(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
(3) Before the Governor‑General makes regulations prescribing an action for the purposes of subsection (1), the Minister (the Environment Minister) must:
(a) inform the appropriate Minister of each State and self‑governing Territory of the proposal to prescribe:
(i) the action; and
(ii) a thing as matter protected by this section in relation to the action; and
(b) invite the appropriate Minister of each State and self‑governing Territory to give the Environment Minister comments on the proposal within a specified period of at least 28 days; and
(c) consider the comments (if any); and
(d) if comments have been given as described in paragraph (b)—take all reasonable steps to consult the appropriate Minister of each State and self‑governing Territory with a view to agreeing on:
(i) the action to be prescribed; and
(ii) the thing to be prescribed as matter protected by this section in relation to the action.
Note: Section 34 provides that the matter protected by this section is a thing prescribed by the regulations in relation to the action.
(3A) To avoid doubt, regulations may be made for the purposes of this section even if no agreement is reached on the matters described in paragraph (3)(d).
(4) The regulations may prescribe different things as matter protected by this section in relation to different actions prescribed for the purposes of subsection (1).
(5) This section applies only to actions:
(a) taken in a Territory or a place acquired by the Commonwealth for public purposes (within the meaning of section 52 of the Constitution); or
(b) taken in a Commonwealth marine area; or
(c) taken for the purpose of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) taken by a constitutional corporation; or
(e) whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.
(6) Regulations prescribing an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more countries must specify the agreement.
Subdivision H—Actions that are taken to be covered by this Division
25A Actions that are taken to be covered by this Division
(1) The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision applies.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) To avoid doubt, if, as a result of a regulation made for the purposes of subsection (1), a regulatory provision applies to an action, the action is taken to be described in the provision.
(3) Regulations made for the purposes of subsection (1) may only specify actions:
(a) taken in a Territory; or
(b) taken in a Commonwealth marine area; or
(c) taken for the purpose of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) taken by a constitutional corporation; or
(e) whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.
(4) Regulations specifying an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more countries must specify the agreement.
(5) In this section:
regulatory provision means:
(a) a civil penalty provision set out in this Division; or
(b) a provision of this Division that creates an offence.
Subdivision HA—Limitation on liability for actions of third parties
25AA Limitation on liability for actions of third parties
(1) A provision mentioned in subsection (2) or (3) does not apply to an action (the primary action) if:
(a) a person (the primary person) takes the action; and
(b) as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and
(c) the secondary action is not taken at the direction or request of the primary person; and
(d) the significant impact referred to in the provision is a consequence of the secondary action.
Defence to offences
(2) For the purposes of subsection (1), the following provisions do not apply to the primary action:
(a) subsections 15A(1) and (2);
(b) subsections 15C(1) to (10);
(c) subsections 17B(1) and (2);
(d) subsections 18A(1) and (2);
(e) subsections 20A(1) and (2);
(f) subsections 22A(1) to (6);
(g) subsections 24A(1) to (6);
(h) subsections 24C(1), (3), (5) and (7);
(i) subsections 24E(1) to (3).
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Exception to civil penalties
(3) For the purposes of subsection (1), the following provisions do not apply to the primary action:
(a) subsection 12(1);
(b) subsections 15B(1) to (5) and (7);
(c) subsection 16(1);
(d) subsections 18(1) to (6);
(e) subsection 20(1);
(f) subsections 21(1) to (3);
(g) subsections 23(1) to (3);
(ga) subsections 24B(1) and (2);
(gb) subsections 24D(1) to (3);
(h) subsection 25(1).
Subdivision I—Evidentiary certificates
25B Evidentiary certificates
Contravention
(1) The Minister may issue a written certificate:
(a) stating that a specified person has contravened, or is contravening, a specified civil penalty provision set out in this Division; and
(b) setting out particulars of that contravention.
(2) The Minister may issue a certificate under subsection (1) relating to a particular contravention if the Minister has reason to believe that the person concerned has committed, or is committing, the contravention.
(3) To avoid doubt, a certificate under subsection (1) may be issued even if any relevant proceedings under section 475, 480A, 480K or 481 have been instituted.
Proposal
(4) The Minister may issue a written certificate stating that, if a specified person were to carry out a proposal to engage in specified conduct, that conduct would contravene a specified civil penalty provision set out in this Division.
(5) The Minister may issue a certificate under subsection (4) if the Minister has reason to believe that:
(a) the person proposes to engage in the conduct concerned; and
(b) the conduct would contravene the civil penalty provision concerned.
(6) To avoid doubt, a certificate under subsection (4) may be issued even if any relevant proceedings under section 475 have been instituted.
25C Certificate to be given to person
As soon as practicable after issuing a certificate under subsection 25B(1) or (4), the Minister must give a copy of the certificate to the person concerned.
25D Evidentiary effect of certificate
(1) In any proceedings under section 475, 480A, 480K or 481, a certificate under subsection 25B(1) is prima facie evidence of the matters in the certificate.
(2) In any proceedings under section 475, a certificate under subsection 25B(4) is prima facie evidence of the matters in the certificate.
(3) A document purporting to be a certificate under subsection 25B(1) or (4) must, unless the contrary is established, be taken to be such a certificate and to have been properly issued.
(4) The Minister may certify that a document is a copy of a certificate under subsection 25B(1) or (4).
(5) This section applies to the certified copy as if it were the original.
25E Variation of certificate
(1) The Minister may vary a certificate under subsection 25B(1) or (4) so long as the variation is of a minor nature.
(2) If a certificate is varied, the Minister must give the person concerned a written notice setting out the terms of the variation.
25F Revocation of certificate
(1) The Minister may revoke a certificate under subsection 25B(1) or (4).
(2) If a certificate is revoked, the Minister must give the person concerned a written notice stating that the certificate has been revoked.
Division 2—Protection of the environment from proposals involving the Commonwealth
Subdivision A—Protection of environment from actions involving Commonwealth land
26 Requirement for approval of activities involving Commonwealth land
Actions on Commonwealth land
(1) A person must not take on Commonwealth land an action that has, will have or is likely to have a significant impact on the environment.
Civil penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
Actions outside Commonwealth land affecting that land
(2) A person must not take outside Commonwealth land an action that:
(a) has or will have a significant impact on the environment on Commonwealth land; or
(b) is likely to have a significant impact on the environment on Commonwealth land.
Civil penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
Exceptions to prohibitions
(3) Subsection (1) or (2) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or
(c) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(d) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process); or
(f) the person taking the action is the Commonwealth or a Commonwealth agency.
Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth land, because the heritage values of a place are part of the environment. See the definition of environment in section 528.
Note 2: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.
27 What is Commonwealth land?
Commonwealth land is so much of a Commonwealth area as is not a Commonwealth marine area.
27A Offences relating to Commonwealth land
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken on Commonwealth land; and
(c) the action results or will result in a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken on Commonwealth land; and
(c) the action is likely to have a significant impact on the environment.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside Commonwealth land but in the Australian jurisdiction; and
(c) the action results or will result in a significant impact on the environment in an area; and
(d) the area is Commonwealth land.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3A) Strict liability applies to paragraphs (3)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside Commonwealth land but in the Australian jurisdiction; and
(c) the action is likely to have a significant impact on the environment in an area; and
(d) the area is Commonwealth land.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4A) Strict liability applies to paragraphs (4)(b) and (d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) An offence against subsection (1), (2), (3) or (4) is punishable on conviction by imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.
(6) Subsection (1), (2), (3) or (4) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the subsection; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or
(ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process); or
(e) the person taking the action is a Commonwealth agency.
Note 1: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Note 2: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth land, because the heritage values of a place are part of the environment. See the definition of environment in section 528.
Note 3: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment.
Subdivision AA—Protection of Commonwealth Heritage places outside the Australian jurisdiction
27B Requirement for approval of actions with significant impact on Commonwealth Heritage places overseas
(1) A person must not take outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment in a Commonwealth Heritage place outside the Australian jurisdiction.
Civil Penalty:
(a) for an individual—1,000 penalty units;
(b) for a body corporate—10,000 penalty units.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(ba) there is in force a determination under section 79E that the action may continue to be taken and the action is taken in accordance with the conditions (if any) specified in the determination; or
(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
Note: Subdivision F of Division 1 and Subdivision A of this Division protect the environment in Commonwealth Heritage places inside the Australian jurisdiction because those places are in Commonwealth marine areas or on Commonwealth land.
27C Offences relating to Commonwealth Heritage places overseas
(1) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian jurisdiction; and
(c) the action results or will result in a significant impact on the environment in a place; and
(ca) the place is a Commonwealth Heritage place; and
(d) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1A) Strict liability applies to paragraph (1)(ca).
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) A person commits an offence if:
(a) the person takes an action; and
(b) the action is taken outside the Australian jurisdiction; and
(c) the action is likely to have a significant impact on the environment in a place; and
(d) the place is a Commonwealth Heritage place; and