(i) in the bioregion to which the plan applies; and
(ii) in accordance with the plan.
Note: Division 2 of Part 12 deals with bioregional plans.
Subdivision B—Making declarations
37A Making declarations that actions do not need approval under Part 9
Subject to Subdivisions C and D, the Minister may, by legislative instrument, declare that an action or class of actions specified in the declaration, wholly or partly by reference to the fact that the taking of the action or class of actions is in accordance with a bioregional plan, do not require approval under Part 9 for the purposes of a specified provision of Part 3.
Note 1: Subdivisions C and D set out rules about prerequisites for making a declaration and limits on making a declaration.
Note 2: Section 37K provides for revocation of a declaration.
Subdivision C—Prerequisites for making declarations
37B General considerations
(1) In deciding whether to make a declaration under section 37A, the Minister must consider the following, so far as they are not inconsistent with any other requirements of this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that the Minister considers is relevant to the action or class of actions to which the declaration relates;
(b) economic and social matters.
(2) In considering those matters, the Minister must take into account the principles of ecologically sustainable development.
(3) The Minister must not make a declaration under section 37A in relation to an action or class of actions and a provision of Part 3 if the Minister considers that the action, or an action in the class, if taken, would have unacceptable or unsustainable impacts on a matter protected by the provision.
37C Minister may make declaration only if prescribed criteria are met
The Minister may make a declaration under section 37A only if the Minister is satisfied that the declaration:
(a) accords with the objects of this Act; and
(b) meets the requirements (if any) prescribed by the regulations.
37D Declarations relating to declared World Heritage properties
The Minister may make a declaration under section 37A relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the declaration will promote the management of the property in accordance with the Australian World Heritage management principles; and
(c) the Minister is satisfied that the declaration is not inconsistent with a plan that has been prepared for the management of the declared World Heritage property under section 316 or as described in section 321.
37E Declarations relating to National Heritage places
The Minister may make a declaration under section 37A relating to a National Heritage place only if:
(a) the Minister is satisfied that the declaration will promote the management of the place in accordance with the National Heritage management principles; and
(b) the Minister is satisfied that the declaration is not inconsistent with:
(i) an agreement to which the Commonwealth is a party in relation to the National Heritage place; or
(ii) a plan that has been prepared for the management of the National Heritage place under section 324S or as described in section 324X.
37F Declarations relating to declared Ramsar wetlands
The Minister may make a declaration under section 37A relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the declaration will promote the management of the wetland in accordance with the Australian Ramsar management principles.
37G Declarations relating to listed threatened species and ecological communities
The Minister may make a declaration under section 37A relating to a listed threatened species or a listed threatened ecological community only if:
(a) the Minister is satisfied that the declaration is not inconsistent with Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; and
(b) the Minister is satisfied that the declaration will promote the survival and/or enhance the conservation status of each species or community to which the declaration relates; and
(c) the Minister is satisfied that the declaration is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and
(d) the Minister has had regard to any approved conservation advice for the species or community.
37H Declarations relating to listed migratory species
The Minister may make a declaration under section 37A relating to a listed migratory species only if:
(a) the Minister is satisfied that the declaration is not inconsistent with whichever of the following conventions or agreements because of which the species is listed:
(i) the Bonn Convention;
(ii) CAMBA;
(iii) JAMBA;
(iv) an international agreement approved under subsection 209(4); and
(b) the Minister is satisfied that the declaration will promote the survival and/or enhance the conservation status of each species to which the declaration relates.
37J No declarations relating to nuclear actions
(1) The Minister must not make a declaration relating to an action consisting of, or involving the construction or operation of, any of the following nuclear installations:
(a) a nuclear fuel fabrication plant;
(b) a nuclear power plant;
(c) an enrichment plant;
(d) a reprocessing facility.
(2) Paragraph (1)(b) does not apply to a naval nuclear propulsion plant related to use in a conventionally‑armed, nuclear‑powered submarine.
Subdivision D—Other rules about declarations
37K Revoking declarations
Revoking declarations
(1) The Minister may, by legislative instrument, revoke a declaration made under section 37A.
Revocation does not affect some actions
(2) If:
(a) a declaration made under section 37A is revoked; and
(b) before the revocation, an action was being taken that could be taken without approval under Part 9 because its taking was covered by the declaration; and
(c) the action had not been completed before the revocation;
this Act continues to operate in relation to the action as if the declaration had not been revoked.
37L Other rules about declarations
Minister must not give preference
(1) In making a declaration under section 37A, or revoking a declaration under section 37K, relating to an action taken:
(a) by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.
Publishing declarations
(2) Within 10 business days after the Minister makes a declaration under section 37A, or an instrument under section 37K revoking a declaration, the Minister must publish the declaration or instrument in accordance with the regulations.
Division 3A—Actions covered by conservation agreements
37M Actions declared by conservation agreement not to need approval
A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
(a) the action is included in a class of actions declared in a conservation agreement, in accordance with section 306A, not to require approval under Part 9 for the purposes of the provision; and
(b) the conservation agreement is in operation when the action is taken; and
(c) the action is taken in accordance with the conditions (if any) specified in the declaration.
Division 4—Forestry operations in certain regions
Subdivision A—Regions covered by regional forest agreements
38 Part 3 not to apply to certain RFA forestry operations
(1) Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.
(2) In this Division:
RFA or regional forest agreement has the same meaning as in the Regional Forest Agreements Act 2002.
RFA forestry operation has the same meaning as in the Regional Forest Agreements Act 2002.
Note: This section does not apply to some RFA forestry operations. See section 42.
Subdivision B—Regions subject to a process of negotiating a regional forest agreement
39 Object of this Subdivision
The purpose of this Subdivision is to ensure that an approval under Part 9 is not required for forestry operations in a region for which a process (involving the conduct of a comprehensive regional assessment, assessment under the Environment Protection (Impact of Proposals) Act 1974 and protection of the environment through agreements between the Commonwealth and the relevant State and conditions on licences for the export of wood chips) of developing and negotiating a regional forest agreement is being, or has been, carried on.
40 Forestry operations in regions not yet covered by regional forest agreements
(1) A person may undertake forestry operations in an RFA region in a State or Territory without approval under Part 9 for the purposes of a provision of Part 3 if there is not a regional forest agreement in force for any of the region.
Note 1: This section does not apply to some forestry operations. See section 42.
Note 2: The process of making a regional forest agreement is subject to assessment under the Environment Protection (Impact of Proposals) Act 1974, as continued by the Environmental Reform (Consequential Provisions) Act 1999.
(2) In this Division:
forestry operations means any of the following done for commercial purposes:
(a) the planting of trees;
(b) the managing of trees before they are harvested;
(c) the harvesting of forest products;
and includes any related land clearing, land preparation and regeneration (including burning) and transport operations. For the purposes of paragraph (c), forest products means live or dead trees, ferns or shrubs, or parts thereof.
RFA region has the meaning given by section 41.
(3) Subsection (1) does not operate in relation to an RFA region that is the subject of a declaration in force under this section.
(4) The Minister may, by legislative instrument, declare that subsection (1) does not apply to an RFA region.
(6) The Minister must not make a declaration that has the effect of giving preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State, in relation to the taking of the action:
(a) by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or
(b) by a constitutional corporation.
41 What is an RFA region?
Regions that are RFA regions
(1) Each of the following is an RFA region:
(a) the area delineated as the Eden RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;
(b) the area delineated as the Lower North East RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;
(c) the area delineated as the Upper North East RFA Region on the map of that New South Wales Region dated 13 May 1999 and published by the Bureau of Resource Sciences;
(d) the area delineated as the South Region on the map of the Comprehensive Regional Assessment South CRA Region dated August 1997 and published by the State Forests GIS Branch of the organisation known as State Forests of New South Wales;
(e) the area delineated as the Gippsland Region in the map of that Region dated 11 March 1998 and published by the Forest Information Section of the Department of Natural Resources and Environment of Victoria;
(f) the area delineated as the North East RFA Region in the map of that Region dated 11 March 1998 and published by the Forest Information Section of the Department of Natural Resources and Environment of Victoria;
(g) the area delineated as the West Region in the map of that Region dated 3 March 1999 and published by the Forest Information Section of the Department of Natural Resources and Environment of Victoria;
(h) the area delineated as the South East Queensland RFA Region on the map of that Region dated 21 August 1998 and published by the Bureau of Resource Sciences.
Regulations may amend list of regions
(2) The regulations may amend subsection (1).
Prerequisites for prescribing RFA regions
(3) Before the Governor‑General makes regulations amending subsection (1), the Minister must be satisfied that the proposed regulations, in conjunction with this Subdivision, will not give preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State.
Subdivision C—Limits on application
42 This Division does not apply to some forestry operations
Subdivisions A and B of this Division, and subsection 6(4) of the Regional Forest Agreements Act 2002, do not apply to RFA forestry operations, or to forestry operations, that are:
(a) in a property included in the World Heritage List; or
(b) in a wetland included in the List of Wetlands of International Importance kept under the Ramsar Convention; or
(c) incidental to another action whose primary purpose does not relate to forestry.
Division 5—Actions in the Great Barrier Reef Marine Park
43 Actions taken in accordance with zoning plan
A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
(a) the action is taken in a zone (within the meaning of the Great Barrier Reef Marine Park Act 1975) of the Great Barrier Reef Marine Park; and
(b) it is for a purpose for which, under the zoning plan for the zone made under the Great Barrier Reef Marine Park Act 1975, the zone may be used or entered without permission.
Division 6—Actions with prior authorisation
43A Actions with prior authorisation
(1) A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if:
(a) the action consists of a use of land, sea or seabed; and
(b) before the commencement of this Act, the action was authorised by a specific environmental authorisation; and
(c) immediately before the commencement of this Act, no further specific environmental authorisation was necessary to allow the action to be taken lawfully; and
(d) at the time the action is taken, the specific environmental authorisation continues to be in force.
(1A) For the purposes of paragraphs (1)(c) and (d), a renewal or extension of a specific environmental authorisation is taken to be a new specific environmental authorisation unless:
(a) the action that is authorised by the authorisation following the renewal or extension is the same as the action that was authorised by the authorisation before the commencement of this Act; and
(b) the renewal or extension could properly be made or given without any further consideration of the environmental impacts of the action.
Note: If a renewal or extension of a specific environmental authorisation is taken to be a new specific environmental authorisation, the condition in paragraph (1)(c) or (d) would not be met.
(2) In this Act:
environmental authorisation means an authorisation under a law of the Commonwealth, a State or a self‑governing Territory that has either or both of the following objects (whether express or implied):
(a) to protect the environment;
(b) to promote the conservation and ecologically sustainable use of natural resources.
specific environmental authorisation means an environmental authorisation that:
(a) identifies the particular action by reference to acts and matters uniquely associated with that action; or
(b) was issued or granted following a consideration of the particular action by reference to acts and matters uniquely associated with that action.
43B Actions which are lawful continuations of use of land etc.
(1) A person may take an action described in a provision of Part 3 without an approval under Part 9 for the purposes of the provision if the action is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act.
(2) However, subsection (1) does not apply to an action if:
(a) before the commencement of this Act, the action was authorised by a specific environmental authorisation; and
(b) at the time the action is taken, the specific environmental authorisation continues to be in force.
Note: In that case, section 43A applies instead.
(2A) Subsection (1) also does not apply to an action if:
(a) the action consists of, or involves, clearing vegetation from land; and
(b) the land is within 50 metres of any of the following in a catchment area of the Great Barrier Reef Marine Park:
(i) a watercourse (within the meaning of the Water Act 2007);
(ii) a wetland;
(iii) a drainage line.
(2B) Subsection (1) also does not apply to an action if:
(a) the action consists of, or involves, clearing vegetation from land; and
(b) at the time the action is taken, the land has not been cleared of vegetation for a period of at least 15 years; and
(c) the action is not a forestry operation.
Definitions and interpretation
(2C) In this section:
catchment area of the Great Barrier Reef Marine Park means the area falling within the boundary described in the dataset that:
(a) is titled Great Barrier Reef catchment and river basins; and
(b) has a dataset scale of 1:100,000; and
(c) specifies the boundaries of all river basins draining to the Great Barrier Reef; and
(d) is dated 5 May 2018; and
(e) is held by the government of Queensland.
Note 1: An indicative map of this area is set out in Schedule 2.