(4) A bilateral agreement does not have effect for the purposes of this Act unless it includes a provision recognising that, under the Auditor‑General Act 1997, the Auditor‑General may audit the operations of the Commonwealth public sector (as defined in section 18 of that Act) relating to the bilateral agreement.
49 Certain limits on scope of bilateral agreements
(1) A provision of a bilateral agreement does not have any effect in relation to an action in a Commonwealth area or an action by the Commonwealth or a Commonwealth agency, unless the agreement expressly provides otherwise.
(1A) A provision of a bilateral agreement does not have any effect in relation to an action in the Great Barrier Reef Marine Park, unless the agreement expressly provides otherwise.
(2) A provision of a bilateral agreement does not have any effect in relation to an action in Booderee National Park, Kakadu National Park or Uluru‑Kata Tjuta National Park.
(3) Booderee National Park is the Commonwealth reserve (as it exists from time to time) to which the name Booderee National Park was given by Proclamation continued in force by the Environmental Reform (Consequential Provisions) Act 1999.
Subdivision B—Prerequisites for making bilateral agreements
49A Consultation on draft agreement
The Minister may enter into a bilateral agreement only if he or she:
(a) has published in accordance with the regulations:
(i) a draft of the agreement; and
(ii) an invitation for any person to give the Minister comments on the draft within a specified period of at least 28 days after the latest day on which the draft or invitation was published; and
(b) has taken into account the comments (if any) received in response to the invitation; and
(c) has considered the role and interests of indigenous peoples in promoting the conservation and ecologically sustainable use of natural resources in the context of the proposed agreement, taking into account Australia’s relevant obligations under the Biodiversity Convention.
50 Minister may only enter into agreement if prescribed criteria are met
The Minister may enter into a bilateral agreement only if the Minister is satisfied that the agreement:
(a) accords with the objects of this Act; and
(b) meets the requirements (if any) prescribed by the regulations.
51 Agreements relating to declared World Heritage properties
(1) The Minister may enter into a bilateral agreement containing a provision relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the provision is not inconsistent with Australia’s obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the agreement will promote the management of the property in accordance with the Australian World Heritage management principles; and
(c) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a declared World Heritage property only if:
(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the World Heritage Convention; and
(b) the Minister is satisfied that the management arrangement or authorisation process will promote the management of the property in accordance with the Australian World Heritage management principles.
51A Agreements relating to National Heritage places
(1) The Minister may enter into a bilateral agreement containing a provision relating to a National Heritage place only if:
(a) the Minister is satisfied that the agreement will promote the management of the place in accordance with the National Heritage management principles; and
(b) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of such a bilateral agreement only if he or she is satisfied that the management arrangement or authorisation process will promote the management of the place concerned in accordance with the National Heritage management principles.
52 Agreements relating to declared Ramsar wetlands
(1) The Minister may enter into a bilateral agreement containing a provision relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the provision is not inconsistent with Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the agreement will promote the management of the wetland in accordance with the Australian Ramsar management principles; and
(c) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a declared Ramsar wetland only if:
(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under the Ramsar Convention; and
(b) the Minister is satisfied that the management arrangement or authorisation process will promote the management of the wetland in accordance with the Australian Ramsar management principles.
53 Agreements relating to listed threatened species and ecological communities
(1) The Minister may enter into a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:
(a) the Minister is satisfied that the provision 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 agreement will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and
(c) the Minister is satisfied that the provision is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and
(ca) the Minister has had regard to any approved conservation advice for the species or community; and
(d) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:
(a) the Minister is satisfied that the management arrangement or authorisation process 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 management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and
(c) the Minister is satisfied that the management arrangement or authorisation process 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.
54 Agreements relating to migratory species
(1) The Minister may enter into a bilateral agreement containing a provision relating to a listed migratory species only if:
(a) the Minister is satisfied that the provision is not inconsistent with the Commonwealth’s obligations under 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 agreement will promote the survival and/or enhance the conservation status of each species to which the provision relates; and
(c) the provision meets the requirements (if any) prescribed by the regulations.
(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed migratory species only if:
(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with the Commonwealth’s obligations under 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 management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species to which the provision relates.
55 Agreements relating to nuclear actions
The Minister must not enter into a bilateral agreement, or accredit for the purposes of a bilateral agreement a management arrangement or an authorisation process, containing a provision that:
(a) relates to a nuclear action; and
(b) 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 a nuclear action:
(i) by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or
(ii) by a constitutional corporation.
56 Agreements relating to prescribed actions
The Minister must not enter into a bilateral agreement containing a provision that:
(a) relates to an action prescribed for the purposes of subsection 25(1); and
(b) 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:
(i) by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or
(ii) by a constitutional corporation.
Subdivision C—Minor amendments of bilateral agreements
56A Ministerial determination of minor amendments to bilateral agreements
(1) This section applies if:
(a) the Minister intends to develop a draft amendment to a bilateral agreement (the principal agreement); and
(b) the Minister is satisfied that the amendment will not have a significant effect on the operation of the principal agreement; and
(c) the Minister makes a determination, in writing, to that effect.
(2) If the Minister makes a determination under paragraph (1)(c):
(a) the following provisions of this Part do not apply in relation to the amendment to the principal agreement:
(i) subsection 45(3);
(ii) paragraphs 45(4)(b) and (c);
(iii) section 49A; and
(b) the Minister must publish the principal agreement, as amended by the amending agreement, at the same time as publishing the amending agreement under paragraph 45(4)(a).
(3) A determination made under paragraph (1)(c) is not a legislative instrument.
Division 3—Suspending and ending the effect of bilateral agreements
Subdivision A—Suspension and cancellation of effect
57 Representations about suspension or cancellation
Representations
(1) A person may refer to the Minister a matter that the person believes involves a contravention of a bilateral agreement.
Minister must decide whether agreement has been contravened
(2) The Minister must:
(a) decide whether or not the bilateral agreement has been contravened; and
(b) decide what action he or she should take in relation to any contravention.
Publication of decision and reasons
(3) The Minister must publish in accordance with the regulations each decision he or she makes, and the reasons for it.
Minister need not decide on vexatious referrals
(4) Despite subsection (2), the Minister need not make a decision under that subsection if he or she is satisfied that:
(a) the referral was vexatious, frivolous, or not supported by sufficient information to make a decision; or
(b) the matter referred is the same in substance as a matter that has been referred before; or
(c) if the alleged contravention of the bilateral agreement were a contravention of the Act, the person referring the matter would not be entitled to apply under section 475 for an injunction in relation to the contravention.
58 Consultation before cancellation or suspension
(1) The Minister (the Environment Minister) must consult the appropriate Minister of a State or Territory that is party to a bilateral agreement if the Environment Minister believes that the State or Territory:
(a) has not complied with the agreement or will not comply with it; or
(b) has not given effect, or will not give effect, to the agreement in a way that:
(i) accords with the objects of this Act and the objects of this Part; and
(ii) promotes the discharge of Australia’s obligations under any agreement with one or more other countries relevant to a matter covered by the agreement.
(2) Subsection (1) operates whether the Environment Minister’s belief relates to a matter referred to him or her under section 57 or not.
59 Suspension or cancellation
Minister may give notice of suspension or cancellation
(1) If, after the consultation, the Environment Minister is not satisfied that the State or Territory:
(a) has complied with, and will comply with, the agreement; and
(b) has given effect, and will give effect, to the agreement in a way that:
(i) accords with the objects of this Act and the objects of this Part; and
(ii) promotes the discharge of Australia’s obligations under all international agreements (if any) relevant to a matter covered by the agreement;
he or she may give the appropriate Minister of the State or Territory a written notice described in subsection (2) or (3).
Example 1: The Minister could give notice if the agreement declared that certain actions affecting the world heritage values of a declared world heritage property did not require approval under Part 9 if approved by the State, and the State approved an action that was not consistent with the protection, conservation and presentation of those values.
Example 2: The Minister could give notice if the agreement declared that certain actions affecting the ecological character of a declared Ramsar wetland did not require approval under Part 9 if approved by the State, and the State approved an action that had a significant adverse impact on that character.
Example 3: The Minister could give notice if the agreement declared that certain actions affecting a listed threatened species did not require approval under Part 9 if approved by the State, and the State approved an action that caused the species to become more threatened.
Notice of suspension
(2) A notice may state that the effect of the agreement, or specified provisions of the agreement, for the purposes of this Act or specified provisions of this Act is suspended, either generally or in relation to actions in a specified class, for a period:
(a) starting on a specified day at least 10 business days (in the capital city of the State or Territory) after the day on which the notice is given; and
(b) ending on a specified later day or on the occurrence of a specified event.
Notice of cancellation
(3) A notice may state that the effect of the agreement, or specified provisions of the agreement, for the purposes of this Act or specified provisions of this Act is cancelled, either generally or in relation to actions in a specified class, on a specified day at least 10 business days (in the capital city of the State or Territory) after the day on which the notice is given.
Effect suspended or cancelled in accordance with notice
(4) The effect of an agreement or specified provision of an agreement is suspended or cancelled for the purposes of this Act, or of a specified provision of this Act, either generally or in relation to actions in a specified class, in accordance with the notice. This subsection has effect subject to sections 61 and 62.
Reasons for giving notice
(5) When giving a notice, the Environment Minister must give the appropriate Minister of the State or Territory a written statement of reasons for the giving of the notice.
Publishing notice and reasons
(6) As soon as practicable after the suspension or cancellation occurs, the Environment Minister must publish in accordance with the regulations:
(a) notice of the suspension or cancellation; and
(b) reasons for the suspension or cancellation.
60 Emergency suspension of effect of bilateral agreement
(1) This section applies if the Minister is satisfied that:
(a) the State or Territory that is party to a bilateral agreement is not complying with it, or will not comply with it; and
(b) as a result of the non‑compliance, a significant impact is occurring or imminent on any matter protected by a provision of Part 3 that is relevant to an action in a class of actions to which the agreement relates.
(2) The Minister may suspend the effect of the agreement or specified provisions of the agreement for the purposes of this Act or specified provisions of this Act, by notice:
(a) given to the appropriate Minister of the State or Territory; and
(b) published in accordance with the regulations.
(3) The suspension continues for the shorter of the following periods:
(a) 3 months;
(b) the period that is specified in the notice (either by reference to time or by reference to the occurrence of an event).
(4) Subsection (3) has effect subject to section 62.
(5) As soon as practicable after the Minister (the Environment Minister) gives the appropriate Minister of the State or Territory (the State or Territory Minister) notice of the suspension, the Environment Minister must consult the State or Territory Minister about the non‑compliance.