(e) the place is outside the Australian jurisdiction.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2A) Strict liability applies to paragraph (2)(d).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both.
Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.
(4) Section 14.1 (standard geographical jurisdiction) of the Criminal Code does not apply to an offence created by this section.
Note: Section 5 affects the extra‑territorial operation of this section.
(5) Subsections (1) and (2) do not apply to an action if:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or
(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: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Subdivision B—Protection of the environment from Commonwealth actions
28 Requirement for approval of activities of Commonwealth agencies significantly affecting the environment
(1) The Commonwealth or a Commonwealth agency must not take inside or outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment inside or outside the Australian jurisdiction.
Civil penalty:
(a) for a Commonwealth agency that is an individual—1,000 penalty units;
(b) for a Commonwealth agency that is a body corporate—10,000 penalty units.
Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place from an action taken by the Commonwealth or a Commonwealth agency, because the heritage values of a place are part of the environment. See the definition of environment in section 528.
Note 2: This section does not apply to decisions to authorise activities. See Subdivision A of Division 1 of Part 23.
(2) Subsection (1) does not apply to an action if:
(a) an approval of the taking of the action by the Commonwealth or Commonwealth agency is in operation under Part 9 for the purposes of this section; or
(b) Part 4 lets the Commonwealth or Commonwealth agency take the action without an approval under Part 9 for the purposes of this section; or
(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) the action is one declared by the Minister in writing to be an action to which this section does not apply; or
(d) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or
(e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).
(3) The Minister may make a written declaration that actions are actions to which this section does not apply, but only if he or she is satisfied that it is necessary in the interests of:
(a) Australia’s defence or security; or
(b) preventing, mitigating or dealing with a national emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates.
(4) The Minister may make a written declaration that all actions, or a specified class of actions, taken by a specified Commonwealth agency are actions to which this section does not apply.
(5) The Minister may make a declaration under subsection (4) relating to a Commonwealth agency’s actions only if he or she is satisfied that:
(a) in taking the actions to which the declaration relates, the agency must comply with the law of a State or Territory (including a law of a State that is applied to a Commonwealth place by virtue of the Commonwealth Places (Application of Laws) Act 1970), that has either or both of the following objects (whether express or implied):
(i) to protect the environment;
(ii) to promote the conservation and ecologically sustainable use of natural resources; and
(b) the impacts that the actions have, will have or are likely to have on the environment, are adequately addressed under the State or Territory law.
Subdivision C—Actions that are taken to be covered by this Division
28AA Actions that are taken to be covered by this Division
(1) The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision applies.
Note: For specification by class, see subsection 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) In this section:
regulatory provision means:
(a) a civil penalty provision set out in this Division; or
(b) a provision of this Division that creates an offence.
Subdivision D—Limitation on liability for actions of third parties
28AB Limitation on liability for actions of third parties
(1) A provision mentioned in subsection (2) or (3) does not apply to an action (the primary action) if:
(a) a person (the primary person) takes the action; and
(b) as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and
(c) the secondary action is not taken at the direction or request of the primary person; and
(d) the significant impact referred to in the provision is a consequence of the secondary action.
Defence to offences
(2) For the purposes of subsection (1), the following provisions do not apply to the primary action:
(a) subsections 27A(1) to (4);
(b) subsections 27C(1) and (2).
Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Exception to civil penalties
(3) For the purposes of subsection (1), the following provisions do not apply to the primary action:
(a) subsections 26(1) and (2);
(b) subsection 27B(1);
(c) subsection 28(1).
Part 4—Cases in which environmental approvals are not needed
Division 1—Actions covered by bilateral agreements
29 Actions declared by agreement not to need approval
(1) A person may take an action described in a provision of Part 3, other than section 24D or 24E, without an approval under Part 9 for the purposes of the provision if:
(a) the action is taken in a State or self‑governing Territory; and
(b) the action is one of a class of actions declared by a bilateral agreement between the Commonwealth and the State or Territory not to require approval under Part 9 for the purposes of the provision (because the action is approved in accordance with a management arrangement or authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the bilateral agreement); and
(c) the provision of the bilateral agreement making the declaration is in operation in relation to the action; and
(d) either of the following applies:
(i) in the case of a bilaterally accredited management arrangement—the management arrangement is in force under a law of the State or Territory identified in or under the bilateral agreement;
(ii) in the case of a bilaterally accredited authorisation process—the authorisation process is set out in a law of the State or Territory, and the law and the authorisation process are identified in or under the bilateral agreement; and
(e) the action is taken in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process.
Note 1: Section 46 deals with bilateral agreements making declarations described in paragraph (1)(b).
Note 2: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended. Also, under section 49, bilateral agreements do not operate in relation to actions in Commonwealth areas or in the Great Barrier Reef Marine Park, or actions taken by the Commonwealth or a Commonwealth agency, unless they expressly provide that they do.
(2) If the action is to be taken in 2 or more States or self‑governing Territories, this section does not operate unless it operates in relation to each of those States or Territories.
30 Extended operation in State and Northern Territory waters
(1) Section 29 applies to an action taken on, over or under the seabed vested in a State by section 4 of the Coastal Waters (State Title) Act 1980 in the same way that it applies to an action taken in the State.
(2) Section 29 applies to an action taken on, over or under the seabed vested in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980 in the same way that it applies to an action taken in the Territory.
(3) Section 29 applies to an action taken in a Commonwealth marine area to which a law of a State or self‑governing Territory is applied by a Commonwealth law or by an agreement or arrangement under a Commonwealth law (other than this Act) in the same way as it applies to an action in the State or Territory, if the provision of the bilateral agreement has effect in relation to the area.
Note: A provision of a bilateral agreement only has effect in relation to a Commonwealth area or the Great Barrier Reef Marine Park if the agreement expressly provides that it does. See section 49.
31 Extended operation in non‑self‑governing Territories
A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
(a) the action is taken in a Territory (the action Territory) that is not a self‑governing Territory; and
(b) an Act providing for the government of the action Territory provides that some or all of the law of a State or self‑governing Territory is in force in the action Territory as a law of the Territory; and
(c) the action is one of a class of actions declared by a bilateral agreement between the Commonwealth and the State or self‑governing Territory not to require approval under Part 9 for the purposes of the provision of Part 3 (because the action is approved or taken in accordance with a bilaterally accredited management arrangement or a bilaterally accredited authorisation process); and
(d) the bilateral agreement specifies that the provision of the agreement making the declaration has effect in relation to actions in the action Territory; and
(e) the provision of the bilateral agreement making the declaration is in operation in relation to the action; and
(f) either of the following applies:
(i) in the case of a bilaterally accredited management arrangement—the management arrangement is in force under a law of the State or self‑governing Territory identified in or under the bilateral agreement;
(ii) in the case of a bilaterally accredited authorisation process—the authorisation process is set out in a law of the State or self‑governing Territory, and the law and the authorisation process are identified in or under the bilateral agreement; and
(g) the action is taken in accordance with the bilaterally accredited management arrangement or bilaterally accredited authorisation process.
Note: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended.
Division 2—Actions covered by Ministerial declarations and accredited management arrangements or accredited authorisation processes
Subdivision A—Effect of declarations
32 Actions declared by Minister not to need approval
A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
(a) the action is one of a class of actions declared by the Minister under section 33 not to require approval under Part 9 for the purposes of the provision (because the action is approved in accordance with an accredited management arrangement or an accredited authorisation process for the purposes of the declaration); and
(b) the declaration is in operation when the action is taken; and
(c) one of the following applies:
(i) in the case of an accredited management arrangement—the management arrangement is in operation under a law of the Commonwealth identified in or under the declaration;
(ii) in the case of an accredited authorisation process—the authorisation process is set out in a law of the Commonwealth, and the law and the authorisation process are identified in or under the declaration; and
(d) the action is taken in accordance with the accredited management arrangement or accredited authorisation process.
Subdivision B—Making declarations
33 Making declaration that actions do not need approval under Part 9
Declaration of actions not needing approval
(1) The Minister may declare in writing that actions in a class of actions specified in the declaration wholly or partly by reference to the fact that their taking has been approved by the Commonwealth or a specified Commonwealth agency, in accordance with a management arrangement or authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration, do not require approval under Part 9 for the purposes of a specified provision of Part 3.
Note 1: Subdivisions C and D set out rules about prerequisites for making a declaration and limits on making a declaration.
Note 2: Section 35 provides for revocation of a declaration.
What is an accredited management arrangement?
(2) A management arrangement is an accredited management arrangement for the purposes of a declaration that certain actions do not require approval under Part 9 for the purposes of a specified provision of Part 3 if and only if:
(a) the management arrangement is in operation under a law of the Commonwealth identified in or under the declaration; and
(b) the management arrangement has been accredited in writing by the Minister in accordance with this section for the purposes of the declaration.
What is an accredited authorisation process?
(2A) An authorisation process is an accredited authorisation process for the purposes of a declaration that certain actions do not require approval under Part 9 for the purposes of a specified provision of Part 3 if and only if:
(a) the authorisation process is set out in a law of the Commonwealth, and the law and the authorisation process are identified in or under the declaration; and
(b) the authorisation process has been accredited in writing by the Minister in accordance with this section for the purposes of the declaration.
Accrediting management arrangement or authorisation process
(3) For the purposes of subsection (2) or (2A), the Minister may accredit by written instrument a management arrangement or authorisation process for the purposes of a declaration. However, the Minister may do so only if the Minister is satisfied that:
(a) the management arrangement or authorisation process and the law under which it is in operation, or in which it is set out, meet the criteria prescribed by the regulations; and
(b) there has been or will be adequate assessment of the impacts that actions approved in accordance with the management arrangement or authorisation process:
(i) have or will have; or
(ii) are likely to have;
on each matter protected by a provision of Part 3 to which the declaration relates; and
(c) actions approved or taken in accordance with the management arrangement or authorisation process will not have unacceptable or unsustainable impacts on a matter protected by a provision of Part 3 to which the declaration relates.
The Minister must publish in accordance with the regulations (if any) the instrument accrediting the management arrangement or authorisation process.
Note: Subdivision C sets out more prerequisites for accrediting a management arrangement or authorisation process.
Tabling of management arrangement or authorisation process before accreditation
(4) The Minister must cause to be laid before each House of the Parliament:
(a) a copy of:
(i) in the case of a management arrangement—the management arrangement; or
(ii) in the case of an authorisation process—the relevant part of the law in which the authorisation process is set out;
that the Minister is considering accrediting for the purposes of subsection (2) or (2A); and