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2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL
(NO. 1) 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon Ian Campbell,
Minister for the Environment and Heritage)
ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT
BILL (NO. 1) 2006
GENERAL OUTLINE
The purpose of this Bill is to amend the Environment Protection and Biodiversity
Conservation Act 1999 to make it more efficient and effective, to allow for the use of
more strategic approaches and to provide greater certainty in decision-making.
In particular the Bill:
· Reduces processing time and costs for development interests;
· Provides an enhanced ability to deal with large-scale projects and give priority
attention to projects of national importance through the use of strategic assessment
and approvals approaches and putting in place measures to enable developers to avoid
impacts on the matters of national environmental significance protected by the Act;
· Enables a better focus on protecting threatened species and ecological communities
and heritage places that are of real national importance; and
· Clarifies and strengthens the enforcement provisions of the Act.
These changes will be made without weakening the protection that the Act provides for
Australia's important biodiversity and heritage.
FINANCIAL IMPACT STATEMENT
There will be minor one-off costs to the Commonwealth Government, associated with the
need to revise regulations and procedures and advise industry and other stakeholders
accordingly. The Commonwealth Government will also incur costs in implementing the
more strategic approaches and in enhancing its compliance and enforcement activities
under the Act. While savings may result from the use of strategic approaches, the level
of any savings will depend on the use that it is made of these approaches by business,
industry, and States, Territories and Local Government. Depending on the uptake of the
new strategic approaches it is likely that the Commonwealth will incur expenses for some
time as work will be required in developing the new strategic approaches while
continuing to administer project by project approvals under the Act.
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REGULATION IMPACT STATEMENT
ISSUES
Background
The Environment Protection and Biodiversity Conservation Act 1999 (the Act)
commenced operation in July 2000. The development of the Act involved the most
fundamental reform of Australian Government environment laws since the first
environmental statutes were enacted in the early 1970s, and represents the first
comprehensive attempt to define the environmental responsibilities of the Australian
Government.
The Act enables the Australian Government to join with the States and Territories in
providing a truly national scheme of environmental protection and biodiversity
conservation. The Act focuses Australian Government interests on the protection of
matters of national environmental significance, with the States and Territories having
responsibility for matters of state and local significance. It puts in place a streamlined
environmental assessment and approvals process, establishes an integrated regime for
biodiversity conservation and the management of important protected areas and places,
including National and Commonwealth heritage places. It does so in a way that is
predictable, transparent, and efficient, employing statutory timeframes to ensure timely
decision-making.
The Act has been in operation for 6 years. During this time:
· Nearly 2000 referrals have been made, resulting in decisions that approval was
required in relation to around 420 development proposals, nearly 200 assessments
completed, and over 150 approval decisions made.
· Over 120 fisheries have been assessed and associated accreditations and declarations
made.
· Nearly 200 new species, communities and processes have been included on the lists
of threatened species, ecological communities and key threatening processes.
· Over 250 listed threatened species recovery plans and 50 Ramsar management plans
are in place (including draft plans).
· Over 15,000 wildlife trade permits were issued.
· Over 370 places have been added to the National and Commonwealth Heritage lists
since the commencement of the new heritage scheme in January 2005.
The new regulatory scheme introduced by the Act has been successful in providing
higher levels of protection for the environment while providing timely, transparent and
efficient approval processes. The 2002-03 Australian National Audit Office Audit of
Referrals, Assessments and Approvals under the Act concluded, among other things, that
the Department of Environment and Heritage has established and implemented rigorous
processes that provide an assurance that the matters required to be considered under the
Act are taken into account in a comprehensive manner. The Productivity Commission
considered the Act as part of its inquiry into the impacts of native vegetation and
biodiversity regulation and found that the Act met more of the criteria for good regulation
than legislation in other jurisdictions, particularly by setting time limits for processes
under the Act and taking economic and social matters into consideration in the approvals
process. In addition, the successful operation of the Act has been acknowledged in the
report to the Prime Minister on Australia's Export Infrastructure. The report states that
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the operation of environmental protection legislation is now an accepted and well
understood process, with the Act enabling the Government to rely on state processes.
What issues are being addressed by the proposed amendments?
In the first six years of operation of the Act, all aspects of the Act have been `road tested'.
This road testing has involved not only the normal administration of the Act, but also
external testing and scrutiny through legal challenges, inquiries, audits, industry
initiatives and debates in public fora.
While the Act regulatory framework has been successful, the road testing has identified
important areas where changes to the Act can be made to optimise its operation. These
changes will reduce risks in administration of the Act, remove uncertainty and delay,
minimise duplication, increase transparency and flexibility, and provide incentives to use
the Act in a more strategic manner. The changes are necessary for the Act to achieve its
objectives of protecting the environment, especially matters of national environmental
significance, and promoting ecologically sustainable development. The principal issues
which are being addressed by the proposed amendments are summarised below.
Inefficient, onerous or unnecessary processes with limited environmental outcomes
It is important for the Act to provide environmental outcomes in an efficient, cost-
effective manner. It is possible to amend the Act in a manner which will reduce the
impost on business while at the same time maintaining the level of environment
protection provided by the Act. In particular the following requirements are inefficient,
onerous or unnecessary, while producing limited environmental outcomes:
· The number of decision points in the assessment and approval process;
· Prescriptive requirements for the preparation of species recovery plans;
· Assessment processes applicable to cetaceans permits which do not apply to other
protected species;
· Inefficient consultation processes for heritage listing involving large numbers of
owners and occupiers or indigenous persons;
· Prescriptive requirements for the listing of key threatening processes and making of
threat abatement plans;
· Prescriptive requirements for surveys of protected species in Commonwealth areas;
· The requirement for further assessment of World Heritage places before placement on
the National Heritage list.
Insufficient incentives and statutory constraints on strategic approaches
The effectiveness of the Act can be improved by increasing capacity and incentives to
undertake strategic approaches to environmental assessment, management and protection,
particularly in relation to:
· Strategic assessments;
· The implementation of conservation agreements;
· The development of bioregional plans;
· The ability to introduce protected species into suitable habitat areas without being
subject to the penalty provisions for incidental harm.
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Duplicative and inconsistent processes
The Act achieved a substantial rationalisation and integration of environmental regulation
by the Australian Government. It has replaced seven Australian Government statutes
with a single integrated regulatory regime. The Act also substantially reduced
duplication with State and Territory processes by allowing for accreditation of these
processes under bilateral agreements. The proposed amendments aim to further reduce
duplication of process and duplication of requirements within the Act and between the
Act and State and Territory regulatory regimes.
The efficiency and effectiveness of the Act can be improved by addressing the potential
for duplicative processes, as outlined above. In particular:
· Potential duplication of Act processes, including:
- the requirement to ask Minister for advice in relation to actions impacting on
Commonwealth Heritage places and the similar requirement in relation to
actions impacting on Commonwealth Heritage places in the Indian Ocean
Territories;
- species permits and authorisation of actions taken in accordance with a
Commonwealth reserves management plan.
· Insufficient integration in relation to:
- assessment and approvals process and the issuing of protected species permits;
- consideration of nomination of a species or place for more than one list;
- consideration of distinct but overlapping heritage nominations.
· Difficulties in accrediting or recognising:
- Fisheries managed under the Torres Strait Fisheries Act 1984 in addition to
those managed under the Fisheries Management Act 1991;
- State authorisation processes for the purpose of an approvals bilateral
agreement.
Consistency can be increased by:
· aligning offences against cetaceans with similar wildlife export/import offences.
· providing for the prohibition of conduct in Commonwealth reserves, consistent with
other regulatory provisions.
Insufficient transparency and risks to the environment
The Act introduced new standards of accountability and transparency for environmental
regulation in Australia by incorporating extensive public consultation provisions,
statutory timeframes, and extended standing provisions. Despite these improvements
experience with the operation of the Act has revealed that there are some areas where
additional transparency would enhance the ability of interest groups and the general
public to participate in Act processes.
Transparency can be increased by:
· Introducing publication requirements for revised documentation in relation to projects
assessed by Preliminary Documentation, consistent with publication requirements for
projects assessed by Public Environment Report and Environmental Impact
Statement;
· Introducing uniform publication requirements for all referrals of proposed actions
under the Act;
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· Provision for public comment in relation to the reconsideration of the decision
whether or not an action requires assessment and approval under the Act;
· Requiring public comments to be summarised in Public Environment Reports;
· Requiring public comments to be summarised in Environmental Impact Statements;
· Introducing the capacity to request public comment on terms of reference for strategic
assessments.
Example - public comment on reconsideration decisions
Under section 75 of the Act, when a proposal to take an action is referred to the Minister,
the Minister must decide whether or not the action requires assessment and approval
under the Act. In making the section 75 decision the Minister takes account of any public
comments which are received in relation to the referral. Under section 87, the Minister
has the ability to revoke this decision and substitute a new decision if satisfied that it is
warranted by the availability of substantial new information about the impacts which the
action is likely to have on a matter of national environmental significance. At present
there is no capacity for the Minister to invite or consider public comments when
reconsidering a section 75 decision. The proposed amendments to the Act expressly
provide for a proponent, or other person, to request the reconsideration of the section 75
decision and for the invitation and consideration of public comments in relation to this
decision.
Risk of harm to protected species can be reduced by limiting:
· Disclosure of sensitive information critical to the protection of matters of national
environmental significance when inviting public comment on assessment
documentation.
· Disclosure of information about a listed species in recovery documents that could
jeopardise the survival of the species.
Insufficient flexibility and scope
Environmental protection, management and assessment involve complex interactions
between people and the natural environment. Environmental conditions change over time.
Development projects also evolve in response to changing priorities, changing economic
conditions, changing circumstances and different regulatory requirements. The Act
incorporates mechanisms which allow the Minister and the Department to respond to
these changes, such as the capacity to vary approval conditions. However, experience
with the operation of the Act has given rise to a range of circumstances which were not
envisaged when the Act was developed. The proposed amendments include a range of
measures which are intended to provide a greater degree of flexibility to respond to
change and unanticipated circumstances.
Increasing the flexibility of certain Act processes would allow the Department to use a
more tailored approach to individual projects and circumstances. Greater flexibility is
needed in relation to:
· Variations during the assessment and approval process and after approval, including:
- changes to actions;
- changes to persons taking actions;
- changes to circumstances;
· Assessment of actions for which there are a number of alternative options;
· Variation of the time length of approvals;
· Minor variations to accredited management plans and bilateral agreements;
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· The impact of the listing of fish species on commercial fisheries; and
· Activities in Commonwealth reserves when a management plan is not in operation.
Example - variations to proposals during the assessment and approval process
Proponents are encouraged to refer development proposals under the Act early in the
planning stage so that environmental assessment can influence the siting, design, timing
and implementation of proposals. As these proposals evolve it is common for priorities
or circumstances to change. The Act provides for the referral, assessment and approval of
`an action', with very little ability to deal with variations to the proposed action.
However, experience has shown that a greater degree of flexibility is necessary in order
to avoid the possibility of a proponent having to recommence the entire environmental,
assessment and approvals process even when the variation is likely to result in an
improved environmental outcome. The proposed amendments include an amendment to
expressly allow variations which do not involve a substantial change in the character of
an action and an amendment to expressly allow proponents to refer a proposal which
involves a range of different options.
Compliance outcomes can be improved by increasing the flexibility and effectiveness of
compliance and enforcement mechanisms, particularly in relation to:
· The lack of appropriate and effective alternatives to litigation in varying
circumstances;
· Ensuring that employers, principals and landowners are accountable for actions by
their employees, agents and land managers respectively;
· Offence formulations which address evidentiary difficulties;
· The provision for criminal penalties for serious contraventions of the Act in
Commonwealth reserves, in addition to civil penalties;
· Scope of the court's power to grant rehabilitation orders and ability to grant a
rehabilitation order in the absence of an injunction;
· Powers under warrant and powers of seizure;
· Provision for civil penalties and liability of executive officers of corporations for non-
compliance with provisions of approved wildlife trade operations and management
plans;
· Provision of enforcement of conditions relating to future sale, management, manner
of keeping and reproduction of certain imported and exported wildlife specimens;
· Ability to prosecute non-citizens who contravene the Act;
· Powers of investigation, specifically the ability to introduce a `notice to produce and
attend'.
Example - access to monitoring warrants
Currently under the Act provisions there is no capacity to access monitoring warrants
other than by personal application to a Magistrate. Difficulties arise from the need to
apply in person for warrants, particularly when an officer is in a remote location which
does not have a nearby Magistrate. The Customs Act 1901 allows an officer exercising
monitoring powers to apply to a Magistrate for a warrant by telephone, telex, fax or other
electronic means in an urgent case, or if the delay that would occur if an application was
made in person would frustrate effective execution of the warrant. The proposed
amendments provide for the application for monitoring warrants by electronic means in
similar terms to the Customs Act 1901.
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Ambiguities, anomalies or lack of certainty
Experience with the operation of the Act has revealed a range of provisions which may
be ambiguous, anomalous or which lack certainty in certain situations.
Greater clarification is required in relation to:
· The extent to which the Minister must consider indirect impacts when deciding
whether or not an action requires assessment and approval under the Act.
· The scope of the `prior authorisations' exemption.
· The circumstances in which further assessment/review of fisheries management plan
accreditation will be undertaken (when impacts differ from those originally assessed).
· The period in which a State/Territory Minister can make a request for reconsideration
of a controlled action decision.
· When copies of assessment reports can be provided to third parties.
· Application of penalty provisions for activities in Commonwealth reserves, without a
management plan, to future mining activities.
· Application of the Act to land `freeholded' under a long-term lease in the external
territories.
There are also a range of terms which require clarification or correction to give proper
effect to relevant provisions. Clarification or correction is required in relation to:
· The definition of "control" in relation to heritage responsibility of Commonwealth
agencies for heritage places;
· The definition of "environment", specifically the application of "social, economic and
cultural aspects" to heritage values;
· The definition "international agreement", specifically that this denotes the current
version of the agreement; and
· The meaning of "take" in relation to protected species.
Certainty can also be increased by:
· Provision for a binding determination that an action does or does not require
assessment and provision of advice under section 160.
· Limiting the ability to revisit approval or a `not-controlled action' decisions when a
new species is listed after the relevant decision.
Potential for delay or frustration of processes
The Act makes extensive provision for consultation and participation in regulatory
processes. It is important to maintain a high level of public participation and
transparency, while ensuring that processes achieve their objectives in an efficient and
equitable manner. There are a limited number of processes which have not operated as
effectively or efficiently as intended, particularly in relation to:
· The National and Commonwealth Heritage listing processes;
· The listing processes for species, communities and threatening processes;
· Judicial review and administrative appeals processes;
· Requests for reconsideration of section 75 decisions;
· Premature disclosure of information by advisory committees.
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Technical and other issues
There are a number of technical and other issues which require attention these include:
· Simplification of requirement that States and Territories notify extent to which
matters protected by Act have been assessed under their legislation and de-linking
this requirement from the commencement of the approvals process under the Act;
· Ability to reject nominations for species listing which do not satisfy the nominations
requirements specified in the Regulations; and
· Errors of wording in various sections.
Why is government action needed to address these issues?
The existing regulatory regime of the Act represents government action with the
following objectives:
· To provide for the protection the environment, especially those aspects of the
environment that are matters of national environmental significance.
· To promote ecologically sustainable development through the conservation and
ecologically sustainable use of natural resources.
· To promote the conservation of biodiversity.
· To promote a co-operative approach to the protection and management of the
environment involving governments, the community, land-holders and indigenous
peoples.
· To assist in the co-operative implementation of Australia's international
environmental responsibilities.
· To recognise the role of indigenous people in the conservation and ecologically
sustainable use of Australia's biodiversity.
· To promote the use of indigenous people's knowledge of biodiversity with the
involvement of, and in co-operation with, the owners of the knowledge.
Further government action, in the shape of the proposed amendments, is required to
ensure that these objectives are achieved more effectively and efficiently.
The proposed amendments would benefit stakeholders by:
· Improving the efficiency and timeliness of approval decisions;
· Increasing the ability of Australian Government, states and territories, and industry to
engage in strategic approaches to environmental assessment and management; and
· Improving the certainty and clarity of processes under the Act, thereby reducing the
administration and compliance costs for stakeholders.
OBJECTIVES
The overarching objective of the proposed amendments which are the subject of this RIS
is to maintain the Australian Government's ability to protect the environment while at the
same time:
· Provide a more effective, efficient and strategic regulatory process for stakeholders.
· Reduce duplication in regulatory processes.
· Increase the flexibility within Act processes.
· Reduce administrative and compliance costs.
· Increase the effectiveness of the compliance regime.
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OPTIONS
The Act is already in operation and its regulatory impact was examined by a previous
RIS. The proposed amendments do not substantially alter the framework or objects of
the Act but are aimed at optimising the operation of the Act. As discussed above, the Act
is operating successfully and is generally well accepted and understood. The purpose of
the proposed amendments is to improve the operation of the existing provisions. In this
context, the only realistic options are to make some or all of the proposed amendments or
to continue to work within the existing statutory framework. Measures to address the
problems identified above are best addressed by amendments to the existing legislative
regime as they stem directly from practical or technical deficiencies in those provisions.
The proposed amendments have been specifically identified to address issues that cannot
be adequately resolved administratively.
IMPACT ANALYSIS (COSTS AND BENEFITS) OF EACH OPTION
Who is affected by the problem and who is likely to be affected by its proposed
solutions?
The main groups affected by or having an interest in the problem and its proposed
solutions are:
· companies, partnerships or individuals undertaking development actions or other
actions with impacts on the environment;
· Australian Government agencies;
· State and Territory governments and Local Government; and
· Environment and heritage groups.
Differing stakeholder groups will be impacted to varying degrees depending on the nature
of the regulatory changes. The impact of the proposed amendments on each of the
groups outlined above will be discussed in more detail below.
Effect on existing regulations and the roles of existing regulatory authorities
As outlined above, the Act is currently in operation and is well accepted and understood.
The proposed amendments will fine tune the operation of the Act, to make it work more
efficiently and effectively.
Expected impacts of the proposed options as likely benefits or likely costs
General benefits and costs of proposed amendments
General benefits of the proposed amendments are:
· More efficient and effective approval processes.
· Increased flexibility to deal with changes in circumstances or priorities.
· Increased certainty for stakeholders.
· Reduced duplication of processes, and broader scope for accreditation.
· Greater scope for strategic approaches to environmental assessment and management.
· More effective and more flexible compliance and enforcement provisions.
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General costs of the proposed amendments are:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
· Costs associated with minor additional publication requirements.
Further specific benefits and costs are outlined below by subject area.
Referrals, Assessments and Approvals
Benefits resulting from the proposed amendments to the Act's referral, assessment and
approvals processes include:
· Simplified processes and reduced processing times for stakeholders seeking
development approval decisions.
· New processes which allow for more efficient consideration of proposals which have
minor impacts or unacceptably high impacts.
· Clarification of the scope and application of exemptions.
· Increased transparency in relation to the reconsideration of decisions by the Minister.
· Greater flexibility to deal with minor changes in circumstances and priorities during
the assessment process.
· Increased legal certainty in relation to indirect impacts which must be considered by
the Minister when deciding whether an action requires approval under the Act.
· Ability to approve actions undertaken in accordance with a strategic assessment or
bioregional plan, where appropriate, instead of undertaking separate assessment and
approval of each action.
· Simplified and more efficient processes for reviews and amendments to accredited
management plans.
· Reduced duplication of Australian Government and state and territory processes by
extending the ability of bilateral agreements to accredit State and Territory
government approvals processes which will reduce business and industry costs.
· Greater transparency and consistency through publication of all referrals.
· Ability not to publish information which may threaten the survival of protected
matters, such as listed threatened plant species.
· Greater transparency through requirement that Environmental Impact Statements and
Public Environment Reports outline public comments.
· Improved decision-making associated with a broader capacity to seek further
information from relevant parties when appropriate.
· Reduced duplication and increased flexibility through capacity for the Minister to rely
on approval conditions set by other Australian Government and State and Territory
Ministers, and broader capacity to vary conditions;
· Improved environmental outcomes by allowing a proponent to voluntarily undertake
compensatory actions or make financial contributions to conservation work.
· Greater certainty for Australian Government decision-makers in relation to referral of
actions for assessment and advice.
· Greater flexibility and certainty through express provision for proponents to refer
different options/locations for a proposed action.
· Increased certainty in relation to the responsibilities of principals and contractors.
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· Reduced duplication between environmental assessment and permitting provisions.
· More efficient administration and greater certainty through resolution of definitional
and technical uncertainty and problems.
Costs resulting from the proposed amendments to the Act's referral, assessment and
approvals processes include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
· Minor additional publication requirements.
Compliance costs
By streamlining the referral, assessment and approval processes the proposed
amendments will reduce compliance costs by reducing the timeframes involved in
undergoing environmental assessment. The removal of the requirement to prepare
preliminary information will, on average, reduce overall timeframes by 20 business days.
Closer integration of the assessment and approval processes will, on average, reduce
overall timeframes by 10 business days. The amendments introduce a new process of
assessment on referral information. For actions with low level impacts that would
otherwise have been assessed at the level of preliminary documentation, this new process
will reduce overall timeframes by at least six months. The proposed amendments also
allow the Minister to give a proponent an early indication if an action is not likely to
receive approval under the Act. This gives the proponent the opportunity to modify or
change a proposal and resubmit a referral for assessment and approval.
The proposed amendments include a requirement for a proponent to publish revised
preliminary documentation (in relation to assessments by preliminary documentation).
This is consistent with the requirements for assessments by Environmental Impact
Statements or Public Environment Reports. Out of the 1932 referrals received since the
commencement of the Act, 122 have required assessment by preliminary documentation,
an average of 21 per year. Advertisement costs are approximately $2000-$4000.
Protected species
Benefits resulting from the proposed amendments to the Act's protected species
provisions include:
· Improved effectiveness of listing procedures and recovery planning for threatened
species and ecological communities by allowing for a strategic approach,
prioritisation of listings and a stronger focus on conservation outcomes.
· Provision for listing of commercially fished species with reduced impact on existing
export fisheries.
· Simplification of cetacean permit provisions resulting in greater consistency in
regulatory requirements and reduced timeframes for decision-making.
· Provision for non-disclosure of sensitive information in recovery documents that may
jeopardise the survival of a species.
· Streamlined reporting requirements for fisheries impacting on protected species.
· More efficient administration and greater certainty through resolution of definitional
and technical uncertainty and problems.
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Costs resulting from the proposed amendments to the Act's protected species provisions
include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
Compliance Costs
Simplification of cetacean permit processes will reduce compliance costs for stakeholders
who require cetacean permits. Streamlined reporting requirements for fisheries will also
reduce compliance costs for stakeholders who undertake activities which impact upon
protected species. Apart from this amendment, and initial costs associated with the need
to become familiar with the new arrangements, the amendments to the protected species
provisions of the Act are not expected to cause any significant change to compliance
costs.
Fisheries
Benefits resulting from the proposed amendments to the Act's fisheries provisions
include:
· Reduced duplication in regulatory requirements for fisheries through broader capacity
to accredit Australian Government and state/territory fishery management
arrangements.
· Clarification of arrangements for assessment and review of fisheries management
accreditations.
· Clarification of the application and scope of exemptions.
· More efficient administration and greater certainty through resolution of definitional
and technical uncertainty and problems.
Costs resulting from the proposed amendments to the Act's fisheries provisions include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
Compliance Costs
Reduced duplication in the regulatory requirement for fisheries through broader capacity
to accredit Australian Government and State and Territory fishery management
arrangements will reduce compliance costs for stakeholders. Apart from this amendment,
and initial costs associated with the need to become familiar with the new arrangements,
the amendments to the fisheries provisions of the Act are not expected to cause any
significant change to compliance costs.
Wildlife Trade
Benefits resulting from the proposed amendments to the Act's wildlife trade provisions
include:
· Simplified and streamlined wildlife import provisions and less onerous approval
mechanisms for some wildlife exports.
· More effective enforcement through provision for conditions to continue to apply
after expiry of import/export permit.
· More efficient administration and greater certainty through resolution of definitional
and technical uncertainty and problems.
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Costs resulting from the proposed amendments to the Act's wildlife trade provisions
include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
Compliance Costs
Compliance costs will be reduced by proposed amendments simplifying and streamlining
approval mechanisms for some wildlife exports. Compliance costs may potentially be
increased by the continuation of conditions after a permit has expired. Changes to
compliance costs are minor and not readily amenable to costing. Apart from initial costs
associated with the need to become familiar with the new arrangements, the amendments
to the wildlife trade provisions of the Act are not expected to cause any significant
change to compliance costs.
Heritage
Benefits resulting from the proposed amendments to the Act's heritage provisions
include:
· Improved efficiency of the heritage listing process by removing the onerous statutory
requirements and providing for strategic approaches to be taken to listing.
· Increased ease of communication with owners or occupiers and people proposing
listings by improving consultation mechanisms.
· Provision of greater certainty and removal of duplication for Australian Government
agencies in relation to their responsibilities for protection of listed heritage places.
· Provision of greater certainty for owners of heritage listed properties in external
territories.
· More efficient administration and greater certainty through resolution of definitional
and technical uncertainty and problems.
Costs resulting from the proposed amendments to the Act's heritage provisions include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
Compliance Costs
The proposed amendments to the heritage provisions of the Act are not expected to cause
any significant changes to compliance costs.
Protected Areas (inc Commonwealth reserves and Conservation Zones)
Benefits resulting from the proposed amendments to the Act's protected areas provisions
include:
· The ability to allow continuation of existing activities in Commonwealth reserves.
· Reduced administrative costs through capacity to extend the operation of a
management plan for a Commonwealth reserve.
· More efficient administration and greater certainty through resolution of definitional
and technical uncertainty and problems.
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Costs resulting from the proposed amendments to the Act's protected areas provisions
include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
Compliance Costs
Proposed amendments to the protected areas provisions of the Act should reduce
compliance costs by simplifying the current arrangements. The anticipated reduction in
compliance costs is minor and not readily amenable to costing.
Compliance and Enforcement
Benefits resulting from the proposed amendments to the Act's protected areas provisions
include:
· A simplified compliance and enforcement regime which will be easier and more cost
effective to administer.
· An enforcement regime that is more flexible and provides a broader range of
enforcement options.
· Strengthened and rationalised enforcement procedures including powers under
warrants and powers of seizure.
· Broadened capacity for a court to grant rehabilitation orders.
· More efficient and effective administration and greater certainty through resolution of
definitional and technical uncertainty and problems.
Costs resulting from the proposed amendments to the Act's protected areas provisions
include:
· Implementation costs for the Australian Government.
· Minor costs associated with the need for stakeholders to become familiar with the
new arrangements.
Compliance Costs
The proposed amendments to the compliance and enforcement provisions of the Act are
not expected to cause any significant changes to compliance costs.
Benefits and Costs associated with not making amendments
The alternative to the amendments is to continue administration of the existing regime.
The principal benefits of this option are that there are no implementation costs and
stakeholders can continue to interact with a regulatory regime that they are familiar with.
However, there are a range of potential costs associated with continuing with the current
regime, including:
· Continuation of existing duplication, inefficiencies, lack of administrative flexibility
and associated compliance costs for stakeholders.
· Continuation of administrative difficulties experienced by the administering
Department.
· Less than optimal environmental outcomes resulting from lack of strategic
approaches in relation to assessment of developments and recovery of protected
species.
· Continuation of risks to the Australian Government associated with legal uncertainty
and the inability to meet some statutory requirements.
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Groups likely to experience benefits and costs and the extent to which they are
impacted
Companies, Partnerships and Individuals
Companies, partnerships and individuals undertaking development actions or other
actions with impacts on the environment are potentially affected by many of the problems
with the existing Act including duplication of processes; inconsistency and lack of
transparency; insufficient flexibility and scope; ambiguities, anomalies and lack of
certainty and technical issues. All of these problems can increase compliance costs. The
majority of the proposed amendments aim to better integrate, streamline or clarify the
Act's processes and requirements, while maintaining a high level of protection for the
environment. By clarifying the requirements of the Act, the amendments will assist these
stakeholders in determining whether or not the Act applies to their activities. In
circumstances where the Act does apply to the activities of a company, partnership or
individual, compliance costs will be reduced by clarifying specific requirements or
processes, reducing duplication of processes and reducing processing times.
There are a limited number of amendments that will slightly increase compliance costs
for companies, partnerships or individuals. The proposed amendments include additional
requirements for publication of documents by persons whose proposals are undergoing
environmental assessment. The additional requirements aimed at increasing the
transparency of processes are few in number and will not add substantially to the overall
cost of undertaking environmental assessment. These additional costs will be far
outweighed by the raft of measures in the proposed amendments aimed at reducing
compliance costs.
The Australian Government
Australian Government agencies, who are regulated by the Act, are affected by many of
the issues outlined above, including duplication of processes; inconsistency and lack of
transparency; insufficient flexibility and scope; ambiguities, anomalies and lack of
certainty and technical issues.
Amendments aimed at integrating, streamlining or clarifying the Act's requirements and
processes, will reduce compliance costs for Australian Government agencies. Australian
Government agencies would be affected by the proposed additional publication
requirements outlined above, but any increase in compliance costs associated with these
requirements will be outweighed by the raft of measures in the proposed amendments
aimed at reducing compliance costs.
State and Local Governments
State and Local governments are affected by the problems outlined above and by the
proposed solutions in two main capacities. State and Local governments, in conjunction
with the Australian Government, are responsible for the protection and conservation of
Australia's environment and heritage. State Government and Local Government bodies
also undertake actions which may be subject to the regulatory requirements of the Act.
The proposed amendments will increase the ability of the Australian Government to
accredit State Government processes, increase the ability of State and Local Governments
to participate in strategic approaches to the protection and conservation of the
environment and heritage, and will increase the effectiveness of bilateral agreements with
State Governments. In relation to State and Local Government development projects
being subject to the requirements of the Act the amendments will reduce and timeframes
15
and increase certainty. The amendments would impose some temporary costs on State
and Local Governments, arising from the need to understand and communicate the new
arrangements.
Environmental Groups and the general public
Environmental groups and the general public are affected by the problems outlined above
both, directly, as participants in the Act's processes, and through their interest in a
continuing high level of protection for the environment and heritage. As participants in
the Act's processes, environmental groups and the general public will generally be
advantaged by the proposed measures to increase the transparency and certainty of the
Act's provisions. The removal of the provision which does not require undertakings for
damages as a condition of the Federal Court granting an interim injunction could
potentially increase costs for environment groups which seek injunctions. However, even
with the removal of the provision, the Federal Court still has the discretion to not require
undertakings for damages. The proposed amendments reduce administrative and
compliance costs, while maintaining a high level of protection for the environment and
heritage. The proposed amendments will increase the effectiveness of compliance and
enforcement provisions and provide greater protection for the environment through
deterrence and more effective sanctions. As with other stakeholders environmental
groups will incur temporary costs arising from the need to understand and communicate
the new arrangements.
Distributional effects
There are limited costs associated with the proposed amendments and these will not have
a disproportionate effect on any of the groups outlined above. The majority of the costs
associated with the amendments arise from the implementation process, these costs are
not substantial and most will be borne by the Department of the Environment and
Heritage.
Data sources and assumptions used in making these assessments
As most of the amendments involve streamlining or integration of administrative
processes, clarification of regulatory requirements or removal of technical difficulties, a
qualitative assessment of costs and benefits was most appropriate. While costs and
benefits are difficult to quantify it is clear that tangible benefits will result from the
overall reduction and simplification of regulatory requirements.
CONSULTATION
Who are the main affected parties?
The main parties affected by the problem and its proposed solutions are industry,
business and individuals, the Australian Government, including the Department of the
Environment and Heritage, State and Territory governments, Local Government, and
environmental groups.
What are the views of those parties?
Interactions with key stakeholders in the administration along with views they have
expressed through various mechanisms have been the basis for many of the key
amendments to the Act. These stakeholder groups include government representatives,
industry groups, private individuals, environmental groups, and academic commentators.
16
The amendments also take account of the outcomes of number of audit and review
reports.
In 2003 the Department commenced a review of the EPBC Act Administrative Guidelines
on Significance. The review of the guidelines involved interviews of a broad range
of stakeholders representing the Australian Government, State Governments,
environmental consultants, environmental organisations, industry associations and
proponents. Please see the attached list of interviewees. Comments were also invited
generally from the public via public notices in newspapers and through the Department's
web site. In addition to specific comments on the guidelines, interviewees were invited
to comment generally on the operation of the Act.
Stakeholders raised a broad variety of issues which were generally very closely aligned
with their interest areas. Some of the principal areas of comment which relate to the
Act's regulatory framework and operation are listed below:
· Duplication between Commonwealth and State processes.
· Heritage provisions place onerous obligations on Commonwealth agencies.
· Need to ensure that accredited State processes are sufficiently rigorous.
· Areas of ambiguity.
· Need to follow up on conditions imposed on approvals.
· Need to take a strategic approach rather than focusing on daily management
decisions.
· Need for broader capacity to approve strategies, plans, broad development projects.
· Influence of third party objectors.
· Length of time taken for assessment.
· Need to ensure ongoing protection for the environment after an approval is issued.
· The Act should focus on systems rather than on single species.
All of these issues are addressed in the proposed amendments.
The Department will communicate with a broader group of stakeholders once the broad
amendment package has been settled.
Where consultation was limited or not undertaken, why was full consultation
inappropriate?
The first six years of operation of the Act have involved a continuous dialogue with
persons who have either been involved with or have an interest in its operation. The need
for many of the amendments has been identified as a result of this dialogue. The
amendments do not introduce new regulatory requirements. They streamline, simplify
and clarify existing regulatory requirements. In this context, it is considered that the
consultation which has been undertaken is adequate and sufficient.
17
CONCLUSION AND RECOMMENDED OPTION
Making the necessary legislative amendments to the Act is the only option that will
enable delivery of the objectives outlined above. In addition, amending the Act as
proposed will create a regulatory regime that is:
· More efficient and effective;
· Enhances strategic approaches to environmental assessment, protection and
management;
· Removes the confusions and ambiguities that currently exist;
· Provides improvements in environmental outcomes.
The proposed changes have been developed as a result of experience in operating the Act,
including input from stakeholders relating to difficulties with the existing legislative
provisions.
The package of legislative and administrative changes proposed in the submission strikes
a balance between making the operation of the Act more efficient and improving
transparency and environmental outcomes. The measures are designed to optimise the
operation of the Act according to the original objectives of the 1997 Council of
Australian Governments Heads of Agreement on Commonwealth/State Roles and
Responsibilities for the Environment which provides the basis for key aspects of the Act.
IMPLEMENTATION AND REVIEW
The Department of the Environment and Heritage has commenced preparations for
administrative implementation of the proposed amendments. The Department has also
commenced preparation of information products which explain the amendments to
external stakeholders. As most of the amendments involve the refinement of existing
provisions, there is no need for implementation to be heavily staged.
The Act requires that the Minister for the Environment and Heritage cause independent
reviews of the operation of, and achievements under, the Act to be undertaken within 10
years of commencement and at intervals of not more than 10 years after that.
18
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Environment and Heritage
Legislation Amendment Act (No.1) 2006.
Clause 2 - Commencement
2. Paragraph 1 of the table in clause 2 provides that sections 1 to 3 commence on the
day on which the Act receives Royal Assent.
3. Paragraph 2 of the table provides for items 1 to 606 in Schedule 1 to commence on
a day or days to be fixed by Proclamation. If any of the provisions do not
commence within the period 6 months beginning on the day on which the Act
receives Royal Assent, they commence on the first day after the end of that period.
4. Paragraph 3 of the table provides for item 607 to commence at the end of the period
of 5 years beginning on the day on which 505 of Schedule 1 commences.
5. Paragraph 4 of the table provides for items 608 to 780 in Schedule 1 to commence
on a day or days to be fixed by Proclamation. If any of the provisions do not
commence within the period 6 months beginning on the day on which the Act
receives Royal Assent, they commence on the first day after the end of that period.
6. Paragraph 5 of the table provides for item 781 to commence immediately after the
Heritage of Western Australia Act 1990 starts to apply in the Territory of Christmas
Island.
7. Paragraph 6 of the table provides for item 782 to commence immediately after the
Heritage of Western Australia Act 1990 starts to apply in the Territory of Cocos
(Keeling) Islands.
8. Paragraph 7 of the table provides for items 783 to 807 in Schedule 1 to commence
on a day or days to be fixed by Proclamation. If any of the provisions do not
commence within the period 6 months beginning on the day on which the Act
receives Royal Assent, they commence on the first day after the end of that period.
9. Paragraph 8 of the table provides for item 808 to commence at the end of the period
of 5 years beginning on the day on which 550 commences.
10. Paragraph 9 of the table provides for items 809 to 835 in Schedule 1 to commence
on a day or days to be fixed by Proclamation. If any of the provisions do not
commence within the period 6 months beginning on the day on which the Act
receives Royal Assent, they commence on the first day after the end of that period.
11. Paragraph 10 of the table provides for item 836 to commence at the end of the
period of 5 years beginning on the day on which 550 commences.
12. Paragraph 11 of the table provides for item 837 in Schedule 1 to commence on a
day to be fixed by Proclamation. If any of the provisions do not commence within
the period 6 months beginning on the day on which the Act receives Royal Assent,
they commence on the first day after the end of that period.
19
13. Paragraph 12 of the table provides for item 838 to commence at the end of the
period of 5 years beginning on the day on which 550 commences.
14. Paragraph 13 of the table provides for items 839 and 840 in Schedule 1 to
commence on a day or days to be fixed by Proclamation. If any of the provisions do
not commence within the period 6 months beginning on the day on which the Act
receives Royal Assent, they commence on the first day after the end of that period.
15. Paragraph 14 of the table provides for item 841 to 845 to commence at the end of
the period of 5 years beginning on the day on which 550 commences.
16. Paragraph 15 of the table provides for Schedule 1 (items 846 to 869) to commence
on a day or days to be fixed by Proclamation. If any of the provisions do not
commence within the period 6 months beginning on the day on which the Act
receives Royal Assent, they commence on the first day after the end of that period.
17. Paragraph 16 of the table provides for Schedule 2 to commence on a day on which
this Act receives Royal Assent.
Clause 3 - Schedule(s)
18. This clause provides that each Act specified in a Schedule is amended or repealed
as set out in the applicable items in the Schedule, and other items in a Schedule has
effect according to its terms.
Schedule 1 - Amendments
Part 1 - Amendments of the Environment Protection and Biodiversity Conservation
Act 1999
Item 1 - After Section 5
19. This item amends the extraterritorial application of the Act for Commonwealth
managed fisheries so that it aligns with the extra-territorial application in the
Fisheries Management Act 1991. It will enable application of Act provisions
consistently across a fishery managed under a management plan that covers an area
that straddles the EEZ and high seas. For example, the export and import provisions
of Part 13A of the Act will be extended so that fish caught outside the Australian
jurisdiction, in Commonwealth fisheries managed under a statutory management
plan by the Australian Fisheries Management Authority, will be treated the same as
fish caught in the Australian jurisdiction within these fisheries. The amendment
applies to fishing activities engaged in after the item commences (whether the
relevant plan of management is in force under the Fisheries Management Act 1991
before or after that time).
Items 2 and 3 - Section 7
20. These items are a consequence of the insertion of new section 498B into the Act.
Items 4, 5, 6, 7 and 8 - Section 15A
21. These items amend subsections 15A(1), (2) and (3) of the Act. They apply strict
liability to the circumstance that a property is a declared World Heritage property.
The intent of these amendments is to make it absolutely clear that the prosecution
20
does not have to show a person knew or was reckless as to the fact that a property
was a declared World heritage property. These amendments also remove the
reference to "recklessness" from subsection 15A(2). The reference is no longer
necessary as the default element of reckless will automatically apply to the relevant
circumstance of this subsection. Item 8 inserts a note at the end of subsection
15A(3) as a consequence of new section 496C which deals with criminal liability of
landholders.
Items 9 and 10 - Section 15B
22. These items amend section 15B of the Act by repealing subsection 15B(7) and
making required word changes to subsection 15B(8). These amendments are a
consequence of the National Heritage List no longer applying to places outside the
Australian jurisdiction.
Items 11 to 37 - Section 15C
23. These items amend section 15C of the Act. They provide for strict liability to apply
in relation to the circumstances that a heritage value is a National heritage value
and that a place is a National Heritage place. The intent of these amendments is to
make it absolutely clear that the prosecution does not have to show a person knew
or was reckless as to the fact that the heritage value was a National heritage value
or that the place was a National Heritage place. References to recklessness are not
reproduced in the newly made paragraphs. These references are no longer
necessary as the default element of reckless will automatically apply to the relevant
circumstance. Other amendments are required changes as a consequence of the
National Heritage List no longer applying to places outside the Australian
jurisdiction. Item 35 inserts a note at the end of subsection 15C(13) as a
consequence of new section 496C of the Act.
Items 38 to 42 - Section 17B
24. These items amend subsections 17B(1) and (2) of the Act. They provide for strict
liability to apply in relation to the circumstance that the wetland is a declared
Ramsar wetland. The intent of these amendments is to make it absolutely clear that
the prosecution does not have to show a person knew or was reckless as to the fact
that the wetland was a declared Ramsar wetland. These amendments also remove
the reference to "recklessness" from subsection 17B(2). The reference is no longer
necessary as the default element of reckless will automatically apply to the relevant
circumstance of this subsection. Item 42 inserts a note at the end of subsection
17B(3) as a consequence of new section 496C of the Act.
Items 43 to 47 - Section 18A
25. These items amend subsections 18A(1) and (2) of the Act. They provide for strict
liability to apply in relation to the circumstance that the species is a listed
threatened species or an ecological community is a listed threatened ecological
community. The intent of these amendments is to make it absolutely clear that the
prosecution does not have to show a person knew or was reckless as to the fact that
the list existed and that the particular species or community was on the list. These
amendments also remove the reference to "recklessness" from subsection 18A(2).
The reference is no longer necessary as the default element of reckless will
automatically apply to the relevant circumstance of this subsection. Item 47 inserts
a note at the end of subsection 18A(3) as a consequence of new section 496C of the
Act.
21
Item 48 - At the end of section 19
26. This item inserts a new subsection 19(4) into the Act which provides that sections
18 or 18A, concerning civil penalties and criminal offences in relation to listed
threatened species and communities, do not apply to an action that is covered by
subsection 517A(7) of the Act which deals with non-contravention of offence and
penalty provisions if an exemption to introduce a threatened species into particular
areas is in force.
Items 49 to 53 - Section 20A
27. These items amend subsections 20A(1) and (2) of the Act. They provide for strict
liability to apply in relation to the circumstance that the species is a listed migratory
species. The intent of these amendments is to make it absolutely clear that the
prosecution does not have to show a person knew or was reckless as to the fact that
the list existed and that the particular species was on the list. These amendments
also remove the reference to "recklessness" from subsection 20A(2). The reference
is no longer necessary as the default element of reckless will automatically apply to
the relevant circumstance of this subsection. Item 53 inserts a note at the end of
subsection 20A(3) as a consequence of new section 496C of the Act.
Item 54 - At the end of Subdivision D of Division 1 of Part 3
28. This item inserts a new section 20B into the Act. This amendment provides that
sections 20 or 20A, concerning civil penalties and criminal offences in relation to
listed migratory species, do not apply to an action that is covered by subsection
517A(7) of the Act.
Item 55 - At the end of subsection 22A(7)
29. Item 55 inserts a note at the end of subsection 22A(7) as a consequence of new
section 496C of the Act.
Item 56 - At the end of section 24
30. This item amends section 24 of the Act by inserting a new paragraph 24(g) to the
definition of Commonwealth marine area. This is to extend the definition to include
areas of sea or seabed included in a Commonwealth reserve into the definition of
Commonwealth marine area, making the definition consistent with the definition of
Commonwealth area in section 525 of the Act.
Items 57 to 67 - Section 24A
31. These items amend subsections 24A(1) to (6) of the Act. They provide for strict
liability to apply in relation to the circumstance that an area is a Commonwealth
marine area. The intent of these amendments is to make it absolutely clear that the
prosecution does not have to show a person knew or was reckless as to the fact that
the area is a Commonwealth marine area. References to recklessness are not
reproduced in the newly made paragraphs. These references are no longer
necessary as the default element of reckless will automatically apply to the relevant
circumstance. Item 67 inserts a note at the end of subsection 24A(7) as a
consequence of new section 496C.
22
Item 68 - Section 25AA
32. This item inserts new section 25AA into the Act which creates a new defence to the
offence provisions in Part 3 of the Act. The purpose of this amendment is to ensure
that a person cannot be prosecuted (or a civil penalty imposed) under Division 1 of
Part 3 of the Act for impacts caused by actions of third parties which are
consequential to the actions of the first person but which are not directed or requested
by the first person. Where a third party takes an action without an approval which
has significant impacts on a matter protected by Part 3 they may be prosecuted (or a
civil penalty imposed) directly under Division 1 of Part 3 of the Act.
Item 69 - Subsection 25B(3)
33. This item amends section 25B of the Act by inserting a reference in subsection
25B(3) to section 480A and section 480K of the Act, as a consequence of item 774.
This amendment allows for evidentiary certificates to be issued even if proceedings
have been instituted for a remediation order under section 480A or to have a
remediation determination set aside under section 480K of the Act.
Item 70 - Subsection 25D(1)
34. This item amends section 25D of the Act by inserting a reference in subsection
25D(1) to sections 480A and 480K of the Act, as a consequence of item 774. This
amendment allows for evidentiary certificates to be prima facie evidence of the
matters in the certificate in any proceedings instituted for a remediation order under
section 480A or to have a remediation determination set aside under section 480K.
Items 71 to 78 - Section 27A
35. These items amend subsections 27A(1) to (4) of the Act. They provide for strict
liability to apply in relation to the circumstance that an area is Commonwealth land.
The intent of these amendments is to make it absolutely clear that the prosecution
does not have to show a person knew or was reckless as to the fact that the area is
Commonwealth land. References to "recklessness" are not reproduced in the newly
made paragraphs. These references are no longer necessary as the default element
of reckless will automatically apply to the relevant circumstance. Item 78 inserts a
note at the end of subsection 27A(5) as a consequence of new section 496C.
Items 79 to 82 - Subsections 27C(1) and (2)
36. These items amend subsections 27C(1) and (2) of the Act. They provide for strict
liability to apply in relation to the circumstance that a place is a Commonwealth
Heritage place. The intent of these amendments is to make it absolutely clear that
the prosecution does not have to show a person knew or was reckless as to the fact
that the place is a Commonwealth Heritage place. These amendments also remove
the reference to `recklessness' from subsection 27C(2). The reference is no longer
necessary as the default element of reckless will automatically apply to the relevant
circumstance of this subsection.
Item 83 - Subsection 28(5)
37. This item amends subsection 28(5) of the Act, which provides the grounds upon
which the Minister may make a declaration that actions taken by a Commonwealth
agency are actions to which section 28 of the Act does not apply. This amendment
is to make it clear that a law of a State or Territory with which the Commonwealth
agency must comply provides adequate protection for the environment.
23
Item 84 - At the end of Division 2 of Part 3
38. This item inserts a new section 28AB into the Act which complements new section
25AA. This amendment is to ensure that a person cannot be prosecuted (or a civil
penalty imposed) under Division 2 of Part 3 of the Act for impacts caused by
actions of third parties which are consequential to the actions of the first person but
which are not directed or requested by the first person. Where a third party takes an
action without an approval which has significant impacts on a matter protected by
Part 3 they may be prosecuted (or a civil penalty imposed) directly under Division
2 of Part 3 of the Act.
Item 85 - Division 3 of Part 3
39. This item repeals Division 3 of Part 3 of Chapter 2 of the Act which contained
section 28A of the Act. This amendment removes the requirement that the Minister,
every five years, prepare a report into whether further matters of national
environmental significance should be added to the Act. Section 25 of the Act still
enables new matters of national environmental significance, through the making of
Regulations, to be protected. In addition, Part 3 of the Act can be amended in the
normal manner to prohibit or regulate additional actions that have, will have or are
likely to have a significant impact on environmental matters that may properly be
regarded as being of national environmental significance.
Items 86 and 87 - Section 29
40. These items amend section 29 of the Act as a consequence of amendments to
section 46 of the Act which is dealt with in items 131 to 152.
Items 88 to 91 - Section 31
41. These items amend section 31 of the Act as a consequence of amendments to
section 46 of the Act (see items 131 to 152).
Item 92 - Division 2 of Part 4 (heading)
42. This item repeals the heading for Division 2 of Part 4 of the Act and replaces it with
a new heading which also refers to accredited management arrangements and
accredited authorisation process.
Items 93 to 95 - Section 32
43. These items amends section 32 of the Act as a consequence of amendments to
section 33 of the Act (see items 96 to 114).
Items 96 to 114 - Section 33
44. These items amend section 33 of the Act to insert new references to an "accredited
management arrangement" and an "accredited authorisation process" in place of the
previous reference to an "accredited management plan." Previously the Minister
could declare that actions approved by the Commonwealth or a particular
Commonwealth agency, in accordance with an accredited management plan, do not
require approval under Part 9 of the Act. The amendment allows the Minister to
make a section 33 declaration in relation to a broader range of accredited
management arrangements and processes under section 33. Subsection 33(2) is
amended to insert definitions of an "accredited management arrangement" and an
"accredited authorisation process".
45. Subsection 33(5) is amended to allow the Minister to accredit a management
arrangement or authorisation process if: the management arrangement or
24
authorisation process has been tabled in Parliament for a period of 15 sitting days;
and, a notice of motion to oppose accreditation has been given; and, the notice of
motion is withdrawn or otherwise disposed of within the 15 sitting days after it is
given. Previously, the Minister could not accredit before the expiry of the 15
sitting days after a notice of motion to oppose accreditation was given (whether or
not the notice was withdrawn or otherwise disposed of).
Items 115 to 118 - Section 34B to 34F
46. These items amend section 34B to 34F of the Act as a consequence of amendments
to section 33 of the Act (see items 96 to 114). The amendments also insert new
paragraph 34D(1)(c) and subsection 34D(2) which require the Minister to have
regard to approved conservation advice when making declarations provided for by
section 34D in relation to listed threatened species and ecological communities.
Item 119 - Paragraphs 35(2)(a) and (b)
47. This item amends section 35(2) of the Act to clarify that if the Minister revokes a
declaration made under section 33 under section 35(1), then only those actions
which have been taken and not completed before the revocation continue to be
covered by the declaration.
Item 120 - Section 36
48. This item amends section 36 of the Act as a consequence of amendments to section
33 of the Act.
Item 121 - At the end of Subdivision D of Division 2 of Part 4
49. This item adds a new section 36A to the Act which provides for minor amendments
to management arrangements or authorisation processes that are accredited under
section 33. Where such a management arrangement or authorisation process is
amended or proposed to be amended, the Minister may make a determination that a
management arrangement or authorisation process as amended is taken to be an
accredited management arrangement or authorisation process for the purpose of the
Act. The Act then applies to the amended arrangement or process instead of the
original arrangement or process. The Minister can only make a determination under
section 36A if satisfied that the amendments are, or will be, minor, and meet the
requirements in paragraphs 33(3)(a), (b) and (c). Subsection 36A(4) assists readers
by confirming that a determination under 36A(1) is not a legislative instrument.
Such a determination is not a legislative instrument within the meaning of section 5
of the Legislative Instruments Act 2003.
Item 122 - After Division 2 of Part 4
50. This item inserts new Division 3 of Part 4 of the Act. This amendment is to
provide an incentive for those with an interest in a Commonwealth area, to have
certain actions considered within the context of developing bioregional plans. If a
bioregional plan provides for the taking of certain actions then under section 37A of
the Act the Minister may declare that an action or class of actions taken in
accordance with a bioregional plan do not require approval under Part 9 of the Act.
The Minister may only make a declaration under section 37A if satisfied that the
taking of the relevant action or actions will not have unacceptable or unsustainable
impacts on a matter protected by a controlling provision in Part 3 of the Act for
which the declaration has effect and if satisfied that the declaration accords with the
objects of the Act and is not inconsistent with Australia's obligations under
specified international treaties.
25
51. This provision creates an exemption from the offence provisions in Part 3 of the
Act. The onus of proof is reversed in relation to these offence provisions. This
means that a defendant who wishes to rely upon this exemption bears the onus of
proof in establishing that the exemption applies to their actions. The onus of proof
is reversed because the defendant has a unique capacity to establish the matters in
section 37A.
52. The amendments also insert new section 37M into the Act as a consequence of new
section 306A, which provides that a conservation agreement may declare that
actions in a specified class do not require approval under Part 9 of the Act.
Items 123 to 128 - Section 43A
53. These items amend section 43A of the Act which provides that certain actions
which were specifically authorised before the commencement of the Act do not
require approval under Part 9 of the Act. The purpose of these amendments is to
clarify that in order for section 43A to apply to an action the action must have been
authorised under a specific environmental authorisation which relates to that
particular action (by reference to acts and matters uniquely associated with that
action) and not types, groups, or classes of actions. For example, in relation to an
action involving vegetation clearance, an environmental authorisation which
authorised all persons, or a class of persons, to undertake vegetation clearance in
the general area in which the action is proposed to be taken would not be a specific
environment authorisation for the purposes of section 43A. Further, the
amendments clarify that section 43A only applies to an action which was
authorised by a specific authorisation before the commencement of the Act, if the
relevant authorisation is still in force.
Items 129 and 130 - Section 43B
54. These items amend section 43B of the Act to make it clear that the continuing use
exemption under section 43B does not apply to an action comprising a use of land,
sea or seabed, if there is a change in the location of, or a 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. The amendments also clarify that the continuing
use exemption does not apply where an action was authorised by a specific
environmental authorisation before the commencement of the Act (these actions are
covered by section 43A).
Item 131 to 152 - Section 46
55. These items amend section 46 of the Act to insert new references to a "bilaterally
accredited management arrangement" and a "bilaterally accredited authorisation
process" in place of previous references to a "bilaterally accredited management
plan." Previously a bilateral agreement could declare that actions approved by a
State or self-governing territory, in accordance with an accredited management
plan, do not require approval under Part 9 of the Act.
56. The amendment allows a bilateral agreement to make a declaration in relation to a
broader range of accredited management arrangements and processes under section
46. Subsection 46(2) is amended to insert definitions of a "bilaterally accredited
management arrangement" and a "bilaterally accredited authorisation process".
Subsection 46(5) is amended to allow the Minister to accredit a management
arrangement or authorisation process if: the management arrangement or
26
authorisation process has been tabled in Parliament for a period of 15 sitting days;
and, a notice of motion to oppose accreditation has been given; and, the notice of
motion is withdrawn or otherwise disposed of within the 15 sitting days after it is
given. Previously, the Minister could not accredit before the expiry of the 15
sitting days after a notice of motion to oppose accreditation was given (whether or
not the notice was withdrawn or otherwise disposed of). Subsection 46(10) is
amended to insert a reference to a bilaterally accredited management arrangement
in the place of the previous reference to bilaterally accredited management plans.
The requirements in this section are not relevant to authorisation processes.
Items 153 and 154 - Section 51
57. These items amend section 51 of the Act as a consequence of amendments to
section 46 of the Act.
Items 155 and 156 - Section 51A
58. These items amend section 51A of the Act as a consequence of amendments to
section 46 of the Act.
Items 157 and 158 - Section 52
59. These items amend section 52 of the Act as a consequence of amendments to
section 46 of the Act.
Items 159 to 162 - Section 53
60. These items amend section 53 of the Act by inserting additional subsections
53(1)(ca) and 53(2)(d) into the Act and making required word changes. These
amendments require the Minister to have regard to approved conservation advice
when deciding whether to enter into agreements provided for by section 53 in
relation to listed threatened species and ecological communities. This amendment is
required as a consequence of item 469 which deals with the preparation of
conservation advice for threatened species and ecological communities. The word
changes are a consequence of amendments to section 46 of the Act.
Items 163 and 164 - Section 54
61. These items amend section 54 of the Act as a consequence of amendments to
section 46 of the Act.
Item 165 - Section 55
62. This item amends section 55 of the Act as a consequence of amendments to section
46 of the Act.
Item 166 - At the end of Division 2 of Part 5
63. This item inserts new section 56A into the Act. This amendment is to simplify the
process for remaking bilateral agreements where only minor amendments are
involved. If the Minister is satisfied that the amendments will not a significant
effect on the previous bilateral agreement, he or she may make a determination
remaking the agreement. Subsection 56A(3) confirms that a determination under
56A(1) is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Item 167 - Subsection 64(2)
64. This item amends subsection 64(2) of the Act as a consequence of amendments to
section 46.
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Items 168 and 169 - Section 65
65. These items amend section 65 of the Act to provide for a Bilateral Agreement to
have effect for a period specified in the Agreement, rather than cease to have effect
within 5 years. This will provide increased certainty, particularly in relation to
large-scale developments which will operate for periods of time in-excess of 5
years. The new provisions require the Minister to cause a review of a Bilateral
Agreement to be carried at least once every 5 years, with the review report required
to be published.
Item 170 - Subsection 65A(2)
66. This item amends subsection 65A(2) of the Act as a consequence of amendments to
section 46 of the Act.
Item 171 - After paragraph 66(c)
67. This item amends section 66 of the Act by inserting a new paragraph 66(ca) into the
Act. This amendment clarifies that an assessment may be done using information
included in the referral and is required as a consequence of item 217.
Item 172 - Section 67
68. This item amends section 67 of the Act and is required as a consequence of new
sections 25AA and 28AB.
Item 173 - After section 67
69. This item inserts a new section 67A into the Act. This amendment is required as a
consequence new sections 25AA and 28AB and amendments to section 67 of the
Act. The effect of the amendment to section 67 is that an action that would be
prohibited under Part 3 of the Act apart from the operation of sections 25AA or
25AB is, nevertheless, a controlled action. A person is required to refer a
controlled action to the Minister under section 68. If a person fails to refer a
controlled action to the Minister and takes the action without approval under Part 9
of the Act the action is prohibited under Part 3 (unless it falls within section 25AA
or 28AB). The purpose of section 67A is to ensure that an injunction can be sought
to prevent a person from taking an action which is a controlled action but which is
not prohibited because of section 25AA or 28AB.
Items 174 - At the end of section 68
70. This item amends section 68 of the Act and is required as a consequence of item
175.
Item 175 - After section 68
71. This item inserts a new section 68A into the Act. This amendment is to clarify that
a contractor or another person who takes an action on behalf of a principal pursuant
to a contract, agreement or arrangement, is not required and not permitted to make
a referral under section 68. The purpose of this amendment is to prevent a principal
from avoiding responsibilities under the Act by requiring a contractor or other
person to refer the action instead of the principal.
Item 176 - Subsection 70(7)
72. This item repeals subsection 70(7) of the Act and is required as a consequence of
item 183.
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Item 177 - Subsection 71(1)
73. This item removes the words `(except the Minister)' from subsection 71(1) of the
Act. This amendment is to allow areas of the Department of the Environment and
Heritage to make referrals under the Act of actions being taken by other persons in
order to better integrate the various environmental impact assessment
responsibilities of the Minister.
Item 178 - At the end of section 72
74. This item amends section 72 of the Act by inserting a new subsection 72(3) into the
Act. This amendment allows a person to refer a number of alternative proposals for
taking an action which may consist of alternative locations, timeframes and/or
activities. The purpose of this amendment is to provide greater flexibility in the
planning stage of a proposed action and to facilitate better environmental outcomes
by allowing the relative impacts of different options to be considered.
Items 179 to 183 - Section 74
75. These items amend section 74 of the Act. New subsections 74(1A) and (1B)
provide for the Minister to be able to seek advice from the Australian Heritage
Council on an action that is the subject of a proposal referred to the Minister. This
item is a consequence of amendments to sections 341ZD and 341ZF of the Act
which are dealt with in items 579 and 580. In addition to seeking comments on
whether a proposed action should be a controlled action, this amendment also
requires the Minister to seek information from relevant State and Territory
Ministers as to the appropriate assessment approach that should be employed in
asseing a proposed action. This will facilitate the process of making a decision on
assessment approach at the same time as the controlled action decision (where
possible) which is dealt with in item 211.
76. New subsection 74(3A) allows the Minister to withhold commercial-in-confidence
information when publishing a referral under section 74(3) if satisfied of the
matters in section 74(3B) of the Act. Subsection 74(4) of the Act is deleted for
purposes of increased transparency and consistency. As a result of this deletion all
referrals will now be required to be published for public comment whether or not
the person has indicated in the referral that the action is a controlled action.
Item 184 - At the end of Division 1 of Part 7
77. This item inserts a new section 74AA into the Act. Subsection 74AA(1) creates a
fault based offence of taking an action that is the subject of a referral prior to a
controlled action decision being made, or prior to the making of an approval
decision for the referral. The maximum penalty is 500 penalty units. An exception
to the offence is created where the action is reasonably necessary in order to
comply with a requirement under the Act, for example, a requirement to provide
particular information in an environmental impact statement under Part 8.
Subsection 74AA(3) creates a separate offence where a person takes an action and
a referral has been requested by the Minister under section 70 of the Act but not yet
made. The maximum penalty is also 500 penalty units.
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Item 185 - After Division 1 of Part 7
78. This item inserts new Division 1A of Part 7 of the Act. Division 1A establishes a
new process that allows the Minister to make a prompt refusal for an action that
would have unacceptable impacts on a matter protected by Part 3 of the Act. This
avoids the expense and time involved in conducting the full assessment and
approval process under Chapter 4 for actions that would be unlikely to receive
approval under Part 9 of the Act. The scope and process for making a prompt
refusal is established in three new sections of the Act - 74B, 74C, and 74D.
79. If the Minister considers that an action would have unacceptable impacts on a
matter protected under Part 3 of the Act on the basis of the information contained in
a referral then the Minister may decide under section 74B that Division 1A applies
to the action. The other provisions of Chapter 4 (referral assessment and approvals
processes) then cease to apply to the action. Under section 74C the Minister must
then notify the person proposing to take the action and provide reasons why the
action is unacceptable. The person may withdraw the referral, withdraw the
referral and refer a new proposal, or request the Minister to reconsider the referral.
80. New section 74D outlines the process to be followed in the event the Minister is
asked to reconsider the referral. At the completion of this process the Minister may
either confirm that the action is not to be approved, or determine that it should be
subject to the formal assessment and approvals processes under the Act. If the
Minister decides that the referral should be assessed, the Chapter 4 processes and
timeframes recommence at the point where they were initially stopped under
section 74B of the Act.
Items 186 to 191 - Section 75
81. These items amend section 75 of the Act by inserting new subsections 75(2A) and
75(2B) and making other minor changes. New subsection 75(2A) clarifies the
application of the Act in relation to actions proposed to be taken partly in and partly
outside Commonwealth areas. For the purposes of deciding whether or not such an
action requires approval for the purposes of National Heritage places,
Commonwealth marine areas and Commonwealth land, the Minister may consider
only those impacts of that part of the action that is taken in or on Commonwealth
land, a Commonwealth marine area or a Commonwealth area.
82. New subsection 75(2B) is to clarify that in making a controlled action decision, in
relation to proposed developments, such as, a factory which will use timber from as
RFA region, the Minister must not consider any adverse impacts of any RFA
forestry operation (as defined in section 38) or a forestry operation in an RFA
region (as defined in section 40). Sections 38 and 40 of the Act exempt RFA
forestry operations and forestry operations in RFA regions from the need for
approval under the Act. If these sections do not apply because of section 42 then
new section 75(2A) inserted by this item also does not apply. The amendment to
75(5) is consequential to the amendment of section 74(4) by item 183 which
establishes consistent publication requirements and timeframes for all referrals.
The note inserted by item 190 notifies that, if the Minister decides that an action is
a controlled action (and requires approval under Part 9) under section 75, then,
unless the Minister requests further information, the Minister must decide on the
approach to be used for assessing the action under section 87 on the same day.
30
Items 192 and 193 - Section 76
83. These items amend section 76 of the Act by inserting new subsections 76(2), 76(3),
76(4) and 76(5) into the Act. The amendments enable the Minister to request
information from a person proposing to take an action which has been referred to
the Minister.
84. Under subsection 76(2) the Minister may request information about whether the
action is a component of a larger action to be undertaken by the proponent (see
section 74A). Under subsections 76(3) and 76(4) the Minister may request further
information to allow an informed decision about the appropriate level of assessment
(which can now be made at the same time as the controlled action decision)
including information about the method and stage of assessment in the relevant
State or Territory (as appropriate). These requests can be made even if the proposal
has not yet been determined to be a controlled action.
Item 194 - Subsection 77A(1)
85. These items amend section 77A of the Act as a consequence of amendments to
other sections of the Act. Subsection 77A(1) has also been restructured so that it
reads more clearly.
Item 195 - Before section 78
86. This item establishes a new Division 3 of Part 7 of the Act. Division 3 contains a
new process for handling a request for reconsideration of a decision by the Minister
under section 75 (whether or not an action is a controlled action).
Items 196 and 197 - Section 78
87. These items restructure section 78 of the Act so that it reads more clearly, insert
subsection 78(1)(ba) to correct an omission insert subsection 78(1)(ca) as a
consequence of new section 37A and insert three new notes at the end of subsection
78(1).
Item 198 - After section 78
88. This item inserts new sections 78A, 78B and 78C into the Act to provide a process
for handling requests by persons, other than State or Territory Ministers (see
section 79), for the reconsideration under section 78 of a decision by the Minister
under section 75 whether or not an action is a controlled action. The purpose of
this amendment is to provide greater transparency in relation to the reconsideration
of section 75 decisions, by including formal consultation requirements.
Item 199 - Subsections 79(1) and (2)
89. This item amends subsections 79(1) and (2) of the Act. The amendment of
subsection 79(1) is consequential to the deletion of 74(4) by item 183 which
establishes consistent publication requirements and timeframes for all referrals.
The amendment to subsection 79(2) extends the period in which a reconsideration
request can be made from 5 to 10 business days and clarifies that time period
commences when the appropriate Minister of the relevant State or Territory is
notified.
Item 200 - After paragraph 80(a)
90. This item amends section 80 of the Act by inserting new paragraph 80(aa) and is
required as a consequence of the insertion of new Division 3A.
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Items 201 and 202 - Section 82
91. This item inserts new subsection 82(4) into the Act. This amendment clarifies the
application of the Act in relation to actions proposed to be taken partly in and partly
outside Commonwealth areas. For the purposes of assessment of such an action in
accordance with Part 8 of the Act for the purposes of 15B(3), 15C(5), 15C(6),
23(1), 24A(1), 26(1) or 27A(1) (National Heritage places, Commonwealth marine
areas and Commonwealth land) the relevant impacts are those impacts of that part
of the action that is taken in or on a Commonwealth area. The amendment to
subsection 82(2) is a consequence of new Divisions 3 and 3A of Part 4 of the Act
by item 122.
Item 203 - After paragraph 85(a)
92. This item amends section 85 of the Act by inserting a new paragraph 85(aa) and is
required as a consequence of the insertion of new Division 3A.
Item 204 - Section 86
93. This item repeals section 86 of the Act. This amendment removes the need for
proponents to provide the Minister with preliminary information to inform the
decision on the assessment approach under section 87 once an action has been
determined to be a controlled action under section 75. Preliminary information
largely duplicated information in the referral document and did not add much value
to the process. In order to streamline the referral and assessment and approval
processes, the level of assessment decision will now be made based on the
information in the referral documentation and this decision will be made at the
same time as the controlled action decision (see items 211 and 212).
Items 205 to 210 - Section 87
94. These items amend section 87 of the Act by amending subsections 87(1) and 87(3),
repealing subsection 87(2), and inserting paragraph 87(1)(a) and subsection 87(4A).
Subsection 87(2) required the Minister to seek comments from relevant State and
Territory Ministers about the appropriate level of assessment for a controlled
action. This requirement is now incorporated into the new subsection 74(2) (see
item 180). The purpose of new subsection 87(4A) is to allow the regulations to
specify criteria which specify the circumstances in which assessment on referral
information (see item 217) is appropriate. New paragraph 87(1)(aa) is required as a
consequence of the insertion of new Division 3A by item 217.
Items 211 to 213 - Section 88
95. These items amend section 88 of the Act by amending subsections 88(1), 88(2) and
88(4) and repealing subsection 88(3). The purpose of these amendments is to
streamline the referrals, assessments and approvals process by requiring the
Minister to determine the appropriate level of assessment for controlled actions
within 20 business days of receiving a referral (unless further information is
required). Previously, the level of assessment decision was made 20 business days
after the receipt of preliminary information which was typically received some time
after the controlled action decision. The amendments to subsection 88(4) are a
consequence of items 192 and 193.
32
Items 214 and 215 - Section 89
96. These items amend section 89 of the Act by inserting new subsections 89(2) and
89(3) into the Act. These amendments clarify the type of information the Minister
may request from a proponent to allow an informed decision about the appropriate
level of assessment.
Item 216 - Section 91
97. This item amends section 91 of the Act by amending subparagraph 91(1)(a)(i) and
inserting subparagraph 91(1)(a)(ia). This amendment is consequential to the
amendment of section 81 by items 211 and 212. It will be possible to make the
notification about the level of assessment at the same time as notification of the
controlled action decision where both decisions have been made at the same time.
Item 217 - Division 4 of Part 8
98. This item repeals Division 4 of Part 8 and substitutes new Divisions 3A and 4 of
the Act. The purpose of this amendment is to increase the efficiency and flexibility
of the Act by establishing a new level of assessment called "assessment on referral
information", and refining the processes for assessment on preliminary
documentation.
99. New Division 3A establishes a process for assessing a proposed action that
involves a small number of straight forward environmental issues. The purpose of
this amendment is to streamline the Chapter 4 referral, assessment and approval
process for actions which involve straightforward and well-understood impacts on
matters of national environmental significance.
100. New Division 4 streamlines and increases the transparency of assessment on
preliminary documentation. Assessment on preliminary documentation is
appropriate for actions that involve more complex environmental issues than those
to be assessed on referral information, but still involve relatively straight forward
issues.
101. New section 95 applies to those actions that are suitable for assessment on
preliminary documentation based on the information contained in the referral. This
amendment encourages proponents to provide adequate information for assessment
at the time of referral to take advantage of a reduced timeframe for assessment.
102. New section 95A applies to those actions that are suitable for assessment on
preliminary documentation but require further information to assess the relevant
impacts. If additional information to that contained in the referral is required, the
Minister must request the proponent to provide specified information, which may
include information about mitigation strategies. Subsections 95(4), 95A(5) confirm
that a written direction by the Minister under subsections 95(2), or 95A(3) is not a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
103. New section 95B increases the transparency of assessment on preliminary
documentation by bringing consultation and publication requirements into line with
other levels of assessment.
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104. New section 95C requires the Secretary to prepare a recommendation report
relating to the action to provide to the Minister for consideration in deciding
whether or not to approve the action and under what conditions. The
recommendation report replaces the previous assessment report and further
streamlines the assessment and approval processes by combining the assessment
report and recommendations on approval and any proposed conditions in a single
document.
Item 218 - After section 96
105. This item inserts new sections 96A and 96B into the Act. This amendment is to
streamline assessment by public environment report by allowing the Minister to
give a proponent either standard or tailored guidelines for the development of the
assessment documentation. Standard guidelines may be prepared to cover common
categories of actions or particular protected matters, and tailored guidelines may be
used where standard guidelines are not available or for more complex issues.
Subsection 96B(4) confirms that standard guidelines prepared under section 96B(1)
are not a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Items 219 to 224 - Section 97
106. These items amend section 97 of the Act by changing the heading of the section to
"Tailored guidelines," and repealing subsection 97(1) and substituting a new
subsection 97(1) into the Act. This amendment clarifies that the Minister must
prepare tailored guidelines for the preparation of a public environment report if
standard guidelines are not determined to be appropriate. The amendments also
replace the words "the guidelines" with "tailored guidelines" throughout the section
and insert a new subsection 97(6) which clarifies that tailored guidelines are not a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Items 225 to 229 - Section 98
107. These items amend section 98 of the Act as a consequence of items 218, 219 and
230. The amendments clarify that the proponent must prepare a draft public
environment report that addresses the issues in the guidelines (standard or tailored).
The items also clarify that public comments on public environment reports must be
made in writing.
Item 230 - Sections 99 and 100
108. This item amends sections 99 and 100 of the Act. New section 99 outlines the
process for finalising a public environment report. In addition to publishing and
providing the Minister with revised documentation based on public comments (if
any), this amendment increases transparency by requiring a finalised Public
Environment Report to contain a summary of public comments received during
consultation on the draft report.
109. New section 100 requires the Secretary to prepare a recommendation report relating
to the action to provide to the Minister for consideration in deciding whether or not
to approve the action and under what conditions. The recommendation report
replaces the previous assessment report and further streamlines the assessment and
approval processes by combining the assessment report and recommendations on
approval and any proposed conditions in a single document.
34
Item 231 - After section 101
110. This item inserts two new sections 101A and 101B into the Act. This amendment is
to streamline assessment by environmental impact statement by allowing the
Minister to give a proponent either standard or tailored guidelines for the
development of the assessment documentation. Standard guidelines may be
prepared to cover the usual types of actions or impacts that may be assessed, and
tailored guidelines may be used where standard guidelines are not available or for
more complex issues.
111. New section 101A requires the Minister to provide a proponent with written
guidelines (standard or tailored) for the content of a draft environmental impact
statement. In deciding if standard guidelines are appropriate the Minister must seek
to ensure the environmental impact statement will adequately address the impacts
of the action and meet the requirements of the regulations (if any).
112. New section 101B provides for the preparation of standard guidelines for
environmental impact statements. While not limited to these matters, standard
guidelines can be prepared for actions that are proposed to be taken by a specified
industry sector, for assessments of impacts on a particular matter of national
environmental significance, or for particular categories of actions. Standard
guidelines are not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Items 232 to 237 - Section 102
113. These items insert new heading "tailored guidelines" and amend section 102 of the
Act. The amendments apply the section to tailored guidelines. The amendments
require the Minister to prepare tailored guidelines for the preparation of an
environmental impact statement if standard guidelines are not appropriate.
Subsection 102(6) confirms that tailored guidelines prepared under section 102(1)
are not a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Items 238 to 242 - Section 103
114. These items amend section 103 of the Act as a consequence of items 231, 232 and
243. The amendments clarify that the proponent must prepare a draft environmental
impact statement that addresses the issues in the guidelines (standard or tailored).
The items also clarify that public comments on environmental impact statements
must be made in writing.
Item 243 - Sections 104 and 105
115. This item amends sections 104 and 105 of the Act. New section 104 outlines the
process for finalising an environmental impact statement. In addition to publishing
and providing the Minister with revised documentation based on public comments
(if any), this amendment increases transparency by requiring a finalised
Environmental Impact Statement to contain a summary of public comments
received during consultation on the draft report. New section 105 requires the
Secretary to prepare a recommendation report relating to the action to provide to
the Minister for consideration in deciding whether or not to approve the action and
under what conditions. The recommendation report replaces the previous
assessment report and further streamlines the assessment and approval processes by
combining the assessment report and recommendations on approval and any
proposed conditions in a single document.
35
Items 244 to 249 - Section 130
116. These items amend section 130 of the Act. These amendments are largely
consequential to the closer integration of the Chapter 4 assessment and approvals
processes and other amendments streamlining the assessment and approvals
processes. Section 130(1B) identifies the timeframes in which the Minister must
make an approval decision for the various assessment approaches.
117. The previous requirement for a notice from a State or self-governing Territory
stating that the impacts of the relevant action on things other than matters protected
by the controlling provisions for the action have been assessed to "the greatest
extent practicable", has been replaced by provision in new section 132A for the
Minister to request a notice stating "the method that has been used" to assess the
impacts of the relevant action on things other than matters protected by the
controlling provisions. The timeframes in which the Minister must make an
approval decision have been de-linked from the timing of receipt of a notice from a
State or Territory to provide the Minister with the ability to make an approval
decision in the absence of a notice from a State or Territory.
Item 250 - Subsection 131(1)
118. This item amends subsection 131(1) of the Act as a consequence of item 244.
Item 251 - After section 131
119. This item inserts new sections 131AA and 131A into the Act. New section 131AA
is to provide certainty in relation to the application of the natural justice hearing
rule to approval decisions under section 133. Before making an approval decision,
the Minister must provide a proponent of an action with the opportunity to
comment on the Minister's proposed approval decision and conditions. Where the
Minister proposes to refuse an action, the proponent must also be supplied with
information relevant to the decision. New section 131A is to increase transparency
and improve decision-making under the Act. It allows the Minister to seek public
comment on proposed approval decisions and conditions.
Item 252 - Section 132
120. These items amend section 132 of the Act by inserting a new paragraphs 132(1)(d)
and 132(1)(e) and the making of other consequential amendments. These
amendments broaden the Minister's ability to request information in order to make
an approval decision. In addition to requesting information from the person
proposing to take the action, the designated proponent or a commission, this
amendment allows the Minister to request information from the appropriate State or
Territory Minister (when relevant) or any other person the Minister considers
appropriate.
Item 253 - After section 132
121. This item inserts a new section 132A into the Act. This amendment is
consequential to the amendment of section 130(1B) by item 244.
Items 254 to 263 - Section 133
122. Items 254 and 263 amend section 133 of the Act by replacing reference to
assessment report with assessment documentation and inserting a definition of
assessment documentation by reference to documentation produced under the
various assessment approaches in provide for by Part 8 of the Act. These
amendments are consequential to items 217, 230 and 243 and other amendments to
the Part 8 assessment processes. Item 262 repeals subsections 133(5) and 133(6).
36
This amendment is consequential to the amendment of section 130(1B) by item 244
and removes the requirement for receipt of a notice from a State or self-governing
Territory regarding their assessment of an action (see section 132A) before the
Minister can approve the action. Items 255 and 256 are consequential to item 178
and allow the Minister to approve one or more alternative proposals in relation to
the taking of an action. Item 260 inserts new subsection 133(2A) which clarifies
that both the holder of an approval and persons carrying out actions on behalf of the
holder are covered by the approval. Items 257 and 261 are consequential to Item
260 which distinguishes between the holder of an approval and persons, authorised,
permitted or requested by the holder of the approval to take the relevant action.
Item 258 amends paragraph 133(2)(f) as a consequence of the insertion of new
134(1A) by item 264.
Items 264 to 277 - Section 134
123. Item 273 inserts new paragraph 134(3)(h) into the Act which allows the Minister to
apply separate conditions to alternative proposals in relation to the taking of an
action. This item is consequential to item 178.
124. Items 267 to 276 are consequential to the insertion of section 133(2) by item 260
which distinguishes between the holder of an approval and persons, authorised,
permitted or requested by the holder of the approval to take the relevant action.
125. Item 264 inserts new subsection 134(1A) which relates to the new subsection
133(2A) inserted by item 260. Subsection 134(1A) requires the holder of an
approval to take an action to take all reasonable steps to ensure that any person
undertaking any part of the action is aware of, and complies with, any relevant
approval conditions. This item is related to item 289 which creates a defence to the
offence of breaching a condition of approval in relation to a person who is not the
holder of the relevant approval and was not informed of the condition and could not
reasonably have been expected to be aware of the condition.
126. Items 274 and 275 insert new subsection 134(3A) into the Act and make a
consequential amendment to paragraph 134(4)(a). This amendment allows the
Minister to require a proponent to comply with conditions in an instrument as in
force from time to time ensuring that any variations to conditions contained in the
instrument automatically become applicable under the Act. Further, to avoid
potential duplication or inconsistency, the Minister may require a proponent to
comply with conditions contained in an instrument which has not yet come into
force. This avoids the need to repeat conditions for projects subject to multiple
approvals.
127. Item 277 inserts new subsection 134(4A) into the Act which clarifies that a
condition which requires compliance with a condition in an instrument made under
a law of the Commonwealth, a State or a Territory which is partly in excess of the
power conferred by 134(1) continues to apply to persons taking the action to the
extent that it is within power.
128. Items 265 to 274 amend section 134 of the Act to allow the Minister to attach a
condition to a Part 9 approval which requires specified activities to be undertaken
for protecting, or repairing or mitigating damage to, a matter protected under Part 3
of the Act; or, requiring a specified financial contribution to support such activities.
37
The Minister may require such measures whether or not the protection of a
protected matter is protection from the action itself, or the damage will be caused
by the action. The purpose of this amendment is to provide for activities which are
not directly related to the taking of an action but which recompense for damage
which the action may cause. Under section 134(3A) if conditions imposed under
this provision are not reasonably related to the taking of the action, the Minister
may not impose them unless the holder of the approval has consented to them.
Item 278 - At the end of Subdivision A of Division 1 of Part 9
129. This item inserts a new section 135A into the Act. This amendment is
consequential to the amendment of sections 100 and 105 by items 230 and 243 and
specifies requirements for the provision of recommendation reports. These
requirements replace the previous requirements for the provision of assessment
reports.
Items 279 to 286 - Section 136
130. The amendments to section 136 of the Act by items 279 to 284 are consequential to
items 217, 230, 243 and 251. Item 284 inserts new paragraph 136(2) into the Act
which requires the Minister, when considering an approval decision, to take into
account the information in a notice provided by a State or Territory under new
section 132A. Item 284 also inserts a note after 136(2) and is consequential to the
insertion of 131AA.
131. Item 285 amends subsection 136(4) to broaden the Minister's ability to consider the
environmental history of companies and company managers when deciding
whether or not to approve an action under Part 9 of the Act. The purpose of this
amendment is to ensure that the environmental history of a parent company or
manager, who is in a position to exercise control over a company, is open to
consideration when granting an approval to a company.
Items 287 and 288 - Section 139
132. These items amend section 139 by inserting a new subsection 139(2) into the Act.
New subsection 139(2) requires the Minister to have regard to approved
conservation advice (as a consequence of item 469) when considering approval of
an action under section 18 or section 18A which is likely to, or will have a
significant impact on, a listed threatened species or listed ecological community.
Item 289 - After subsection 142(1)
133. This item inserts a new subsection 142(1A) into the Act. This amendment relates to
amendments to sections 133 and 134 and clarifies that contravention of an approval
condition is not an offence for a person who is not the holder of an approval (e.g. a
contractor) if they have not been informed of the condition and could not
reasonably be expected to be aware of the condition. The defendant bears an
evidential burden in relation to the matters in section 142(1A) because they would
hold relevant documents such as contracts and work orders and therefore are
uniquely able to establish these matters.
Item 290 - At the end of subsection 142A(4) - note
134. This item inserts a note at the end of subsection 142A(4) of the Act as a
consequence of new section 496C.
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Item 291 - Section 142B
135. This item inserts a new section 142B into the Act. It introduces a strict liability
offence where a person contravenes a condition attached to an approval which has
been granted under Part 9 of the Act. The intent of this provision is to enable
enforcement of breaches of approval conditions, in particular minor technical
breaches such as the failure to prepare and submit for approval an environmental
management plan, which are difficult to enforce under the civil penalty and
criminal offence provisions in sections 142 and 142A. The maximum penalty for
the offence is 60 penalty units.
Items 292 to 300 - Section 143
136. Items 294 to 300 are consequential to the insertion of section 133(2) into the Act
which distinguishes between the holder of an approval and persons authorised,
permitted or requested by the holder of the approval to take the relevant action.
Items 292 and 296 amend subsections 143(1) and 143(2) of the Act as a
consequence of the insertion of new 134(1A) by item 264.
137. Item 293 inserts new paragraph 143(1)(ba) into the Act which provides the Minister
with the ability to revoke, vary or add conditions to an approval where an action is
having (or likely to have) substantially greater impacts on a matter of national
environmental significance than that predicted during the assessment of the action.
138. Item 295 amends paragraph 143(1)(c) of the Act as a consequence of the insertion
of new Division 5 of Part 9 of the Act.
139. Item 297 amends subsection 143(3) of the Act to broaden the Minister's ability to
consider a companies environmental history to include the history of a parent
company and company management for the purposes of revoking, varying or
adding approval conditions (see also amendments to section 136).
Items 301 to 303 - Section 144
140. Item 303 is consequential to the insertion of section 133(2) by item 260 which
distinguishes between the holder of an approval and persons, authorised, permitted
or requested by the holder of the approval to take the relevant action. Item 301
inserts new subsection 144(2A) which provides the Minister with the ability to
suspend an approval in reasonable circumstances where a timeframe or requirement
in a key condition (as opposed to a more minor or administrative condition) to an
approval under Part 9 has not been met. For example, to ensure a development
activity does not occur at a time of year which may be damaging to a threatened
species. Item 302 amends subsection 144(3) to broaden the Minister's ability to
consider a companies environmental history to include the history of a parent
company and company management for the purposes of suspending an approval
(see also amendments to section 136 by item 297).
Items 304 to 306 - Section 145
141. Item 306 is consequential to the insertion of section 133(2) into the Act by item 260
which distinguishes between the holder of an approval and persons, authorised,
permitted or requested by the holder of the approval to take the relevant action.
Item 304 inserts new subsection 145(2B) into the Act which provides the Minister
with the ability to revoke an approval in reasonable circumstances where a
timeframe or requirement in a key condition to an approval has not been met (see
also item 301). Item 305 amends subsection 145(3) of the Act to broaden the
39
Minister's ability to consider a companies environmental history to include the
history of a parent company and company management for the purposes of
revoking an approval (see also amendments to section 136 by item 297).
Items 307 to 310 - Section 145A
142. These items amend section 145A of the Act and are consequential to the insertion
of section 133(2) by item 260 which distinguishes between the holder of an
approval and persons, authorised, permitted or requested by the holder of the
approval to take the relevant action.
Items 311 and 312 - Section 145B
143. Item 311 is consequential to the insertion of section 133(2) into the Act by item 260
which distinguishes between the holder of an approval and persons, authorised,
permitted or requested by the holder of the approval to take the relevant action.
Item 312 amends subsection 145B(4)(a) to broaden the Minister's ability to
consider a companies environmental history to include the history of a parent
company and company management for the purposes of transferring an approval
(see also amendments to section 136 by item 297).
Item 313 - At the end of Part 9
144. This item inserts a new Division 5 at the end of Part 9 of the Act. This amendment
enables the term of an approval to be varied (i.e. extended) in the same way that
conditions on an approval can be varied, thereby avoiding the need to grant a new
approval.
Items 314 to 317 - Section 146
145. Item 314 inserts a new heading, establishing Subdivision A of Division 1 of Part 10
of the Act and is required as a consequence of item 318 which inserts new
Subdivision B of Division 1 of Part 10 of the Act. The items also insert a new
subsection 146(1B) into the Act and repeal paragraphs 146(2)(aa) to (ac).
146. New subsection 146(1B) of the Act amends the current requirement to seek public
comment on the draft terms of reference for strategic assessment, making it now
optional. A public comment process has been a requirement for both draft terms of
reference and the assessment reports. The public consultation process on the draft
terms of reference for a report on the impacts of a policy plan or program under a
strategic assessment agreement is adding an additional process that, at times, is of
little value (i.e. very rarely have comments been received). In such instances it would
be more efficient, and equally effective in terms of the overall process, to use generic
terms of reference as specified in the Act and maintain the requirements relating to
public comment on the draft reports. The amendments apply to agreements made
under section 146 of the Act after the commencement of those items.
Item 318 - At the end of Division 1 of Part 10
147. This item inserts two new subdivisions, Subdivision B and C, at the end of Division
1 of Part 10 of the Act. This amendment is to facilitate a more strategic approach to
the protection of matters of national environmental significance by giving the
Minister capacity to approve (with or without conditions) the taking of certain
actions in accordance with a policy, plan or program that has been endorsed under a
section 146 strategic assessment.
40
148. Policies, plans or programs can take into account a wide range of potential impacts
(including cumulative impacts within a region) and approvals under Subdivision B
will allow certain actions to be undertaken without the need for separate
environmental assessment and approval provided that they are undertaken in
accordance with the requirements in the policy, plan or program. These approvals
will provide an incentive for developers, States and Territories and Local
Government to bring forward broad-scale development plans (such as industrial
estates and coastal developments) early in the planning cycle. Subsection 146B(5)
assists readers by confirming that an approval under 146B(1) is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 319 - Subsection 152(2)
149. This item amends section 152 of the Act by omitting all the words after "managing
the fishery in subsection 152(2). This means that even if a management plan is in
force for a fishery, another agreement can be made to assess the impacts of a
Commonwealth managed fishery that are thought to have, will have or will be
likely to have a significantly greater impact than when previously assessed.
Item 320 - Section 153
150. This item repeals section 153 of the Act and substitutes it with a new section 153.
This new section provides that a fisheries management plan or regime endorsed
under a section 146 agreement for strategic assessment will only be eligible for
accreditation under section 33 if the criteria for accreditation are satisfied.
Previously the Minister was required to make a declaration and accredit, under
section 33, a management plan that was endorsed under a section 146 agreement.
This requirement has not been possible to meet in some circumstances as some
endorsed management policies and arrangements are not able to satisfy the
definition of an accredited management plan in subsection 33(2) and the criteria set
out in subsection 33(3) relating to accreditation of a management plan. The
amendments clarify that the requirement to accredit the endorsed management plan
or regime under section 33 only applies if the management arrangements meet the
criteria for such a section 33 declaration and accreditation.
Item 321 - After Division 1 of Part 11
151. This item inserts a new section 156A into the Act. This amendment allows a person
who has referred an action to the Minister for assessment and approval to request
the Minister to accept a variation to the action. Most actions are referred to the
Minister for assessment and approval during the planning stage of a proposal. It is
common for circumstances and priorities to change as a proposal to take an action
is refined. The purpose of this amendment is to provide greater flexibility for
dealing with changes during the assessment process by providing a formal process
for the variation of proposed actions.
152. New Section 156B requires the Minister to decide whether or not to accept a
variation to an action requested by the person taking the action. The Minister may
only accept a varied proposal if satisfied that the character of the varied proposal is
substantially the same as the character of the original proposal. If a variation
changes the character of the proposal then, for reasons of rigour and transparency, it
cannot be accepted by the Minister. If the Minister does not accept a variation, the
person may withdraw the original proposal and refer the new proposal.
41
153. New section 156C allows the Minister to request more information from a person
who requests a variation proposal, if the Minister believes there is not enough
information to decide whether or not to accept the varied proposal. The statutory
timeframes for the referral, assessment and approval processes are suspended from
the time the Minister requests further information until the time the requested
information is received.
154. New section 156D provides that while the Minister considers a request to accept a
varied proposal the assessment processes and timeframes are suspended. If the
Minister accepts a varied proposal then the assessment processes and timeframes
recommence and the varied proposal is assessed in place of the original proposal.
If the Minister does not accept a varied proposal then the assessment process and
timeframes recommence in relation to the original proposal.
155. New section 156E requires the Minister to give notice of his or her decision
whether or not to accept a varied proposal to the person taking the action, the
designated proponent, and if the Minister decides to accept the variation and the
action is within the jurisdiction of a State, the appropriate Minister of the relevant
State.
156. This item also inserts a new section 156F into the Act. This amendment allows for
a change in identity of a person proposing to take an action, after a proposed action
has been referred, and before it has been approved. This amendment does not apply
in circumstances where the Minister has determined that an action is not a
controlled action (in accordance with section 75), or is not a controlled action if it is
taken in a particular manner (in accordance with section 77A). In these cases the
decision does not relate to a particular person and it is not necessary to change the
identity of the person taking the action.
Item 322 - After Division 3 of Part 11
157. This item inserts new section 158A into the Act. This amendment provides greater
certainty by ensuring that: new listings of species, Ramsar wetlands, or heritage
properties or places; uplisting of species; and, changes to boundaries of Ramsar
wetlands or heritage properties or places; do not affect specified assessment and
approval decisions that have already been made and do not provide grounds for
reconsideration of a `controlled action' decision under section 75 or for the
variation of conditions to an approval under section 133.
Item 323 - After paragraph 159(a) (second occurring)
158. This item amends section 159 of the Act by inserting a new paragraph 159(aa) into
the Act and is required as a consequence of item 217.
Item 324 - After subsection 160(1)
159. This item inserts a new subsection 160(1A) into the Act and is required as a
consequence of the insertion of new section 161A by item 327.
Items 325 and 326 - Section 161
160. This item amends subsection 161(1) of the Act and is required as a consequence of
item 327.
42
Item 327 - After section 161
161. This item inserts a new section 161A into the Act. This amendment provides the
Minister with the ability to determine that environmental assessment and provision
of advice to a Commonwealth agency under section 160 is not required for actions
that the Minister considers are not likely to have a significant impact on the
environment. The purpose of this amendment is ensure that unnecessary
environmental assessments are not undertaken for actions that are not likely to have
a significant impact.
Items 328 and 329 - Section 163
162. These items amend subsection 163(2) and paragraph 162(2)(a) of the Act and insert
new paragraphs 163(aa), 163(ab), 163(ac), and 163(ad) into the Act which are
required as a consequence of items 217, 230 and 243. The amendment to subsection
163(2) omits the words "30 days" and substitutes the words "30 business days" for
consistency with other timeframes in the Act.
Item 330 - Subdivision B of Division 4 of Part 11
163. This item repeals Subdivision B of Division 4 of Part 11 of the Act. This
amendment brings cetacean permits into line with the assessment process for other
species protected by Part 13 of the Act. Previously section 165 provided that permit
applications under section 237 are required to undergo full environmental
assessments under Part 8 of the Act, which proved to be an over regulatory
approach that has not delivered any additional measures in relation to the protection
of cetacean species and placed added burden on permit applicants.
Items 331 to 340 - Section 168
164. These items amend section 168 of the Act and are a consequence of items 217, 219,
230, 232, 243, 314 and 318.
Item 341 - Subsection 169(3)
165. This item amends section 169 of the Act and is a consequence of item 217.
Item 341 to 345 - Sections 170 and 170A
166. These items amend sections 170 and 170A of the Act as a consequence of items
217, 230, 243, 314 and 318.
Items 346 - At the end of Division 5 of Part 11
167. This item inserts new sections 170B and 170BA into the Act. New section 180B
provides for the non-disclosure of sensitive information when inviting public
comment on documents relating to referrals, assessments or approvals. This
amendment will ensure that sensitive information critical to the survival of matters
of national environmental significance, such as the locations of individual
specimens of a critically endangered species, or of cultural sensitivity in relation to
National Heritage, is not made public.
168. New section 170BA allows a proponent to request the Minister for permission to
withhold commercial-in-confidence information when publishing assessment
documentation in accordance with Division 4, 5 or 6 of Part 8 of the EPBC Act.
The Minister may agree to commercial-in-confidence material being withheld if
satisfied of the matters in section 170BA(5) of the Act.
43
Item 347 - At the end of Part 11
169. This item inserts a new section 170C into the Act. This amendment is to allow
proponents to withdraw referrals at any stage in the referrals, assessments and
approvals process (prior to an approval decision) if they do not want to proceed
with the assessment.
Item 348 - Before Part 12 in Chapter 5
170. This item inserts a new section 170D into the Act to clarify the meaning of
"business day" in relation to timeframes set out in Chapter 5.
Items 349 and 350 - Sections 172 and 173
171. These items repeal sections 172 and 173 of the Act and substitute new sections 172
and 173. The new sections replace the need and timeframes to undertake an
inventory of protected species and ecological communities on Commonwealth land
and surveys of protected species, including cetaceans, and ecological communities
in Commonwealth marine areas. These amendments focus the need for inventories
and surveys on areas which are of importance for the conservation of biodiversity
and do not have a management plan in force with an object of protecting the
environment or promoting the conservation of biodiversity.
Item 351 - Section 175
172. This item repeals section 175 of the Act as a consequence of items 349 and 350
which provide for inventories on Commonwealth land and surveys in
Commonwealth marine areas to be optional rather than mandatory.
Item 352 - After subsection 176(4)
173. This item is to clarify that the instrument referred to in subsections 176(1) and (2)
of the Act are not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Item 353 - Subsection 179(6)
174. This item amends section 179 of the Act by changing subsection 179(6) and
inserting a new subsection (7). Previously, the subsection required a conservation
dependent species to be the subject of a conservation program, which if ceased,
would cause the species to become vulnerable, endangered or critically endangered
within a period of five years. Recognising that the conservation status for a species
may change at different rates, the amendment removes the timeframe in which the
species would become vulnerable, endangered or critically endangered.
175. The amendment also allows for the listing of a species of fish (definition of which
is provided at 179(7)) if the species is the focus of a plan of management which
provides for halting decline and promoting survival and recovery. Such a plan may
be in force under either Commonwealth law or State or Territory law.
Items 354 to 358 - Section 184
176. These items amend the wording of subsection 184(1) of the Act, add a new
paragraph 184(1)(aa) into the Act and repeal subsections 184(2), 184(3), 184(4) and
185(5), replacing them with one new subsection 184(2). These amendments replace
the requirement for the Minister to publish an instrument in the Gazette with a
legislative instrument, in order to make an amendment to the lists referred to in
sections 178, 181 or 183 of the Act. This legislative instrument is exempt from Part
6 of the Legislative Instruments Act 2003. The other amendments are required as a
consequence of new Subdivision AA of the Act.
44
Item 359 - Section 185
177. This item repeals section 185 of the Act as a consequence of amendments to the
listing process for threatened species and ecological communities dealt with in item
368.
Item 360 - Section 186
178. This item amends section 186 of the Act by repealing subsections 186(1) and (2)
and replacing them with new subsections 186(1), 186(2), 186(2A) and 186(2B).
This amendment is to ensure the Minister is able to consider the contribution that
listing or deleting a species from a list would have on the survival of that species.
This amendment maintains the requirement for the Minister to not include or delete
a native species from a particular category unless satisfied that the native species is
eligible or no longer eligible (as the case requires) to be included in that category.
Item 361 - Section 187
179. This item repeals section 187 of the Act and substitutes a new section 187. This
amendment relates to ecological communities and mirrors that of item 360 which
relates to species.
Items 362 to 364 - Section 189
180. These items amend section 189 of the Act by repealing subsections 189(1), (3), (4),
(5) and (6) and adding new subsections 189(1), (1A), (1B),(3) and (3A) into the Act.
181. New subsections 189(1) and (1A) make technical amendments as a consequence of
the new listing provisions in the Act. New subsection 189(1B) sets out the type of
information that must be included in the advice from the Scientific Committee. This
amendment also requires the Scientific Committee to provide advice about what
could be done to stop decline of the species or ecological community or provide a
statement that nothing can be done. The Committee is also required to make a
recommendation on whether or not there should be a recovery plan for the species
or ecological community.
182. The amendment to subsection 189(3) of the Act is to allow the Scientific
Committee, when preparing advice to the Minister on a proposed amendment to
delete a threatened species or ecological community from the lists referred to in
sections 178 and 181 of the Act, to have regard to the effect that inclusion in the
lists has, or could have on the survival of the species or ecological community.
183. New subsection 189(3A) allows the Scientific Committee to consider the same
matters as in subsection 189(3) of the Act, for the purposes of preparing advice for
the Minister in relation to including or deleting a native species from the list
referred to in section 178 of the Act because of the species' resemblance to another
species.
184. Subsections 189(4), 189(5) and 189(6) of the Act are redundant as a consequence
of the amended listing process for threatened species and ecological communities
and new section 189B of the Act.
Item 365 - After section 189
185. This item inserts two new sections 189A and 189B into the Act. New section 189A
provides for the Minister to keep certain information confidential, such as the
precise location of listed threatened species or ecological communities, if the
Minister considers this is warranted to protect the species or ecological community
(for example, from damage or illegal collection).
45
186. New section 189B requires members of the Scientific Committee not to disclose an
assessment, or information used to make an assessment, of any proposed
amendments to the lists referred to in sections 178, 181 and 183 of the Act, until
such an amendment has been registered under Division 3 of Part 4 of the
Legislative Instruments Act 2003, or the Minister decides not to include the item in
the lists, or the Minister decides to remove the item from the lists. The Minister
can give permission for the Scientific Committee to disclose particular information
to particular persons.
Item 366 - Section 191
187. This item repeals section 191 of the Act and is required as a consequence of
amendments to the listing process for threatened species and ecological
communities dealt with in item 368.
Item 367 - Section 194
188. This item amends section 194 of the Act to require that up to date copies of the lists
referred to in sections 178, 181 and 183 of the Act are made available on request
free of charge instead of available for purchase, and also to require the Minister to
publish an up to date copy of the lists on the internet.
Item 368 - After Subdivision A of Division 1 of Part 13
189. This item inserts a new subdivision AA, after subdivision A of Division 1 of Part
13 of the Act. The new Subdivision AA amends the process for listing threatened
species, ecological communities and key threatening processes. The intent of the
amendment is to reform the listing procedures to enable the Minister to set strategic
assessment directions and priorities, following advice from the Threatened Species
Scientific Committee, based on an approach that listing is focused on those species
and ecological communities in greatest need of protection. This will allow the
Minister to direct resources towards matters which will achieve the greatest
conservation benefit.
190. The key changes to the listing process include the ability for the Minister to
determine conservation themes (see new section 194D), and the dedicated period in
which nominations may be submitted. These could include groups of particular
plants and/or animals, or particular geographic regions. The Minister may request
and consider advice from the Scientific Committee in determining the theme.
191. New sections 194A and 194B provide a simplified outline of the new subdivision
and relevant definitions.
192. New section 194C provides the meaning of, timeframe for and commencement of,
the assessment period.
193. New sections 194D and 194E provide for the Minister to determine conservation
themes for and invite nominations to be made within the determined conservation
theme. This invitation period must be at least 40 business days.
194. New section 194F requires the Minister to give the nominations received during the
invitation period to the Scientific Committee. This must be done within 30 business
days from the specified cut off date of the invitation period. The Minister may
reject nominations for the reasons outlined in subsection 194F(3).
46
195. New section 194G requires the Scientific Committee to consider the nominations
received and prepare for the Minister's consideration a priority assessment list. It
must provide the Minister with the list within 40 business days. As well has having
regard to the Minister's determined conservation themes, the Scientific Committee
may add things to the priority assessment list that it considers appropriate or that
the Scientific Committee itself wishes to nominate.
196. New sections 194H and 194J specifies what information is to be included for each
item in the priority assessment list, including an assessment completion time for
each item and requires the Scientific Committee to provide the Minister its reasons
in writing for omitting any nominated items from the priority assessment list, as
well as for including any items in the list as a result of the Scientific Committee
wishing to nominate those items itself.
197. New section 194K requires the Minister to consider the priority assessment list
provided by the Scientific Committee. The Minister may make changes to the list
subject to subsection 194K(2) within 20 business days of receiving it. The Minister
must notify the Scientific Committee of any changes the Minister makes to the list.
After 20 business days, the list becomes the final assessment list.
198. New sections 194L and 194M, require the Scientific Committee to publish the list
and to invite people to submit comments about the items on the list. A minimum of
30 business days is to be allowed for comments on items on the list to be submitted
after publication of the call for comments.
199. The Scientific Committee then prepares assessments of the items on the list, subject
to section 194N, having regard to the comments received, and provides the
assessments and copies of the comments received to the Minister by the assessment
completion time (section 194P). The Minister then decides whether the items that
have been assessed should be included in the lists referred to in Subdivision A,
sections 178, 181 or 183 (section 194Q).
200. New section 194P provides for the Scientific Committee to seek an extension to the
assessment period for items, and the Minister may grant an extension, but this must
be for a period no longer than 5 years. The timeframe for the Minister to make a
decision on whether or not to include an item in the lists is 90 business days. The
Minister may also grant an extension to the time allowed for the decision on an
item.
201. New section 194R provides that the Scientific Committee in undertaking its work
may obtain advice from persons with expertise relevant to the inclusion of items in
the lists.
202. To avoid any unnecessary duplication, or potential conflict between various listing
decisions, new section 194S provides linking provisions and a process for
coordination of the assessment work of the Scientific Committee and the Australian
Heritage Council. The provisions apply if the Scientific Committee undertakes an
assessment under the listing processes and is aware that the Australian Heritage
Council is undertaking an assessment, and there is a matter relevant to both
assessments. The item also allows communication and exchange of information
between the advisory bodies.
47
203. New section 194T provides for coordination of the assessment work of the
Scientific Committee and the Australian Heritage Council. If the Scientific
Committee has given the Minister an assessment under the listing processes and is
aware that the Council is undertaking an assessment, and there is a matter relevant
to both assessments, the Scientific Committee is required to ensure that the Council
is made aware of, and given a copy of the assessment. The item also allows
discussion of the matters between members the advisory bodies.
204. A determination made for the purposes of sections 194C and 194D are legislative
instruments, but neither section 42 nor Part 6 of the Legislative Instruments Act
2003 applies to the determinations.
205. Notwithstanding this process, the Minister retains the ability to ask the Committee
to provide advice on any potential listing at any time.
206. The proposed priority assessment list referred to in section 194G and the finalised
priority list referred to in section 194K are not legislative instruments.
Items 369 to 374 - Sections 196, 196B and 196D
207. These items amend sections 196, 196B and 196D of the Act. The reference to
`native' is omitted from paragraphs 196(1)(b), 196B(1)(a) and 196D(1)(a).
Provision is also made for strict liability to apply in relation to the circumstance in
paragraphs 196(1)(c), 196B(1)(b) and 196D(1)(b) that the member of a species is a
member of a listed threatened species or a member of an ecological community is a
member of a listed threatened ecological community. The intent of these
amendments is to make it absolutely clear that the prosecution does not have to
show a person knew or was reckless as to the fact that the list existed and that the
particular member of the species or community was on the list. The headings to
section 196, 196B and 196D are also amended by removing the reference to
`recklessly'. The reference is no longer necessary as the default element of reckless
will automatically apply to the relevant circumstance.
Items 375 to 379 - Section 197
208. These items amend section 197 of the Act by inserting new paragraphs 197(da),
197(db), 197(l), 197(m), 197(n), 197(o), 197(p) and 197(q). These amendments add
additional actions that are not offences for the purposes of the offence provisions
relating to listed threatened species and ecological communities. The additional
exemptions cover actions taken by specified persons in relation to species
reintroduced into areas, taken in accordance with a bioregional plan,
Commonwealth Reserve management plan or conservation agreement, those for
which certain other approvals have been granted under the Act or specified other
environmental legislation, relating to species taken prior to listing for a period of 6
months after listing and the transit of species through Commonwealth areas in
certain circumstances. Items 375 and 376 amend subsection 197(c) and paragraph
197(d)(i) to make minor technical amendments to better reflect the applicable
offences. Item 377 is a consequential amendment relating to item 96. The
amendments to his paragraph 197(d) are consequential to the insertion of new
Division 3 of Part 4 of the Act by item 122.
Items 380 and 381 - Section 199
209. These items amend section 199 of the Act by repealing subsection 199(4) and
substituting a new subsection 199(4) and changing the wording of paragraph
199(1)(b). This amendment inserts an additional paragraph which allows for the
Secretary to agree to alternate reporting arrangements with other government
48
agencies in relation to the death or injury or taking, trading, keeping or moving a
listed threatened species where there is duplication of statutory reporting
requirements. The amendments to paragraph 199(1)(b) of the Act are a
consequence of item 378.
Item 382 - Section 200
210. This item amends section 200 of the Act. This amendment inserts a new
consultation process for listed threatened species and ecological community permit
applications which mirrors the consultation process for referrals under Part 7 of the
Act. The purpose of this amendment is to align these consultation processes to
facilitate joint consideration and concurrent decisions on whether or not an action
requires approval under Part 9 of the Act and whether or not to issue a permit under
Part 13 of the Act.
Items 383 to 385 - Section 201
211. These items amend section 201 of the Act as a consequence of items 469 and 382.
Items 386 to 388 - Section 206A
212. These items amend section 206A of the Act by inserting a new subsection 206A(2)
which removes review by the Administrative Appeals Tribunal as an avenue of
review for relevant decisions made personally by the Minister. This leaves the
merits of these important decisions to be dealt with by the Government. Decisions
made by a delegate of the Minister remain subject to review by the Administrative
Appeals Tribunal. The other amendments are required as a consequence of the new
subsection 206A(2).
Items 389 and 390 - Section 207A
213. These items amend section 207A of the Act to include new subsections 207A(1A)
and (1B) and 207A(3B). The amendments require the Minister to consider the
conservation benefit of listing habitat critical to the survival of a listed threatened
species or ecological community. The Minister is to have discretion to withhold
specific information in the register of critical habitat from release if such release
could adversely affect landholders interests.
Item 391 - Section 208A
214. This item repeals section 208A and substitutes a new section 208A of the Act. This
expands the types of fisheries management arrangements that can be accredited,
such that exemptions from offences apply to actions taken in accordance with the
accredited arrangements. New arrangements provided for include State and
Territory policies, regimes or other arrangements and plans of management and
policies under the Torres Strait Fisheries Act 1984. The amendments also make
wording changes to subsection 208A(d) as a result of item 353.
Item 392 to 397 - Section 209
215. These items amend section 209 of the Act to clarify that in order to be included in
the list of migratory species, a species must be a "native species" as defined in
Section 528 of the Act and must be "migratory" as provided for in the expanded
definition of this term in new paragraph 209(8). The items also clarify that the list
of migratory species includes the species in the annexes to JAMBA and CAMBA
which more accurately reflects the locations of the lists of species in these
agreements. The items remove outdated references to the Gazette and specify that
49
instruments establishing the list, making amendments or adding an international
agreement relating to conservation of migratory species are legislative instruments.
Items 398 to 403 - Sections 211, 211B and 211D
216. These items amend sections 211, 211B and 211D of the Act. The reference to
`migratory' is omitted from paragraphs 211(1)(b), 211B(1)(a) and 211D(1)(a).
Provision is also made for strict liability to apply in relation to the circumstance in
paragraphs 211(1)(c), 211B(1)(b) and 211D(1)(b) that the member of a species is a
member of a listed migratory species. The intent of these amendments is to make it
absolutely clear that the prosecution does not have to show a person knew or was
reckless as to the fact that the list existed and that the particular member of the
species was on the list. The headings to sections 211, 211B and 211D are also
amended by removing the reference to `recklessly'. The reference is no longer
necessary as the default element of reckless will automatically apply to the relevant
circumstance.
Items 404 to 408 - Section 212
217. These items amend section 212 of the Act by inserting new paragraphs 212(da),
212(db), 212(l), 212(m), 212(n), 212(o), 212(p) and 212(q). These amendments add
additional actions that are not offences for the purposes of the offence provisions
relating to listed migratory species. The additional exemptions cover actions taken
by specified persons in relation to species reintroduced into areas, taken in
accordance with a bioregional plan, Commonwealth Reserve management plan or
conservation agreement, those for which certain other approvals have been granted
under the Act or specified other environmental legislation, relating to species taken
prior to listing for a period of 6 months after listing and the transit of species
through Commonwealth areas in certain circumstances.
218. Items 404 and 405 items amend subsection 212(c) and paragraph 212(d)(i) to make
minor technical amendments to better reflect the applicable offences. Item 406 is a
consequential amendment relating to item 96. This item amends paragraph 212(d)
and is consequential to the insertion of new Division 3 of Part 4 of the Act by item
122.
Items 409 and 410 - Section 214
219. These items amend section 214 of the Act by repealing subsection 214(4) and
substituting a new subsection 214(4) and making wording changes to paragraph
214(1)(b). This amendment inserts an additional paragraph which allows for the
Secretary to agree to alternate reporting arrangements with other government
agencies in relation to the death or injury or taking, trading, keeping or moving a
listed migratory species where there is duplication of statutory reporting
requirements. The amendments to paragraph 214(1)(b) are a consequence of item
378.
Item 411 - Section 215
220. This item amends section 215 of the Act. This amendment inserts a new
consultation process for listed migratory species permit applications which mirrors
the consultation process for referrals under Part 7 of the Act. The purpose of this
amendment is to align these consultation processes to facilitate joint consideration
and concurrent decisions on whether or not an action requires approval under the
Part 9 and whether or not to issue a permit under Part 13 of the Act.
50
Item 412 - Section 216(4)
221. This item amends subsection 216(4) of the Act. This amendment is consequential to
the amendment of section 215 which aligns the consultation processes for listed
migratory species permit applications under Part 13 and referrals under Part 7 of the
Act.
Items 413 to 415 - Section 221A
222. These items amend section 221A of the Act by inserting a new subsection 221A(2)
which removes review by the Administrative Appeals Tribunal as an avenue of
review for relevant decisions made personally by the Minister. This leaves the
merits of these important decisions to be dealt with by the Government. Decisions
made by a delegate of the Minister remain subject to review by the Administrative
Appeals Tribunal. The other amendments are required as a consequence of the new
subsection 221A(2).
Item 416 - Section 222A
223. These items repeal section 222A and substitute a new section 222A of the Act. This
expands the types of fisheries management arrangements that can be accredited,
such that exemptions from offences apply to actions taken in accordance with the
accredited arrangements. New arrangements provided for include State and
Territory policies, regimes or other arrangements and plans of management and
policies under the Torres Strait Fisheries Act 1984.
Items 417 and 418 - Section 224
224. This item amends section 224 of the Act by repealing sub-section 224(4) and
amending sub-section 224(2) of the Act as a consequence of amendments relating
to item 434.
Item 419 - Subdivision B of Division 3 of Part 13 (Heading)
225. This item amends the heading to reflect the new provisions relating to important
habitat areas.
Item 420 - Section 225
226. This item amends section 225 of the Act by repealing subsection 225(2) and
inserting a new subsection 225(2) of the Act. This amendment provides a new
description of the Australian Whale Sanctuary using a similar formulation to that
utilised in the description of the "Commonwealth marine area" in Section 24 of the
Act. This amendment is to clarify that the waters included in the Australian Whale
Sanctuary include the Territorial Sea waters from 3-12 nautical miles.
Item 421 - Section 228A
227. This item inserts a new section 228A into the Act which provides for the Minister
to declare specified areas of the Australian Whale Sanctuary as important cetacean
habitat areas provided the areas meet the requirements prescribed by regulation.
51
Item 422 - Subsection 229(1)
228. This item amends subsection 229(1) of the Act. Provision is made for strict liability
to apply in relation to the circumstance in paragraph 229(1)(c) that the cetacean is
in Australian Whale Sanctuary or waters beyond the outer limits of the Australian
Whale Sanctuary. These amendments are to make it absolutely clear that the
prosecution does not have to show a person knew or was reckless as to the fact that
the cetacean is in or beyond the outer limits of the Australian Whale Sanctuary. The
heading to section 229 is also amended by removing the reference to `recklessly'.
The reference is no longer necessary as the default element of reckless will
automatically apply to the relevant circumstance.
Item 423 - Section 229B
229. This item inserts a definition of "trade" in sub-section 229B(4) of the Act that
reflects that permitting for international trade in cetaceans is provided for under
Part 13A of the Act.
Items 424 and 425 - Section 229D
230. These items insert an offence provision in subsections 229D(2A) and (2B) of the
Act relating to treating unlawfully imported cetaceans. This is a consequential
amendment to those that remove the duplication of permits in relation to the
international trade in cetaceans at item 434.
Items 426 to 428 - Section 230
231. These items insert an offence provision in section 230 of the Act relating to
possession of unlawfully imported cetaceans. This is a consequential amendment
to those that remove the duplication of permits in relation to the international trade
in cetaceans at item 434.
Items 429 to 432 - Section 231
232. This item amends section 231 of the Act by inserting new paragraphs 231(aa),
231(ba), 231(bb), 231(bc), 231(ga), 231(i), 231(j) and 231(k) into the Act. These
amendments add additional actions that are not offences for the purposes of the
offence provisions relating to cetaceans. The additional exemptions cover actions
that are whale-watching undertaken in accordance with the regulations other than
commercial whale-watching in important habitat areas. Additional exemptions
cover actions taken in accordance with a bioregional plan, Commonwealth Reserve
management plan or conservation agreement, those for which certain other
approvals or declarations have been granted under the Act or specified other
environmental legislation, and the transit of species through Commonwealth areas
in certain circumstances.
Item 433 - Subsection 232(4)
233. This item amends section 232 of the Act by repealing subsection 232(4) and
substituting a new subsection 232(4). This amendment inserts an additional
paragraph which allows for the Secretary to agree to alternate reporting
arrangements with other government agencies in relation to cetaceans where there
is a duplication of statutory reporting requirements.
Item 434 - Subdivision D of Division 3 of Part 13
234. This item repeals Subdivision D of Division 3 of Part 13 of the Act which includes
sections 232A, 232B, 233, 234 and 235. These amendments, and other
consequential amendments remove the duplicative provisions that currently require
52
an applicant to obtain two permits for the international movement of cetaceans
under both Part 13 and Part 13A of the Act. The amendments will allow for
applicant to apply for one permit only under Part 13A which relates to permits
issued under The Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). Cetaceans are listed under CITES.
Item 435 - Subsection 236(5)
235. This item amends sub-section 236(5) of the Act to change the definition "foreign
whaling vessel" by replacing "whale" with "cetacean" so that the definition refers
to all whales, dolphins and porpoises.
Items 436 and 437 - Section 237
236. This item amends section 237 of the Act. This amendment inserts a new
consultation process for cetacean permit applications which mirrors the
consultation process for referrals under Part 7 of the Act. The purpose of this
amendment is to align these consultation processes to facilitate joint consideration
and concurrent decisions on whether or not an action requires approval under the
Part 9 and whether or not to issue a permit under Part 13 of the Act.
Items 438 to 445 - Section 238
237. These items amend section 238 of the Act by inserting a new subsection 238(3AA),
substituting new subsection 238(3A) and paragraph 238(3)(c), repealing
paragraphs 238(3)(d) and 238(3)(e) and the note at the end of subsection 238(3),
and making word changes to subsections 238(1), 238(2) and 238(5). New
subsection 238(3A) is consequential to the amendment of section 237 which aligns
the consultation processes for cetacean permit applications under Part 13 and
referrals under Part 7 of the Act. In subsection 238(5) the definition of "whale
watching" is amended so that the definition refers to all whales, dolphins and
porpoises. The amended paragraph 238(3)(c) is to make it clear that permits for
whale watching are not required if the action is taken in accordance with the whale
watching regulations except when the whale watching is undertaken in important
habitat areas. The amendments to subsection 238(1) are of a technical nature only.
New subsection 238(3AA) is required as a consequence of item 469 and the repeal
of paragraphs 238(3)(d) and 238(3)(e) is a consequence of amendments to
Subdivision D of Division 3 of Part 12.
Items 446 to 448 - Section 243A
238. These items amend section 243A of the Act by inserting a new subsection
2436A(2) which removes review by the Administrative Appeals Tribunal as an
avenue of review for relevant decisions made personally by the Minister. This
leaves the merits of these important decisions to be dealt with by the Government.
Decisions made by a delegate of the Minister remain subject to review by the
Administrative Appeals Tribunal. The other amendments are required as a
consequence of the new subsection 243A(2).
Item 449 - Section 245
239. These items repeal section 245 of the Act and substitute a new section 245. This
expands the types of fisheries management arrangements that can be accredited,
such that exemptions from offences apply to actions taken in accordance with the
accredited arrangements. New arrangements provided for include State and
Territory policies, regimes or other arrangements and plans of management and
policies under the Torres Strait Fisheries Act 1984.
53
Items 450 to 455 - Sections 254, 254B and 254D
240. These items amend sections 254, 254B and 254D of the Act. The reference to
`marine' is omitted from paragraph 254(1)(b), 254B(1)(a) and 254D(1)(a) as part of
the restructuring of the offence provisions. Provision is also made for strict liability
to apply in relation to the circumstance in paragraphs 254(1)(c), 254B(1)(b) and
254D(1)(b) that the member of a species is a member of a listed marine species.
These amendments are to make it absolutely clear that the prosecution does not
have to show a person knew or was reckless as to the fact that the list existed and
that the particular member of the species was on the list. The headings to sections
254 and 254B are also amended by removing the reference to `recklessly'. The
reference is no longer necessary as the default element of reckless will
automatically apply to the relevant circumstance.
Item 456 - Section 255
241. This item amends section 255 as a consequence of item 96.
Items 457 and 458 - Section 255
242. These items amend section 255 of the Act by inserting new paragraphs 255(da),
255(db), 255(l), 255(m), 255(n), 255(o), 255(p) and 255(q) into the Act. These
amendments add additional actions that are not offences for the purposes of the
offence provisions relating to listed marine species. The additional exemptions
cover actions taken by specified persons in relation to species reintroduced into
areas, taken in accordance with a bioregional plan, Commonwealth Reserve
management plan or conservation agreement, those for which certain other
approvals have been granted under the Act or specified other environmental
legislation, relating to species taken prior to listing for a period of 6 months after
listing and the transit of species through Commonwealth areas in certain
circumstances. This item amends paragraph 255(d) and is consequential to the
insertion of new Division 3 of Part 4 of the Act by item 122.
Item 459 and 460 - Section 256
243. These items amend section 256 by repealing subsection 256(4) and substituting a
new subsection 256(4) of the Act. This amendment inserts an additional paragraph
which allows for the Secretary to agree to alternate reporting arrangements with
other government agencies in relation to cetaceans where there is a duplication of
statutory reporting requirements.
Item 461 - Section 257
244. This item amends section 257 of the Act. This amendment inserts a new
consultation process for listed marine species permit applications which mirrors the
consultation process for referrals under Part 7 of the Act. The purpose of this
amendment is to align these consultation processes to facilitate joint consideration
and concurrent decisions on whether or not an action requires approval under the
Part 9 and whether or not to issue a permit under Part 13.
Item 462 - Section 258(4)
245. This item amends subsection 258(4) of the Act. This amendment is consequential
to the amendment of section 257 which aligns the consultation processes for listed
marine species permit applications under Part 13 and referrals under Part 7 of the
Act.
54
Items 463 to 465 - At the end of section 263A
246. These items amend section 263A of the Act by inserting a new subsection 263A(2)
which removes review by the Administrative Appeals Tribunal as an avenue of
review for relevant decisions made personally by the Minister. This leaves the
merits of these important decisions to be dealt with by the Government. Decisions
made by a delegate of the Minister remain subject to review by the Administrative
Appeals Tribunal. The other amendments are required as a consequence of the new
subsection 263A(2).
Item 466 - Section 265
247. This item repeals section 265 and substitutes it with a new section 265 of the Act.
This expands the types of fisheries management arrangements that can be
accredited, such that exemptions from offences apply to actions taken in
accordance with the accredited arrangements. New arrangements so provided for
include State and Territory policies, regimes or other arrangements and plans of
management and policies under the Torres Strait Fisheries Act 1984.
Item 467 - Division 4A of Part 13
248. This item repeals section 266A of the Act. This amendment is consequential to the
amendment of sections 200, 215, 237 and 257 which aligns the consultation
processes for permit applications under Part 13 with referrals under Part 7 of the
Act.
Item 468 and 469 - Before Subdivision A of Division 5 of Part 13
249. These items amends the heading for Division 5 of Part 13 of the Act and insert a
new Subdivision AA into the Act. Subdivision AA requires the Minister to ensure
there is approved conservation advice for each threatened species and threatened
ecological community. Conservation advice contains information on key threats to
the species or ecological community and action that needs to be taken to protect the
species or community. It includes a statement of priority for the preparation of
additional recovery planning documents, if further planning is warranted.
250. The Minister must decide whether to have a recovery plan for a threatened species
or ecological community (see item 470) but must ensure that approved conservation
advice is in place for a listed threatened species or ecological community at all
times. The Minister must have regard to approved conservation advice when
making decisions relevant to a threatened species or ecological community. This
amendment will facilitate more timely recovery action as it requires information
relevant to the conservation of a threatened species or ecological community to be
available at the time of listing.
251. Subsection 266B(8) is included to clarify that approved conservation advice and
changes to it are not legislative instruments within the meaning of section 5 of the
Legislative Instruments Act 2003.
Item 470 - Section 267
252. This item amends the simplified outline of Subdivision A of Division 5 of Part 13
of the Act as a consequence of item 469.
55
Item 471 - Section 269AA
253. This item amends Subdivision A of Division 5 of Part 13 of the Act by inserting a
new section 269AA into the Act and is required as a consequence of item 470. This
amendment requires the Minister to decide whether to have a recovery plan for a
threatened species or ecological community. The Minister is obliged to make this
decision within 90 days of the species or ecological community becoming listed.
Following this decision, the Minister then has the discretion to decide at any other
time to have a recovery plan for a threatened species or ecological community. This
amendment is to allow the Minister greater flexibility to respond to changing
conservation needs of threatened species and ecological communities, but requires
the Minister to make a timely initial decision on a species' or ecological
community's recovery planning needs. Section 269AA(10) is included to clarify
that the instrument containing the decision to have a recovery plan is not a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Item 472 to 477 - Section 269A
254. These items amend section 269A of the Act. Subsection 269(1) is amended as a
consequence of item 471 and sets out when section 269A applies, in relation to the
decision the Minister must make under 269AA. Items 473 to 477 allow the Minister
to undertake regional recovery planning for a listed threatened species or ecological
community. These amendments broaden the range of recovery planning options
available to the Minister. The amendment to subsection 269A(2) is a consequence
of item 471.
Items 478 and 479 - Section 270
255. These items amend section 270 of the Act by inserting a new subsection 270(2A)
into the Act and making consequential word changes to subsection 270(2). The new
subsection is to facilitate more efficient approval of recovery plans by removing the
mandatory requirements attached to excessively prescriptive elements - for which
information is not always readily available and does not contribute to the
immediate protection of threatened species or ecological communities. The
wording of subsection 270(2) is amended as a consequence of item 479.
Items 480 and 481 - Section 271
256. These items amend section 271 of the Act by repealing paragraphs 271(2)(d) to
271(2)(f) and inserting new subsections 271(4) and 271(5). Section 271 establishes
the content of threat abatement plans and the matters the Minister must have regard
to in making such a plan. These amendments provide for some requirements for
threat abatement plans, such as the estimated duration and cost of the threat
abatement process, to be optional rather than mandatory. This requires that some
threat abatement plans are written to reflect the likelihood that some threat
abatement actions are likely to be ongoing. This is because there is no likelihood of
nationally ceasing some threatening processes in the foreseeable future.
Furthermore, as it is intended that contributions toward the cost of implementation
of the actions in the plan will come from a variety of sources and stakeholders, the
total cost of the plan's implementation cannot necessarily be quantified at the time
of making the plan.
56
Item 482 - Section 273
257. This item amends section 273 of the Act as a consequence of new section 269AA.
Items 483 and 484 - Section 283A
258. These items amend section 283A of the Act by including a provision in subsection
283A(1) enabling the Minister to revoke a recovery plan, should the Minister
decide not to have a recovery plan, as provided for by new section 269AA. This
amendment makes the Minister's ability to revoke a recovery plan consistent with
the current ability to revoke a threat abatement plan. Amendments to paragraph
283A(2)(a) are a consequence of item 483.
Item 485 - Section 299
259. This item amends section 299 of the Act as a consequence of new section 269AA.
Item 486 - At the end of Subdivision C of Division 5 of Part 13
260. This item amends Subdivision C of Division 5 of Part 13 of the Act by inserting a
new section 300B into the Act. This amendment is to allow the Minister to request
advice or information from the Scientific Committee at any time, to assist the
Minister fulfil the obligations under sections 266B, 269AA or 270A - relevant to
conservation advice, recovery plans and threat abatement plans.
Item 487 - At the end of Division 8 of Part 13
261. This item inserts new sections 303AA and 303AB into the Act which provide for
minor amendments to policies, regimes or plans that are accredited under section
208A, 222A, 245 or 265. Where such a policy, regime or plan is amended or
proposed to be amended, the Minister may make a determination that a policy,
regime or plan as amended is taken to be an accredited policy, regime or plan for
the purpose of the Act. The Act then applies to the amended policy, regime or plan
instead of the original policy, regime or plan. The Minister can only make a
determination under section 303AA if satisfied that the amendments are, or will be,
minor, and meet the requirements in subsection 208A(1), 222A(1), 245(1) or
265(1). Subsection 303AB(3) confirms that a determination under 303AB(1) is not
a legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
Item 488 and 489 - Section 303CG
262. This item inserts a new subsection 303CG(2A) into the Act which provides for
certain permit conditions to continue to have effect after the permit has expired.
This means that certain imports or exports of specimens may have conditions about
the future sale, the manner of keeping or any reproduction that may apply for the
life of the specimen, or its progeny.
Items 490 to 495 - Section 303CH and 303CH table
263. These items amend section 303CH of the Act. The amendments maintain the
requirement for an import permit but limits the need for imports to be from a
commercial import program to specimens that have been identified as declared
specimens through publication of a notice in the Gazette, and where the specimen is
not, or is not derived from an animal bred in captivity and is not, or is not derived
from a plant that has been artificially propagated. The requirement for the specimen
to be covered by an export permit from the relevant CITES authority of the export
country is maintained. The amendments also add an approved cultivation program
57
to the list of programs for which an export permit can be issued for a CITES II
specimen. The requirement to publish a notice in the Gazette is not a legislative
instrument within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 496 - Section 303CJ(b)
264. This item amends paragraph 303CJ(b) of the Act as a consequence of amendments
to section 303CG.
Item 497 - Paragraph 303DB(6)(a)
265. This item amends section 303DB of the Act by adding a new paragraph into the Act
after paragraph 303DB(6)(a). The amendment requires the Minister to have regard
to any approved conservation advice for a listed threatened species (as a
consequence of new section 266B) when considering whether to include a species
in the list of exempt native specimens, as provided for by section 303DB.
Items 498 to 502 - Section 303DG
266. These items amend section 303DG of the Act which lists requirements that must be
met before a permit can be issued. In the case of specimens that are or are derived
from native species that do not belong to an eligible threatened species (defined in
section 303BC), the proposed export must be either an eligible non-commercial
purpose export (defined in section 303FA) or an eligible commercial purpose
export (defined in section 303FJ). An export is an eligible commercial purpose
export if the specimens are sourced from a program listed under Section 303FJ. In
the case of specimens that are or are derived from eligible listed threatened species,
the proposed export must be either an eligible non-commercial purpose or sourced
from programs listed in 303DG(7). The amendments add the approved cultivation
program to the programs listed in section 303DG(7). The addition enables native
species that are or are derived from eligible threatened species to be commercially
exported if sourced from an approved cultivation program. A similar change to
section 303FJ enables specimens that are or are derived from species that are not
eligible threatened species to be commercially exported if sourced from an
approved cultivation program.
267. The amendments also add a new subsection 303DG(4A) into the Act, and make
consequential word changes to subsection 303DG(1), requiring the Minister to have
regard to any approved conservation advice for a listed threatened species (as a
consequence of new section 266B) when considering whether to issue a permit as
provided for by section 303DG.
Item 503 - Paragraph 303DI(b)
268. This item amends paragraph 303DI(b) of the Act as a consequence of amendments
to section 303CG.
Item 504 and 505 - Section 303EB
269. These items streamline the process for assessing the potential environmental impact
of live plant imports by removing duplication and allowing reliance on assessments
undertaken by Biosecurity Australia. Part 1 of the list of specimens suitable for live
import established under this Act is a list of unregulated specimens.
270. Subsection 303EB(11A) is inserted into the Act such that Part 2 of the list includes
CITES specimens provided the introduction of the plant into Australia is in
accordance with the Quarantine Act 1908. Part 2 of the list is a list of specimens
suitable for import with an import permit which may have conditions.
58
Item 506 - Section 303ED
271. This item amends section 303ED by repealing subsections 303ED(2), (3) and (4)
and substituting new subsections 303ED(2) and (3) of the Act. These amendments
remove the duplication that exists between the risk assessment conducted by
Biosecurity Australia and that conducted by the Department of the Environment
and Heritage for biological control agents in cases where the Minister has proposed
the list amendment on his own initiative. Currently both Departments are required
to conduct a separate process for assessing the potential risk of importing and
releasing biological control agents. Biosecurity Australia coordinates a
comprehensive process to assess the potential risks of importing new biological
control agents into Australia which addresses environmental risk in which the
Department of the Environment and Heritage is a stakeholder. The assessment of
biological control agents under the Act duplicates Biosecurity Australia's process
without adding value.
272. This amendment removes the duplication while retaining the requirement for
legislative approval under the Act. Under this amendment the Minister may utilise
the assessment undertaken by Biosecurity Australia in making his decision on
whether the list should be amended to include particular live biological control
agents as suitable for live import. If the Minister is not satisfied with the
assessment, he may require further assessment prior to making a decision to amend
the live import list. Without the agreement of the Minister for the Environment and
Heritage the import cannot be permitted.
Item 507 - Section 303EE
273. This item amends section 303EE by repealing subsection 303EE(2) and substituting
new subsections 303EE(2), (3) and (4) of the Act. The amendments remove the
duplication that exists between the risk assessment conducted by Biosecurity
Australia and that conducted by the Department of the Environment and Heritage
for biological control agents in cases where the application to import has been made
by a member of the public, for example, a scientist. Other than the difference in the
source of the action, this amendment has the same effect as described for section
303ED.
Item 508 - Section 303EF
274. This item changes one of the assessment requirements from Section 303EF of the
Act from being mandatory to being optional in order to reduce the time taken to
assess applications to amend the live import list. Based on experience to date, a
period of public consultation on the draft terms of reference inserts little in terms of
transparency to the risk assessment process. Generic terms of reference are
prepared by the Department of the Environment and Heritage and comments are
rarely received. The amendment will allow this phase of public consultation to be
optional, so that it can be omitted when the application is not particularly sensitive.
Specific stakeholders and the general public still have the opportunity to comment
on the draft assessment report.
Items 509 to 510 - Section 303EN
275. These items allow for certain permit conditions to continue to have effect after the
permit has expired. This means that certain imports or exports of specimens may
have conditions about the future sale, the manner of keeping or any reproduction
that may apply for the life of the specimen, or its progeny.
59
Item 511 - Paragraph 303EP(b)
276. This item amends paragraph 303EP(b) of the Act as a consequence of amendments
to section 303EN.
Item 512 - Section 303FJ(b)
277. This item inserts the approved cultivation program to the programs listed in section
303FJ of the Act. The change enables specimens that are or are derived from native
species that do not belong to an eligible threatened species (defined in section
303FA) to be commercially exported if they are sourced from an approved
cultivation program.
Item 513 - Section 303FLA
278. This item inserts a new section 303FLA into the Act which adds a new category of
program entitled "approved cultivation program". The amendment provides that a
specimen is from an approved cultivation program if that specimen was sourced
from a program that under the regulations is taken to be an approved cultivation
program. The approved cultivation program will enable approval of programs for
plants which are unlikely to have an impact on wild specimens but do not meet all
the requirements for artificial propagation.
Items 514 to 519 - Section 303GB and 303GC
279. These items allow for certain permit conditions to continue to have effect after the
permit has expired. This means that certain imports or exports of specimens may
have conditions about the future sale, the manner of keeping or any reproduction
that may apply for the life of the specimen, or its progeny.
Item 520 to 523 - Section 303GD
280. These items amend section 303GD of the Act. The amendment to paragraph
303GD(7)(d) follows on from amendments to section 303EE(2)(a) which allows
the Minister to accept, for items specified in the regulations, a report prepared by
Biosecurity Australia as adequately addressing the environmental risks of import.
Such items are therefore not being assessed under the process outlined at section
303EF and so may not have terms of reference for a report. The amendment
excludes them from needing terms of reference before being issued with a testing
permit. Other items amend section 303GD by inserting the words "in the permitted
period" in subsection 303GD(6) and inserting a new subsection 303GD(6A) into
the Act which provides a definition of "permitted period" for the purposes of
303GD(6).
Item 524 to 527 - Section 303GE
281. These items allow for certain permit conditions to continue to have effect after the
permit has expired. This means that certain imports or exports of specimens may
have conditions about the future sale, the manner of keeping or any reproduction
that may apply for the life of the specimen, or its progeny. Other items are required
as a consequence of amendments to subsection 303GE(5A).
Item 528 to 531 - Section 303GJ
282. These items amend section 303GJ of the Act by inserting a new subsection
303GJ(2) into the Act and repealing the definition of "Tribunal" in subsection
303GJ(3). New subsection 303GJ(2) removes review by the Administrative
Appeals Tribunal as an avenue of review for relevant decisions made personally by
the Minister. This leaves the merits of these important decisions to be dealt with by
60
the Government. Decisions made by a delegate of the Minister remain subject to
review by the Administrative Appeals Tribunal. The other amendments are required
as a consequence of the new subsection 303GJ(2).
Item 532 - Section 304
283. This item amends section 304 of the Act, by replacing paragraph 304(a) to include
additional subparagraphs 304(v) to (viii) and subsection 304(2). It extends the
coverage of conservation agreements to the protection and conservation of
additional Part 3 protected matters - Ramsar wetlands, nuclear actions,
Commonwealth marine areas and Commonwealth land.
Items 533 to 539 - Section 305
284. These items amend section 305 of the Act. Amendments to subsections 305(1),
305(1A) and 305(2) are required as a consequence of item 532. These amendments
set out the things that the Minister must be satisfied of before entering into a
conservation agreement relating to Ramsar wetlands, nuclear actions,
Commonwealth marine areas or Commonwealth land. Items 533 and 539 amend
section 305 by adding a new subsection 305(3A) into the Act and making word
changes in paragraph 305(1)(c). The new subsection requires the Minister to have
regard to any approved conservation advice for a listed threatened species or
ecological community (as a consequence of new section 266B) when considering
whether to enter into a conservation agreement as provided for by section 305. The
amendments to paragraph 305(1)(c) are a consequence of the National Heritage List
no longer applying to places outside the Australian jurisdiction. The amendment to
subsection 305(3) is of a technical nature only and is required as a consequence of
item 537.
Items 540 to 543 - Subsections 306(1) and (2)
285. These items amend subsection 306(1) and (2) of the Act by inserting additional
subparagraphs (v) to (viii) into paragraphs 306(1)(a) and (b) and paragraphs
306(2)(a) and (b), relating to Ramsar wetlands, nuclear actions, Commonwealth
marine areas and Commonwealth land. These amendments are required as a
consequence of item 532.
Item 544 - Section 306A
286. This item inserts new section 306A into the Act. This amendment provides that a
conservation agreement may declare actions in a specified class do not require
approval under Part 9 of the Act. The Minister may not enter a conservation
agreement containing such a declaration unless satisfied that the actions to which
the declaration relates will not have a significant impact on a matter protected by
Part 3 of the Act. The purpose of this amendment is to provide an incentive to
landholders to enter conservation agreements.
Item 545 - Section 307A
287. This item inserts a new section 307A into the Act. This amendment expands the
scope of conservation agreement to be able to provide for measures to repair or
mitigate damage. It introduces a new enforcement option into the Act, as an
alternative to costly and time-consuming civil penalty or criminal proceedings.
Subsections 307A(1) and (2) provide that where the Minister considers a person has
or may have contravened a provision of Part 3 of the Act, the Minister may enter
into a conservation agreement with the person that provides for the taking of
measures to repair or mitigate damage to the Part 3 protected matter. Parties can
61
only enter into conservation agreements voluntarily. The provisions in the
agreement that specify the taking of these measures are defined in subsection
307A(3) as "remediation provisions". These provisions may be enforced in the
Federal Court.
288. Under subsection 307A(5) of the Act the Minister may apply to the Court for
enforcement of a remediation provision. The Court may order compliance with the
remediation provision if it determines that the person has contravened the
provision. A civil penalty is imposed where a person contravenes a remediation
provision. The pecuniary penalty a person can be ordered to pay must not be more
than the penalty the Court could order under the relevant provision of Part 3 of the
Act.
Item 546 - Section 324B
289. This item repeals section 324B of the Act and has the effect that the National
Heritage List will not be able to include places or extend to places and omissions
outside the Australian jurisdiction. For overseas places, the inclusion in the
National Heritage List is being replaced by a new list called the List of Overseas
Places of Historic Significance to Australia and is established by Chapter 5A.
Items 547 to 549 - Section 324C
290. These items amend section 324C of the Act by repealing subsection 324C(2) and
substituting a new subsection 324C(2), making required word changes to
subsection 324C(1) and repealing the note at the end of the subsection. The
amendment to subsection 324C(2) clarifies that the National Heritage List will no
longer include places outside the Australian jurisdiction as a consequence of new
Chapter 5A. The amendment also sets out requirements for a place to be included in
the National Heritage List and specifies that the requirement for the Minister's
satisfaction about the National Heritage values is subject to provisions in new
subdivision BB of the Act. This is because, in the emergency process set out in
Subdivision BB, the Minister may include a place in the National Heritage List if
the Minister believes that a place has, or may have, one or more National Heritage
values. Additionally, new subsection 324C(4) confirms that the National Heritage
List is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Item 550 - Sections 324E to 324J
New Subdivision BA of Division 1 of Part 15
291. This item inserts a new subdivision BA of Division 1 of Part 15 of the Act by
repealing sections 324E to 324J and replacing them with a series of new provisions
that reform the National Heritage nomination and listing process. The new process
enables the Minister to set themes, following advice from the Australian Heritage
Council, based on an approach that listing is focussed on those places of potential
National Heritage value, rather than being driven by the order in which nominations
are received. Subdivision BA sets out the usual process for inclusion of places in
the National Heritage List. New Subdivision BB sets out the emergency process for
inclusion of places in the National Heritage List and new Subdivision BC sets out
other provisions relating to the National Heritage List.
292. New section 324E provides a simplified outline of the new usual listing process
which involves an annual cycle around 12 month "assessment periods". The
Minister determines the start of the first assessment period (see section 324G),
which must be within 12 months of commencement of the section.
62
293. New section 324H provides that the Minister may determine one or more heritage
themes for an assessment period, before inviting nominations for an assessment
period. The Minister may seek and have regard to advice from the Australian
Heritage Council to assist the making of a determination about heritage themes.
294. Under new section 324J, the Minister is required to publish an invitation for people
to nominate places for the National Heritage List before the start of each annual
assessment period, where the cut-off date for nominations must be at least 40
business days after the notice is published. The nominations for the National
Heritage List must then be given by the Minister to the Australian Heritage Council
within 30 business days. The Minister may reject nominations for the reasons set
out in 324JA(4).
295. The Council is required to prepare and give the Minister a list called the proposed
priority assessment list (section 324JB) for the assessment period within 40
business days of receiving the nominations. The Council does not have to include a
place in the proposed priority assessment list if it considers that it is unlikely that
the place has any National Heritage values. This enables Council to focus its
assessment work where it considers it is best directed for a particular assessment
period. In this consideration, Council does not have to have regard to information
beyond that which was included in the nomination.
296. Nominations can take many forms, and can overlap in whole or part, or may not
contain the best overall boundary. Small nominated areas may fall within a larger
nominated area. The amendments provide that a place in the list may include parts
that came forward for consideration in different ways. For example, one place may
include a part that was nominated by a person in the assessment period, a part that
was drawn from the immediately preceding assessment period, and a part that was
nominated by the Council. This provides an effective means of establishing
appropriate boundaries for National Heritage places and for efficiently assessing
multiple overlapping, adjacent or linked nominated areas.
297. New section 324JC sets out the matters to be included in a proposed priority
assessment list. The Council must give the Minister a statement of the information
it considers appropriate about why it did and did not include each place in the
proposed priority assessment list (see section 324JD). The statement must also
identify places or part of a place that the Council wishes to nominate.
298. Under section 324JE, the Minister may make changes to the proposed priority
assessment list within 20 business days of receiving it. At the end of this period, the
list is known as the finalised priority assessment list for the assessment period. This
list is required to be published on the Internet. The Council, under section 324JG, is
also required to publish a notice inviting public comments on the places in the
finalised priority assessment list, which specifies a cut-off date for comments which
is at least 30 business days after publication.
299. The Council must make a written assessment of whether each place in the finalised
priority assessment list meets any of the National Heritage criteria. In its
assessment, the Council must not consider any matter that does not relate to the
question whether the place meets any of the National Heritage criteria (see section
324JH). If the Council considers that a place it is assessing might have one or more
National Heritage values, it must take all practicable steps to identify owners or
63
occupiers of the place and, if Council considers it might have indigenous heritage
value, take all practicable steps to identify each indigenous person who has rights
or interests in all or part of the place and give them at least 20 business days to
comment on whether the place should be included in the National Heritage List.
The Council must take into account the comments received in response to the
notice under subsection 324JG(1), and may take into account the comments
received in response to consultations under paragraph 324JH(5)(c). Subsections
324JJ(6) and (7) provide alternative efficient means of consultation where large
numbers of owners or occupiers or indigenous persons with rights or interests are
involved. To consult indigenous persons, it allows for appropriately representative
bodies to be consulted.
300. The Council is to provide the Minister with its written assessment, a copy of the
comments received in response to the notice under subsection 324JG(1) as well as
the comments received in response to consultations under paragraph 324JH(5)(c)
within 12 months or, if the Council considers an assessment is likely to take longer,
the end of that longer period after the start of the assessment period (see section
324JI). The Minister may grant an extension to the assessment period, but the total
period of all extensions may not exceed 5 years. The Minister must publish
particulars of extensions in a way the Minister considers appropriate.
301. New section 324JJ sets out the process for the Minister's decision about the
inclusion of a place in the National Heritage List. The timeframe for the Minister to
make a decision is within 90 business days of receipt of the assessment. The
Minister may in writing extend the period.
302. Prior to these amendments there was a complex process for the Minister to conduct
additional consultation after receiving an assessment from the Australian Heritage
Council. Paragraph 324JJ(5)(b) now provides a simple authority for the Minister to
seek and consider information from any source in the process of deciding about the
inclusion of a place in the National Heritage List.
303. The Minister is required, within a reasonable time, to take all practicable steps to
identify and advise owners or occupiers of an assessed place of a decision to
include the place or part of the assessed place in the National Heritage List. The
item provides an alternative notification means in cases where large numbers of
stakeholders are involved. Under subsection 324JJ(8), the person who nominated a
place must be advised of the decision and the reasons for the decision.
304. A determination made for the purposes of sections 324G and 324H of the Act are
legislative instruments, but neither section 42 nor Part 6 of the Legislative
Instruments Act 2003 applies to the determination.
305. The proposed priority assessment list referred to in section 324JB and the finalised
priority assessment list referred to in section 324JE are not legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
New Subdivision BB - Inclusion of places in the National Heritage List: emergency
process
306. The previous National Heritage emergency heritage listing process was based on
nominations of places for emergency listing which triggered a complex process of
consideration in each case with little allowance for appropriate consultation. The
new subdivision BB provides for a process more like that for World Heritage
64
properties under which the Minister can consider the need for emergency listings
based on the nature of the threat to any potential National Heritage values the place
may have.
307. New section 324K provides a simplified outline of the new emergency listing
process for the National Heritage List. New section 324JL provides for the Minister
to emergency list a place in the National Heritage List, by instrument in the
Gazette, if the Minister believes that a place may have one or more National
Heritage values, any of those values is under threat of significant adverse impact,
and the threat is both likely and imminent.
308. If a place is included in the National Heritage List under the emergency process,
and it was already being considered under the usual process in Subdivision BA, the
usual process ceases to apply. This would not prevent the usual process restarting
if, for example, it ceases to be listed and it is nominated again.
309. Within 10 business days of the emergency listing of a place, the Minister must
publish a copy of the instrument for listing on the Internet and take all practicable
steps to identify owners or occupiers of all or part of the place and advise each of
them that the place has been included in the National Heritage List. There are
special provisions if this is likely to number more than 50 people.
310. If the Minister emergency lists a place in the National Heritage List, new section
324JM requires the Minister to request in writing that the Australian Heritage
Council give the Minister an assessment of whether it meets any National Heritage
criteria, and to specify an assessment completion time. In setting the completion
time, it needs to be considered that under subsection 324JQ(1), the Minister must
usually come to a decision about whether the place should remain listed within 12
months of the emergency listing, unless no assessment is received, or if the
Minister is not satisfied that a place has one or more National Heritage values. The
listing ceases if no decision is made within the 12-month period.
311. New section 324JN requires the Council, if it receives a request from the Minister
to assess a place emergency-listed in the National Heritage List, to publish a notice
inviting public comment on the listing. The notice must invite comments on
whether the place meets any National Heritage criteria and whether the place
should continue to be included in the National Heritage List and provide a cut-off
date for comments which is at least 30 business days after publication.
312. New section 324JO applies the provisions of the usual Council assessment process,
in section 324JH and other sections that refer to section 324JH, to the emergency
National Heritage listing process. New section 324JO applies the provisions in
section 324JI and sections which refer to section 324JI, about the timing by which
assessments in the usual National Heritage listing process are to be provided to the
Minister, to the emergency National Heritage listing process.
313. For example, the provisions mean that the Australian Heritage Council can seek an
extension of the completion time, which was set out in a request for assessment
under section 324JM, for assessment of an emergency-listed place from the
Minister. As for consideration of completion times under section 324JM, the
consideration of an extended completion time would need to take into account the
12-month period referred to in subsection 324JQ(1).
65
314. New subsection 324JQ(1) provides that the Minister must, subject to certain
exceptions, within 12 months of the emergency listing and by instrument in the
Gazette, either state that the place remains in the National Heritage List with an
unaltered boundary, or alter the boundary of the listed place, or remove the place
and its National Heritage values from the National Heritage List.
315. If the place is not removed from the National Heritage List, the Minister is to state
for example that the values remain as listed under section 324JL, or to include
National Heritage values that were not included in the National Heritage List under
section 324JL, or remove from the List National Heritage values that were included
under section 324JL.
316. The requirement on the Minister to act within 12 months under subsection
324JQ(1) is subject to exceptions. The inclusion in the National Heritage List
lapses if no action is taken under subsection 324JQ(1) within the 12-month period.
317. In deciding what action to take under subsection 324JQ(1), the Minister is required
to have regard to the Council's assessment against the National Heritage criteria,
and the comments given under subsection 324JH(1). The Minister may also seek
and have regard to other sources of information for the purpose of deciding upon
the action to take.
318. The item excludes the usual non-emergency process under section 324L from
applying to an alteration of the boundary of a place, or removal of a place and its
National Heritage values, or removal of a National Heritage value of a place from
the National Heritage List, under the new subsection 324JQ(1).
319. If the Minister under subsection 324JQ(1), removes an emergency-listed place or
National Heritage value from the National Heritage List, or alters its boundary, the
Minister must publish a notice on the Internet and advise persons identified as
owners or occupiers about the removal or alteration within 10 business days of that
action.
320. If the place and its National Heritage values are automatically removed from the
National Heritage List under subsection 324JQ(4) because no action is taken within
the time period in subsection 324JQ(1), then the Minister must publish a notice on
the Internet and advise persons identified as owners or occupiers about the removal
within 10 business days.
New Subdivision BC - Other provisions relating to the National Heritage List
321. To avoid any unnecessary duplication, or potential conflict between various listing
decisions, the new section 324JR provides linking provisions and a process for
coordination of the assessment work of the Australian Heritage Council and the
Threatened Species Scientific Committee. The provisions apply if the Council
undertakes an assessment under the usual or emergency National Heritage listing
processes and is aware that the Scientific Committee is undertaking an assessment,
and there is a matter relevant to both assessments. The item also allows
communication and exchange of information between the advisory bodies, and
relaxes the restrictions on the flow of information that result from section 324R, to
allow this exchange.
322. New Section 324JS provides for coordination of the assessment work of the
Council and the Scientific Committee. It applies if the Council has given the
66
Minister an assessment under the usual or emergency National Heritage listing
processes and is aware that the Scientific Committee is undertaking an assessment,
and there is a matter relevant to both assessments. The Council is required to ensure
that the Scientific Committee is made aware of, and given a copy of the assessment.
The item also allows discussion of the matters between members the advisory
bodies, and relaxes the restrictions on the flow of information that result from
section 324R, to allow this exchange.
Items 551 and 552 - Subsection 324K(1)
323. These items amend subsection 324K(1) and are a consequence of new subdivisions
BA and BB which provide for the new usual National Heritage listing process and
the new emergency National Heritage listing process.
Item 553 - Subsection 324L(1)(note)
324. This item amends section 324L as a consequence of amendments to the National
Heritage listing process.
Item 554 - Subsection 324M(6)
325. This item amends section 324M as a consequence of the National Heritage List no
longer applying to places outside the Australian jurisdiction.
Item 555 - Section 324N
326. This item replaces a complex process for adding National Heritage values to a place
in the National Heritage List, with a provision allowing regulations to be made to
provide for this. The regulations may modify provisions of the Act but are not able
to increase maximum penalties for an offence or widen any offence.
Items 556 to 560 - Section 324R
327. These items amend section 324R of the Act as a consequence of new subdivisions
BA and BB which reform the National Heritage listing process. The amendments
also provide that the duty on members of the Australian Heritage Council not to
disclose information ceases when the Minister either includes or decides not to
include a place in the National Heritage List. They also repeal a provision requiring
the Council, once certain statutory deadlines for decisions are passed unmet, to give
its assessment to anyone who asks for it. Amendments to subparagraph
324R(2)(b)(ii) provides that the duty on members of the Council not to disclose
advice under section 324M ceases when the Minister decides under that section not
to remove a place or part of a place, or one or more of its National Heritage values,
from the National Heritage List.
328. New subsection 324R(2A) provides that amendments to paragraph 324R(2)(a) do
not prevent the Council from informing a person or discussing with a person the
consequences of including or not including a place or National Heritage values in
the National Heritage List, or removing a place or National Heritage values of a
place from the list. The items also remove the duty to not disclose particular
information if the Minister gives permission, following a request from the Chair of
the Council, to disclose that information to a particular person or persons within a
group of persons.
Items 561 and 562 - Section 324S
329. These items amend section 324S by repealing subsection 324S(1) and substituting a
new subsection 324S(1) and inserting a new subsection 324S(7) into the Act. New
subsection 324S(1) is a consequence of the National Heritage List no longer
67
applying to places outside the Australian jurisdiction. New subsection 324S(7)
confirms that a management plan for a National Heritage place wholly within
Commonwealth areas is a legislative instrument for the purposes of the Legislative
Instruments Act 2003. An amendment, or a revocation and replacement of a plan, is
also confirmed to be a legislative instrument.
Item 563 - Paragraph 324Y(2)(c)
330. This item amends section 324Y of the Act as a consequence of the National
Heritage List no longer applying to places outside the Australian jurisdiction.
Items 564 to 566 - Section 341C
331. These items amend section 341 of the Act by repealing subsection 341C(2) and
substituting a new subsection 341C(2), repealing the note at the end of subsection
341C(2) and making required word changes as a consequence of reforms to the
Commonwealth Heritage listing process. The new subsection 341C(2) sets out
requirements for a place to be included in the Commonwealth Heritage List and
specifies that the requirement for the Minister's satisfaction about the
Commonwealth Heritage values is subject to provisions in new Subdivision BB.
This is because, in the emergency process set out in Subdivision BB, the Minister
may include a place in the Commonwealth Heritage List if the Minister believes
that a place has, or may have, one or more Commonwealth Heritage values.
332. Additionally, new subsection 341C(4) is to assist readers to be aware that the
Commonwealth Heritage List is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.
Item 567 - Sections 341E to 341J
New Subdivision BA - Inclusion of places in the Commonwealth Heritage List:
usual process
333. This item inserts a new subdivision BA of Division CA of Part 15 of the Act
repealing sections 341E to 341J and replacing them with a series of new provisions
that reform the Commonwealth Heritage nomination and listing process. The new
process enables the Minister to set strategic directions and priorities for listing
following advice from the Australian Heritage Council. The reform allows for
listing work to focus on those places of potential Commonwealth Heritage value,
rather than being driven by the order in which nominations are received.
Subdivision BA sets out the usual process for inclusion of places in the
Commonwealth Heritage List. Subdivision BB sets out the emergency process for
inclusion of places in the Commonwealth Heritage List. Subdivision BC sets out
other provisions relating to the Commonwealth Heritage List.
334. New section 341E provides a simplified outline of the new usual listing process
which involves an annual cycle around 12-month "assessment periods". The
Minister determines the start of the first assessment period (see section 341G),
which must be within 12 months of the day of commencement of the section.
335. Under new section 341H, the Minister is required to publish an invitation for
people to nominate places for the Commonwealth Heritage List before the start of
each annual assessment period, where the cut off date for nominations must be at
least 40 business days after the notice is published. The nominations for the
Commonwealth Heritage List must then be given by the Minister to the Australian
Heritage Council within 30 business days. The Minister may reject nomination for
the reasons set out in 341J(4).
68
336. The Council is required to prepare and give the Minister a list called the proposed
priority assessment list (section 341JA) for the assessment period within 40
business days of receiving the nominations. The Council does not have to include a
place in the proposed priority assessment list if it considers that it is unlikely that
the place has any Commonwealth Heritage values. This enables Council to focus its
assessment work where it considers it is best directed for a particular assessment
period. In this consideration, Council does not have to have regard to information
beyond that which was included in the nomination.
337. Nominations can take many forms, and can overlap in whole or part, or may not
contain the best overall boundary. For example, it has been found that small
nominated areas may fall within a larger nominated area. It is not efficient or
effective to assess these nominations in isolation. The new section provides that a
place in the list may include parts that came forward for consideration in different
ways. For example, one place may include a part that was nominated by a person
in the assessment period, a part that was drawn from the immediately preceding
assessment period, and a part that was nominated by the Council. This provides an
effective means of establishing appropriate boundaries for Commonwealth Heritage
places and for efficiently assessing multiple overlapping, adjacent or linked
nominated areas.
338. New section 341JB sets out the matters to be included in a proposed priority
assessment list. The Council must give the Minister a statement of the information
it considers appropriate about why it did and did not include each place in the
proposed priority assessment list (see section 341JC). The statement must also
identify places or part of a place that the Council wishes to nominate.
339. Under section 341JD, the Minister may make changes to the proposed priority
assessment list within 20 business days of receiving it. At the end of the 20
business days, the list becomes known as the finalised priority assessment list for
the assessment period. This list is required to be published on the Internet. The
Council, under section 341JF, is also required to publish a notice inviting public
comments on the places in the finalised priority assessment list, which specifies a
cut-off date for comments which is at least 30 business days after publication.
340. The Council must make a written assessment of whether each place in the finalised
priority assessment list meets any of the Commonwealth Heritage criteria. In its
assessment, the Council must not consider any matter that does not relate to the
question whether the place meets any of the Commonwealth Heritage criteria (see
section 341JG). If the Council considers that a place it is assessing might have one
or more Commonwealth Heritage values, it must take all practicable steps to
identify owners or occupiers of the place and, if Council considers it might have
indigenous heritage value, identify each indigenous person who has rights or
interests in all or part of the place and give them at least 20 business days to
comment on whether the place should be included in the Commonwealth Heritage
List. The Council must take into account the comments received in response to the
notice under subsection 341JF(1), and may take into account the comments
received in response to consultations under paragraph 341JG(5)(c). Subsections
341JG(6) and (7) provide alternative efficient means of consultation where large
numbers of owners or occupiers or indigenous persons with rights or interests are
involved. To consult indigenous persons, it allows for appropriately representative
bodies to be consulted.
69
341. The Council is to provide the Minister with its written assessment, a copy of the
comments received in response to the notice under subsection 341JF(1) as well as
the comments received in response to consultations under paragraph 341JG(5)(c)
within 12 months or, if the Council considers an assessment is likely to take longer,
the end of that longer period after the state of the assessment period (see section
341JH).
342. The Minister may grant an extension, but the total period of all extensions may not
exceed 5 years. The Minister must publish particulars of extensions in a way the
Minister considers appropriate.
343. New section 341JI sets out the process for the Minister's decision about the
inclusion of a place in the Commonwealth Heritage List. The timeframe for the
Minister to make a decision is within 90 days of receipt of the assessment. The
Minister may in writing extend this period.
344. Prior to these amendments there was a complex process for the Minister to conduct
additional consultation after receiving an assessment from the Australian Heritage
Council. Paragraph 341JI(5)(b) now provides a simple authority for the Minister to
seek and consider information from any source in the process of deciding about the
inclusion of a place in the Commonwealth Heritage List.
345. The Minister is required, within a reasonable time, to take all practicable steps to
identify and advise owners or occupiers of an assessed place of a decision to
include the place or part of the assessed place in the Commonwealth Heritage List.
The item provides an alternative means for when large numbers of stakeholders are
involved. Under section 341H, the person who nominated a place must be advised
of the decision and the reasons for decision.
346. A determination made for the purpose of sections 341G of the Act is a legislative
instrument, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003
applies to the determination.
347. The proposed priority assessment list referred to in section 341JA and the finalised
priority assessment list referred to in section 341JD are not legislative instruments
within the meaning of section 5 of the Legislative Instruments Act 2003.
New Subdivision BB - Inclusion of places in the Commonwealth Heritage List:
emergency process
348. The previous Commonwealth Heritage emergency heritage listing process was
based on nominations of places for emergency listing which triggered a complex
process of consideration in each case with little allowance for appropriate
consultation. The new Subdivision BB provides for a process more like that for
World Heritage properties under which the Minister can consider the need for
emergency listings based on the nature of the threat to any potential
Commonwealth Heritage values the place may have.
349. New Section 341JJ provides a simplified outline of the new emergency listing
process for the Commonwealth Heritage List. New Section 341JK provides for the
Minister to emergency list a place in the Commonwealth Heritage List, by
instrument in the Gazette, if the Minister believes that a place may have one or
more Commonwealth Heritage values, any of those values is under threat of
significant adverse impact, and the threat is both likely and imminent.
70
350. If a place is included in the Commonwealth Heritage List under the emergency
process, and it was already being considered under the usual process in Subdivision
BA, the usual process ceases to apply. This would not prevent the usual process
restarting if, for example, it ceases to be listed and it is nominated again.
351. Within 10 business days of the emergency listing of a place, the Minister must
publish a copy of the instrument for listing on the Internet and take all practicable
steps to identify owners or occupiers of all or part of the place and advise each of
them that the place has been included in the Commonwealth Heritage List. There
are special provisions if this is likely to number more than 50 people.
352. If the Minister emergency lists a place in the Commonwealth Heritage List, new
section 341JL requires the Minister to request in writing that the Australian
Heritage Council give the Minister an assessment of whether it meets any
Commonwealth Heritage criteria, and to specify an assessment completion time. In
setting the completion time, it needs to be considered that under subsection
341JP(1), the Minister must usually come to a decision about whether the place
should remain listed within 12 months of the emergency listing, unless no
assessment is received, or if the Minister is not satisfied that a place has one or
more Commonwealth Heritage values. The listing ceases if no decision is made
within the 12-month period.
353. New section 341JM requires the Council, if it receives a request from the Minister
to assess a place emergency-listed in the Commonwealth Heritage List, to publish a
notice inviting public comment on the listing. The notice must invite comments on
whether the place meets any Commonwealth Heritage criteria and whether the
place should continue to be included in the Commonwealth Heritage List and
provide a cut-off date for comments which is at least 30 business days after
publication.
354. New Section 341JN applies the provisions of the usual Australian Heritage Council
assessment process, in section 341JG and other sections that refer to section 341JG,
to the emergency Commonwealth Heritage listing process. New Section 341JO
applies the provisions in section 341JH and sections which refer to section 341JH,
about the timing by which assessments in the usual Commonwealth Heritage listing
process are to be provided to the Minister, to the emergency Commonwealth
Heritage listing process.
355. For example, the provisions mean that the Australian Heritage Council can seek an
extension of the completion time, which was set out in a request for assessment
under section 341JL, for assessment of an emergency-listed place from the
Minister. As for section 341JL, the consideration of an extended completion time
would need to take into account the 12-month period referred to in subsection
341JP(1).
356. New subsection 341JP(1) provides that the Minister must, subject to certain
exceptions, within 12 months of the emergency listing and by instrument in the
Gazette, either state that the place remains in the Commonwealth Heritage List with
an unaltered boundary, or alter the boundary of the listed place, or remove the place
and its Commonwealth Heritage values from the Commonwealth Heritage List.
This may result in an increase or decrease of the area in the Commonwealth
Heritage List.
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357. If the place is not removed from the Commonwealth Heritage List, the provision
requires the Minister to state for example that the values remain as listed under
section 341JK, or to include Commonwealth Heritage values that were not included
in the Commonwealth Heritage List under section 341JK, or remove from the List
Commonwealth Heritage values that were included under section 341JK.
358. The requirement on the Minister to act within 12 months under subsection 341JP(1)
is subject to exceptions. The inclusion in the Commonwealth Heritage List lapses if
no action is taken under subsection 341JP(1) within the 12-month period.
359. In deciding what action to take under subsection 341JP(1), the Minister is required
to have regard to the Council's assessment against the Commonwealth Heritage
criteria, and the comments given under subsection 341JG(1) to the Minister by the
Australian Heritage Council with its assessment. The Minister may also seek and
have regard to other sources of information for the purpose of deciding upon the
action to take.
360. The item excludes the usual non-emergency process under section 341L from
applying to an alteration of the boundary of a place, or removal of a place and its
Commonwealth Heritage values, or removal of a Commonwealth Heritage value of
a place from the Commonwealth Heritage List, under the new subsection 341JP(1).
361. If the Minister under subsection 341JP(1), removes an emergency-listed place or
Commonwealth Heritage value from the Commonwealth Heritage List, or alters its
boundary, the Minister must publish a notice on the Internet and advise persons
identified as owners or occupiers about the removal or alteration within 10 business
days of that action.
362. If the place and its Commonwealth Heritage values are automatically removed from
the Commonwealth Heritage List under subsection 341JP(4) because no action is
taken within the time period in subsection 341JP(1), then the Minister must publish
a notice on the Internet and advise persons identified as owners or occupiers about
the removal within 10 business days.
New Subdivision BC - Other provisions relating to the Commonwealth Heritage
List:
363. To avoid any unnecessary duplication, or potential conflict between various listing
decisions, the new section 341JQ provides linking provisions and a process for
coordination of the assessment work of the Australian Heritage Council and the
Threatened Species Scientific Committee. The provisions apply if the Council
undertakes an assessment under the usual or emergency Commonwealth Heritage
listing processes and is aware that the Scientific Committee is undertaking an
assessment, and there is a matter relevant to both assessments. The item also
allows communication and exchange of information between the advisory bodies,
and relaxes the restrictions on the flow of information that result from section
341R, to allow this exchange.
364. New Section 341JR provides for coordination of the assessment work of the
Council and the Scientific Committee. It applies if the Council has given the
Minister an assessment under the usual or emergency Commonwealth Heritage
listing processes and is aware that the Scientific Committee is undertaking an
assessment, and there is a matter relevant to both assessments. The Council is
required to ensure that the Scientific Committee is made aware of, and given a copy
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of the assessment. The item also allows discussion of the matters between
members the advisory bodies, and relaxes the restrictions on the flow of
information that result from section 341R, to allow this exchange.
Items 568 and 569 - Subsection 341K(1)
365. These items amend subsection 341K(1) of the Act and are a consequence of the
new subdivisions BA and BB which provide for the new usual Commonwealth
Heritage listing process and the new emergency Commonwealth Heritage listing
process.
Item 570 - Subsection 341L(2)(note)
366. This item amends section 341L of the Act as a consequence of amendments to the
Commonwealth Heritage listing process.
Item 571 - Section 341N
367. This item replaces a complex process for adding Commonwealth Heritage values to
a place in the Commonwealth Heritage List, with a provision allowing regulations
to be made to provide for this. The regulations may modify provisions of the Act
but are not able to increase maximum penalties for an offence or widen any
offence.
Items 572 to 576 - Section 341R
368. These items amend section 341R of the Act as a consequence of new subdivisions
BA and BB which reform the Commonwealth Heritage listing process. The
amendments provide that the duty on members of the Australian Heritage Council
not to disclose information ceases when the Minister decides not to include a place
in the Commonwealth Heritage List. The items also repeal a provision requiring the
Council, once certain statutory deadlines for decisions are passed unmet, to give its
assessment to anyone who asks for it. Amendments to subparagraph 341(2)(b)(ii)
provides that the duty on members of the Council not to disclose advice under
section 341M ceases when the Minister decides under that section not to remove a
place or part of a place, or one or more of its Commonwealth Heritage values, from
the Commonwealth Heritage List. New subsection 341R(2A) provides that
amendments to paragraph 341R(2)(a) do not prevent the Council from informing a
person or discussing with a person, the consequences of including or not including
a place or Commonwealth Heritage values in the Commonwealth Heritage List, or
removing a place or Commonwealth Heritage values of a place from the List. The
items also remove the duty to not disclose particular information if the Minister
gives permission, following a request from the Chair of the Council, to disclose that
information to a particular person or persons within a group of persons.
Item 577 - At the end of section 341S
369. This item confirms that a management plan for a Commonwealth Heritage place is
a legislative instrument for the purposes of the Legislative Instruments Act 2003.
An amendment, or a revocation and replacement of a plan, is also confirmed to be a
legislative instrument.
Item 578 - Subsection 341T (note)
370. This item amends section 341T of the Act as a consequence of amendments to the
Commonwealth Heritage listing process.
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Item 579 - Section 341ZD
371. This item repeals section 341ZD of the Act as a consequence of item 179.
Item 580 - Subdivision F of Division 3A or Part 15
372. This item repeals Subdivision F of Division 3A of Part 15 of the Act as a
consequence of item 179.
Item 581 - Paragraph 346(1)(e)
373. This item amends section 346 of the Act by repealing paragraph 346(1)(e) and
substituting a new paragraph 346(1)(e). This amendment provides for a
Commonwealth reserve to be assigned to an IUCN (World Conservation Union)
category. The categories are specified in current paragraph 346(1)(e). The purpose
of the item is to allow a simplified amendment process as the IUCN amends the
categories over time, and to allow the IUCN categories and the management
principles prescribed by the Regulations to be more easily aligned.
Items 582 to 584 - Section 347
374. These items amend section 347 of the Act as a consequence of item 581.
Item 585 - Section 349
375. This item repeals section 349 of the Act that provides for a Commonwealth reserve
Proclamation to prescribe special rules for management of a reserve assigned to the
IUCN category wilderness area. The section is a hangover from the former
National Parks and Wildlife Conservation Act 1975 which the Act has replaced.
The National Parks and Wildlife Conservation Act 1975 did not incorporate the
IUCN category system for parks and reserves, but allowed for areas to be
designated as wilderness zones with special rules for their management. These
provisions are redundant in light of the IUCN categorisation system in the Act that
includes "wilderness area". The regulations under the Act prescribe the principles
by which each category should be managed.
Items 586 to 590 - section 354
376. These items amend section 354 of the Act by inserting new subsections 354(1A)
and 354(3A), repealing subparagraph 354(4)(a)(ii) and substituting it with a new
subparagraph and removing the notes at the end of subsections 354(1) and 354(2)
as a consequence of amendments to section 360 of the Act.
Item 591 - After section 354
377. This item inserts a new section 354A of the Act which makes it an offence for
taking an action that is prohibited under subsection 354(1), to strengthen the
deterrent value of the provision. The penalty for an offence against the section is
imprisonment for 2 years or 1,000 penalty units or both. The item sets out where
strict liability applies for each offence and provides exceptions for actions which
are: in accordance with a management plan in operation for the reserve; mining
operations which are covered by other parts of the Act; certain actions carried out
by the Director of National Parks in accordance with the Director's functions;
actions covered by a usage right, or a right arising from a usage right to which
section 359 applies; actions covered by section 359A (traditional use by indigenous
persons); actions covered by an approval under new subsection 359B(1) of the Act,
and actions taken in Antarctica to which certain provisions of the Antarctic Treaty
(Environment Protection) Act 1980 apply. The item also provides for an exemption
from custodial penalties for non-citizens caught fishing illegally in the Australian
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Exclusive Economic Zone, in accordance with Australia's obligations under the
United Nations Convention on the Law of the Sea.
Item 592 to 594 - Section 355
378. These items amend section 355 of the Act. The amendments repeal subsection
355(1) and substitute a new subsection 355(1) which simplifies the approval
processes for mining in Commonwealth reserves when this is an allowable activity
under a management plan by removing the requirement that the Governor-General
must approve all mining operations in Commonwealth reserves. Subsection 355(2)
defines "mining operations" very broadly. It covers all activities connected with or
incidental to mining or the recovery of minerals, or production of materials from
minerals; and includes prospecting or exploration, such as seismic surveys. In
marine Commonwealth reserves, where seismic surveys are not uncommon in
multiple use areas, the requirement for the Governor-General to approve all mining
operations is administratively onerous and establishes a level of regulation not
required of other commercial activities that may be allowed in a marine reserve. It
duplicates the approval by the Minister for matters under Chapters 2 and 4 of the
Act where proposed operations are or may be controlled actions and the rigorous
assessment and approval processes under Commonwealth and State resources
legislation. However as it would not be appropriate to allow mining in a
Commonwealth reserve without some stringent controls, mining operations have
been treated in the same manner as actions covered by sub-section 354(1) of the
Act. Mining operations, where permitted in a Commonwealth reserve, will be
regulated by Chapters 2 and 4 of the Act, and the requirements of the management
plan which will allow for an assessment of the impacts on the conservation values
of the reserve.
379. Other amendments to section 355 insert subsection 355(3A) which provides for
mining operations covered by subsection 355(1) to be taken in a Commonwealth
reserve when a management plan is not in operation if they are covered by an
approval given by the Director of National Parks under new subsection 359B(2).
The amendments also repeal paragraphs 355(5)(b) and (c) and substitutes new
paragraph 355(5)(b) as a consequence of new section 355A. New paragraph
355(5)(b) provides that section 355 is subject to section 359A (traditional use by
indigenous persons).
Item 595 - After section 355
380. This item inserts a new section 355A into the Act which makes it an offence for
conducting a mining operation that is prohibited under subsection 355(1), to
strengthen the deterrent value of the provision. The penalty for an offence against
the section is imprisonment for 2 years or 1,000 penalty units or both.
381. The item sets out where strict liability applies for the offence and provides
exceptions for actions which are: in accordance with a management plan in
operation for the reserve; mining operations in Kakadu National Park and
Antarctica which are covered by other parts of the Act; actions covered by a usage
right, or a right arising from a usage right to which section 359 applies; actions that
is covered by section 359A (traditional use by indigenous persons) and actions
covered by an approval under new subsection 359B(2).
75
382. To avoid doubt the item makes it clear that actions related to building or
construction or the supply of water in a Commonwealth reserve are not caught by
this provision unless they are connected with mining operations.
Item 596 - Section 356, Paragraph 356(1)(j)
383. This item amends section 356 of the Act to insert the words "or prohibit certain
kinds of conduct" into paragraph 356(1)(j) to allow regulations under the Act to
prohibit, as well as regulate, certain kinds of conduct in Commonwealth reserves.
The item brings paragraph 356(1)(j) into line with other regulatory provisions of
the Act.
Item 597 - After section 359A
384. This item inserts section 359B into the Act which provides the Director of National
Parks may approve actions covered by sections 354 and 354A and mining
operations covered by sections 355 and 355A when a management plan is not in
operation for a Commonwealth reserve. While the Act provides for Commonwealth
reserves to be managed in accordance with management plans, it is not possible for
management plans to be in operation at the time a Commonwealth reserve is
proclaimed and there can be delays in the development of subsequent plans.
During these periods the activities covered by sections 354 and 355 of the Act are
currently prohibited, yet they may be consistent with the IUCN category applied to
the reserve, and may previously have been carried on lawfully.
385. New subsection 359B(1) allows the Director of National Parks to approve actions
covered by section 354 if they were being done lawfully before a Commonwealth
reserve is declared, or if they were being done in accordance with a management
plan that has since expired. New subsection 359B(2) allows the Director to
approve mining operations including both existing and new mining operations.
386. In considering whether to give an approval the Director of National Parks will be
subject to section 357 which requires that when a management plan is not in
operation for a Commonwealth reserve it must be managed in accordance with the
Australian IUCN reserve management principles for the IUCN category to which
the reserve is assigned. This item in particular clarifies that new oil and gas
activities in Commonwealth reserves, such as the transition from exploration to
production, may proceed with the appropriate approvals from the Director of
National Parks, notwithstanding the absence of a management plan.
387. New subsection 359B(3) prevents the Director from approving an action in the
Antarctic which would be an offence under the Antarctic Treaty (Environment
Protection) Act 1980 or mining operations in Kakadu National Park or the
Antarctic.
388. New subsections 359B(4), 359B(5), and 359(6) provide that any approval given
may be subject to conditions, that it would come into effect on the day the approval
is given or at a later specified date and that the Director may vary or revoke the
approval in writing if he considers that the action or mining operation is not being
conducted in accordance with the approval. Subsection 359(7) provides that an
approval given under subsection 359(1) or 359(2) is not a legislative instrument. It
is included to assist readers, as the approval is not a legislative instrument within
the meaning of section 5 of the Legislative Instruments Act 2003.
76
389. Decisions made under section 359B of the Act will be subject to review in
accordance with the Administrative Decisions (Judicial Review) Act 1977 and the
decision-making power must be exercised in accordance with section 357 of the
Act. The Bill does not provide for review by the Administrative Appeals Tribunal.
Item 598 - Section 360
390. This item repeals section 360 of the Act as a consequence of amendments to section
349.
Item 599 - Subsection 367(5)
391. This item amends section 367 of the Act by repealing subsection 367(5) and
substituting a new subsection 367(5) to clarify that Commonwealth reserve
management plans can apply to multiple reserves.
Item 600 - Section 373
392. This item amends section 373 of the Act by extending the maximum period of
operation of Commonwealth reserve management plans to 10 years to provide
greater certainty to stakeholders regarding the management regime for
Commonwealth reserves.
Item 601 - Subsection 379(1)
393. This item repeals subsection 379(1) of the Act and inserts a new subsection 379(1)
to include a requirement for proposed members of Boards of Management for
Commonwealth reserves under the Act to be fit and proper persons. A Board of
Management must be established for a Commonwealth reserve that includes
indigenous people's land (currently Kakadu, Uluru-Kata Tjuta and Booderee
National Parks). Board members are appointed by the Minister. It is not currently
clear whether the Minister can take into account matters such as a person's criminal
record in deciding whether they are an appropriate person to be appointed. Also,
while the Minister may terminate an appointment for misbehaviour the Act does
not specify conduct that may constitute misbehaviour; and it is open to doubt
whether conduct prior to appointment may constitute misbehaviour. The purpose of
this item is to clarify that Board of Management members should be fit and proper
persons.
Item 602 - After section 379
394. This item inserts a new section 379A into the Act which provides for criteria for
determining whether a person is a fit and proper person to be a Commonwealth
reserve Board of Management member to be prescribed by the regulations, and
allows the Minister to take other relevant matters into account.
Item 603 - After subsection 382(1)
395. This item amends section 382 of the Act by inserting a new subsection 382(1A)
into the Act which provides that the Minister must terminate a Board of
Management member's appointment if the Minister is satisfied the person is not a
fit and proper person having regard to the matters mentioned in new section 379A
of the Act.
Item 604 - Subsection 387(2)
396. This item is a technical amendment to subsection 387(2) of the Act that reflects
mining operations in Kakadu are controlled by section 387 of the Act.
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Item 605 - After Chapter 5
397. This item inserts a new chapter Chapter 5A into the Act which establishes a new
List of Overseas Places of Historic Significance to Australia. The former National
Heritage provisions of the Act allowed listing of places with National Heritage
significance to Australia outside of the Australian jurisdiction, and extraterritorial
provisions of the Act applied to these overseas listed places. This previous
application is replaced by the new List. New Chapter 5A provides for symbolic
recognition of overseas places of historic significance to Australia through a new
list that is totally separate to the existing National Heritage List and is disconnected
from the offence provisions. The amendments insert 7 new sections into the Act -
390K, 390L, 390M, 390N, 390P, 390Q and 390R.
398. New section 390K requires the Minister to keep a written record of places under
Part 1, called the List of Overseas Places of Historic Significance to Australia. It
confirms that the list is not a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
399. New section 390L provides that the Minister may include a place, and a statement
of its historic significance to Australia, in the List of Overseas Places of Historic
Significance to Australia if the place is outside the Australian jurisdiction and the
Minister is satisfied that the place is of outstanding historic significance to
Australia. A place is included in the List of Overseas Places of Historic
Significance by a notice published in the Gazette, and regulations may specify
matters the Minister is to have regard to in considering whether the place is of
outstanding historic significance to Australia.
400. New section 390M provides that the Minister may remove a place and the
statement of its historic significance to Australia, from the List of Overseas Places
of Historic Significance to Australia, or vary the statement of the place's historic
significance to Australia in the List of Overseas Places of Historic Significance to
Australia. These changes are effected by a notice published in the Gazette.
Regulations may specify matters the Minister is to have regard to in considering
whether to make such changes.
401. New section 390N requires the Minister to inform the Minister for Foreign Affairs
and any other Minister whom the Environment Minister believes should be
informed of proposals for inclusions in or changes to the List of Overseas Places of
Historic Significance to Australia. The Minister is also required to invite comments
from these other Ministers, and take their comments into account, before including
a place and the statement of its historic significance to Australia, in the List of
Overseas Places of Historic Significance to Australia, or changing the List under
section 390M.
402. New section 390P provides that the Minister may ask the Australian Heritage
Council for advice to assist the Minister to consider the inclusion of a place in the
List of Overseas Places of Historic Significance to Australia or to consider changes
to the List. The Minister may also seek and have regard to any other source of
information or advice.
403. New section 390Q requires the Minister to ensure that up-to-date copies of the List
of Overseas Places of Historic Significance to Australia are available free of charge
to the public and that an up-to-date copy of the List is available on the Internet.
New section 390R places a duty upon a member of the Australian Heritage Council
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not to disclose its advice under section 390P to a person other than the Minister, an
employee in the Department whose duties relate to the Council or another member
of the Council. The duty ceases after the Minister has decided whether to take the
action to which the advice relates.
Item 606 - Section 391
404. This item amends the table in subsection 391(3) of the Act by adding a new item
6A. The amendment requires the Minister to consider the "precautionary principle"
when deciding whether or not to have a recovery plan for a listed threatened species
or ecological community.
Item 607 - Section 391(3) (after table item 6)
405. This item removes the requirement for the Minister to consider information in the
Register of the National Estate in making decisions under the Act. The amendment
will not be required when the Register of the National Estate ceases to operate as a
statutory heritage list. The repeal commences at the end of 5 years starting on the
day of commencement of provisions in item 1 of the commencement table.
Item 608 - Section 394
406. This item repeals section 394 of the Act and inserts a new section 394 that provides
for Customs officers, in addition to members of the Australian Federal Police, to be
ex-officio wardens for the purposes of the Act, so that they do not need to be
specially appointed.
Item 609 - Subsection 395(1)
407. This item amends subsection 395(1) of the Act as a consequence of item 608.
Items 610 and 611 - Section 397
408. These items amend section 397 of the Act by inserting a new paragraph 397(1)(c)
to provide that Customs officers are ex-officio inspectors for the purposes of the
Act, in addition to members of the Australian Federal Police and inspectors under
the Great Barrier Reef Marine Park Act 1975. The amendments also repeal
paragraph 397(3)(a) as a consequence of the change to paragraph 397(1)(c).
Item 612 - Subdivision BA, Division 1, Part 17
409. This item inserts a new Subdivision BA into Division 1 of Part 17 in the Act.
Section 399A of the Act provides that the powers of authorised officers outside the
territorial sea are to be exercised consistently with UNCLOS. The intent of this
amendment is to ensure that authorised officers exercising powers such as boarding
foreign vessels in the EEZ, act in accordance with international law.
Item 613 - Division 2 of Part 17
410. This item amends the heading of Division 2 of Part 17 of the Act. This amendment
clarifies that the Division applies to both:
· the boarding of vessels, aircraft, vehicles or platforms by authorised officers
under section 403 (without warrant); and
· the entering of premises by authorised officers under section 405 (without
warrant and by consent).
Items 614 to 622 - Section 403
411. These items amend section 403 of the Act to consolidate it with section 429 of the
Act, which has been repealed. Amendments are made to subsections 403(1), (2), (3)
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and (4) so they apply in relation to any Australian vessel or aircraft whether inside
or outside the Australian jurisdiction (as defined in subsection 5(5)), and they also
apply in relation to any other vessel and aircraft, or any vehicle or platform, that is
in the Australian jurisdiction.
412. Subsection 403(2) of the Act provides for authorised officers to board vessels and
exercise the powers of an authorised officer under section 406, without needing a
warrant or consent. The items also insert subsection 403(2A), which reproduces
subsection 406(4), which has been repealed. This subsection provides for an
authorised officer to require a person to answer questions and produce records or
documents. It is necessary for authorised officers who board vessels, aircraft,
vehicles or platforms, to continue to be able to exercise the powers of an authorised
officer without warrant or consent, given the logistical difficulties, time constraints
and other issues that officers encounter in exercising powers under the Act in
offshore areas.
413. These amendments also repeal the definition of `Australian platform' in subsection
403(6) of the Act as the term `platform' is used in section 403 to achieve the same
effect. Item 616 amends section 403 of the Act as a consequence of item 637. Item
621 inserts new subsections 403(5A) and 403(5B) into the Act. Subsection 403(5A)
consolidates the offence provisions in subsections 404(4) and 406(6) into section
403, which have been repealed. Subsection 403(5B) is equivalent to section
84(1BA) of the Fisheries Management Act 1991 and is required as a consequence
of the inclusion of Schedule 1 in the Act.
Items 623 to 628 - Section 404
414. These items amend sections 404 of the Act. These amendments insert subsections
404(1A) and 404(3A) into section 404. They also amend subsections 404(1) and
404(3) to refer to the new subsections (1A) and (3A). In addition, these items make
an amendment to subsection 404(1), which is of a technical nature only and also
repeal subsection 404(4) as a consequence of item 621.
Items 629 to 631 - Section 405
415. Item 631 amends section 405 of the Act by inserting a new subsection 405(4),
which provides that an authorised officer where the occupier of premises has
required an authorised officer to produce written identification for inspection, the
officer is only entitled to enter the premises or exercise his or her powers upon
production of the necessary identification. Items 629 and 630 are of a technical
nature only, and are required as a consequence of item 638, which repeals
subsection 406(4).
Items 632 to 638 - Section 406
416. These items amend section 406 of the Act by replacing the reference to evidential
material in subparagraphs 406(1)(b) and (c) with evidential material in relation to
an offence against this Act or the regulations, in relation to contravention of a civil
penalty provision or in relation to both. These amendments are a consequence of
item 637.
417. Item 633 amends subsection 406(1) of the Act by inserting a new paragraph
406(1)(ba) which is equivalent to section 84(1)(aaa) of the Fisheries Management
Act 1991. It provides for an authorised officer who boards a vessel under section
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403 to search a person and the person's clothing. This amendment is required as a
consequence of the inclusion of Schedule 1 in the Act.
418. Items 635, 636 and 638 are of a technical nature only, replacing "this Act" with
"section 444A or 445" in paragraph 406(1)(d) of the Act and in subsection
406(1)(e) replacing "paragraph (a), (aa), (b), (c), (ca) or (d)" with "any of the other
paragraphs in this subsection". These amendments also repeal subsections 406(4),
406(5) and 406(6) of the Act as a consequence of item 621.
419. Item 637 replaces subsection 406(2) of the Act and provides for the definition of
"evidential material" in subsection 406(2) to be extended to cover evidence of the
contravention of civil penalty provisions, in addition to evidence of offences. It
enables the scope of entry, search and seizure powers of authorised officers to be
broadened to encompass evidence of civil penalty provision contraventions.
Parliament has already indicated the seriousness of civil penalty breaches under the
Act as reflected by the substantial size of penalties available under the Act.
420. The Therapeutic Goods Act 1989 (TGA) was recently amended to expand the scope
of search warrants so that an authorised person could seek a search warrant for
criminal purposes, a search warrant for civil purposes, or a search warrant for both
civil and criminal purposes. The amendments to the Act, like the TGA
amendments, arise out of the fact that often the regulated conduct under the
respective Acts has both civil and criminal penalties attached. There are
circumstances where a regulated action is being investigated however it is unclear
as to whether the breach is civil or criminal in nature. Accordingly, it is necessary
to create a single streamlined process for search and seizure which will allow
evidential material to be more effectively and efficiently seized and used in both
civil and criminal matters.
Item 639 - At the end of Division 2 of Part 17
421. This item amends section Division 2 of Part 17 of the Act by inserting new sections
406A and 406B into the Act. Section 406A is equivalent to section 84(1)(aaa) of
the Fisheries Management Act 1991. It relates to searches of a person and the
person's clothing under paragraph 406(1)(ba). This amendment is required as a
consequence of the inclusion of Schedule 1 in the Act. Section 406B clarifies that a
reference in this Act to a thing seized under Part 17 or this Act does not include a
reference to a thing that has been taken into possession under section 406A or
Schedule 1.
Items 640 to 644 - Section 407
422. These items amend section 407 of the Act. The amendments insert a "(1)" before
"For the purposes of". They also insert a new paragraph 407(1)(cb) to include as an
additional monitoring power, the power to mark a live specimen on the premises. A
new subsection 407(2) is inserted which clarifies that to `mark' a live plant on
specimen means to label or tag the plant and container in which the plant is kept,
and to `mark' a live animal means to microchip, band, tag the animal or place a
label on the cage in which the animal is kept. Subsections 407(3), (4) and (5)
provide for compensation to be payable to the owner of the specimen, or a cage or
container in which a specimen is kept, if the damage is caused to the specimen,
cage or container as a result of insufficient care being exercised by the authorised
officer in exercising the power to mark. The right to compensation is modelled on
section 3M of the Crimes Act 1914. A consequential amendment is also made to
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paragraph 407(1)(e). Item 642 inserts a new paragraph 407(1)(da), which provides
for an additional monitoring power to operate electronic equipment at premises
under section 407A.
Item 645 - After section 407A
423. This item inserts new sections 407A and 407B into the Act. Section 407A provides
for authorised officers who are exercising monitoring powers under Part 17, under
warrant or by consent, to operate electronic equipment at premises to see whether
evidential material or other relevant material is accessible. The amendment also
provides for any relevant material to be seized, put into documentary form or
transferred to a disk, tape or other storage device. Part 17 applies to things seized as
if they had been seized under section 445. Section 407B provides that if damage is
caused to electronic equipment operated at premises under section 407A due to
insufficient care, then compensation for damage is payable to the equipment's
owner.
Item 646 - Section 408
424. This item amends subsections 408(1) and (2) of the Act by replacing "are being"
with "have been, are being or will be".
Items 647 to 650 - Section 409
425. Item 647 inserts a note at the end of subsection 409(1) of the Act which references
the fact that urgent applications for monitoring warrants can be made by telephone
or other electronic means under section 409A of the Act. Item 648 amends
subsection 409(2) by replacing "are being" with "have been, are being or will be".
Item 649 amends subsection 409(3) by replacing "authorised person" with
"authorised officer" and item 650 replaces paragraph 409(4)(a), so that the
authorised officer named in a monitoring warrant as the person responsible for
executing the warrant, can substitute another person as the executing officer.
Item 651 - After section 409A
426. This item inserts new sections 409A and 409B into the Act. Section 409A provides
for an authorised officer to apply for a monitoring warrant by telephone, telex, fax
or other electronic means in urgent cases or where delay would frustrate the
effective execution of the warrant. Before applying for the warrant the authorised
officer must still prepare information setting out the grounds on which the warrant
is sought and of the necessity to enter the premises, but if necessary the authorised
officer may apply for the warrant before the information is sworn or affirmed. If the
magistrate is satisfied that there are reasonable grounds for doing so, he or she may
then issue a warrant as if the application had been made under section 409.
427. The authorised officer must complete a form of warrant in substantially the same
terms as advised by the magistrate and record the name of the magistrate and the
time and date on which the warrant was signed. The authorised officer must send
this form of warrant to the magistrate within 48 hours of the application for the
warrant. However, the court may admit evidence obtained under the warrant, even
if the 48 hour time limit is not complied with, if the court is satisfied that it was not
practicable to comply with the limit.
428. Section 409B provides that when an authorised officer is executing a warrant they
are to be in possession either of the original warrant issued by a magistrate under
section 409 (or a copy of the original warrant) or the original form of warrant
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completed under subsection 409A(6) (or a copy of the original form so completed).
This amendment clarifies that it is sufficient for the officer executing a monitoring
warrant to be in possession of a copy.
Items 652 and 653 - Subsections 410(1) and (2)
429. These items are of a technical nature only. They replace "authorised officer named
in the monitoring warrant" with "executing officer" in subsections 410(1) and (2)
of the Act.
Items 654 and 655 - Subsections 412(1) and (2)
430. These items are of a technical nature only. They replace "authorised officer named
in a monitoring warrant" with "executing officer" in subsection 412(1) of the Act
and replace the reference to "authorised officer" with "executing officer" in
subsection 412(2) of the Act.
Items 656 to 659 - Subsections 412A(1) and (2)
431. These items amend section 412A of the Act and are of a technical nature only,
required as a consequence of item 637. In addition, they replace various references
to "authorised officer" with "executing officer".
Items 660 to 663 - Subsections 413(1) and (2)
432. These items amend section 413 of the Act by requiring that information may be
given on affirmation, and not just on oath. They also broaden the references to
"evidential material" as a consequence of item 637.
Items 664 to 673 - Section 414
433. These items amend section 414 of the Act by repealing paragraphs 414(1)(d) and
414(1)(f) and substituting new paragraphs 414(1)(d) and 414(1)(f). These
paragraphs provide that unless the authorised officer inserts the name of another
authorised officer in the warrant, he or she is responsible for executing the warrant
and that a warrant must state whether premises may be entered, or a person may be
searched, at any time of the day or night or only during particular hours. Items 664,
667, 668, 669, 670, 671, 672 and 673 are of a technical nature only and are a
consequence of item 637. They broaden the references to "evidential material" in
section 414.
Items 674 to 676 - Section 416
434. Item 674 amends section 416 of the Act by replacing reference to "authorised
person" with "authorised officer" in subsection 416(1). Items 675 and 676 amend
subsections 416(3) and (7) of the Act by requiring that information may be given
on affirmation, and not just on oath.
Items 677 to 685 - Section 417
435. These items are of a technical nature only and are a consequence of items 637 and
666. They broaden the references to "evidential material", replace subsection
417(3) of the Act which relates to the hours when premises and persons may be
searched under warrant and amend subsection 417(4) of the Act by replacing the
reference to "the warrant" with "a warrant".
Item 686 - Section 418A
436. This item inserts a new section 418A into the Act. It provides that when an
authorised officer is executing a warrant they are to be in possession either of the
original warrant issued by a magistrate under section 415 (or a copy of the original
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warrant) or the original form of warrant completed under subsection 416(6) (or a
copy of the original form so completed). This amendment clarifies that it is
sufficient for the officer executing a search warrant to be in possession of a copy.
Items 687 to 689 - Section 422
437. These items are of a technical nature only and are a consequence of item 637. They
broaden the references to "evidential material" in section 422 of the Act.
Item 690 - Division 5 of Part 17
438. This item repeals Division 5 of Part 17 of the Act. Amendments to section 403 of
the Act have made this Division superfluous.
Items 691 and 692 - Section 430
439. These items amend subsection 430(2) of the Act through the insertion of an
additional subsection 430(2A).
Items 693 and 694 - Sections 432 and 433
440. These items are of a technical nature only. They broaden the reference to
"evidential material" in sections 432 and 433 of the Act as a consequence of item
637.
Item 695 - Section 433A
441. This item inserts a new section 433A into the Act. This section clarifies that
Division 6 of Part 17 of this Act is not limited by or does not limit Schedule 1.
Particularly, the detention of a person under Schedule 1 does not constitute the
arrest of the person under Division 6 of Part 17 of this Act.
Item 696 - After Division 6 of Part 17
442. This item inserts a new Division 6A to Part 17 of the Act that relates to the
detention of suspected non-citizen offenders. This item also inserts a new section
433B into the Act which gives effect to new Schedule 1 of the Act, at the end of the
Act.
Items 697 to 700 - Section 437
443. These items amend paragraphs 437(a) to (d) of the Act as a consequence of item 651.
Item 701 - Section 438
444. This item amends section 438 of the Act by replacing subsections 438(1) and (2)
and inserting subsections 438(3) and (4). The amendments remove the reference to
a thing seized under Division 5 in subsection 438(1), as this only relates to section
429 which, as a result of its consolidation into section 403, is being repealed. This
amendment also provides for the Secretary to cause reasonable steps to be taken to
return a thing as soon as the retention period has ended, unless one of the
exceptions in subsection 438(4) apply, including that the thing is forfeited or
forfeitable to the Commonwealth.
Item 702 - Section 439
445. This item repeals section 439 of the Act. This is a consequence of the consolidation
of sections 403 and 429. Section 439 is no longer required as it only related to
section 429.
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Item 703 to 705 - Section 442
446. Item 703 amends paragraph 442(3)(b) of the Act as a consequence of item 614. The
other items amend subsection 442(5) through the insertion of an additional
subsection 442(6).
Items 706 and 707 - Section 443A
447. Item 706 amends section 443A of the Act through the insertion of an additional
subsection 443A(2A). This amendment provides for an authorised officer to ask
questions of a person in the presence of the person, or by sending the questions in
writing to the person. However, the latter option is restricted to authorised officers
who are not members of a police force or Customs. Item 707 amends section 443A
by replacing paragraph 443A(7)(c) as a consequence of item 706.
Items 708 and 709 - Section 444A
448. These items amend section 444A of the Act. They insert a "(1)" before "An" and
insert a new subsection 444A(2). This amendment clarifies that seizure powers
under section 444A of the Act are not available if there is a search warrant.
Item 710 - Section 444F
449. This item repeals section 444F of the Act as a consequence of its consolidation into
new section 449BA.
Items 711 to 713 - Section 444G
450. These items amend section 444G of the Act. These amendments repeal paragraph
444G(1)(e) and the second sentence in subsection 444G(2). They also insert
subsections 444G(3) and (4) which provide for the Secretary to take reasonable
steps to return a thing as soon as the retention period has ended, unless one of the
exceptions in subsection 444G(4) apply, including that the thing is forfeited or
forfeitable to the Commonwealth.
Items 714 and 715 - Section 444H
451. These items amend section 444H of the Act as a consequence of new section
449BA.
Items 716 and 717 - Section 444J and 444K
452. These items repeal section 444J and 444K of the Act as a consequence of new
sections 450A and 450B.
Item 718 - Subdivision A of Division 10 of Part 17 (heading)
453. This item replaces the heading of Subdivision A of Division 10 of Part 17 of the
Act and is required as a consequence of item 719.
Item 719 - Section 445
454. This item amends section 445 of the Act by replacing the section with subsections
445(1), (2), (3) and (4). This amendment provides for the seizure of things other
than specimens involved in a contravention of Part 13A (which are dealt with under
section 444A). A thing is defined in subsection 445(1) as including a vehicle,
vessel, aircraft, platform, document, organism and specimen. This amendment
clarifies that seizure powers under section 445 of the Act are not available if there
is a search warrant. The seizure powers in Division 4 of Part 17 of the Act will
apply to things found during the course of a search under warrant.
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Items 720 and 721 - Section 446
455. These items amend section 446 of the Act by replacing subsections 446(1), (2) and
(3) and amending subsection 446(4) to refer to "the thing". This amendment
provides for the retention of things seized under section 445 of the Act. The
Secretary is to cause reasonable steps to be taken to return a thing as soon as the
retention period has ended, unless one of the exceptions in subsection 446(1C)
apply, including that the thing is forfeited or forfeitable to the Commonwealth.
Under subsection 446(2) of the Act an authorised officer may apply to a magistrate
to extend the retention period.
Item 722 - Section 447
456. This item repeals section 447 of the Act as a consequence of new section 449A.
Item 723 - Section 448
457. This item repeals section 448 of the Act as a consequence of its consolidation into
new section 449BA.
Item 724 - Subdivision B of Division 10 of Part 17 (heading)
458. This item replaces the heading of Subdivision B of Division 10 of Part 17 of the
Act and is required as a consequence of the insertion of section 449A.
Items 725 to 730 - Section 449
459. Items 725, 726 and 730 are of a technical nature only and amend subsections
449(1) and (2) of the Act. Item 727 amends sub-paragraph 449(1)(b)(v) by inserting
`or specimen' each time after `organism' to clarify that the paragraph covers
specimens as well as organisms. These insertions are required because it is not clear
that all things included in the definition of specimens would be covered by the
definition of `organism' in section 528 of the Act. Items 728 and 729 insert a new
paragraph 449(1)(vi) and a new subsection 449(1A) into the Act. These
amendments provide for the `euthanasia' of live animals in cases where it is
reasonably likely that retention of the animal would result in the animal suffering.
Item 731 - At the end of Subdivision B of Division 10 of Part 17
460. This item inserts a new section 449A into the Act. This section provides for the
Secretary to dispose of an item seized under Part 17 of the Act if the person cannot
be located or identified, the steps to return the item have not succeeded, or it is not
otherwise practicable to return the seized item, for example where the item is
contaminated.
Item 732 - After Subdivision B of Division 10 of Part 17
461. This item inserts a new Subdivision BA of Division 10 of Part 17 into the Act.
Section 449BA, which consolidates repealed sections 444F and 448 of the Act,
provides that the Secretary may authorise a thing seized under Part 17 of the Act to
be released to its owner either conditionally or unconditionally. Section 449BA
provides that if a thing seized under Part 17 of the Act is conditionally released to a
person, then the provisions in Part 17 will continue to apply to it as if it had not
been seized. The return or delivery of the thing to the person under Part 17 of the
Act will equate to the release being made unconditional.
Item 733 - Subdivision C of Division 10 of Part 17 (heading)
462. This item replaces the heading of Subdivision C of Division 10 of Part 17 of the
Act. This subdivision encompasses all forfeiture provisions including new sections
450A and 450B of the Act.
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Item 734 and 735 - Section 450
463. Item 734 amends section 450 of the Act by replacing "seized under this Act" with
"taken into possession under section 406A or Schedule 1" in subsection 450(2).
Item 735 inserts new subsection 450(3) which provides for the court to order the
forfeiture of a specimen to the Commonwealth, in cases where the proceedings are
finalised and there are reasonable grounds for the Court suspecting that if the
specimen were released to its owner or the person from whom it was seized, the
possession of the specimen would constitute a contravention of the Act or
regulations.
Item 736 - At the end of Subdivision C of Division 10 of Part 17
464. This item inserts new sections 450A and 450B into Subdivision C of Division 10 of
Part 17 of the Act. Section 450A provides that the Court may, on the application of
the Secretary, order that a thing seized under Part 17 of the Act is to be forfeited to
the Commonwealth. Section 450B provides for a thing seized under Part 17 of the
Act to be forfeited to the Commonwealth either conditionally or unconditionally.
Items 737 and 738 - Subdivisions D and E of Division 10 of Part 17 (heading)
465. These items repeal the headings of Subdivisions D and E of Division 10 of Part 17
of the Act and are required as a consequence of item 733.
Item 739 - Section 452
466. This item amends section 452 of the Act by inserting a new paragraph 452(1)(d)
providing that a person must deliver a thing to the Secretary if the Secretary so
requests.
Item 740 - Subdivision F of Division 10 (heading)
467. This item replaces the heading of Subdivision F of Division 10 of Part 17 of the Act
and is required as a consequence of amendments to sections 453 and 454.
Items 741 to 747 - Sections 453 and 454
468. These items amend sections 453 and 454 of the Act by adding references to `or
specimens' in subsections to clarify that these sections covers specimens as well as
organisms. These insertions are required because it is not clear that all things
included in the definition of specimens would be covered by the definition of
`organism' in section 528 of the Act.
Item 748 - Subdivision G of Division 10 of Part 17 (heading)
469. This item replaces the heading of Subdivision G of Division 10 of Part 17 of the
Act and is required as a consequence of amendments to section 455 and 456.
Items 749 and 750 - Section 455
470. These items amend section 455 of the Act by replacing the references to "goods"
with "things", so that the section is no longer limited in its application.
Items 751 to 756 - Section 456
471. These items amend section 456 of the Act by replacing references to "goods" with
"things" and repealing subsection 456(2) in order to make it clearer that this section
does not just apply to goods.
Item 757 - At the end of Division 10 of Part 17
472. This item inserts Subdivision H into Division 10 of Part 17 of the Act. This
amendment provides authorised officers with the power to seize and appropriately
deal with cages or containers containing seizable things, including powers to deal
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with non-seizable things contained in seized cages or containers. This amendment
will enable seizures to be undertaken in a more certain and efficient manner.
473. Section 456AA provides the power for an authorised officer to seize a cage or
container which contains a seizable thing in circumstances where it is not
reasonably practicable to seize the seizable thing without also seizing the cage or
container.
474. Section 456AB provides that a cage or container may be retained for as long as the
authorised officer considers it reasonably necessary to house the seizable thing. As
soon as practicable after the expiry of the retention period for the seizable thing, the
Secretary is to cause reasonable steps to be taken to return the cage or container,
unless one of the exceptions in subsection 456AB(4) apply, including that the cage
or container is forfeited or forfeitable to the Commonwealth.
475. Section 456AC provides for the retention of non-seizable things that are contained
in a cage or container. As soon as practicable after the expiry of the retention period
for the non-seizable thing, the Secretary is to cause reasonable steps to be taken to
return the thing, unless one of the exceptions in subsection 456AC(4) apply,
including that non-seizable thing is forfeited or forfeitable to the Commonwealth.
Items 758 to 762 - Sections 472 and 473
476. These items amend sections 472 and section 473 of the Act to remove review by
the Administrative Appeals Tribunal as an avenue of review for relevant decisions
made personally by the Minister. This leaves the merits of these decisions to be
dealt with by the Government. Decisions made by a delegate of the Minister remain
subject to review by the Administrative Appeals Tribunal.
Item 763 - Section 478
477. This item repeals section 478 of the Act. This amendment brings the Act into line
with other Commonwealth legislation where the Federal Court has the discretion
whether or not to require an applicant for an injunction to give an undertaking as to
damages as a condition of granting an interim injunction.
Item 764 - After Division 14 of Part 17
478. This item introduces new Divisions 14A and 14B into Part 17 of the Act.
479. Division 14A of Part 17 of the Act confers on the Federal Court a general power to
make a remediation order requiring a person to take action to repair or mitigate
damage that has been, will be, or is likely to be caused to the environment by a
contravention of the Act or the Regulations. It extends the pre-existing power of the
Court under sections 475 and 476 of the Act, which is contingent on the grant of an
injunction.
480. Section 480A provides that the Court may make a remediation order requiring a
person to take remediation action to repair or mitigate damage to the environment
caused by the contravention, if a person has engaged in conduct constituting an
offence or other contravention of the Act or the Regulations. Application for a
remediation order may only be made by the Minister.
481. Section 480B provides that the Minister may apply to the Court to discharge or
vary an order. Section 480C provides that the powers conferred on the Federal
Court under Division 14A are in addition to any other powers of the Court.
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482. Division 14B of Part 17 confers on the Minister a general power to make a
remediation determination requiring a person to take action to repair or mitigate
damage that has been, will be, or is likely to be caused to a matter protected by the
contravention of a Part 3 civil penalty provision. It introduces a new enforcement
option into the Act, as an alternative to costly and time-consuming civil penalty or
criminal proceedings. The new measures will enhance the measures available to
repair or mitigate environmental damage resulting from a contravention of a
provision of Part 3 of the Act.
483. Section 480D provides that the Minister may make a remediation determination
if he or she considers that a person has contravened a civil penalty provision of Part
3 of the Act and it is desirable to make the order. Subsection 480D(3) of the Act
provides that a remediation determination is not a legislative instrument, thereby
confirming the status of a remediation determination under the Legislative
Instruments Act 2003.
484. Section 480E sets out the contents of a remediation determination, both mandatory
and discretionary. Section 480F provides that before the Minister makes a
remediation determination requiring action to be taken on land that is not owned or
occupied by the person who is the subject of the determination, the Minister is to
take all practicable steps to notify and seek comment from the owner or occupier of
all or part of the land. Section 480H specifies when the determination comes into
force and how long it remains in force.
485. Section 480J provides for Ministerial reconsideration of a remediation
determination. A person must apply for a reconsideration within 20 days of
receiving a copy of the determination.
486. Section 480K provides for the Federal Court to set aside a remediation
determination. The Court must not set aside the remediation determination unless it
is satisfied as mentioned in subsection 480K(2), such as being satisfied that the
specified action did not occur or was not a contravention of the specified civil
penalty provision.
487. Section 480L provides that upon application by the Minister, the Federal Court may
order compliance with a remediation determination or may make any other order
that the Court considers appropriate.
488. Section 480M imposes a civil penalty for contravention of a remediation
determination, with a maximum penalty equivalent to the penalty the Court could
order for contravention of the relevant provision of Part 3 of the Act. Section 480N
provides that the Minister may vary or revoke a remediation determination.
Item 765 - Section 486
489. This item repeals section 486 of the Act as a consequence new Division 15A of the
Act.
Item 766 - At the end of Division 15 of Part 17
490. This item introduces a new Subdivision C into Division 15 of Part 17 of the Act
which provides for the Minister to accept enforceable financial undertakings in
relation to contraventions of Part 3 civil penalty provisions. The intention of this
amendment is to enable the Minister to accept an enforceable undertaking from a
person as a means of, in effect, avoiding costly and time-consuming litigation in
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connection with an alleged contravention of a Part 3 civil penalty provision. It is
modelled on enforceable undertaking provisions in other Commonwealth
legislation, including sections 87B and 87C of the Trade Practices Act 1974.
491. Section 486DA of the Act provides that the Minister may accept a written
undertaking given by a person to pay a specified amount where the Minister
considers that the person has contravened a Part 3 civil penalty provision. The
amount the person undertakes to pay will be a proportion of the maximum penalty
for the civil penalty provision and will be negotiated between the Minister and the
person.
492. Section 486DB provides that if the person fails to comply with the undertaking, the
Minister may apply to the Federal Court for an order enforcing the terms of the
undertaking.
Item 767 - After Division 15 of Part 17
493. This item inserts a new Division 15A into Part 17 of the Act, which enables the
Minister to issue notices to produce and attend. This amendment provides for the
inclusion of an essential component for an effective enforcement regime in the Act.
494. Section 486E provides for the Minister to issue notices to produce and attend where
the Minister believes on reasonable grounds that a person is capable of giving
information, or producing books, records or documents, that are relevant for the
purposes of investigating or preventing a contravention of the Act.
495. Section 486F provides for the Minister, by written notice, to require a person to
give information or a book, record or document specified in the notice to an
official. This item also inserts a maximum penalty for the contravention of
subsection 486F(1) of imprisonment for 6 months for failure to provide information
or a book, record or document to an official.
496. Section 486G provides for the Minister, by written notice, to require a person to
attend to answer questions put by an official and to produce books, records or
documents specified in the notice to an official. This item also inserts a maximum
penalty for failure to appear or failure to provide information or a book, record or
document to an official of imprisonment for 6 months.
497. Section 486H provides that notices must not be given to a person who is, or has
been, a lawyer for the person suspected of committing an offence or civil penalty
contravention against the Act or Regulations.
498. Section 486J discharges an individual providing information or a document from
any threat of civil proceedings on the basis of that information or document.
However, it abrogates the privilege against self-incrimination, such that an
individual can be liable to criminal sanctions if they fail to properly comply with
the requirement to provide information or documents.
499. As set out in subparagraphs 486J(2)(e)(i), (ii) and (iii) of the Act, information or a
document given under sections 486F and 486G could be admissible in criminal
proceedings if it provides evidence of less than full compliance with a requirement
to give information or a document under that clause. Without this provision, there
would be an inconsistency with subsections 486F(3), 486G(3) and (4), section 491,
and sections 137.1 and 137.2 of the Criminal Code, all of which assume it is
possible to prosecute a person for failure to properly comply with a requirement to
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give information or a document under sections 486F and 486G of the Act. To
ensure the effective enforcement of these provisions, it is considered essential to
abrogate the privilege against self-incrimination in these cases. This also accords
with the principle that it is not appropriate to allow the privilege against self-
incrimination to give immunity for deception offences.
Item 768 - After subparagraph 495(2)(a)(vii)
500. This item amends paragraph 495(2)(a) of the Act by inserting subparagraph (viia).
The inclusion of the reference to Section 27C corrects an oversight in the Act.
Item 769 - After Division 18 of Part 17
501. This item inserts Division 18A into Part 17 of the Act, which provides for the
liability of landholders for the actions of another person which took place on an
area of land in contravention of the Act. Section 496A defines a landholder as a
person who is the owner, lessee or occupier of the area of land on which the
contravention took place.
502. Section 496B provides that a landholder can be liable to pay a civil penalty for a
contravention that took place on the area of land. Section 496C extends criminal
responsibility to a landholder for an action taken on the land which contravenes an
offence provision in the Act. A landholder can only be made liable for a limited
number of serious civil penalty provisions and offences contained in the Act.
503. The civil penalty and offence provisions are modelled on Division 18 of Part 17 of
the Act and contain a variety of elements which must be satisfied before a
landholder could be liable for a contravention under the Act. While liability is
dependent on proof of a principal contravention, the other elements of the
provisions require evidence of recklessness and failure to take reasonable steps to
prevent the principal contravention, in circumstances where the landholder had the
capacity to directly influence the conduct of the principal offender. These
limitations create important constraints on the accessorial liability to which these
provisions relate.
504. Section 496D sets out the factors that a court is to have regard to in determining
whether a landholder failed to take all reasonable steps to prevent a contravention.
Items 770 and 771 - Section 497
505. These items amend subsection 497 of the Act. Firstly, they amend subsection
497(1) through the inclusion of "section 142B or" after the word "against". This
amendment provides for the extension of the infringement notice scheme beyond
offences against the regulations to an offence against section 142B (breach of
conditions attached to an approval). The existing procedural scheme for
infringement notices which is set out in Part 14 of the EPBC Regulations will apply
to the extended scheme. Secondly, they amend subsection 497(2) by replacing the
words "must equal" with the words "must not exceed". This means that a maximum
penalty under the infringement notice scheme must not exceed one-fifth of the
maximum fine a court could impose as a penalty for the particular offence.
Items 772 and 773 - Section 498A
506. These items amend subsections 498A(1) and 498A(2) of the Act, which protect
authorised officers from liability for acts done in good faith in the exercise of their
powers under the Act, to insert reference to new Schedule 1 of the Act. These items
clarify the application of section 498A in relation to the Schedule.
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Item 774 - At the end of Part 17
507. This item inserts a new Division 22 into Part 17 of the Act, which extends the scope
of liability under the Act to make corporations and non-corporate principals and
employers liable for actions taken on their behalf. Section 498B is based on section
64 of the Great Barrier Reef Marine Park Act 1975 and section 84 of the Trade
Practices Act 1974. It defines the circumstances in which corporations, principals
and employers are deemed to have acted through their officers, agents and
employees.
508. These provisions are considered to provide an appropriate basis for liability in the
case of environmental offences because, for large corporations, the relevant
decisions are usually made by managers at the operational level, rather than by the
directing minds of the body corporate. Those decisions result in significant and
often irreversible impacts on matters of national environmental significance. It is
important to create incentives for large corporations, principals and employers to
take steps to ensure that the Act is complied with when such decisions are made.
Therefore it is considered justified to depart from Part 2.5 of the Criminal Code in
relation to corporate criminal responsibility.
509. A defence is provided in relation to the conduct of the corporation, principal or
employer if they took reasonable precautions or exercised due diligence.
Item 775 - Paragraph 503(a)
510. This item amends section 503 of the Act as a consequence of the new section 266B.
Item 776 to 778 - Section 514
511. These items amend section 514 of the Act by inserting paragraphs 514B(1)(ba) and
514B(1)(h) and repealing the note to subsection 514B(1) and substituting two new
notes. New paragraph 514B(1)(ba) of the Act extends the functions of the Director
of National Parks to allow the Director to contribute to the protection, conservation
and management of biodiversity and heritage in areas outside Commonwealth
reserves and conservation zones established under the Act. Paragraph 514B(1)(h) is
a technical amendment only to clarify that additional functions may be conferred on
the Director of National Parks under the Act as well as under other Acts. The two
new notes refer to the Minister's capacity to give directions to the Director of
National Parks, and to delegate functions to the Director.
Item 779 - After section 517
512. This item inserts a new section 517A into the Act. This amendment allows the
Minister to give an exemption for activities in an area that might impact on
protected species which have been introduced into an area. The species must be a
listed threatened species, a listed migratory species or a listed marine species.
Previously if a person(s) introduced a protected species into an area which were
subsequently harmed, the civil penalty and criminal offence provisions of the Act
applied. This amendment avoids the situation of a person(s) inadvertently breaching
the Act when the person(s) intention is to promote the survival of the species.
513. The amendment to subsection 517A(4) of the Act provides the Minister with the
ability to consider any information which is relevant to the application for
exemption. Subsection 517A(9) clarifies that these exemptions are not legislative
instruments within the meaning of section 5 of the Legislative Instruments Act
2003.
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514. In a prosecution for a criminal offence against a provision mentioned in subsection
517A(1), the defendant bears an evidential burden in relation to the matters in
subsection 517A(7). In this amendment the burden of proof is reversed as the
matters that need to be established in subsection 517A(7) are within the knowledge
of the defendant.
Item 780 - After section 520
515. This item inserts a new section 520A into the Act. This amendment is to clarify for
the users of the Act that the Minister may issue, in writing, statements about how
the Minister considers the Act or regulations would apply. Such statements issued
by the Minister are not intended to be legally binding on users of the Act but rather
to provide guidance to users of the Act. Subsection 520A(2) is included to assist
readers and is not a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003.
Item 781 and 782 - Section 525
516. These items provide that land in Christmas Island Territory and the Territory of
Cocos (Keeling) Islands is not a Commonwealth area if a person holds a freehold
interest in the land, despite subparagraph 525(1)(c)(i) of the Act, which specifies
that land in an external territory other than Norfolk Island is a Commonwealth area.
This does not prevent such an area from being Commonwealth land because of
another paragraph of subsection 525(1) of the Act, for example because the area is
held under lease by the Commonwealth or a Commonwealth agency.
517. The provision recognises that alternative means to the Commonwealth Heritage
List can be put in place to ensure the ongoing protection of heritage places on
"freehold land" in the Cocos Keeling Islands and Christmas Island. For heritage
property owners in these territories, it will have the effect of replacing
Commonwealth heritage protection with state heritage protection like that which
applies to heritage property owners elsewhere in Australia. In the Cocos (Keeling)
Islands and Christmas Island the property laws of Western Australia have been
applied by Commonwealth legislation. This has allowed the creation of certificates
of title for separate land parcels that have been lodged with the Western Australian
Department of Land Information. Some residents of these Islands have now
purchased their houses and hold freehold title to land in Commonwealth areas. It
would be appropriate for the heritage legislation of Western Australia to be applied
to protect the heritage values of these existing freehold heritage properties, and
future freehold heritage places in the territories.
518. To ensure there is no gap in protection for the Commonwealth Heritage places in
Christmas Island Territory and the Territory of Cocos (Keeling) Islands, this
provision has special commencement provisions. It will commence when the
Heritage of Western Australia Act 1990 starts to be applied in Christmas Island
Territory and the Territory of Cocos (Keeling) Islands.
Item 783 - At the end of Division 1 of Part 23
519. This item inserts new section 527E into the Act. This section inserts a definition of
"impact". The purpose of the amendment is to clarify the extent to which impacts
which are indirect consequences of actions must be considered or dealt with under
the Act. Section 527E applies to all direct and indirect consequences of the taking
of an action by a person, which meet the criteria in the section. Subsection 527E(2)
only applies in relation to impacts of actions by third parties which are an indirect
consequence of the taking of an action by the first person.
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Items 784 to 834 - Section 528
520. These items set out the meaning within the Act of the following terms or make
consequential amendments to the meanings:
· accredited authorisation process
· accredited management arrangement
· accredited management plan
· Antarctic
· Apia Convention
· approved conservation advice
· Australian platform
· Australian Whale Sanctuary
· authorisation process
· bilaterally accredited authorisation process
· bilaterally accredited management arrangement
· bilaterally accredited management plan
· Biodiversity Convention
· bioregional plan
· Bonn Convention
· business day
· CAMBA
· cetacean
· Commonwealth Heritage List
· Commonwealth Heritage place
· control
· copy
· ecological community
· environment
· environmental authorisation
· executing officer
· export
· export from the sea
· holder
· impact
· important cetacean habitat area
· imported
· JAMBA
· List of Overseas Places of Historic Significance to Australia
· management arrangement
· member
· migration zone
· migratory species
· National Heritage List
· National Heritage place
· Officer of Customs
· place
· Ramsar Convention
· remediation determination
· remediation order
· seized
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· specific environmental authorisation
· take
· trade
· World Heritage Convention
Item 835 - At the end of the Act
Schedule 1 - Provisions relating to detention of suspected foreign offenders
521. This item inserts Schedule 1 into the Act which provides for the detention of
suspected non-citizen offenders. Currently authorised officers under the Act are
prevented by the Migration Act 1958 from bringing non-citizens suspected of
committing offences against the Act into the migration zone as such persons are not
authorised to travel to Australia under the Migration Act 1958. This severely limits
the Government's ability to enforce the Act in Australia's maritime jurisdiction and
non self-governing external Territories and to protect Commonwealth reserves,
such as Ashmore Reef National Nature Reserve, and listed species.
522. The powers and duties contained in new Schedule 1 of the Act cover a range of
situations including the detention of people suspected of committing an offence, the
searching and screening of detainees and the carrying out of identification tests on
detainees. The Schedule mirrors the provisions contained in the Migration Act 1958
for dealing with the detention of unauthorised non-citizens, and the provisions of
the Fisheries Management Act 1991 providing for detention of foreign fishers
suspected of offences against that Act.
523. Schedule 1 of the Act will provide for a seamless transition between environment
detention under the Act and subsequent detention and repatriation under the
Migration Act 1958.
524. Items 854 to 869 make related amendments to the enforcement visa provisions of
the Migration Act 1958 that currently apply to suspected illegal foreign fishers so
that they apply also to suspected offenders against the EPBC Act. These
amendments will enable suspected offenders to be brought to Australia without
contravening the Migration Act 1958. Together the amendments will improve the
enforcement of the Act in Australia's external jurisdiction.
525. Explanatory notes relating to each of the provisions of the new Schedule 1 are set
out below:
Part 1: Preliminary
Clause 1: Main objects of this Schedule
526. This clause outlines the three main objects of the new Schedule 1 of the Act.
Clause 2: Definitions
527. This clause provides a list of definitions for the purposes of Schedule 1 to the Act.
Clause 3: Minister may appoint persons to be detention officers
528. Clause 3 allows the Minister to appoint persons to be detention officers. This is a
new class of officers under the Act with certain limited powers of detention under
Schedule 1 of the Act. It is envisaged that employees and contractors of the
Department of Immigration and Multicultural Affairs and the Australian Fisheries
Management Authority will be appointed as detention officers in the same way that
employees and contractors are currently appointed under the Migration Act 1958.
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Authorised officers appointed under Part 17 of the Act do not need to be appointed
as detention officers as they already have the necessary powers.
Clause 4: Detention officers subject to directions
529. Clause 4 provides that detention officers will be subject to the directions of the
Minister in the exercise of their powers and the performance of their duties under
new Schedule 1 of the Act.
Clause 5: Detention officer etc. not liable to certain actions
530. Clause 5 provides protection from liability or any kind of court proceedings for
detention officers, or people assisting detention officers, for anything done in good
faith in the exercise of the powers and functions contained in new Schedule 1 of the
Act. Section 498A of the Act makes similar provision for authorised officers
appointed under Part 17 of the Act.
Clause 6: The Secretary may approve authorised officers and detention officers
531. Clause 6 provides for the Secretary of the Department to approve authorised
officers and/or detention officers who have completed training prescribed by the
Regulations to perform functions and exercise powers under a specified provision
of Schedule 1. This will ensure control is maintained over the number and type of
people who will be approved to use these powers.
Clause 7: Persons who are authorised officers for the purposes of Migration Act 1958
are taken to be approved for this Schedule
532. Clause 7 provides for authorised officers or detention officers to automatically be
approved officers if they are authorised to exercise the corresponding powers under
the Migration Act 1958. This provision will allow officers to be dually authorised
to use certain powers under both the Act and the Migration Act 1958. Automatic
approval under subclause 7(1) is subject to appropriate limitations imposed by
subclauses 7(2), (3) and (4).
Part 2: Detaining suspected illegal foreign fishers
Clause 8: Power to detain
533. Clause 8 provides authorised officers appointed under Part 17 of the Act with the
power to detain non-citizens who are suspected of committing offences against the
Act or the Regulations, for the purposes of deciding whether or not to charge them
with committing an offence against the Act or the Regulations, or an offence
against clause 6 of the Crimes Act 1914 relating to such an offence.
Clause 9: Relationship with Part IC of the Crimes Act 1914
534. Clause 9 extends the protective provisions and rights that a protected suspect has
under Part IC of the Crimes Act 1914 to detainees under Schedule 1 to the Act.
Clause 10: Detention officer may detain person already detained by authorised officer
535. Clause 10 allows a detention officer to continue the detention arrangements where a
person is initially detained by an authorised officer and presented to the detention
officer to continue the detention of that person. This power is limited by subclause
10(2), which will apply, in practice, if a detainee escapes following initial
detention. Escape from detention is an offence (see clause 14) but is not in itself an
offence for which a person may be detained under subclause 8(1). Accordingly, if
the detainee is recaptured, they could not be returned to detention under Schedule 1
of the Act. However, because the detainee's enforcement visa under the Migration
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Act 1958 will automatically expire as soon as they escape from detention, a
recaptured detainee would be detained by a duly authorised officer under the
Migration Act 1958, as an unauthorised non-citizen.
Clause 11: Detention on behalf of an authorised officer or detention officer
536. Clause 11 provides for detention to continue, in certain circumstances, in the
absence of the direct presence of an authorised officer or detention officer. In
practice, this clause will allow for a detainee to be moved to a place where they can
be cared for better while their offences are being investigated. For example, a
detainee may be moved off a vessel, if it is unseaworthy or there are poor weather
conditions, to a land based detention facility.
Clause 12: Power to move detainees
537. Clause 12 provides authorised officers and detention officers with the power to
move detainees. A detainee may need to be moved to a place where they can be
cared for better while their offences are being investigated.
Clause 13: End of detention
538. Clause 13 requires that a detainee must be released from detention in certain
circumstances. This clause means that the longest a person can be detained under
Schedule 1 of the Act is 168 hours.
Clause 14: Escape from detention
539. Clause 14 makes escape from detention an offence punishable on conviction by
imprisonment for up to two years. Escape from detention is not in itself an offence
for which a person may be detained under subclause 8(1). Accordingly, if a
detainee who has escaped from detention is recaptured, they could not be returned
to detention under Schedule 1 of the Act. However, because the detainee's
enforcement visa under the Migration Act 1958 will automatically expire as soon as
they escape from detention, a recaptured detainee would be detained by a duly
authorised officer under the Migration Act 1958, as an unauthorised non-citizen.
Part 3: Searching and screening detainees and screening their visitors
Clause 15: Searches of detainees
540. Clause 15 allows an approved officer to search a detainee without warrant in certain
circumstances, subject to sufficient safeguards to ensure that all searches are
conducted in an appropriate manner. This power is aimed at ensuring the safety of
detainees, and other people, and ensuring that approved officers have a means of
determining whether a detainee is concealing evidence of their involvement in the
commission of an environment offence. It corresponds closely to section 252 of the
Migration Act 1958.
Clause 16: Power to conduct a screening procedure
541. Clause 16 provides approved officers with the power to conduct screening
procedures without warrant in relation to a detainee, other than those held in State
or Territory prisons, in certain circumstances. This power is aimed at ensuring the
safety of detainees, and other people. This clause corresponds closely to section
252AA of the Migration Act 1958.
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Clause 17: Power to conduct a strip search
542. Clause 17 allows approved officers to conduct strip searches on detainees in limited
circumstances. This clause corresponds closely to section 252A of the Migration
Act 1958.
Clause 18: Rules for conducting a strip search
543. Clause 18 sets out rules for the conduct of a strip search of a detainee under clause
17. The rules correspond to section 252B of the Migration Act 1958 which, in turn,
are based on section 3ZI of the Crimes Act 1914. The rules ensure strip searches
are conducted in a way that will protect the dignity of the detainee as much as
possible while still allowing strip searches in very limited circumstances to ensure
the safety of the detainee and other people.
Clause 19: Possession and retention of certain things obtained during a screening
procedure or strip search
544. Clause 19 provides for the retention of a thing found during a screening procedure
(under clause 16) or a strip search (under 17) of a detainee. This clause closely
corresponds to section 252C of the Migration Act 1958 and clause 3ZV of the
Crimes Act 191.
Clause 20: Approved officer may apply for a thing to be retained for a further period
545. Clause 20 allows an approved officer to apply to a magistrate for an order under
clause 21 extending the period for which they may keep a thing retained under
clause 19. It corresponds closely with section 252C of the Migration Act 1958 and
3ZW of the Crimes Act 1914. Clauses 20 and 21 allow evidence to be preserved
for use in court proceedings in cases where a delay in court proceedings has
occurred while providing for the interests of other parties affected by the retention
of the thing to be ascertained.
Clause 21: Magistrate may order that thing be retained
546. Clause 21 provides the circumstances in which a magistrate may make an order
allowing an approved officer to retain an item found during a screening procedure
or strip search of a detainee for an extended period. This clause closely
corresponds to section 252E of the Migration Act 1958.
Clause 22: Powers concerning entry to premises where detainee is detained
547. Clause 22 provides certain powers relating to the entry of detainees' visitors to a
premise where detainees are detained. This clause closely corresponds to section
252G of the Migration Act 1958 and is required for the good order and security of
detention centres as well as the safety of detainees, staff and other persons located
there.
Clause 23: Detainees held in State or Territory prisons or remand centres
548. Clause 23 makes provision for searching detainees held in detention in a prison or
remand centre of a State or Territory. This clause closely corresponds with section
252F of the Migration Act 1958.
Part 4: Detainees' rights to facilities for obtaining legal advice etc
Clause 24: Detainee may have access to certain advice, facilities etc.
549. Clause 24 requires the person responsible for the detention of a detainee to provide
the detainee with access to reasonable facilities for obtaining legal advice or taking
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legal proceedings in relation to his or her detention. This clause closely
corresponds to section 256 of the Migration Act 1958.
Part 5: Identifying detainees
Clause 25: Definitions
550. This clause provides definitions for the purposes of Part 5 of Schedule 1 of the Act.
The definitions closely correspond to the definitions of these terms in section 5 of
the Migration Act 1958.
Clause 26: Meaning of personal identifier
551. Clause 26 provides the meaning of a "personal identifier" for the purposes of Part 5
of Schedule 1 (clauses 25 to 58). It closely corresponds to section 5A of the
Migration Act 1958.
Clause 27: Limiting types of identification tests that approved officers may carry out
552. Clause 27 authorises the Secretary to limit the types of identification tests that may
be carried out by an approved officer. This clause closely corresponds to section
5D of the Migration Act 1958.
Clause 28: Detainees must provide personal identifiers
553. Clause 28 generally requires that non-citizens in detention must provide personal
identifiers to approved officers, subject to certain exceptions. This clause
corresponds closely with section 261AA of the Migration Act 1958.
Clause 29: Approved officers must require and carry out identification tests
554. Clause 29 requires approved officers to seek personal identifiers and conduct
identification tests, subject to restrictions specified in the clause. Subclauses (1)
and (2) correspond closely to section 261AB of the Migration Act 1958.
Clause 30: Information to be provided before carrying out identification tests
555. Clause 30 requires an approved officer to provide a non-citizen with certain
information before an identification test is carried out. This clause closely
corresponds with section 261AC of the Migration Act 1958.
Clause 31: General rules for carrying our identification tests
556. Clause 31 contains the general rules for carrying out identification tests on a non-
citizen in environment detention. This clause closely corresponds to section 261AD
of the Migration Act 1991 which, in turn, is based on section 23XI of the Crimes
Act 1914. These rules ensure that the dignity and welfare of the non-citizen is
respected while identification tests are being carried out
Clause 32: Use of force in carrying out identification tests
557. Clause 32 contains the rules regarding use of reasonable force in carrying out an
identification test. This clause closely corresponds to section 261AE of the
Migration Act 1958.
Clause 33: Identification tests not to be carried out in a cruel, inhuman or degrading
manner etc.
558. Clause 33 states that the carrying out of an identification test is not of itself taken to
be cruel, inhuman or degrading or to be a failure to treat a person with humanity
and with respect for human dignity, but that nothing in Schedule 1 authorises the
carrying out of an identification test in a cruel, inhuman or degrading manner, or in
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a manner that fails to treat a person with humanity and with respect for human
dignity. Clause 33 closely corresponds with section 261AF of the Migration Act
1958 and reflects Articles 7 and 10(1) of the International Covenant on Civil and
Political Rights.
Clause 34: Approved officer may get help to carry out identification tests
559. Clause 34 enables an approved officer to ask another approved officer, an
authorised officer or detention officer to help them to carry out an identification
test. It also provides that an approved officer, officer or detention officer that has
been so requested, is authorised to provide that help. Clause 34 closely corresponds
to section 261AG of the Migration Act 1958.
Clause 35: Identification tests to be carried out by approved officer of same sex as non-
citizen
560. Clause 35 entitles a non-citizen to requests that an identification test be carried out
by an approved officer of the same sex as the non-citizen. There is no automatic
requirement, as is the case for searches, because identification tests are not
considered to be invasive. This clause corresponds closely with section 261AH of
the Migration Act 1958.
Clause 36: Independent person to be present
561. Clause 36 sets out the circumstances when an independent person (as defined in
clause 26) must be present during an identification test. It corresponds closely with
section 261AI of the Migration Act 1958.
Clause 37: Recording of identification tests
562. Clause 37 provides for approved officers to video record an identification test or, if
it is not video recorded, to carry it out in the presence of an independent person.
The clause closely corresponds to section 261AJ of the Migration Act 1958.
Clause 38: Retesting
563. Clause 38 provides for a non-citizen to undertake the same identification test more
than once in certain circumstances. This clause closely corresponds to section
261AK of the Migration Act 1958.
Clause 39: Definitions
564. Clause 39 provides definitions for the purposes of clauses 40 to 46. The definitions
correspond closely to section 261AKA of the Migration Act 1958.
Clause 40: Accessing video recordings
565. Clause 40 makes it an offence for a person who is not authorised under clause 41 to
access a video recording of an identification test, unless access is through permitted
provision of the videotape. This maximum penalty is imprisonment for two years.
This clause closely corresponds to section 261AKB of the Migration Act 1958.
Clause 41: Authorising access to video recordings
566. Clause 41 provides for the Secretary to authorise access to video recordings of an
identification test carried out on a non-citizen for certain purposes. This clause
corresponds closely to section 261AKC of the Migration Act 1958.
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Clause 42: Providing video recordings
567. Clause 42 makes it an offence to cause the provision of a video recording of an
identification test to another person unless it is a "permitted provision". The
maximum penalty is imprisonment for two years. This clause closely corresponds
to section 261AKD of the Migration Act 1958.
Clause 43: Unauthorised modification of video recordings
568. Clause 43 makes it an offence for a person to intentionally cause an unauthorised
modification of a video recording of an identification test that the person knows is
unauthorised. The maximum penalty is imprisonment for two years. This clause
closely corresponds to section 261AKE of the Migration Act 1958.
Clause 44: Unauthorised impairment of video recordings
569. Clause 44 makes it an offence for a person to intentionally cause an unauthorised
impairment of the reliability of a video recording, the security of the storage of a
video recording, or the operation of a system by which a video recording is stored,
where the person knows the impairment is unauthorised. The maximum penalty is
imprisonment for two years. This clause closely corresponds to section 261AKF of
the Migration Act 1958.
Clause 45: Meanings of unauthorised modification and unauthorised impairment etc.
570. Clause 45 defines the circumstances in which modification or impairment of a
video recording will be unauthorised for the purposes clauses 43 and 44. This
clause closely corresponds to section 261AKG of the Migration Act 1958.
Clause 46: Destroying video recordings
571. Clause 46 makes it an offence for a person who has day-to-day responsibility for
the system under which video recordings of identification tests are stored to fail to
physically destroy the video recording, and all copies of that recording, within 10
years of it being made. The maximum penalty is two years imprisonment. This
clause closely corresponds to section 261AKH of the Migration Act 1958. This
clause safeguards the use of personal information and limits the period in which the
information may be stored.
Clause 47: Minors
572. Clause 47 sets out special rules to be applied in carrying out identification tests on
minors, as defined in clause 25. This clause closely corresponds to subsections
261AL(1), (5) and (6) of the Migration Act 1958.
Clause 48: Incapable persons
573. Clause 48 sets out special rules to be applied in carrying out identification tests on
incapable persons, as defined in clause 25. This clause corresponds closely to
subsections 261AM(1) and (4) of the Migration Act 1958.
Clause 49: Definitions
574. Clause 49 provides definitions for the purposes of clauses 50 to 58. The definitions
in this clause closely correspond to section 336A of the Migration Act 1958.
Clause 50: Application
575. Clause 50 makes it clear that clause 15.4 of the Criminal Code (which relates to
extended geographical jurisdiction) applies to all offences against clauses 50 to 58.
This clause corresponds closely with section 336B of the Migration Act 1958. The
application of clause 15.4 of the Criminal Code means that offences can be
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committed regardless of whether or not the conduct (or the result of the conduct)
constituting the alleged offence occurred in Australia. This provision is necessary
as some of the offences against clauses 50 to 58 could potentially relate to the
disclosure of information to a foreign country and this provision puts beyond doubt
that the disclosure of the information will constitute an offence regardless of
whether the disclosure was made or received in a foreign location.
Clause 51: Accessing identifying information
576. Clause 51 makes it an offence for a person to access identifying information for an
unauthorised purpose, unless the access is through a permitted disclosure. The
maximum penalty is two years imprisonment. This clause corresponds closely with
section 336C of the Migration Act 1958.
Clause 52: Authorising access to identifying information
577. Clause 52 provides for the Secretary to authorise access to identifying information
for certain purposes. This clause corresponds closely to section 336D of the
Migration Act 1958.
Clause 53: Disclosing identifying information
578. Clause 53 makes it an offence to cause the disclosure of identifying information
unless that disclosure is a permitted disclosure. The maximum penalty is
imprisonment for two years. This clause closely corresponds to section 336E of the
Migration Act 1958.
Clause 54: Authorising disclosure of identifying information to foreign countries etc.
579. Clause 54 provides for the Secretary to authorise the disclosure of identifying
information to foreign countries and organisations for a purpose specified in
subclause 26(3). This clause closely corresponds to sections 336F(1) and (2) of the
Migration Act 1958.
Clause 55: Unauthorised modification of identifying information
580. Clause 55 makes it an offence for a person to intentionally cause an unauthorised
modification of identifying information that the person knows is unauthorised. The
maximum penalty is imprisonment for two years. This clause closely corresponds
to section 336G of the Migration Act 1958.
Clause 56: Unauthorised impairment of identifying information
581. Clause 56 makes it an offence for a person to intentionally cause an unauthorised
impairment of the reliability of identifying information, the security of the storage
of identifying information, or the operation of a system by which identifying
information is stored, where the person knows the impairment is unauthorised. The
maximum penalty is imprisonment for two years. This clause closely corresponds
to section 336H of the Migration Act 1958.
Clause 57: Meanings of unauthorised modification and unauthorised impairment etc.
582. Clause 57 defines the circumstances in which modification or impairment of
identifying information will be unauthorised for the purposes clauses 55 and 56.
This clause closely corresponds to section 336J of the Migration Act 1958.
Clause 58: Identifying information may be indefinitely retained
583. Clause 58 provides that identifying information may be indefinitely retained. This
clause corresponds closely with paragraph 336L(1)(a) of the Migration Act 1958
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because under Schedule 1 any identifying information will always be about
someone who is, or has been, in detention.
Part 6: Disclosure of detainees' personal information
Clause 59: Disclosure of detainees' personal information
584. Clause 59 specifies agencies and organisations to which, and purposes for which,
an agency or organisation that has been responsible for the detention of a individual
under Schedule 1 may disclose personal information about the detainee (without
contravening the Privacy Act 1988). The clause places stringent restrictions on the
purposes for which personal information may be disclosed to an agency or
organisation which has a legitimate reason to know such information in connection
with their detention and removal from Australia. The types of information that may
be disclosed would include medical, behavioural and identity information.
Part 2 - Amendments of other Acts
Australian Heritage Council Act 2003
Item 836 - Section 3(1) (definition of Register)
585. This item repeals the definition of the Register. The repeal commences at the end of
5 years starting on the day of commencement of item 550.
Item 837 - After paragraph 5(c)
586. This item clarifies that the Australian Heritage Council has the function, in
accordance with section 390P of the Environment Protection and Biodiversity
Conservation Act 1999, of advising the Minister about the inclusion of places in,
and the removal of places from, the new List of Overseas Places of Historic
Significance to Australia.
Item 838 - Paragraph 5(f)
587. This item removes the requirement that the Australian Heritage Council keep the
Register of the National Estate. The repeal commences at the end of 5 years starting
on the day of commencement of item 550.
Item 839 - Addition at the end of Part 4
Section 20A Resolutions without meeting
588. The item clarifies that separate copies of an identical document may be signed by
members to indicate agreement with a resolution. The resolution is passed when
the last of the members signs the document, or otherwise indicates that he or she is
in favour of the resolution. This removes significant administration limitations on
the Council.
Item 840 - Addition at the end of Part 5
589. This item will stop the addition to, or removal of places from, the Register of the
National Estate from the beginning of the 5-year phase-out period. This provision
reflects the process of transition of the Register of the National Estate from a
statutory list to a non-statutory information source.
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Item 841 - Part 5
590. This item repeals Part 5 of the Australian Heritage Council Act 2003 which deals
with the keeping of the Register of the National Estate. The repeal commences at
the end of 5 years starting on the day of commencement of item 550.
591. The delayed commencement of this repeal will allow time for the states and
territories to amend legislation or processes and to heritage list places which are in
the Register of the National Estate.
Items 842 to 845 - Paragraphs 24A(2)(c), (2)(d), (2)(g) and (2)(h)
592. These items remove the reference to the Register of the National Estate. The repeal
commences at the end of 5 years starting on the day of commencement of item 550.
Environment and Heritage Legislation Amendment Act (No. 1) 2003
Items 846 and 847 - Subitem 1A(2) of Schedule 3
593. These items amend the heading of subitem 1A(2) of Schedule 3 and remove a
requirement that set a time limit for the transfer of existing World Heritage
properties into the National Heritage list for their World Heritage values at any
time, without the need for further assessment.
Environment Protection (Alligator Rivers Region) Act 1978
Item 848 - Subsection 3(1) (subparagraph (b)(iii) of the definition of prescribed
instrument)
594. This item is a technical amendment only to omit "1976 and;" and substitute
"1976." This item is required as a consequence of item 849.
Item 849 - Subsection 3(1) (subparagraph (b)(iv) of the definition of prescribed
instrument)
595. This item is required as a consequence of item 592.
Environment Protection (Northern Territory Supreme Court) Act 1978
Item 850 - Section 3 (subparagraph (b)(iii) of the definition of prescribed
instrument)
596. This item is a technical amendment only to omit "1976 and;" and substitute
"1976." This item is required as a consequence of item 851.
Item 851 - Section 3 (subparagraph (b)(iv) of the definition of prescribed
instrument)
597. The item is required as a consequence of item 592.
Environment Protection (Sea Dumping) Act 1981
Item 852 - Subsection 4(1) (definition of Protocol)
598. This item repeals the definition of "Protocol" and replaces it with a new definition.
This amendment is to ensure that the reference in the Environment Protection (Sea
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Dumping) Act 1981 correctly refers to the "Protocol" as amended and in force for
Australia from time to time. This new definition removes the need to amend
Schedule 1 on an ongoing basis and will ensure that an accurate version of the
Protocol is referenced for users.
Item 853 - Schedule 1
599. This item is a consequence of item 852 which replaces the definition of "Protocol".
Migration Act 1958
600. These amendments relate to item 835 above which inserts a new Schedule 1 into
the Environment Protection and Biodiversity Conservation Act 1999 that provides
for the detention of non-citizens suspected of offences under the Act.
601. The amendments to the Migration Act 1958 will ensure that a non-citizen detained
in relation to suspected offences under the Environment Protection and Biodiversity
Conservation Act 1999 is granted an enforcement visa by operation of the
Migration Act 1958.
Items 854 to 857 - Subsection 5(1)
602. These items amend subsection 5(1) of the Migration Act 1958:
- to add a definition of "environment detention offence", being an offence
against the Environment Protection and Biodiversity Conservation Act 1999
or the Regulations under the Act, or an offence against section 6 of the
Crimes Act 1914 relating to such an offence.
- to add a definition of "environment officer" being an authorised officer
within the meaning of the Environment Protection and Biodiversity
Conservation Act 1999, but does not include an authorised officer because
of subsection 397(3) of that Act.
- to add a definition of "foreign aircraft (environment matters)" to mean an
aircraft, within the meaning of the Environment Protection and Biodiversity
Conservation Act 1999, that is not an Australian aircraft (within the meaning
of that Act).
- to add a definition of "vessel (environment matters)" to mean a vessel,
within the meaning of the Environment Protection and Biodiversity
Conservation Act 1999.
Item 858 - At the end of subsection 43(3)
603. This item inserts paragraph 43(3)(c) into the Migration Act 1958.
604. Subsection 43(1) requires that, unless exempted, a visa-holder must usually enter
Australia at a port or on a pre-cleared flight.
605. New paragraph 43(3)(c) will provide an exemption from that requirement by
allowing an Australian resident entering Australia on a vessel (environmental
matters) as a result of the exercise of powers under paragraphs 403(3)(a) or
403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999 to
bring the vessel to Australia because there were reasonable grounds to suspect the
vessel had been used or otherwise involved in the commission of an offence under
the Environment Protection and Biodiversity Conservation Act 1999 or an offence
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against section 6 of the Crimes Act 1914 relating to an offence under the
Environment Protection and Biodiversity Conservation Act 1999.
Items 859 and 860 - Subsection 43(4)
606. These items amend subsection 43(4) of the Migration Act 1958 to add definitions of
"Commonwealth aircraft" and "Commonwealth ship". The definitions are relevant
to paragraph 43(3)(c) inserted by item 858 and have the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999.
Items 861 to 865 - Section 164A
607. Section 164A of the Migration Act 1958 provides definitions for the purposes of
Division 4A of the Act which deals with enforcement visas. These items add the
following definitions to section 164A:
- "Commonwealth aircraft" which has the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999.
- "Commonwealth ship" which has the same meaning as in the Environment
Protection and Biodiversity Conservation Act 1999.
- "enforcement visa (environment matters)" which means an enforcement visa
that is granted by new section 164BA.
- "enforcement visa (fisheries matters)" which means an enforcement visa
that is granted by section 164B.
- "environment detention" which means detention under new Schedule 1 to
the Environment Protection and Biodiversity Conservation Act 1999.
Item 866 - After section 164B
608. This item inserts new section 164BA of the Migration Act 1958 that closely reflects
existing section 164B which deals with the grant of enforcement visas for non-
citizens detained in relation to prescribed offences under the Fisheries Management
Act 1991. The new section extends the circumstances in which an enforcement visa
will be granted by the Migration Act 1958 to include persons involved in suspected
offences under the Environment Protection and Biodiversity Conservation Act
1999.
609. Subsection 164BA(1) provides that an enforcement visa is granted to a person on a
vessel outside the migration zone where powers are exercised under paragraphs
403(3)(a) or 403(3)(b) of the Environment Protection and Biodiversity
Conservation Act 1999 to bring the vessel to Australia in connection with an
offence under the Environment Protection and Biodiversity Conservation Act 1999
or an offence against section 6 of the Crimes Act 1914 relating to an offence under
the Environment Protection and Biodiversity Conservation Act 1999.
610. Subsection 164BA(2) will ensure that a non-citizen in the migration zone who does
not already hold an enforcement visa is granted an enforcement visa if they are
detained under new Schedule 1 of the Act.
611. Subsections 164BA(3) and (4) provide that an enforcement visa is granted where
prescribed powers are exercised by environment officers in prescribed
circumstances in relation to non-citizens, vessels (environmental matters) and
foreign aircraft (environmental matters) under the Environment Protection and
Biodiversity Conservation Act 1999. The enforcement visa is granted at the time
these powers are exercised.
106
612. Subsection 164BA(5) clarifies that an enforcement visa is granted by operation of
section 164BA.
613. Subsection 164BA(6) provides that despite the effect of new subsections 164BA(1),
164BA(2), 164BA(3) and 164BA(4) a non-citizen is not granted an enforcement if
the Minister has made a written declaration under new subsection 164BA(7) that it
is undesirable that that person, or class of persons of which the non-citizen is a
member, travel to and enter or remain in Australia.
614. New subsection 164BA(7) provides that, for the purposes of new section 164BA,
the Minister may make a written declaration that a person is not granted an
enforcement visa where it is undesirable that a person, or any person within a class
of persons, should travel to and enter Australia or remain in Australia.
615. Subsection 164BA(8) clarifies that the section does not apply to non-citizens who
are Australian residents. "Australian resident" is defined in Schedule 1 to the
Environment Protection and Biodiversity Conservation Act 1999.
Items 867 and 868 - Subsections 164C(1) and (2)
616. These items are of a technical nature only to change references to "enforcement
visa" to "enforcement visa (fisheries matter)" in subsections 164C(1) and (2) of the
Migration Act and are required as a consequence of item 869.
Item 869 - Subsection 164C(3)
617. This item inserts new subsections 164C(3) and 164C(4) of the Migration Act which
set out when an enforcement visa (environment matters) granted under new section
164BA ceases to have effect, and mirror existing subsections 164C(1) and (2)
regarding an enforcement visa (fisheries matter).
Schedule 2 - Application, saving and transitional provisions
Part 1--Preliminary
Item 1 - Definitions
618. This item sets out definitions for transitional purposes.
Part 2--Provisions relating to assessments and approvals
Division 1--Main provisions
Item 2 - Definitions
619. This item sets out definitions for transitional purposes.
Item 3 - Actions referred under Division 1 of Part 7 before the commencement time -
general
620. This item contains transitional arrangements in relation to actions referred under Part 7
of the Act. Paragraph (1) applies the provisions of Parts 7, 8 and Division 1 of Part 9
as they existed before amendment by this Bill to all actions which were referred to the
Minister before this Bill came into force and which had not received approval under
Part 9 of the Act at that time. This provision is subject to the exceptions listed in
paragraph (2). These amending items come into force immediately upon
commencement of this schedule. This means that the old law in Parts 7, 8 and 9 of the
107
Act continues to apply to the category of actions identified in paragraph (1), however,
certain provisions of the new law, identified in paragraph (2) apply to those actions.
Item 4 - Minister may determine that particular amendments of the EPBC Act are to
apply to an action referred under Division 1 of Part 7 before the commencement time
621. This item allows the Minister to apply the new law (the EPBC Act as amended by this
Bill) to actions which fall within the category of actions identified in paragraph (1) of
item 3 by determining in writing that the new law should apply in relation to a
particular action. Under Paragraph (2) the Minister may modify the provisions of Part
7 and Division 3 of Part 8 of the Act. The purpose of this amendment is to allow the
Minister to transfer actions from the old Chapter 4 referral, assessment, approval
scheme to the new scheme where appropriate, and to modify the application of Part 7
or Division 3 of Part 8 of the Act if it is necessary to ensure that timeframes can be met
or that a step in the process, such as consultation, that was missed because of the
transfer can be carried out.
622. A determination under this item is a legislative instrument, however, such an
determination is not subject to disallowance under s.42 of the Legislative Instruments
Act 2003
Item 5 and 6 - Proposals to authorise actions referred under section 161 before the
commencement time--assessment approach decision made, and proposals to authorise
actions referred under section 161 before the commencement time--assessment
approach decision not made
623. These items apply to actions in relation to which a Commonwealth agency or
employee may request advice from the Minister under section 160(1) of the Act. The
provision applies the old law (the EPBC Act as amended by this Bill) in Part 8,
Subdivision A, Division 4 of Part 11 of the Act and section 170A to all actions referred
to the Minister under section 160(1) for which a decision on assessment approach
under section 87 (in accordance with section 162) had not been made at the time these
amendments commenced. The new law applies to all other actions referred to the
Minister under section 160(1).
Item 7 - Actions to which an agreement made under section 167 before the
commencement time relates
624. This item applies to agreements between the Commonwealth and State under s.167
which provides for the Commonwealth to undertake an assessment of the impacts of
the action on the environment generally. The old law in Part 8, Division 1, Part 10
applies in relation to agreements entered into before the commencement of these
amendments. The new law applies to all other agreements.
Item 8 - Saving regulations
625. These are savings provisions. The effect of these provisions is that regulations made
under specified provisions of the EPBC Act before amendment by this amending Bill
(the `old law') continue to have force as if they were made under the specified
provisions of the EPBC Act as amended by this amending Bill (the `new law').
Division 2--Other provisions
Item 9 - Application of amendments made by items 68 etc
626. These are application provisions. The effect of these provisions is that the
amendments to the EPBC Act made by the items of this amending Bill which are listed
only apply to actions taken after the commencement of this schedule.
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Item 10 - Application of amendments made by items 123 etc
627. These are application provisions. The effect of these provisions is that the
amendments to the EPBC Act made by the items of this amending Bill which are listed
only apply to actions taken after the commencement of this schedule.
Item 11 - Application of amendments made by items 109 and 110
628. These are application provisions. The effect of these provisions is that the amendments
to the EPBC Act made by the items of this amending Bill which are listed only apply
to a management arrangement or authorisation process that is laid before each House
of the Parliament after the commencement of this schedule.
Item 12 - Application of amendments made by items 144 and 145
629. These are application provisions. The effect of these provisions is that the
amendments to the EPBC Act made by the items of this amending Bill which are listed
only apply to a management arrangement or authorisation process that is laid before
each House of the Parliament after the commencement of this schedule.
Item 13 - Saving of accredited management plans
630. These are savings provisions. The effect of these provisions is that a management plan
accredited under section 33 of the EPBC act before amendment by this amending Bill
(the `old law') continues to have force as an accredited management arrangement
under section 33 of the EPBC Act as amended by this amending Bill (the `new law')
and a management plan accredited under section 46 of the EPBC act before
amendment by this amending Bill (the `old law') continues to have force as a
bilaterally accredited management arrangement under section 46 of the EPBC Act as
amended by this amending Bill (the `new law').
Part 3--Provisions relating to recovery plans and conservation advice
Item 14 - Definitions
631. This item sets out definitions for transitional purposes.
Item 15 - Listed species or communities for which there are already recovery plans
632. This item is for transitional purposes. A listed threatened species or ecological
community which has a recovery plan in force at the commencement of the amended
Act need not have approved conservation advice. However should the Minister decide
at any time not to have a recovery plan for the threatened species or ecological
community, the Minister must then ensure there is approved conservation advice for
the threatened species or ecological community.
Item 16 - Listed species or communities for which there are not already recovery plans
633. This item is for transitional purposes and relates to listed threatened species and
ecological communities for which there are not already recovery plans in force. None
of the items referred to subsection (4) are legislative instruments.
Items 17 and 18 - Species or communities in the Recovery Planning Action
Commenced List and Action Not Commenced List
634. These items are for transitional purposes and are as a consequence of transitional item
16.
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Part 4--Provisions relating to fisheries
Item 19 - Application of amendment made by item 1
635. The amendment made by item 1 applies to fishing activities engaged in after the item
commences (whether the relevant plan of management is in force under the Fisheries
Management Act 1991 before or after that time).
Item 20 - Application of amendments made by items 315 and 316
636. The amendments made by items 315 and 316 apply to agreements made under
section 146 of the EPBC Act after the commencement of those items.
Item 21 - Application of amendment made by item 319
637. The amendment made by item 319 applies to an agreement between Ministers of the
kind referred to in subsection 152(1) of the EPBC Act that is made after the
commencement of that item.
Item 22 - Application of amendment made by item 320
638. The amendment made by item 320 applies to agreements made under section 146 of
the EPBC Act after the commencement of that item.
Item 23 - Application of amendments made by items 208A etc.
639. The amendments made by items 391, 416, 449 and 466 apply to any plan, regime or
policy accredited under section 208A, 222A, 245 or 265 of the EPBC Act after the
commencement of those items. The amendments made by items 391, 416, 449 and 466
do not affect the continuity of any accreditation, under section 208A, 222A, 245 or 265
of the EPBC Act, of a plan or regime that is done before the commencement of those
items.
Item 24 - Application of amendment made by item 487
640. The amendment made by item 487 applies to any plan, regime or policy, whether the
plan, regime or policy was accredited under section 208A, 222A, 245 or 265 of the
EPBC Act before or after the commencement of that item.
Part 5--Other provisions relating to protected species
Item 25 - Application of amendments made by items 181 etc
641. The amendment made by items 181, 382, 385, 411, 412, 437, 444, 462 and 467 apply
in relation to applications made after the commencement of those items.
Item 26 - Continued application of Subdivision B of Division 4 of Part 11
642. Despite the repeal of Subdivision B of Division 4 of Part 11 of the EPBC Act by item
330 of this Schedule, Subdivision continues to apply in relation to an application for a
permit under Division 3 of Part 13 of that Act that was made before the
commencement of that item.
Item 27 - Inventories prepared under section 172
643. This item provides that inventories prepared prior to the amendments specified in item
349 commencing will continue to have effect as if they were prepared under the new
section 172 of the EPBC Act.
Item 28 - Inventories prepared under section 173
644. This item provides that surveys prepared prior to the amendments specified in item 350
commencing will continue to have effect as if they were prepared under the new
section 173 of the EPBC Act.
110
Item 29 - Application of amendments made by items 417 etc
645. The amendments made by items 417, 418, 423, 424, 425, 426, 428, 434, 439, 441, 811,
812, 816 and 833 of this Schedule apply in relation to actions (however described)
taken after the commencement of those items.
Item 30 - Application of amendment made by item 420
646. The amendment made by item 420 of this Schedule applies in relation to actions
(however described) taken after the commencement of that item.
Item 31 - Application of amendments made by items 429 and 440
647. The amendment made by item 429 of this Schedule applies in relation to actions taken
(however described) after the commencement of that item. The amendment made by
item 440 of this Schedule applies in relation to an application for a permit under
section 237 of the Act that is made after the commencement of that item.
Item 32 - Application of amendments made by items 430 and 431
648. The amendment made by items 430 and 431 of this Schedule apply in relation to
actions taken after the commencement of those items.
Item 33 - Application of amendments made by items 435 and 445
649. The amendment made by item 435 of this Schedule applies in relation to a vessel
brought into a port after the commencement of that item. The amendment made by
item 445 of this Schedule applies in relation to an application for a permit under
section 237 of the Act that is made after the commencement of that item.
Item 34 - Saving regulations
650. Regulations in force before the commencement of item 440 for the purposes of
paragraph 238(3)(c) continue in force after commencement as if they were made after
commencement. Subitem (1) does not prevent the amendment or repeal of these
regulations.
Part 6--Provisions related to wildlife trade
Item 35 - Application of amendments made by items 488 etc
651. The amendments made by items 488, 489, 496, 499, 500, 503, 509, 510, 511, 514, 515,
516, 517, 518, 519, 520, 521, 523, 524, 525 and 527 of this schedule apply to permits
granted after the commencement of those items.
Item 36 - Application of amendments made by items 506 etc
652. The amendments made by items 506, 507, 508 and 522 of this schedule apply to
assessments started after the commencement of those items.
Part 7--Provisions related to listing processes
Items 37 and 38 - Definitions and Section 191 nominations made before the species
commencement
653. These transitional provisions provide for management of nominations which were
made prior to the commencement of the amended EPBC Act. Such nominations are
subject to the amended EPBC Act upon commencement of the amended EPBC Act
with the Minister having the ability to determine that dealings with the nomination
under the old EPBC Act may be taken into account.
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Item 39 - Section 324E nominations made before heritage commencement
654. This item provides for a place wholly in the Australian jurisdiction that, before
commencement, had been nominated under the old section 324E, but was not the
subject of a decision by the Minister whether to include it in the National Heritage List.
In these instances, the nomination is taken to have been a nomination made in response
to the invitation for nominations in the first assessment period under the new Act for
the National Heritage List. The new regulations as to manner and form and
information to be included in nominations are taken to have been complied with, but a
nomination must have complied with regulations for the old section 324E.
655. If the Minister had requested assessment by the Australian Heritage Council before
commencement, the Minister is taken to have given the nomination to the Council
under the new section 324JA for the first assessment period. The Minister and Council
can take into account information obtained in relation to the nomination under the old
Act. If the Council had complied with subsection 324G(3A) of the old Act (including
the publication of an invitation for comments on a place) before commencement, the
Minister may determine that the Council has complied with new section 324JG for the
place. Section 324JG requires the Council to invite comments on a finalised priority
assessment list. The determination also has the effect that references in the new Act to
the notice under subsection 324JG(1) are taken to be references to the notice under the
old Act in compliance with old subsection 324G(3A).
656. Places outside the Australian jurisdiction that had been nominated before
commencement may be considered by the Minister for the new List of Overseas Places
of Historic Significance to Australia.
657. If the Australian Heritage Council had before commencement complied with
subsection 324G(4) of the old Act, which specifies consultations to be undertaken if
the Council considers a nominated place might have one or more National Heritage
values, then the Minister may determine that the Council has complied with new
subsection 324JH(5) for the place and that comments received under the old process
can be used in the new process. Subsection 324JH(5) is a provision about
consultations to be undertaken under the new Act if the Council considers a nominated
place might have one or more National Heritage values.
658. If the Australian Heritage Council had given the Minister an assessment before
commencement of the new Act under subsection 324G(4) of the old Act, then the
Minister may determine that the assessment and any comments given to the Minister
were given in accordance with subsection 324JH(1) of the new Act, on the day of the
determination.
659. Additionally, the item confirms that the determinations by the Minister under the item
are not legislative instruments. This is because they are not legislative instruments
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 40 - Section 324F emergency listings before commencement
660. This item provides for a place that, before commencement, had been included in the
National Heritage List under the old section 324F, but was not the subject of an action
by the Minister under subsection 324J(5) of the old Act about its continued inclusion in
the National Heritage List. Such a place is taken, for the purposes of the new Act, to
have been included in the National Heritage List at the time that it was included in the
National Heritage List under the old Act.
112
661. If the Minister had before commencement complied with the publication and
consultation requirements of subsection 324F(5) of the old Act, this is taken to be
compliance with the similar requirements of subsection 324JL(3) in the emergency
National Heritage listing provisions of the new Act.
662. If the Minister had given the Chair of the Australian Heritage Council a request for
assessment under the old subsection 324F(3), the item provides for that request to be
taken as a request under subsection 324JM(1) of the new Act, with a completion
deadline that is the same as when assessment would have been due under the old Act if
it were not repealed. In addition, it empowers the Minister and Council to consider
information obtained under the old emergency listing process for the new emergency
listing.
663. If the Australian Heritage Council had before commencement complied with
subsection 324G(3A) for a place, the Minister is empowered to determine that Council
has complied with section 324JN of the new Act, which is about the publication and
request for comments on the inclusion of a place by the emergency process in the
National Heritage List. The determination also results in references in the new Act to
the notice in subsection 324JN(1) being taken as references to the notice published
under section 324G(3A) of the old Act. However, new regulations (if any) under
paragraph 324JN(3)(b) do not apply to the comments received in response to the notice
under the old Act.
664. It is also noted that paragraph 324JO(1)(b) applies the provisions of the new usual
Australian Heritage Council assessment process, in section 324JH and other sections
that refer to section 324JH, to the new emergency National Heritage listing process.
The cut-off date for comments under paragraph 324JH(3)(a), will be the cut-off date (if
any) specified in the notice under the old Act.
665. The item provides that if the Australian Heritage Council had before commencement
complied with subsection 324G(4) for a place, the Minister is empowered to determine
that Council has complied with subsection 324JH(5) of the new Act (as it applies
because of section 324JO of the new Act). Subsection 324JH(5) is about consultations
when the Council considers that a place might have National Heritage values. The
determination also results in comments obtained under the old Act being able to be
taken as comments received under paragraph 324JH(5)(c) of the new Act.
666. The item also provides that if the Australian Heritage Council had before
commencement given the Minister a written assessment under section 324G of the old
Act, the Minister may determine that the assessment and any comments given to the
Minister with it under section 324G, have been given in accordance with subsection
324JH(1) of the new Act (as it applies because of section 324JO of the new Act).
667. Additionally, the item confirms that the determinations by the Minister under the item
are not legislative instruments. This is because they are not legislative instruments
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 41 - Changes to section 324F emergency listings not published etc. before
commencement
668. This item provides for the situation where the Minister has, under the emergency
listing provision in subsection 324J(5) of the old Act, before commencement, removed
a place or a value from the National Heritage List or altered the boundary of a place in
the National Heritage List, but has not complied with the requirements in old
113
subsection 324J(7). Subsection 324J(7) requires publication of these decisions and the
provision of reasons for them. In these circumstances, this item continues the effect of
subsections 324J(7) and 324J(9) despite their repeal, in relation to the removal or
alteration. Subsection 324J(9) of the old Act requires publication by the Minister,
according to regulations, of a copy or summary of the instrument in the Gazette about a
removal or alteration.
Item 42 - Section 341E nominations made before commencement
669. This item provides for a place that, before commencement, had been nominated under
the old section 324E, but was not the subject of a decision by the Minister whether to
include it in the Commonwealth Heritage List. In these instances, the nomination is
taken to have been a nomination made in response to the invitation for nominations in
the first assessment period under the new Act for the Commonwealth Heritage List.
The new regulations as to manner and form and information to be included in
nominations are taken to have been complied with, but a nomination must have
complied with regulations for the old section 341E.
670. If the Minister had requested assessment by the Australian Heritage Council before
commencement, the Minister is taken to have given the nomination to the Council
under the new section 341J for the first assessment period. The Minister and Council
can take into account information obtained in relation to the nomination under the old
Act. If the Council had complied with subsection 341G(3A) of the old Act (including
the publication of an invitation for comments on a place) before commencement, the
Minister may determine that the Council has complied with new section 341JF for the
place. Section 341JF requires the Council to invite comments on a finalised priority
assessment list. The determination also has the effect that references in the new Act to
the notice under subsection 341JF(1) are taken to be references to the notice under the
old Act in compliance with old subsection 341G(3A).
671. If the Australian Heritage Council had before commencement complied with
subsection 341G(4) of the old Act, which specifies consultations to be undertaken if
the Council considers a nominated place might have one or more Commonwealth
Heritage values, then the Minister may determine that the Council has complied with
new subsection 341JG(5) for the place and that comments received under the old
process can be used in the new process. Subsection 341JG(5) is a provision about
consultations to be undertaken under the new Act if the Council considers a nominated
place might have one or more National Heritage values.
672. If the Australian Heritage Council had given the Minister an assessment before
commencement of the new Act under subsection 341G(4) of the old Act, then the
Minister may determine that the assessment and any comments given to the Minister
were given in accordance with subsection 341JG(1) of the new Act, on the day of the
determination.
673. Additionally, the item confirms that the determinations by the Minister under the item
are not legislative instruments. This is because they are not legislative instruments
within the meaning of section 5 of the Legislative Instruments Act 2003.
Item 43 - Section 341F emergency listings before commencement
674. This item provides for a place that, before commencement, had been included in the
Commonwealth Heritage List under the old section 341F, but was not the subject of an
action by the Minister under subsection 341J(5) of the old Act about its continued
114
inclusion in the Commonwealth Heritage List. Such a place is taken, for the purposes
of the new Act, to have been included in the Commonwealth Heritage List at the time
that it was included in the Commonwealth Heritage List under the old Act.
675. If the Minister had before commencement complied with the publication and
consultation requirements of subsection 341F(5) of the old Act, this is taken to be
compliance with the similar requirements of subsection 341JK(3) in the emergency
Commonwealth Heritage listing provisions of the new Act.
676. If the Minister had given the Chair of the Australian Heritage Council a request for
assessment under the old subsection 341F(3), the item provides for that request to be
taken as a request under subsection 341JL(1) of the new Act, with a completion
deadline that is the same as when assessment would have been due under the old Act if
it were not repealed. In addition, it empowers the Minister and Council to consider
information obtained under the old emergency listing process for the new emergency
listing.
677. If the Australian Heritage Council had before commencement complied with
subsection 341G(3A) for a place, the Minister is empowered to determine that Council
has complied with section 341JM of the new Act, which is about the publication and
request for comments on the inclusion of a place by the emergency process in the
Commonwealth Heritage List. The determination also results in references in the new
Act to the notice in subsection 324JM(1) being taken as references to the notice
published under section 341G(3A) of the old Act. However, new regulations (if any)
under paragraph 341JM(3)(b) do not apply to the comments received in response to the
notice under the old Act.
678. It is also noted that paragraph 341JN(1)(b) applies the provisions of the new usual
Australian Heritage Council assessment process, in section 341JG and other sections
that refer to section 341JG, to the new emergency Commonwealth Heritage listing
process. The cut-off date for comments under paragraph 341JG(3)(a), will be the cut-
off date (if any) specified in the notice under the old Act.
679. The item provides that if the Australian Heritage Council had before commencement
complied with subsection 341G(4) for a place, the Minister is empowered to determine
that Council has complied with subsection 341JG(5) of the new Act (as it applies
because of section 341JN of the new Act). Subsection 341JG(5) is about consultations
when the Council considers that a place might have Commonwealth Heritage values.
The determination also results in comments obtained under the old Act being able to be
taken as comments received under paragraph 341JG(5)(c) of the new Act.
680. The item also provides that if the Australian Heritage Council had before
commencement given the Minister a written assessment under section 341G of the old
Act, the Minister may determine that the assessment and any comments given to the
Minister with it under section 341G, have been given in accordance with subsection
341JG(1) of the new Act (as it applies because of section 341JN of the new Act).
681. Additionally, the item confirms that the determinations by the Minister under the item
are not legislative instruments. This is because they are not legislative instruments
within the meaning of section 5 of the Legislative Instruments Act 2003.
115
Item 44 - Changes to section 341F emergency listings not published etc. before
commencement
682. This item provides for the situation where the Minister has, under the emergency
listing provision in subsection 341J(5) of the old Act, before commencement, removed
a place or a value from the Commonwealth Heritage List or altered the boundary of a
place in the Commonwealth Heritage List, but has not complied with the requirements
in old subsection 341J(7). Subsection 341J(7) requires publication of these decisions
and the provision of reasons for them. In these circumstances, this item continues the
effect of subsections 341J(7) and 341J(9) despite their repeal, in relation to the removal
or alteration. Subsection 341J(9) of the old Act requires publication by the Minister,
according to regulations, of a copy or summary of the instrument in the Gazette about a
removal or alteration.
Item 45 - Plans in force under subsection 324S(1) before the heritage commencement
time
683. This item provides for the continued effect of a plan made and in force before
commencement under repealed subsection 324S(1) of the old Act, as if it had been
made under the new Act. Subsection 324S(1) required the preparation of plans for
National Heritage places wholly in Commonwealth areas, and has been replaced by a
new subsection about management plans for such places. An obligation on the
Minister to make a plan under the repealed subsection 324S(1) also continues after
commencement as if it were an obligation under the new subsection 324S(1).
Part 8--Provisions relating to Commonwealth reserves
Item 46 - Application of amendment to item 599
684. This item makes clear that item 599 applies to management plans approved by the
Minister under section 370 on or after the commencement of that item.
Item 47 - Application of amendment to item 600
685. This item makes clear that item 600 (section 373) applies to management plans made
on or after the commencement of that item.
Item 48 - Application of amendment to item 601
686. This item clarifies that item 601 (subsection 379(1)) does not apply to appointments of
Board of Management members made before the item commences.
Item 49 - Application of amendment made by item 603
687. This item clarifies that item 603 (subsection 382(1)) applies to Board of Management
members appointed before and after the item commences.
Part 9--Provisions relating to compliance and enforcement
Item 50 - Transitional provision - things seized or warrants issued
688. This item is for transitional purposes. Any item that amends or repeals a provision of
Part 17 of the EPBC Act does not apply in relation to a thing seized, or warrant issued,
before the commencement of the amended Act.
Item 51 - Application of amendment made by item 739
689. This item is for transitional purposes. The amendment made by item 739 applies to
things forfeited, whether before or after the commencement of the amended Act.
116
Item 52 - Saving of approvals
690. This item is for transitional purposes. Any approvals in force under section 453 of the
Act immediately before the commencement of the amended Act will be considered to
relate to both organisms and specimens.
Item 53 - Application of amendment made by item 763
691. This item is for transitional purposes. The amendment made by item 763 applies to
applications to the Federal Court for an injunction that are made after the
commencement of the amended Act.
Item 54 - Amendments of offence etc. provisions do not apply to actions and omissions
that occurred before commencement of amending items
692. This item is for transitional purposes. Any item that amends, repeals, or otherwise
affects the scope of a provision of the Act that is an offence provision or a civil penalty
provision, or inserts an offence or civil penalty provision into the Act, does not apply
to an act or omission that occurred before the commencement of the amended Act.
Part 10--Other provisions
Item 55 - Application of amendments made by items 168 and 169
693. This item is for transitional purposes and makes it clear that removing the 5 year life
for bilateral agreements does not apply to bilateral agreements entered into before the
items 168 and 169 commence.
Item 56 - Application of amendments made by items 386 etc.
694. The purpose of this item is to ensure that the amendments made by the items referred
to in this amendment do not apply in relation to any decision made under the Act
before the commencement of those items. As such, decisions made personally by the
Minister prior to the commencement of these amendments are still subject to review by
the Administrative Appeals Tribunal.
Item 57 - Application of amendments made by items 788 etc
695. The purpose of this item is to ensure that the amendments made by the items referred
to in this amendment do not affect the validity of any decision made or action taken
under the Act, or the regulations, before the commencement of those items. That is,
changes made to the definitions of these Conventions and Agreements do not
invalidate any decision or action taken prior to the commencement of these
amendments.
Item 58 - Regulations may deal with transitional, saving or application matters
696. This item makes it clear that regulations dealing with matters of a transitional, saving
or application nature made under this item may take effect from a date before the
regulations are registered.
117
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