservation dependent species), and each listed threatened ecological community, at all times while the species or community continues to be listed.

(2) For this purpose, approved conservation advice is a document, approved in writing by the Minister (and as changed from time to time in accordance with subsection (3)), that contains:

(a) a statement that sets out:

(i) the grounds on which the species or community is eligible to be included in the category in which it is listed; and

(ii) the main factors that are the cause of it being so eligible; and

(b) either:

(i) information about what could appropriately be done to stop the decline of, or support the recovery of, the species or community; or

(ii) a statement to the effect that there is nothing that could appropriately be done to stop the decline of, or support the recovery of, the species or community.

Changing approved conservation advice

(3) The Minister may, in writing, approve changes to approved conservation advice.

Consultation with Scientific Committee

(4) If the Minister proposes to approve a document as approved conservation advice, the Minister must consult the Scientific Committee about the document, unless its content is substantially the same as material that the Committee has previously provided to the Minister.

(5) If the Minister proposes to approve a change to approved conservation advice, the Minister must consult the Scientific Committee about the change, unless the change is substantially the same as a change that the Scientific Committee has previously advised the Minister should be made.

Publication requirements

(6) If the Minister approves a document as approved conservation advice, the Minister must:

(a) within 10 days of the approval of the document, publish the approved conservation advice on the Internet; and

(b) comply with any other publication requirements of the regulations.

(7) If the Minister approves a change to approved conservation advice, the Minister must:

(a) within 10 days of the approval of the change, publish the advice, as changed, on the Internet; and

(b) comply with any other publication requirements of the regulations.

Instruments of approval are not legislative instruments

(8) An instrument of approval under subsection (2) or (3) is not a legislative instrument.

470 Section 267

Omit:

The Minister must ensure that a recovery plan is in force for each listed threatened species and ecological community.

substitute:

The Minister need ensure that a recovery plan is in force for a listed threatened species or ecological community only if the Minister decides to have a recovery plan. The Minister must decide whether to have a recovery plan for the species or community within 90 days after it becomes listed. The Minister may, at any other time, decide whether to have such a plan.

471 After section 269

Insert:

269AA Decision whether to have a recovery plan

Minister has an initial obligation and then a discretion

(1) The Minister must decide whether to have a recovery plan for a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community within 90 days after the species or community becomes listed. The Minister may, at any other time, decide whether to have a recovery plan for the species or community.

(2) In this section:

(a) the decision that the Minister is required by subsection (1) to make in relation to the species or community within the 90 day period referred to in that subsection is the initial recovery plan decision; and

(b) any subsequent decision that the Minister makes under subsection (1) in relation to the species or community is a subsequent recovery plan decision.

Making the initial recovery plan decision

(3) In making the initial recovery plan decision, the Minister must have regard to the recommendation (the initial recommendation) made by the Scientific Committee as mentioned in paragraph 189(1A)(c) in relation to the species or community.

Making a subsequent recovery plan decision (unless subsection (5) applies)

(4) In making a subsequent recovery plan decision in relation to the species or community, other than a decision to which subsection (5) applies:

(a) the Minister must have regard to the initial recommendation in relation to the species or community; and

(b) the Minister must have regard to any advice subsequently provided to the Minister by the Scientific Committee about whether there should be a recovery plan for the species or community.

Changing from a decision to have a recovery plan to a decision not to have a recovery plan—additional requirements

(5) If, at a time when a decision to have a recovery plan for the species or community is in force (whether or not the plan has yet been made), the Minister is proposing to make a subsequent recovery plan decision that there should not be a recovery plan for the species or community:

(a) the Minister must ask the Scientific Committee for advice relating to the proposed decision; and

(b) the Minister must publish a notice inviting comments on the proposed decision in accordance with subsection (7); and

(i) any advice provided by the Scientific Committee in relation to the proposed decision; and

(ii) subject to subsection (6), the comments the Minister receives in response to the notice referred to in paragraph (b).

(6) The Minister is not required to take a comment referred to in subparagraph (5)(c)(ii) into account if:

(a) the Minister does not receive the comment until after the cut‑off date specified in the notice under paragraph (5)(b); or

(b) the Minister considers that regulations referred to in paragraph (8)(b) have not been complied with in relation to the comment.

(7) The notice referred to in paragraph (5)(b):

(a) must be published in accordance with the regulations referred to in paragraph (8)(a); and

(b) must set out the decision the Minister proposed to make; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (8)(b), apply to making comments; and

(f) may also include any other information that the Minister considers appropriate.

(8) The regulations must provide for the following:

(a) how a notice referred to in paragraph (5)(b) is to be published;

(b) the manner and form for making comments.

General publication requirements

(9) The Minister must publish the following:

(a) the Minister’s initial recovery plan decision, and the reasons for it;

(b) each subsequent recovery plan decision (if any), and the reasons for it.

The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.

Note: This subsection must be complied with, even if the Minister has already published notice of the proposed decision in accordance with subsections (5) and (7).

Decisions not legislative instruments

(10) An instrument making a decision under subsection (1) is not a legislative instrument.

472 Subsection 269A(1)

Repeal the subsection, substitute:

Application

(1) This section applies only if the Minister’s most recent decision under section 269AA in relation to a listed threatened species (except one that is extinct or that is a conservation dependent species) or a listed threatened ecological community is to have a recovery plan for the species or community.

Note: Subsection 273(1) sets a deadline of 3 years from the decision for ensuring that a recovery plan is in force for the species or community. Subsection 273(2) allows that period to be extended.

473 Subsection 269A(2) (note)

Repeal the note.

474 Subsection 269A(3)

After “community jointly with”, insert “one or more of”.

475 Subsection 269A(3)

After “agencies of”, insert “one or more of”.

476 Paragraph 269A(5)(a)

After “occurs,”, insert “and in which actions that the plan would provide for would occur,”.

477 Subsection 269A(6)

Repeal the subsection, substitute:

Limits on making a plan

(6) The Minister must not make a recovery plan under subsection (2) for a species or ecological community that occurs wholly or partly outside a Commonwealth area unless the Minister is satisfied that it is not reasonably practicable, within the period of 3 years referred to in subsection 273(1), to make the plan under subsection (3) of this section with each State or Territory:

(a) in which the species or community occurs; and

(b) in which actions that the plan would provide for would occur, if the plan were made under subsection (2) of this section.

478 Subsection 270(2)

After “a recovery plan must”, insert “(subject to subsection (2A))”.

479 After subsection 270(2)

Insert:

(2A) A recovery plan need only address the matters mentioned in paragraphs (2)(d), (e), (f), (g) and (h) to the extent to which it is practicable to do so.

480 Paragraphs 271(2)(d) to (f)

Repeal the paragraphs.

481 At the end of section 271

Add:

(4) A threat abatement plan may:

(a) state the estimated duration and cost of the threat abatement process; and

(b) identify organisations or persons who will be involved in evaluating the performance of the threat abatement plan; and

(c) specify any major ecological matters (other than the species or communities threatened by the key threatening process that is the subject of the plan) that will be affected by the plan’s implementation.

(5) Subsection (4) does not limit the matters that a threat abatement plan may include.

482 Subsections 273(1), (2) and (3)

Repeal the subsections, substitute:

Deadline for recovery plan

(1) Subject to subsection (2), a recovery plan for a listed threatened species or a listed threatened ecological community must be made and in force within 3 years of the decision under section 269AA to have the plan.

(2) The Minister may, in writing, extend the period within which a recovery plan must be made. Only one extension can be granted for the making of the plan, and the period of the extension must not be more than 3 years.

Ensuring recovery plan is in force

(3) Once the first recovery plan for a listed threatened species or a listed threatened ecological community is in force, the Minister must exercise his or her powers under this Subdivision to ensure that a recovery plan is in force for the species or community until the Minister decides under section 269AA not to have a recovery plan for the species or community.

Note: The Minister may revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community. See section 283A.

Note: The heading to section 278 is altered by omitting “, review and variation”.

483 Subsection 283A(1)

Repeal the subsection, substitute:

(1) The Minister may, by legislative instrument:

(a) revoke a recovery plan for a listed threatened species or a listed threatened ecological community if the Minister decides under section 269AA not to have a recovery plan for the species or community; or

(b) revoke a threat abatement plan for a key threatening process if the Minister decides under section 270A not to have a threat abatement plan for the process.

Note: The heading to section 283A is altered by omitting “threat abatement”.

484 Paragraph 283A(2)(a)

Omit “threat abatement”.

485 Section 299

Omit “a recovery plan takes effect for the species”, substitute “the species becomes a listed threatened species as mentioned in paragraph (b)”.

486 At the end of Subdivision C of Division 5 of Part 13

Add:

300B Assistance from the Scientific Committee

(1) The Minister may, at any time, ask the Scientific Committee to provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A.

(2) The Scientific Committee may, at any time, provide the Minister with a statement, information or advice for the purpose of assisting the Minister in the performance or exercise of the Minister’s functions or powers under section 266B, 269AA or 270A (whether or not the Committee is acting in response to a request under subsection (1) of this section).

487 At the end of Division 8 of Part 13

Add:

303AA Conditions relating to accreditation of plans, regimes and policies

(1) This section applies to an accreditation of a plan, regime or policy under section 208A, 222A, 245 or 265.

(2) The Minister may accredit a plan, regime or policy under that section even though he or she considers that the plan, regime or policy should be accredited only:

(a) during a particular period; or

(b) while certain circumstances exist; or

In such a case, the instrument of accreditation is to specify the period, circumstances or condition.

(3) If an accreditation specifies a particular period as mentioned in subsection (2), the accreditation ceases to be in force at the end of that period.

(4) If an accreditation specifies circumstances as mentioned in subsection (2), the Minister must, in writing, revoke the accreditation if he or she is satisfied that those circumstances have ceased to exist.

(5) The Minister may, in writing, vary an accreditation by:

(a) specifying one or more conditions (or further conditions) to which the accreditation is subject; or

(b) revoking or varying a condition:

(i) specified in the instrument of accreditation; or

(ii) specified under paragraph (a).

(6) A condition may relate to reporting or monitoring.

(7) The Minister must, in writing, revoke an accreditation if he or she is satisfied that a condition of the accreditation has been contravened.

303AB Amended policies, regimes or plans taken to be accredited

(1) If:

(a) a plan, regime or policy is accredited under section 208A, 222A, 245 or 265; and

(b) the plan, regime or policy is amended, or is proposed to be amended; and

(d) the Minister is satisfied that the plan, regime or policy as amended meets, or will meet, the requirements of subsection 208A(1), 222A(1), 245(1) or 265(1) (as the case may be);

the Minister may, by instrument in writing, determine that this subsection applies to the amendments.

(2) If the Minister makes a determination under subsection (1), the plan, regime or policy as amended is, for the purposes of this Act, taken to be accredited under subsection 208A(1), 222A(2), 245(1) or 265(1) (as the case may be).

(3) A determination under subsection (1) of this section is not a legislative instrument.

488 Subsection 303CG(2)

After “specified in the permit”, insert “, in the permitted period,”.

489 After subsection 303CG(2)

Insert:

(2A) For the purpose of subsection (2), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.

490 Section 303CH

Before “The following”, insert “(1)”.

491 Section 303CH (paragraph (a) in the cell at table item 3, column headed “Specific conditions”)

Before “the country”, insert “for any specimen—”.

492 Section 303CH (paragraph (b) in the cell at table item 3, column headed “Specific conditions”)

Repeal the paragraph, substitute:

(b) for a specimen that:

(i) is specified by the Minister in a notice published in the Gazette to be a declared specimen; and

(ii) is not, or is not derived from, an animal that was bred in captivity (section 527B); and

(iii) is not, or is not derived from, a plant that was artificially propagated (section 527C);

the proposed import of the specimen would be an import from an approved commercial import program in accordance with section 303FU.

493 Section 303CH (after subparagraph (b)(ii) in the cell at table item 4, column headed “Specific conditions”)

Insert:

(iia) an export from an approved cultivation program in accordance with section 303FLA; or

494 Section 303CH (after subparagraph (b)(ii) in the cell at table item 6, column headed “Specific conditions”)

Insert:

(iia) an export from an approved cultivation program in accordance with section 303FLA; or

495 At the end of section 303CH

Add:

(2) A notice made under subparagraph (b)(i) of item 3 in the table in subsection (1) is not a legislative instrument.

496 Paragraph 303CJ(b)

Repeal the paragraph, substitute:

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection 303CG(2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

497 After paragraph 303DB(6)(a)

Insert:

(aa) the Minister has had regard to any approved conservation advice for that species; and

498 Subsection 303DG(1)

Omit “subsections (3), (3A) and (4)”, substitute “subsections (3) to (4A)”.

499 Subsection 303DG(2)

After “specified in the permit”, insert “, in the permitted period,”.

500 After subsection 303DG(2)

Insert:

501 After subsection 303DG(4)

Insert:

(4A) If the Minister is considering whether to issue a permit relating to a specimen that belongs to a particular eligible listed threatened species, the Minister must, in deciding whether to issue the permit, have regard to any approved conservation advice for the species.

502 After paragraph 303DG(7)(b)

Insert:

(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or

503 Paragraph 303DI(b)

Repeal the paragraph, substitute:

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection 303DG(2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

504 Subsection 303EB(7)

After “Part 2 of the list”, insert “(except a specimen referred to in subsection (11A))”.

505 After subsection 303EB(11)

Insert:

(11A) Part 2 of the list is taken to include a live plant that:

(a) is a CITES specimen; and

(b) is introduced into Australia in accordance with the Quarantine Act 1908.

506 Subsections 303ED(2), (3) and (4)

Repeal the subsections, substitute:

(2) Unless subsection (3) applies, the Minister must:

(a) cause to be conducted an assessment of the potential impacts on the environment of the proposed amendment; and

(b) cause to be prepared a report on those impacts.

The report must be prepared in accordance with section 303EF and be given to the Minister.

(3) This subsection applies if:

(a) Biosecurity Australia has prepared a report (whether before or after the amendment was proposed) on the potential impacts on the environment if the specimen were to be imported; and

(b) the report is of a type specified in regulations made for the purposes of this paragraph; and

(d) the Minister determines that subsection (2) does not apply to the proposed amendment.

(4) A determination made under paragraph (3)(d) is not a legislative instrument.

507 Subsection 303EE(2)

Repeal the subsection, substitute:

(2) The Minister must not consider the application unless either subsection (3) or (4) applies to the proposed amendment.

(3) This subsection applies to the proposed amendment if:

(a) subsection (4) does not apply to the proposed amendment; and

(b) an assessment is made of the potential impacts on the environment of the proposed amendment; and

The report must be prepared in accordance with section 303EF.

(4) This subsection applies to the proposed amendment if:

(a) Biosecurity Australia has prepared a report (whether before or after the amendment was proposed) on the potential impacts on the environment if the specimen were to be imported; and

(b) the report is of a type specified in regulations made for the purposes of this paragraph; and

(d) the Minister determines that subsection (3) does not apply to the proposed amendment.

(5) A determination made under paragraph (4)(d) is not a legislative instrument.

508 Section 303EF

Repeal the section, substitute:

303EF Requirement for assessments

(1) The assessment under subsection 303ED(2) or 303EE(3) must provide for:

(a) if the Minister determines that this paragraph applies—the preparation of terms of reference for a report on the relevant impacts; or

(b) if the Minister determines that this paragraph applies—all of the following:

(i) the preparation of draft terms of reference for a report on the relevant impacts;

(ii) the publication of the draft terms of reference for public comment for a period of at least 10 business days that is specified by the Minister;

(iii) the finalisation of the terms of reference, to the Minister’s satisfaction, taking into account the comments (if any) received on the draft terms of reference.

(2) The assessment must also provide for:

(a) the preparation of a draft of a report on the relevant impacts; and

(b) the publication of the draft report for public comment for a period of at least 20 business days that is specified by the Minister; and

(c) the finalisation of the report, taking into account the comments (if any) received after publication of the draft report; and

(d) any other matter prescribed by the regulations.

(3) A determination made under paragraph (1)(a) or (b) is not a legislative instrument.

509 Subsection 303EN(2)

After “specified in the permit”, insert “, in the permitted period,”.

510 After subsection 303EN(2)

Insert:

511 Paragraph 303EP(b)

Repeal the paragraph, substitute:

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection 303EN(2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

512 After paragraph 303FJ(b)

Insert:

(ba) the export of the specimen would be an export from an approved cultivation program in accordance with section 303FLA; or

513 After section 303FL

Insert:

303FLA Export from an approved cultivation program

The export of a specimen is an export from an approved cultivation program in accordance with this section if the specimen was sourced from a program that, under the regulations, is taken to be an approved cultivation program.

514 Subsection 303GB(2)

After “specified in the permit”, insert “, in the permitted period,”.

515 After subsection 303GB(2)

Insert:

(a) if the permit relates to a CITES specimen—6 months after that date; or

(b) if the permit relates to a specimen other than a CITES specimen—12 months after that date.

516 Subsections 303GB(3) and (4)

Repeal the subsections, substitute:

Duration of permit

(3) A permit under this section:

(a) comes into force on the date on which it is issued; and

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection (2A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

517 Subsection 303GC(3)

After “specified in the permit”, insert “, in the permitted period,”.

518 After subsection 303GC(3)

Insert:

(3A) For the purpose of subsection (3), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 12 months after that date.

519 Paragraph 303GC(6)(b)

Repeal the paragraph, substitute:

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection (3A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

520 Subsection 303GD(6)

After “specified in the permit”, insert “, in the permitted period,”.

521 After subsection 303GD(6)

Insert:

(6A) For the purpose of subsection (6), the permitted period is the period specified in the permit as the period during which the action or actions specified in the permit may be taken. The period so specified must start on the date of issue of the permit and end not later than 6 months after that date.

522 Paragraph 303GD(7)(d)

Repeal the paragraph, substitute:

(d) if an assessment is to be made under subsection 303EE(3) of the potential impacts on the environment of the proposed amendment—the terms of reference for a report on the assessment have been:

(i) prepared as mentioned in paragraph 303EF(1)(a); or

(ii) finalised as mentioned in subparagraph 303EF(1)(b)(iii); and

523 Paragraph 303GD(9)(b)

Repeal the paragraph, substitute:

(b) unless it is sooner cancelled, remains in force until all of the following periods have ended:

(i) the permitted period (within the meaning of subsection (6A));

(ii) each period for which one or more conditions of the permit are expressed to apply.

524 After subsection 303GE(5)

Insert:

(5A) Without limiting subsection (5), a condition of a permit may be expressed to apply for a period that will not end until after the export or import of a specimen under the permit has occurred, including for example:

(a) a period the length of which is known when the condition is imposed (such as a period that is expressed as a specified number of years); or

(b) a period the length of which is unknown when the condition is imposed (such as a period that is expressed as the life of the specimen, or the life of progeny of the specimen).

Note: Conditions may, for example, relate to how a specimen, and its progeny, are kept or dealt with during their lifetimes.

525 Subsection 303GE(6)

Omit “subsection (5) applies”, substitute “subsections (5) and (5A) apply”.

526 Subsection 303GE(6)

Omit “it applies”, substitute “they apply”.

527 Subsection 303GE(7)

After “(5)”, insert “, (5A)”.

528 Subsection 303GJ(1)

Omit “An”, substitute “Subject to subsection (2), an”.

529 Subsection 303GJ(1)

Omit “Tribunal”, substitute “Administrative Appeals Tribunal”.

530 After subsection 303GJ(1)

Insert:

(2) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).

531 Subsection 303GJ(3) (definition of Tribunal)

Repeal the definition.

532 Section 304

Repeal the section, substitute:

304 Object of this Part

(1) The object of this Part is to provide for:

(a) conservation agreements between the Commonwealth and persons related to the protection and conservation of the following:

(i) biodiversity;

(ii) the world heritage values of declared World Heritage properties;

(iii) the National Heritage values of National Heritage places;

(iv) the Commonwealth Heritage values of Commonwealth Heritage places;

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear action;

(vii) the environment in a Commonwealth marine area;

(viii) the environment on Commonwealth land; and

(b) the effect of conservation agreements; and

(2) Conservation agreements are agreements whose primary object is to enhance the conservation of matters referred to in paragraph (1)(a). They may relate to private or public land, or to marine areas.

Note: Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).

533 Paragraph 305(1)(c)

Omit “(whether inside or outside the Australian jurisdiction)”.

534 At the end of subsection 305(1)

Add:

; (e) the ecological character of a declared Ramsar wetland in the Australian jurisdiction;

(f) the environment, in respect of the impact of a nuclear action in the Australian jurisdiction;

(g) the environment in a Commonwealth marine area in the Australian jurisdiction;

(h) the environment on Commonwealth land in the Australian jurisdiction.

Note: Conservation agreements cannot cover all or part of a Commonwealth reserve (see subsection 305(4)).

535 At the end of paragraph 305(1A)(b)

Add:

or (iv) the ecological character of a declared Ramsar wetland; or

(v) the environment, in respect of the impact of a nuclear action; or

(vi) the environment in a Commonwealth marine area; or

(vii) the environment on Commonwealth land;

536 At the end of paragraph 305(1A)(c)

Add:

; or (v) the ecological character of a declared Ramsar wetland; or

(vi) the environment, in respect of the impact of a nuclear action; or

(vii) the environment in a Commonwealth marine area; or

(viii) the environment on Commonwealth land.

537 At the end of subsection 305(2)

Add:

; and (c) in the case of a proposed agreement wholly or partly for the protection and conservation of the ecological character of a declared Ramsar wetland—the agreement:

(i) will result in a net benefit to the conservation of that ecological character; and

(ii) is not inconsistent with the Australian Ramsar management principles; and

(d) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment, in respect of the impact nuclear actions—the agreement does not relate to the construction or operation of any of the following nuclear installations:

(i) a nuclear fuel fabrication plant;

(ii) a nuclear power plant;

(iii) an enrichment plant;

(iv) a reprocessing facility; and

(e) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment in a Commonwealth marine area—the agreement will result in a net benefit to the conservation of the environment in that area; and

(f) in the case of a proposed agreement wholly or partly for the protection and conservation of the environment on Commonwealth land—the agreement will result in a net benefit to the conservation of the environment on that land.

538 Subsection 305(3)

Omit “of biodiversity or heritage values”, substitute “as mentioned in paragraph (2)(a), (b), (c), (e) or (f)”.

539 After subsection 305(3)

Insert:

(3A) If:

(a) the Minister is considering whether to enter into a proposed conservation agreement that is wholly or partly for the protection and conservation of biodiversity; and

(b) the agreement would or could affect a particular listed threatened species or listed threatened ecological community;

the Minister must, in deciding whether to enter into the agreement, have regard to any approved conservation advice for the species or community.

540 At the end of paragraph 306(1)(a)

Add:

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear action;

(vii) the environment in a Commonwealth marine area;

(viii) the environment on Commonwealth land;

541 At the end of paragraph 306(1)(b)

Add:

or (v) the ecological character of a declared Ramsar wetland; or

(vi) the environment, in respect of the impact of a nuclear action; or

(vii) the environment in a Commonwealth marine area; or

(viii) the environment on Commonwealth land;

542 At the end of paragraph 306(2)(a)

Add:

(v) the ecological character of a declared Ramsar wetland;

(vi) the environment, in respect of the impact of a nuclear action;

(vii) the environment in a Commonwealth marine area;

(viii) the environment on Commonwealth land;

543 At the end of paragraph 306(2)(b)

Add:

or (v) the ecological character of a declared Ramsar wetland; or

(vi) the environment, in respect of the impact of a nuclear action; or

(vii) the environment in a Commonwealth marine area; or

(viii) the environment on Commonwealth land;

544 After section 306

Insert:

306A Conservation agreement may include declaration that actions do not need approval under Part 9

(1) A conservation agreement may include a declaration to the effect that actions in a specified class do not need approval under Part 9 for the purposes of a specified provision of Part 3. The declaration may specify conditions relating to the taking of actions in the class.

(2) The Minister must not enter into a conservation agreement that contains a declaration under subsection (1) unless the Minister is satisfied that the actions to which the declaration relates are not likely to have a significant impact on the matter protected by the provision of Part 3 proposed to be specified in the declaration.

545 After section 307

Insert:

307A Conservation agreements may deal with remediation or mitigation measures

When this section applies

(1) This section applies if the Minister considers that an action taken by a person after the commencement of this section contravened, or may have contravened, a provision of Part 3.

Conservation agreements may provide for measures to repair or mitigate damage

(2) The Minister may enter into a conservation agreement with the person that provides for the protection and conservation of a matter referred to in section 305 by providing for the taking of measures to repair or mitigate damage to the matter protected by the provision of Part 3 (whether or not the damage may or will be, or has been, caused by the action).

(3) The conservation agreement may state that specified provisions of the agreement, being provisions for the taking of measures as mentioned in subsection (2), are provisions that may be enforced in the Federal Court under this section. A provision of the agreement to which such a statement applies is a remediation provision.

(4) If the conservation agreement contains a statement as mentioned in subsection (3), that statement must specify the provision of Part 3 referred to in subsection (1).

Federal Court may order compliance with remediation provision

(5) If the Minister considers that the person has contravened a remediation provision, the Minister may apply to the Federal Court for an order under subsection (6).

(6) If the Federal Court is satisfied that the person has contravened a remediation provision, the Court may make one or more of the following orders:

(a) an order directing the person to comply with the remediation provision;

(b) any other order that the Court considers appropriate.

Civil penalty for contravention of remediation provision

(7) The person must not contravene a remediation provision.

(8) Subsection (7) is a civil penalty provision. Under section 481, the Federal Court may order the person to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the person to pay under that section for a contravention of the provision of Part 3 referred to in subsection (1).

This section does not limit sections 305, 306 and 307

(9) This section does not limit anything in sections 305, 306 and 307.

546 Section 324B

Repeal the section.

547 Subsection 324C(1)

After “this Subdivision”, insert “and Subdivisions BA, BB and BC”.

548 Subsection 324C(1) (note)

Repeal the note.

549 Subsection 324C(2)

Repeal the subsection, substitute:

(2) A place may be included in the National Heritage List only if:

(a) the place is within the Australian jurisdiction; and

(b) the Minister is satisfied that the place has one or more National Heritage values (subject to the provisions in Subdivision BB about the emergency process).

(3) A place that is included in the National Heritage List is called a National Heritage place.

(4) The National Heritage List is not a legislative instrument.

550 Sections 324E to 324J

Repeal the sections, substitute:

Subdivision BA—Inclusion of places in the National Heritage List: usual process

324E Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for the inclusion of places in the National Heritage List.

The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 324G).

The usual process involves the following steps for each assessment period:

(a) the Minister may determine heritage themes (this step is optional) (see section 324H);

(b) the Minister invites people to nominate places for inclusion in the National Heritage List, and gives the nominations to the Australian Heritage Council (see sections 324J and 324JA);

(c) the Australian Heritage Council prepares, and gives to the Minister, a list of places (which will mostly be places that have been nominated) that it thinks should be assessed (see sections 324JB, 324JC and 324JD);

(d) the Minister finalises the list of places that are to be assessed (see sections 324JE and 324JF);

(e) the Australian Heritage Council invites people to make comments about the places in the finalised list (see section 324JG);

(f) the Australian Heritage Council assesses the places in the finalised list, and gives the assessments to the Minister (see sections 324JH and 324JI);

(g) the Minister decides whether a place that has been assessed should be included in the National Heritage List (see section 324JJ).

The steps mentioned in paragraphs (a) to (d) will generally be completed before the start of the assessment period.

324F Definitions

In this Subdivision:

assessment period has the meaning given by subsection 324G(1).

eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 324JB(3).

finalised priority assessment list for an assessment period has the meaning given by subsection 324JE(4).

proposed priority assessment list for an assessment period has the meaning given by subsection 324JB(1).

324G Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an assessment period:

(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph;

(b) each period of 12 months starting on an anniversary of the day so determined.

(3) A determination under paragraph (1)(a) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the determination.

324H Minister may determine heritage themes for an assessment period

(1) Before the Minister invites nominations for an assessment period under section 324J, the Minister may determine one or more heritage themes that the Minister considers should be given priority in relation to the assessment period.

(2) The Minister may request advice from the Australian Heritage Council for the purpose of making a determination under subsection (1), and may have regard to any advice the Council provides in response to the request.

(3) A determination under subsection (1) is a legislative instrument, but section 42 of the Legislative Instruments Act 2003 does not apply to the determination.

324J Minister to invite nominations for each assessment period

(1) Before the start of each assessment period, the Minister must publish a notice inviting people to nominate places for inclusion in the National Heritage List.

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, places for inclusion in the National Heritage List; and

(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and

(f) may also include:

(i) information related to any heritage themes that the Minister has determined under section 324H should be given priority in relation to the assessment period; and

(ii) any other information that the Minister considers appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

324JA Minister to give nominations to Australian Heritage Council

Nominations in relation to first assessment period

(1) Within 30 business days after the cut‑off date specified in the notice under subsection 324J(1) for the first assessment period, the Minister must give the Australian Heritage Council the nominations that the Minister:

(a) had received before the end of that cut‑off date; and

(b) had not already requested the Australian Heritage Council, under section 324E (as in force before the commencement of this section), to assess; and

(d) does not reject under subsection (4).

(2) Subsection (1) does not apply to a nomination of a place if:

(a) the place is outside the Australian jurisdiction; or

(b) the Minister had, before the commencement of this section, included the place in the National Heritage List under section 324F (as in force before the commencement of this section).

Nominations in relation to later assessment periods

(3) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 324J(1) for an assessment period (other than the first), the Minister must give the Australian Heritage Council the nominations that were received by the Minister in the period:

(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 324J(1) for the immediately preceding assessment period; and

(b) ending at the end of the current cut‑off date;

other than any such nominations that the Minister rejects under subsection (4).

Minister may reject nominations

(4) The Minister may, in writing, reject a nomination if the Minister considers that:

(a) the nomination is vexatious, frivolous or not made in good faith; or

(b) the Minister considers that regulations referred to in paragraph 324J(3)(b) or (c) have not been complied with in relation to the nomination.

(5) If a nomination is rejected under paragraph (4)(b), the Minister must, if practicable, notify the person who made the nomination of the rejection of the nomination and the reason for the rejection.

Definition

(6) In this section:

nomination means a nomination of a place for inclusion in the National Heritage List.

324JB Australian Heritage Council to prepare proposed priority assessment list

(1) Within 40 business days after the Australian Heritage Council receives the nominations as required by subsection 324JA(1) in relation to an assessment period, the Council must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period.

(2) The proposed priority assessment list is to consist of such of the places that are eligible for assessment consideration in relation to the assessment period as the Australian Heritage Council considers it appropriate to include in the list, having regard to:

(a) any heritage themes determined by the Minister under section 324H in relation to the assessment period; and

(b) the Council’s own views about what should be given priority in relation to the assessment period; and

(d) any other matters that the Council considers appropriate.

(3) A place is eligible for assessment consideration in relation to the assessment period if:

(a) the place has been nominated by a nomination referred to in subsection (1); or

(b) the Council itself wishes to nominate the place for inclusion in the National Heritage List; or

(c) the place was eligible for assessment consideration, otherwise than because of this paragraph, in relation to the immediately preceding assessment period (if any) but was not included in the finalised priority assessment list for that assessment period; or

(d) each part of the place is either a place to which paragraph (a) applies, a place to which paragraph (b) applies or a place to which paragraph (c) applies.

(4) Without limiting the generality of the Australian Heritage Council’s discretion under subsection (2), the Council does not have to include in the proposed priority assessment list a place that has been nominated if the Council considers that it is unlikely that the place has any National Heritage values. For this purpose, the Council is not required to have regard to any information beyond the information that was included in the nomination.

(5) The proposed priority assessment list is not a legislative instrument.

324JC Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period is to include, for each place in the list:

(a) a description of the place; and

(b) an assessment completion time; and

(2) The assessment completion time for a place must be either:

(a) a time that is at or before the end of the assessment period to which the list relates; or

(b) if the Australian Heritage Council considers it likely that making an assessment in relation to the place will take a period that is longer than 12 months—the end of that longer period (calculated from the start of the assessment period).

324JD Statement to be given to Minister with proposed priority assessment list

(1) When the Australian Heritage Council gives the Minister the priority assessment list for an assessment period, the Council must also give the Minister a statement setting out such information as the Council considers appropriate relating to:

(a) for each place that is included in the list—why the Council included the place in the list; and

(b) for each place that is not included in the list but that was eligible for assessment consideration because of paragraph 324JB(3)(a) or (c)—why the Council did not include the place in the list.

(2) The statement must also identify, as places nominated by the Australian Heritage Council:

(a) any places that are included in the list because the Council itself wishes to nominate them (see paragraph 324JB(3)(b)); and

(b) any places that are included in the list because of paragraph 324JB(3)(d) that consist of one or more places to which paragraph 324JB(3)(b) applies.

324JE The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 324JB, receives the proposed priority assessment list for an assessment period, the Minister may, in writing, make changes to the list as mentioned in subsection (2).

(2) The changes the Minister may make are as follows:

(a) including a place in the list (and also including the matters referred to in subsection 324JC(1));

(b) omitting a place from the list (and also omitting the matters referred to in subsection 324JC(1));

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.

(4) At the end of the period of 20 business days referred to in subsection (1), the list, as changed (if at all) by the Minister, becomes the finalised priority assessment list for the assessment period.

(5) The Minister must notify the Australian Heritage Council of all changes that the Minister makes to the list.

(6) The finalised priority assessment list is not a legislative instrument.

324JF Publication of finalised priority assessment list

(1) The Australian Heritage Council must publish the finalised priority assessment list for an assessment period on the Internet.

(2) The Australian Heritage Council must also publish the finalised priority assessment list in accordance with any requirements of the regulations.

324JG Australian Heritage Council to invite comments on places in finalised priority assessment list

(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must publish a notice inviting people to make comments on the place.

(2) The Australian Heritage Council may, under subsection (1), publish a single notice relating to all of the places on the finalised priority assessment list, or may publish a number of separate notices, each of which relates to one or more of the places.

(3) A notice under subsection (1), in relation to a place or places:

(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and

(b) must identify the place or places to which the notice relates; and

(i) whether the place or places meet any of the National Heritage criteria; and

(ii) whether the place or places should be included in the National Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and

(f) may also invite people to comment on other matters that the Australian Heritage Council considers appropriate; and

(g) may also include any other information that the Australian Heritage Council considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

324JH Australian Heritage Council to assess places on finalised priority assessment list and give assessments to Minister

(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must (by the time required by section 324JI):

(a) make a written assessment whether the place meets any of the National Heritage criteria; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).

(2) In making an assessment in relation to a place, the Australian Heritage Council, subject to subsections (3) and (4):

(a) must take into account the comments the Council receives in response to the notice under subsection 324JG(1) in relation to the place; and

(b) may take into account the comments the Council receives in response to the opportunity referred to in paragraph (5)(c); and

(3) The Australian Heritage Council is not required to take a comment referred to in paragraph (2)(a) into account if:

(a) the Council does not receive the comment until after the cut‑off date specified in the notice under subsection 324JG(1) in relation to the place; or

(b) the Council considers that regulations referred to in paragraph 324JG(4)(b) have not been complied with in relation to the comment.

(4) In making an assessment, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the National Heritage criteria.

(5) If, in making an assessment, the Australian Heritage Council considers that a place might have one or more National Heritage values, the Council must:

(a) take all practicable steps:

(i) to identify each person who is an owner or occupier of all or part of the place; and

(ii) if the Council considers the place might have an indigenous heritage value—to identify each Indigenous person who has rights or interests in all or part of the place; and

(b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the National Heritage criteria; and

(c) give persons advised at least 20 business days to comment in writing whether the place should be included in the National Heritage List.

(6) If the Australian Heritage Council is satisfied that there are likely to be at least 50 persons referred to in subparagraph (5)(a)(i), the Council may satisfy the requirements of subsection (5) in relation to those persons by including the information referred to in paragraphs (5)(b) and (c) in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

(7) If:

(a) the Australian Heritage Council considers that the place might have an indigenous heritage value; and

(b) there are Indigenous persons who:

(i) have rights or interests in all or part of the place; and

(ii) are neither owners nor occupiers of all or part of the place; and

(c) the Australian Heritage Council is satisfied that there is a body, or there are bodies, that can appropriately represent those Indigenous persons in relation to those rights and interests;

the Australian Heritage Council may satisfy the requirements of subsection (5) in relation to those Indigenous persons by giving the information referred to in paragraphs (5)(b) and (c) to that body or those bodies.

324JI Time by which assessments to be provided to Minister

(1) Subsection 324JH(1) must be complied with, in relation to a place included in the finalised priority assessment list for an assessment period, by the assessment completion time specified in the list for the place, or by that time as extended under this section.

(2) The Australian Heritage Council may request the Minister to extend the assessment completion time (or that time as previously extended) if the Council considers that it needs more time to make the assessment.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.

324JJ Decision about inclusion of a place in the National Heritage List

Minister to decide whether or not to include place

(1) After receiving from the Australian Heritage Council an assessment under section 324JH whether a place (the assessed place) meets any of the National Heritage criteria, the Minister must:

(a) by instrument published in the Gazette, include in the National Heritage List:

(i) the assessed place or a part of the assessed place; and

(ii) the National Heritage values of the assessed place, or that part of the assessed place, that are specified in the instrument; or

(b) in writing, decide not to include the assessed place in the National Heritage List.

Note: The Minister may include a place in the National Heritage List only if the Minister is satisfied that the place has one or more National Heritage values (see subsection 324C(2)).

(2) Subject to subsection (3), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.

(3) The Minister may, in writing, extend or further extend the period for complying with subsection (1).

(4) Particulars of an extension or further extension under subsection (3) must be published on the Internet and in any other way required by the regulations.

(5) For the purpose of deciding what action to take under subsection (1) in relation to the assessed place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the assessed place meets any of the National Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 324JH(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Additional requirements if Minister decides to include place

(6) If the Minister includes the assessed place, or a part of the assessed place (the listed part of the assessed place), in the National Heritage List, he or she must, within a reasonable time:

(a) take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the assessed place; and

(ii) advise each person identified that the assessed place, or the listed part of the assessed place, has been included in the National Heritage List; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 324J(1)—advise the person that the assessed place, or the listed part of the assessed place, has been included in the National Heritage List; and

(d) publish a copy or summary of that instrument in accordance with any other requirements specified in the regulations.

(7) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (6)(a)(i), the Minister may satisfy the requirements of paragraph (6)(a) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the assessed place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the assessed place;

Additional requirements if Minister decides not to include place

(8) If the Minister decides not to include the assessed place in the National Heritage List, the Minister must, within 10 business days after making the decision:

(a) publish the decision on the Internet; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 324J(1)—advise the person of the decision, and of the reasons for the decision.

Note: Subsection (8) applies in a case where the Minister decides that none of the assessed place is to be included in the National Heritage List.

Subdivision BB—Inclusion of places in the National Heritage List: emergency process

324JK Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the emergency process for the inclusion of places in the National Heritage List.

The emergency process involves the following steps:

(a) the Minister may include a place in the National Heritage List if it is under threat (see section 324JL);

(b) the Minister asks the Australian Heritage Council to assess the place (see section 324JM);

(d) the Australian Heritage Council assesses the place, and gives the assessment to the Minister (see sections 324JO and 324JP);

(e) the Minister has 12 months from the listing of the place to decide whether it should continue to be listed, and the listing will lapse if the Minister does not make a decision within that period (see section 324JQ).

324JL Minister may include place in National Heritage List if under threat

(1) If the Minister believes that:

(a) a place has or may have one or more National Heritage values; and

(b) any of those values is under threat of a significant adverse impact; and

the Minister may, by instrument published in the Gazette, include in the National Heritage List the place and the National Heritage values the Minister believes the place has or may have.

(2) If:

(a) the place is included in the National Heritage List under subsection (1); and

(b) before that inclusion of the place, the place was being considered for inclusion in the List under the process set out in Subdivision BA;

that process ceases to apply to the place when it is included in the List under subsection (1).

Note: Subsection (2) does not prevent the process in Subdivision BA again starting to apply to the place if (for example) the place ceases to be listed because of subsection 324JQ(1) or (4) and a person subsequently nominates the place under that Subdivision.

(3) If the place is included in the National Heritage List under subsection (1), the Minister must:

(a) within 10 business days after the inclusion of the place, publish a copy of the instrument under subsection (1):

(i) on the Internet; and

(ii) in accordance with any other requirements specified in the regulations; and

(b) take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the place; and

(ii) advise each person identified that the place has been included in the National Heritage List.

(4) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (3)(b)(i), the Minister may satisfy the requirements of paragraph (3)(b) in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

324JM Minister to ask Australian Heritage Council for assessment

(1) If the Minister includes a place in the National Heritage List under section 324JL, the Minister must, in writing, request the Australian Heritage Council to give the Minister an assessment of whether the place meets any of the National Heritage criteria.

(2) The request must specify the assessment completion time for the assessment.

Note: When specifying an assessment completion time, the 12‑month period referred to in subsection 324JQ(1) should be considered.

324JN Publication of listing of place and inviting comments

(1) If the Australian Heritage Council receives a request under subsection 324JM(1) in relation to a place that has been included in the National Heritage List, the Council must publish a notice inviting people to comment on the listing of the place.

(2) A notice under subsection (1) in relation to a place:

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must contain the following:

(i) a description of the place;

(ii) a statement that the place has been included in the National Heritage List, and that specifies the National Heritage values that have been included in the List in relation to the place;

(iii) the date on which the place was so included; and

(i) whether the place meets any of the National Heritage criteria; and

(ii) whether the place should continue to be included in the National Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (3)(b), apply to making comments.

(3) The regulations may provide for either or both of the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

324JO Australian Heritage Council to assess place and give assessment to Minister

(1) Section 324JH applies in relation to a request under subsection 324JM(1) as if:

(a) a reference in section 324JH to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 324JH to the notice under subsection 324JG(1) in relation to the place were a reference to the notice under subsection 324JN(1) in relation to the place; and

(c) a reference in section 324JH to regulations referred to in paragraph 324JG(4)(b) were a reference to regulations referred to in paragraph 324JN(3)(b); and

(d) a reference in section 324JH to whether the place should be included in the National Heritage List were a reference to whether the place should continue to be included in the National Heritage List.

(2) A reference in another provision of this Act to section 324JH, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

324JP Time by which assessments to be provided to Minister

(1) Section 324JI applies in relation to a request under subsection 324JM(1) as if:

(a) a reference in section 324JI to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 324JI to the assessment completion time specified in the list for the place were a reference to the assessment completion time specified in the request.

(2) A reference in another provision of this Act to section 324JI, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

324JQ Decision about place remaining in the National Heritage List

Minister to decide whether place should remain listed

(1) Within 12 months after the inclusion of a place in the National Heritage List under section 324JL, the Minister must, by instrument published in the Gazette, subject to subsections (2) and (3):

(a) do one of the following:

(i) state that the place remains in the National Heritage List with its boundary unaltered;

(ii) alter the boundary of the place described in the National Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List);

(iii) remove from the National Heritage List the place and its National Heritage values; and

(b) if the place is not removed from the National Heritage List under subparagraph (a)(iii)—do all or any of the following:

(i) state that specified National Heritage values included in the List under section 324JL for the place remain in the List for the place;

(ii) include in the List for the place specified National Heritage values of the place that were not included in the List under section 324JL for the place;

(iii) remove from the List for the place specified National Heritage values that were included in the List under section 324JL for the place.

(2) The Minister must not take action under subsection (1) unless the Minister has received an assessment from the Australian Heritage Council under section 324JH in relation to the place.

(3) The Minister must not take action under subsection (1) that results in the place remaining in the National Heritage List (whether or not with the same or a different boundary) unless the Minister is satisfied that the place has one or more National Heritage values.

Listing lapses automatically if action not taken within 12 months of listing

(4) If the Minister does not take action under subsection (1) within the period referred to in that subsection, the place, and its listed National Heritage values, are automatically removed from the National Heritage List, by force of this subsection, at the end of that period.

Note: This subsection applies even if the Minister is prevented from taking action under subsection (1) because of subsection (2).

Matters to be considered

(5) For the purpose of deciding what action to take under subsection (1) in relation to the place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the place meets any of the National Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 324JH(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Disapplying section 324L

(6) Section 324L does not apply to:

(a) an alteration of the boundary of the place, under subparagraph (1)(a)(ii) of this section, that has the effect of removing part of the place from the National Heritage List; or

(b) the removal of the place and its National Heritage values under subparagraph (1)(a)(iii) of this section; or

Minister to publish copy or summary of subsection (1) notice

(7) The Minister must publish a copy or summary of the instrument referred to in subsection (1). The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way that the Minister considers appropriate.

Additional requirements if place etc. is removed under subsection (1)

(8) If, under subsection (1), the Minister removes from the National Heritage List the place or a National Heritage value of the place, or alters the boundary of the place described in the List, the Minister must, within 10 business days after the removal or alteration:

(a) publish a copy of the instrument referred to in subsection (1) on the Internet; and

(b) advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal or alteration.

Note: For the obligation to identify owners or occupiers, see subsection 324JL(3).

Requirements if place is removed under subsection (4)

(9) If, under subsection (4), the place, and its listed National Heritage values, are removed from the National Heritage List, the Minister must, within 10 business days after the removal:

(a) publish notice of the removal on the Internet; and

(b) advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal.

Note: For the obligation to identify owners or occupiers, see subsection 324JL(3).

Alternative methods of notifying owners and occupiers

(10) If the Minister is satisfied that there are likely to be at least 50 persons referred to in paragraph (8)(b) or (9)(b), the Minister may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

Subdivision BC—Other provisions relating to the National Heritage List

324JR Co‑ordination with Scientific Committee—Council undertaking assessment

(1) This section applies if:

(a) the Australian Heritage Council undertakes an assessment of a place under Subdivision BA or Subdivision BB; and

(b) before giving the assessment to the Minister, the Council becomes aware that:

(i) the Scientific Committee is undertaking, or has undertaken, an assessment under Division 1 of Part 13; and

(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).

(2) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.

(3) Before the Australian Heritage Council gives an assessment of the place to the Minister under Subdivision BA or Subdivision BB, the Council must comply with subsection (4) or (6).

(4) If the Scientific Committee has not yet given the Minister an assessment that deals with that matter, the Australian Heritage Council must:

(a) give the Scientific Committee a copy of the assessment of the place that the Council proposes to give to the Minister; and

(b) invite the Scientific Committee to give the Council its comments in relation to that matter; and

(c) take into account, in finalising the assessment of the place that the Council gives the Minister, any comments that the Scientific Committee makes in relation to that matter in response to that invitation within 14 days, or such longer period as is specified in the invitation, after being given the invitation.

(5) If the Australian Heritage Council gives the Scientific Committee a copy of a proposed assessment of a place under paragraph (4)(a), the Council must also give the Scientific Committee a copy of the assessment of that place that the Council gives the Minister.

(6) If:

(a) the Scientific Committee has already given the Minister an assessment that deals with that matter; and

(b) the Australian Heritage Council has been given a copy of that assessment;

the Australian Heritage Council must take that assessment into account in finalising the assessment of the place that the Council gives the Minister.

(7) If, under section 194S or 194T, the Scientific Committee gives the Australian Heritage Council a proposed assessment, or an assessment, that deals with a particular matter because the Council is undertaking an assessment that deals with that matter, a member of the Council may discuss that matter with a member of the Scientific Committee.

(8) Subsection (2), paragraph (4)(a) and subsections (5) and (7) have effect despite section 324R.

324JS Co‑ordination with Scientific Committee—Council given assessment to Minister

(1) This section applies if:

(a) the Australian Heritage Council has given to the Minister an assessment of a place under Subdivision BA or Subdivision BB; and

(b) the Council is aware that:

(i) the Scientific Committee is undertaking an assessment under Division 1 of Part 13; and

(ii) there is a matter that is relevant to both the assessment referred to in paragraph (a) and the assessment referred to in subparagraph (i).

(2) The Australian Heritage Council must, within 7 days after becoming aware as referred to in paragraph (1)(b):

(a) ensure the Scientific Committee is aware of the existence of the paragraph (1)(a) assessment dealing with the matter; and

(b) give the Scientific Committee a copy of the assessment.

(3) A member of the Australian Heritage Council may discuss the matter with a member of the Scientific Committee.

(4) Subsections (2) and (3) have effect despite section 324R.

551 Subsection 324K(1)

Omit “this Subdivision that is before this section and”, substitute “Subdivision BA or BB”.

552 Subsection 324K(1)

Omit “an earlier provision of this Subdivision”, substitute “an earlier provision of that Subdivision”.

553 Subsection 324L(1) (note)

Omit “324J(5)”, substitute “324JQ(1)”.

554 Subsection 324M(6)

Repeal the subsection.

555 Section 324N

Repeal the section, substitute:

324N Specifying one or more additional National Heritage values for a National Heritage place

(1) The regulations may make provision for, or in relation to, the specification in the National Heritage List of additional National Heritage values in relation to National Heritage places.

(2) Without limiting the generality of subsection (1), regulations may make provision as mentioned in that subsection by specifying modifications of provisions of this Act. However, regulations must not:

(a) increase, or have the effect of increasing, the maximum penalty for any offence; or

(b) widen, or have the effect of widening, the scope of any offence.

(3) In this section:

modifications includes additions, omissions or substitutions.

556 Paragraph 324R(1)(a)

Omit “324G”, substitute “324JH”.

557 Paragraph 324R(2)(a)

Repeal the paragraph, substitute:

(a) the duty not to disclose a thing described in paragraph (1)(a) in relation to a place does not exist after:

(i) publication in the Gazette of an instrument under paragraph 324JJ(1)(a) or subsection 324JQ(1) in relation to the place; or

(ii) the Minister decides under paragraph 324JJ(1)(b) not to include the place in the National Heritage List; and

558 Subparagraph 324R(2)(b)(ii)

Repeal the subparagraph, substitute:

(ii) the Minister decides under section 324M not to remove the place or a part of the place, or one or more of the place’s National Heritage values, from the National Heritage List.

559 After subsection 324R(2)

Insert:

(2A) This section does not prevent the Australian Heritage Council from informing a person, or having discussions with a person, about the consequences that result or may result from:

(a) a place being, or not being, included in the National Heritage List; or

(b) National Heritage values of a place being, or not being, included in the List; or

(2B) Subsection (1) does not apply to a disclosure of particular information if:

(a) the Chair of the Australian Heritage Council requests the Minister to give permission to disclose that information to a particular person (or persons within a particular group of persons); and

(b) the Minister gives that permission; and

560 Paragraph 324R(3)(a)

Omit “324G”, substitute “324JH”.

561 Subsection 324S(1)

Repeal the subsection (not including the note), substitute:

(1) The Minister must make a written plan to protect and manage the National Heritage values of each National Heritage place that is entirely within one or more Commonwealth areas. The Minister must do so as soon as practicable after the first time the place satisfies both of the following paragraphs:

(a) the place is included in the National Heritage List;

(b) the place is entirely within one or more Commonwealth areas.

562 At the end of section 324S

Add:

(7) A plan, an amendment of a plan, or a revocation and replacement of a plan, is a legislative instrument.

563 Paragraph 324Y(2)(c)

Repeal the paragraph, substitute:

(i) a Commonwealth area;

(ii) a Territory; or

564 Subsection 341C(1)

After “this Subdivision”, insert “and Subdivisions BA, BB and BC”.

565 Subsection 341C(1) (note)

Repeal the note.

566 Subsection 341C(2)

Repeal the subsection, substitute:

(2) A place may be included in the Commonwealth Heritage List only if:

(a) the place either:

(i) is entirely within a Commonwealth area; or

(ii) is outside the Australian jurisdiction and is owned or leased by the Commonwealth or a Commonwealth Authority; and

(b) the Minister is satisfied that the place has one or more Commonwealth Heritage values (subject to the provisions in Subdivision BB about the emergency process).

(3) A place that is included in the Commonwealth Heritage List is called a Commonwealth Heritage place.

(4) The Commonwealth Heritage List is not a legislative instrument.

567 Sections 341E to 341J

Repeal the sections, substitute:

Subdivision BA—Inclusion of places in the Commonwealth Heritage List: usual process

341E Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the usual process for the inclusion of places in the Commonwealth Heritage List.

The usual process involves an annual cycle that revolves around 12‑month periods known as assessment periods. The Minister determines the start of the first assessment period (see section 341G).

The usual process involves the following steps for each assessment period:

(a) the Minister invites people to nominate places for inclusion in the Commonwealth Heritage List, and gives the nominations to the Australian Heritage Council (see sections 341H and 341J);

(b) the Australian Heritage Council prepares, and gives to the Minister, a list of places (which will mostly be places that have been nominated) that it thinks should be assessed (see sections 341JA, 341JB and 341JC);

(d) the Australian Heritage Council invites people to make comments about the places in the finalised list (see section 341JF);

(e) the Australian Heritage Council assesses the places in the finalised list, and gives the assessments to the Minister (see sections 341JG and 341JH);

(f) the Minister decides whether a place that has been assessed should be included in the Commonwealth Heritage List (see section 341JI).

The steps mentioned in paragraphs (a) to (c) will generally be completed before the start of the assessment period.

341F Definitions

In this Subdivision:

assessment period has the meaning given by subsection 341G(1).

eligible for assessment consideration, in relation to an assessment period, has the meaning given by subsection 341JA(3).

finalised priority assessment list for an assessment period has the meaning given by subsection 341JD(4).

proposed priority assessment list for an assessment period has the meaning given by subsection 341JA(1).

341G Meaning of assessment period

(1) For the purposes of this Subdivision, each of the following is an assessment period:

(a) the period of 12 months starting on the day determined in writing by the Minister for the purposes of this paragraph;

(b) each period of 12 months starting on an anniversary of the day so determined.

(3) A determination under paragraph (1)(a) is a legislative instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the determination.

341H Minister to invite nominations for each assessment period

(1) Before the start of each assessment period, the Minister must publish a notice inviting people to nominate places for inclusion in the Commonwealth Heritage List.

Note: For which places can be included in the Commonwealth Heritage List, see subsection 341C(2).

(2) A notice under subsection (1):

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must invite people to nominate, to the Minister, places for inclusion in the Commonwealth Heritage List; and

(d) must specify a date (the cut‑off date) by which nominations must be received, which must be at least 40 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the information requirements, and the manner and form requirements, that, under regulations referred to in paragraphs (3)(b) and (c), apply to making nominations; and

(f) may also include any other information that the Minister considers appropriate.

(3) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making nominations;

341J Minister to give nominations to Australian Heritage Council

Nominations in relation to first assessment period

(1) Within 30 business days after the cut‑off date specified in the notice under subsection 341H(1) for the first assessment period, the Minister must give the Australian Heritage Council the nominations that the Minister:

(a) had received before the end of that cut‑off date; and

(b) had not already requested the Australian Heritage Council, under section 341E (as in force before the commencement of this section), to assess; and

(d) does not reject under subsection (4).

(2) Subsection (1) does not apply to a nomination of a place if the Minister had, before the commencement of this section, included the place in the Commonwealth Heritage List under section 341F (as in force before the commencement of this section).

Nominations in relation to later assessment periods

(3) Within 30 business days after the cut‑off date (the current cut‑off date) specified in the notice under subsection 341H(1) for an assessment period (other than the first), the Minister must give the Australian Heritage Council the nominations that were received by the Minister in the period:

(a) starting immediately after the end of the cut‑off date specified in the notice under subsection 341H(1) for the immediately preceding assessment period; and

(b) ending at the end of the current cut‑off date;

other than any such nominations that the Minister has rejected under subsection (4).

Minister may reject nominations

(4) The Minister may, in writing, reject a nomination if the Minister considers that:

(a) the nomination is vexatious, frivolous or not made in good faith; or

(b) the Minister considers that regulations referred to in paragraph 341H(3)(b) or (c) have not been complied with in relation to the nomination.

Definition

(6) In this section:

nomination means a nomination of a place for inclusion in the Commonwealth Heritage List.

341JA Australian Heritage Council to prepare proposed priority assessment list

(1) Within 40 business days after the Australian Heritage Council receives the nominations as required by subsection 341J(1) in relation to an assessment period, the Council must prepare and give to the Minister a list (the proposed priority assessment list) for the assessment period.

(a) the Council’s own views about what should be given priority in relation to the assessment period; and

(b) the Council’s capacity to make assessments under this Division while still performing its other functions; and

(3) A place is eligible for assessment consideration in relation to the assessment period if:

(a) the place has been nominated by a nomination referred to in subsection (1); or

(b) the Council itself wishes to nominate the place for inclusion in the Commonwealth Heritage List; or

(d) each part of the place is either a place to which paragraph (a) applies, a place to which paragraph (b) applies or a place to which paragraph (c) applies.

(4) Without limiting the generality of the Australian Heritage Council’s discretion under subsection (2), the Council does not have to include in the proposed priority assessment list a place that has been nominated if the Council considers that it is unlikely that the place has any Commonwealth Heritage values. For this purpose, the Council is not required to have regard to any information beyond the information that was included in the nomination.

(5) The proposed priority assessment list is not a legislative instrument.

341JB Matters to be included in proposed priority assessment list

(1) The proposed priority assessment list for an assessment period is to include, for each place in the list:

(a) a description of the place; and

(b) an assessment completion time; and

(2) The assessment completion time for a place must be either:

(a) a time that is at or before the end of the assessment period to which the list relates; or

341JC Statement to be given to Minister with proposed priority assessment list

(a) for each place that is included in the list—why the Council included the place in the list; and

(b) for each place that is not included in the list but that was eligible for assessment consideration because of paragraph 341JA(3)(a) or (c)—why the Council did not include the place in the list.

(2) The statement must also identify, as places nominated by the Australian Heritage Council:

(a) any places that are included in the list because the Council itself wishes to nominate them (see paragraph 341JA(3)(b)); and

(b) any places that are included in the list because of paragraph 341JA(3)(d) that consist of one or more places to which paragraph 341JA(3)(b) applies.

341JD The finalised priority assessment list

(1) Within 20 business days after the Minister, under section 341JA, receives the proposed priority assessment list for an assessment period, the Minister may, in writing, make changes to the list as mentioned in subsection (2).

(2) The changes the Minister may make are as follows:

(a) including a place in the list (and also including the matters referred to in subsection 341JA(1));

(b) omitting a place from the list (and also omitting the matters referred to in subsection 341JA(1));

(d) any other changes of a kind permitted by the regulations.

(3) In exercising the power to make changes, the Minister may have regard to any matters that the Minister considers appropriate.

(5) The Minister must notify the Australian Heritage Council of all changes that the Minister makes to the list.

(6) The finalised priority assessment list is not a legislative instrument.

341JE Publication of finalised priority assessment list

(1) The Australian Heritage Council must publish the finalised priority assessment list for an assessment period on the Internet.

(2) The Australian Heritage Council must also publish the finalised priority assessment list in accordance with any requirements of the regulations.

341JF Australian Heritage Council to invite comments on places in finalised priority assessment list

(3) A notice under subsection (1), in relation to a place or places:

(a) must be published in accordance with the regulations referred to in paragraph (4)(a); and

(b) must identify the place or places to which the notice relates; and

(i) whether the place or places meet any of the Commonwealth Heritage criteria; and

(ii) whether the place or places should be included in the Commonwealth Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (4)(b), apply to making comments; and

(f) may also invite people to comment on other matters that the Australian Heritage Council considers appropriate; and

(g) may also include any other information that the Australian Heritage Council considers appropriate.

(4) The regulations must provide for the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

341JG Australian Heritage Council to assess places on finalised priority assessment list and give assessments to Minister

(1) In relation to each place included in the finalised priority assessment list for an assessment period, the Australian Heritage Council must (by the time required by section 341JH):

(a) make a written assessment whether the place meets any of the Commonwealth Heritage criteria; and

(b) give to the Minister:

(i) the written assessment (or a copy of it); and

(ii) a copy of the comments referred to in paragraphs (2)(a) and (b) (whether or not they have all been taken into account under subsection (2)).

(2) In making an assessment in relation to a place, the Australian Heritage Council, subject to subsections (3) and (4):

(a) must take into account the comments the Council receives in response to the notice under subsection 341JF(1) in relation to the place; and

(b) may take into account the comments the Council receives in response to the opportunity referred to in paragraph (5)(c); and

(3) The Australian Heritage Council is not required to take a comment referred to in paragraph (2)(a) into account if:

(a) the Council does not receive the comment until after the cut‑off date specified in the notice under subsection 341JF(1) in relation to the place; or

(b) the Council considers that regulations referred to in paragraph 341JF(4)(b) have not been complied with in relation to the comment.

(4) In making an assessment, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets any of the Commonwealth Heritage criteria.

(5) If, in making an assessment, the Australian Heritage Council considers that a place within the Australian jurisdiction might have one or more Commonwealth Heritage values, the Council must:

(a) take all practicable steps:

(i) to identify each person who is an owner or occupier of all or part of the place; and

(ii) if the Council considers the place might have an indigenous heritage value—to identify each Indigenous person who has rights or interests in all or part of the place; and

(b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the Commonwealth Heritage criteria; and

(c) give persons advised at least 20 business days to comment in writing whether the place should be included in the Commonwealth Heritage List.

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

(7) If:

(a) the Australian Heritage Council considers that the place might have an indigenous heritage value; and

(b) there are Indigenous persons who:

(i) have rights or interests in all or part of the place; and

(ii) are neither owners nor occupiers of all or part of the place; and

(c) the Australian Heritage Council is satisfied that there is a body, or there are bodies, that can appropriately represent those Indigenous persons in relation to those rights and interests;

341JH Time by which assessments to be provided to Minister

(1) Subsection 341JG(1) must be complied with, in relation to a place included in the finalised priority assessment list for an assessment period, by the assessment completion time specified in the list for the place, or by that time as extended under this section.

(4) An extension under subsection (3) must be made in writing.

(5) If the Minister grants an extension under this section, the Minister must publish particulars of the extension in a way that the Minister considers appropriate.

341JI Decision about inclusion of a place in the Commonwealth Heritage List

Minister to decide whether or not to include place

(1) After receiving from the Australian Heritage Council an assessment under section 341JG whether a place (the assessed place) meets any of the Commonwealth Heritage criteria, the Minister must:

(a) by instrument published in the Gazette, include in the Commonwealth Heritage List:

(i) the assessed place or a part of the assessed place; and

(ii) the Commonwealth Heritage values of the assessed place, or that part of the assessed place, that are specified in the instrument; or

(b) in writing, decide not to include the assessed place in the Commonwealth Heritage List.

Note: The Minister may include a place in the Commonwealth Heritage List only if the Minister is satisfied that the place has one or more Commonwealth Heritage values (see subsection 341C(2)).

(2) Subject to subsection (3), the Minister must comply with subsection (1) within 90 business days after the day on which the Minister receives the assessment.

(3) The Minister may, in writing, extend or further extend the period for complying with subsection (1).

(4) Particulars of an extension or further extension under subsection (3) must be published on the Internet and in any other way required by regulations.

(5) For the purpose of deciding what action to take under subsection (1) in relation to the assessed place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the assessed place meets any of the Commonwealth Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 341JG(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Additional requirements if Minister decides to include place

(6) If the Minister includes the assessed place, or a part of the assessed place (the listed part of the assessed place), in the Commonwealth Heritage List, he or she must, within a reasonable time:

(a) take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the assessed place; and

(ii) advise each person identified that the assessed place, or the listed part of the assessed place, has been included in the Commonwealth Heritage List; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 341H(1)—advise the person that the assessed place, or the listed part of the assessed place, has been included in the Commonwealth Heritage List; and

(d) publish a copy or summary of that instrument in accordance with any other requirements specified in the regulations.

(7) Paragraph (6)(a) does not apply unless the assessed place is within the Australian jurisdiction.

(8) If the Minister is satisfied that there are likely to be at least 50 persons referred to in subparagraph (6)(a)(i), the Minister may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the assessed place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the assessed place;

Additional requirements if Minister decides not to include place

(9) If the Minister decides not to include the assessed place in the Commonwealth Heritage List, the Minister must, within 10 business days after making the decision:

(a) publish the decision on the Internet; and

(b) if the assessed place:

(i) was nominated; or

(ii) was included in a place that was nominated; or

(iii) includes a place that was nominated;

by a person in response to a notice under subsection 341H(1)—advise the person of the decision, and of the reasons for the decision.

Note: Subsection (9) applies in a case where the Minister decides that none of the assessed place is to be included in the Commonwealth Heritage List.

Subdivision BB—Inclusion of places in the Commonwealth Heritage List: emergency process

341JJ Simplified outline

The following is a simplified outline of this Subdivision:

This Subdivision sets out the emergency process for the inclusion of places in the Commonwealth Heritage List.

The emergency process involves the following steps:

(a) the Minister may include a place in the Commonwealth Heritage List if it is under threat (see section 341JK);

(b) the Minister asks the Australian Heritage Council to assess the place (see section 341JL);

(d) the Australian Heritage Council assesses the place, and gives the assessment to the Minister (see sections 341JN and 341JO);

341JK Minister may include place in Commonwealth Heritage List if under threat

(1) If the Minister believes:

(a) a place has or may have one or more Commonwealth Heritage values; and

(b) any of those values is under threat of a significant adverse impact; and

the Minister may, by instrument published in the Gazette, include in the Commonwealth Heritage List the place and the Commonwealth Heritage values the Minister believes the place has or may have.

Note: For which places can be included in the Commonwealth Heritage List, see subsection 341C(2).

(2) If:

(a) the place is included in the Commonwealth Heritage List under subsection (1); and

(b) before that inclusion of the place, the place was being considered for inclusion in the List under the process set out in Subdivision BA;

that process ceases to apply to the place when it is included in the List under subsection (1).

Note: Subsection (2) does not prevent the process in Subdivision BA again starting to apply to the place if (for example) the place ceases to be listed because of subsection 341JP(1) or (4) and a person subsequently nominates the place under that Subdivision.

(3) If the place is included in the Commonwealth Heritage List under subsection (1), the Minister must:

(a) in any case—within 10 business days after the inclusion of the place, publish a copy of the instrument under subsection (1):

(i) on the Internet; and

(ii) in accordance with any other requirements specified in the regulations; and

(b) if the place is within the Australian jurisdiction—take all practicable steps to:

(i) identify each person who is an owner or occupier of all or part of the place; and

(ii) advise each person identified that the place has been included in the Commonwealth Heritage List.

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

341JL Minister to ask Australian Heritage Council for assessment

(1) If the Minister includes a place in the Commonwealth Heritage List under section 341JK, the Minister must, in writing, request the Australian Heritage Council to give the Minister an assessment of whether the place meets any of the Commonwealth Heritage criteria.

(2) The request must specify the assessment completion time for the assessment.

Note: When specifying an assessment completion time, the 12‑month period referred to in subsection 341JP(1) should be considered.

341JM Publication of listing of place and inviting comments

(1) If the Australian Heritage Council receives a request under subsection 341JL(1) in relation to a place that has been included in the Commonwealth Heritage List, the Council must publish a notice inviting people to comment on the listing of the place.

(2) A notice under subsection (1) in relation to a place:

(a) must be published in accordance with the regulations referred to in paragraph (3)(a); and

(b) must contain the following:

(i) a description of the place;

(ii) a statement that the place has been included in the Commonwealth Heritage List, and that specifies the Commonwealth Heritage values that have been included in the List in relation to the place;

(iii) the date on which the place was so included; and

(i) whether the place meets any of the Commonwealth Heritage criteria; and

(ii) whether the place should continue to be included in the Commonwealth Heritage List; and

(d) must specify the date (the cut‑off date) by which comments must be received, which must be at least 30 business days after the notice has been published as required by paragraph (a); and

(e) must specify, or refer to, the manner and form requirements that, under regulations referred to in paragraph (3)(b), apply to making comments.

(3) The regulations may provide for either or both of the following:

(a) how a notice under subsection (1) is to be published;

(b) the manner and form for making comments.

341JN Australian Heritage Council to assess place and give assessment to Minister

(1) Section 341JG applies in relation to a request under subsection 341JL(1) as if:

(a) a reference in section 341JG to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 341JG to the notice under subsection 341JF(1) in relation to the place were a reference to the notice under subsection 341JM(1) in relation to the place; and

(c) a reference in section 341JG to regulations referred to in paragraph 341JF(4)(b) were a reference to regulations referred to in paragraph 341JM(3)(b); and

(d) a reference in section 341JG to whether the place should be included in the Commonwealth Heritage List were a reference to whether the place should continue to be included in the Commonwealth Heritage List.

(2) A reference in another provision of this Act to section 341JG, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

341JO Time by which assessments to be provided to Minister

(1) Section 341JH applies in relation to a request under subsection 341JL(1) as if:

(a) a reference in section 341JH to a place included in the finalised priority assessment list for an assessment period were a reference to the place to which the request relates; and

(b) a reference in section 341JH to the assessment completion time specified in the list for the place were a reference to the assessment completion time specified in the request.

(2) A reference in another provision of this Act to section 341JH, or to a provision of that section, includes a reference to that section or provision as it applies because of this section.

341JP Decision about place remaining in the Commonwealth Heritage List

Minister to decide whether place should remain listed

(1) Within 12 months after the inclusion of a place in the Commonwealth Heritage List under section 341JK, the Minister must, by instrument published in the Gazette, subject to subsections (2) and (3):

(a) do one of the following:

(i) state that the place remains in the Commonwealth Heritage List with its boundary unaltered;

(ii) alter the boundary of the place described in the Commonwealth Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List);

(iii) remove from the Commonwealth Heritage List the place and its Commonwealth Heritage values; and

(b) if the place is not removed from the Commonwealth Heritage List under subparagraph (a)(iii)—do all or any of the following:

(i) state that specified Commonwealth Heritage values included in the List under section 341JK for the place remain in the List for the place;

(ii) include in the List for the place specified Commonwealth Heritage values of the place that were not included in the List under section 341JK for the place;

(iii) remove from the List for the place specified Commonwealth Heritage values that were included in the List under section 341JK for the place.

(2) The Minister must not take action under subsection (1) unless the Minister has received an assessment from the Australian Heritage Council under section 341JG in relation to the place.

(3) The Minister must not take action under subsection (1) that results in the place remaining in the Commonwealth Heritage List (whether or not with the same or a different boundary) unless the Minister is satisfied that the place has one or more Commonwealth Heritage values.

Listing lapses automatically if action not taken within 12 months of listing

(4) If the Minister does not take action under subsection (1) within the period referred to in that subsection, the place, and its listed Commonwealth Heritage values, are automatically removed from the Commonwealth Heritage List, by force of this subsection, at the end of that period.

Note: This subsection applies even if the Minister is prevented from taking action under subsection (1) because of subsection (2).

Matters to be considered

(5) For the purpose of deciding what action to take under subsection (1) in relation to the place:

(a) the Minister must have regard to:

(i) the Australian Heritage Council’s assessment whether the place meets any of the Commonwealth Heritage criteria; and

(ii) the comments (if any), a copy of which were given to the Minister under subsection 341JG(1) with the assessment; and

(b) the Minister may seek, and have regard to, information or advice from any source.

Disapplying section 341L

(6) Section 341L does not apply to:

(a) an alteration of the boundary of the place, under subparagraph (1)(a)(ii) of this section, that has the effect of removing part of the place from the Commonwealth Heritage List; or

(b) the removal of the place and its Commonwealth Heritage values under subparagraph (1)(a)(iii) of this section; or

Minister to publish copy or summary of subsection (1) notice

Additional requirements if place etc. is removed under subsection (1)

(8) If, under subsection (1), the Minister removes from the Commonwealth Heritage List the place or a Commonwealth Heritage value of the place, or alters the boundary of the place described in the List, the Minister must, within 10 business days after the removal or alteration:

(a) in any case—publish a copy of the instrument referred to in subsection (1) on the Internet; and

(b) if the place is within the Australian jurisdiction—advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal or alteration.

Note: For the obligation to identify owners or occupiers, see subsection 341JK(3).

Requirements if place is removed under subsection (4)

(9) If, under subsection (4), the place, and its listed Commonwealth Heritage values, are removed from the Commonwealth Heritage List, the Minister must, within 10 business days after the removal:

(a) in any case—publish notice of the removal on the Internet; and

(b) if the place is within the Australian jurisdiction—advise each person identified by the Minister as an owner or occupier of all or part of the place of the removal.

Note: For the obligation to identify owners or occupiers, see subsection 341JK(3).

Alternative methods of notifying owners and occupiers

(10) If the Minister is satisfied that there are likely to be at least 50 persons referred to in paragraph (8)(b) or (9)(b), the Council may satisfy the requirements of that paragraph in relation to those persons by including the advice referred to in that paragraph in one or more of the following:

(a) advertisements in a newspaper, or newspapers, circulating in the area in which the place is located;

(b) letters addressed to “The owner or occupier” and left at all the premises that are wholly or partly within the place;

Subdivision BC—Other provisions relating to the Commonwealth Heritage List

341JQ Co‑ordination with Scientific Committee—Council undertaking assessment