(6) To avoid doubt, this section has effect despite sections 58 and 59.
61 Cancellation during suspension
(1) The Minister may give notice of the cancellation of the effect of a bilateral agreement even while its effect is suspended under section 59 or 60.
(2) The cancellation may occur even though the period of suspension has not ended.
(3) This section applies whether the cancellation or suspension has effect generally or in relation to actions in a specified class.
62 Revocation of notice of suspension or cancellation
(1) This section applies if the Minister:
(a) has given a notice under section 59 or 60 to suspend or cancel the effect of a bilateral agreement (either generally or in relation to actions in a specified class); and
(b) is later satisfied that the State or Territory that is party to the agreement will comply with the agreement and give effect to it 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.
(2) The Minister must revoke the notice of suspension or cancellation by another written notice:
(a) given to the appropriate Minister of the State or Territory; and
(b) published in accordance with the regulations.
However, the Environment Minister must not revoke the notice of cancellation after cancellation of the effect of the agreement occurs.
(3) Suspension or cancellation of the effect of the agreement does not occur if the notice of suspension or cancellation is revoked before the suspension or cancellation would otherwise occur.
(4) Suspension of the effect of the agreement ends when the notice of suspension is revoked.
63 Cancellation or suspension at request of other party
Minister must give notice of cancellation or suspension
(1) The Minister must give the appropriate Minister of a State or self‑governing Territory that is party to a bilateral agreement a notice under subsection (2) or (3) if the appropriate Minister has requested a notice under that subsection in accordance with the agreement.
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 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.
(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 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.
Publishing notice and reasons
(5) As soon as practicable after the suspension or cancellation occurs, the Minister must publish in accordance with the regulations:
(a) notice of the suspension or cancellation; and
(b) reasons for the suspension or cancellation.
64 Cancellation or suspension of bilateral agreement does not affect certain actions
Application
(1) This section explains how this Act operates in relation to an action that a person was able to take without approval under Part 9 for the purposes of a provision of Part 3 because of Division 1 of Part 4 and a provision of a bilateral agreement immediately before the cancellation or suspension of the operation of the provision of the agreement for the purposes of this Act or of any provision of this Act.
Actions approved in specified manner may be taken
(2) If the action was able to be taken without approval under Part 9 because its taking had already been approved in accordance with a management arrangement or an authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement, this Act continues to operate in relation to the action as if the suspension or cancellation had not occurred.
Subdivision B—Expiry of bilateral agreements
65 Expiry and review of bilateral agreements
(1) A bilateral agreement ceases to have effect for the purposes of this Act at the time when the agreement provides for it to cease to so have effect.
Note: The parties to a bilateral agreement may also agree to revoke it.
(2) The Minister must cause a review of the operation of a bilateral agreement to be carried out at least once every 5 years while the agreement remains in effect. The Minister must give a copy of the report of each review to the appropriate Minister of the State or Territory that is party to the agreement.
Note: A bilateral agreement may also provide for review of its operation.
(3) The Minister must publish the report on each subsection (2) review in accordance with the regulations.
65A Expiry of bilateral agreement does not affect certain actions
Application of subsection (2)
(1) Subsection (2) explains how this Act operates in relation to an action that a person was able to take without approval under Part 9 for the purposes of a provision of Part 3 because of Division 1 of Part 4 and a provision of a bilateral agreement immediately before the agreement ceases to have effect for the purposes of this Act under section 65.
Actions already approved may be taken
(2) This Act continues to operate in relation to the action as if the agreement had not ceased to have effect if the action was able to be taken without approval under Part 9 because its taking had already been approved in accordance with a management arrangement or an authorisation process that was a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement.
Chapter 4—Environmental assessments and approvals
Part 6—Simplified outline of this Chapter
66 Simplified outline of this Chapter
The following is a simplified outline of this Chapter:
This Chapter deals with assessment and approval of actions that Part 3 prohibits without approval (controlled actions). (It does not deal with actions that a bilateral agreement declares not to need approval.)
A person proposing to take an action, or a government body aware of the proposal, may refer the proposal to the Minister so he or she can decide:
(a) whether his or her approval is needed to take the action; and
(b) how to assess the impacts of the action to be able to make an informed decision whether or not to approve the action.
An assessment may be done using:
(a) a process laid down under a bilateral agreement; or
(b) a process specified in a declaration by the Minister; or
(c) a process accredited by the Minister; or
(ca) information included in the referral; or
(d) preliminary documentation provided by the proponent; or
(e) a public environment report; or
(f) an environmental impact statement; or
(g) a public inquiry.
Once the report of the assessment is given to the Minister, he or she must decide whether or not to approve the action, and what conditions to attach to any approval.
Part 7—Deciding whether approval of actions is needed
Division 1—Referral of proposals to take action
67 What is a controlled action?
An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be (or would, but for section 25AA or 28AB, or but for a determination made under section 79E, be) prohibited by the provision. The provision is a controlling provision for the action.
67A Prohibition on taking controlled action without approval etc.
A person must not take a controlled action, unless:
(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of the relevant provision of Part 3; or
(b) 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 an action to which subsection 74AA(1) does not apply because of subsection 74AA(2), (2A), (2C) or (2D).
Note: A person can be restrained from contravening this section by an injunction under section 475.
68 Referral by person proposing to take action
(1) A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.
(2) A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.
(3) In a referral under this section, the person must state whether or not the person thinks the action the person proposes to take is a controlled action.
(4) If the person states that the person thinks the action is a controlled action, the person must identify in the statement each provision that the person thinks is a controlling provision.
(5) Subsections (1) and (2) do not apply in relation to a person proposing to take an action if the person has been informed by the Minister under section 73 that the proposal has been referred to the Minister.
(6) This section is affected by section 68A.
68A Actions proposed to be taken under a contract etc.
(1) This section applies in relation to an action that is proposed to be taken under a contract or an agreement, arrangement or understanding, other than:
(a) a subcontract; or
(b) an agreement, arrangement or understanding entered into for the purposes of a contract or another agreement, arrangement or understanding.
Note: A person proposing to take an action under a subcontract, or an agreement, arrangement or understanding entered into for the purposes of a contract or another agreement, arrangement or understanding, is not required or permitted to refer the proposal to take the action to the Minister under section 68.
(2) For the purposes of section 68 and subject to subsection (3), a reference to, or relating to, a person proposing to take the action is a reference to, or relating to, any of the following persons:
(a) a party to the contract, agreement, arrangement or understanding for whose benefit the action is proposed to be taken;
(b) a person who:
(i) requested or procured, or proposes to request or procure, the creation of the contract, agreement, arrangement or understanding; and
(ii) is to be responsible for controlling and directing the taking of the proposed action.
(3) If a person (the first person) referred to in paragraph (2)(a) or (b) refers a proposal to take the action to the Minister under section 68:
(a) no other person is required or permitted to refer a proposal to take the action to the Minister under section 68; and
(b) for the purposes of this Chapter, a reference to, or relating to, the person proposing to take the action is a reference to, or relating to, the first person.
(4) For the purposes of this section, a reference to a contract or subcontract or an agreement, arrangement or understanding includes a reference to a proposed contract, proposed subcontract, proposed agreement, proposed arrangement or proposed understanding.
(5) Nothing in this section is intended to affect the capacity of a person to refer a proposal to take an action to the Minister under subsection 68(1) or (2) on behalf of the person proposing to take the action.
69 State or Territory may refer proposal to Minister
(1) A State, self‑governing Territory or agency of a State or self‑governing Territory that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the State, Territory or agency has administrative responsibilities relating to the action.
(2) This section does not apply in relation to a proposal by a State, self‑governing Territory or agency of a State or self‑governing Territory to take an action.
Note: Section 68 applies instead.
70 Minister may request referral of proposal
(1) If the Minister believes a person proposes to take an action that the Minister thinks may be or is a controlled action, the Minister may request:
(a) the person; or
(b) a State, self‑governing Territory or agency of a State or self‑governing Territory that the Minister believes has administrative responsibilities relating to the action;
to refer the proposal to the Minister within 15 business days or a longer period agreed by the Minister and the requested person, State, Territory or agency (as appropriate).
Note 1: If the proposal to take the action is not referred, the person cannot get an approval under Part 9 to take the action. If taking the action without approval contravenes Part 3, an injunction could be sought to prevent or stop the action, or the person could be ordered to pay a pecuniary penalty.
Note 2: Section 156 sets out rules about time limits.
(2) In making a request, the Minister must act in accordance with the regulations (if any).
Deemed referral of proposal
(3) If:
(a) the Minister has made a request under subsection (1); and
(b) the period for compliance with the request has ended; and
(c) the requested person has not referred the proposal to the Minister in accordance with the request;
the Minister may, within 20 business days after the end of that period, determine in writing that this Act has effect as if:
(d) if paragraph (1)(a) applies—the requested person had referred the proposal to the Minister under subsection 68(1) at the time the determination was made; or
(e) if paragraph (1)(b) applies—the requested person had referred the proposal to the Minister under subsection 69(1) at the time the determination was made.
(4) A determination under subsection (3) has effect accordingly.
(5) A copy of a determination under subsection (3) is to be given to the requested person.
(6) Subsection 68(3) and section 72 do not apply to a referral covered by subsection (3) of this section.
(8) Subsection 74(3) applies to a referral covered by subsection (3) of this section as if the reference in paragraph 74(3)(a) to the referral were a reference to the determination concerned.
71 Commonwealth agency may refer proposal to Minister
(1) A Commonwealth agency that is aware of a proposal by a person to take an action may refer the proposal to the Minister for a decision whether or not the action is a controlled action, if the agency has administrative responsibilities relating to the action.
(2) This section does not apply in relation to a proposal by the Commonwealth or a Commonwealth agency to take an action.
Note: Section 68 applies instead.
72 Form and content of referrals
(1) A referral of a proposal to take an action must be made in a way prescribed by the regulations.
(2) A referral of a proposal to take an action must include the information prescribed by the regulations.
(3) A referral of a proposal to take an action may include alternative proposals relating to any of the following:
(a) the location where the action is to be taken;
(b) the time frames within which the action is to be taken;
(c) the activities that are to be carried out in taking the action.
73 Informing person proposing to take action of referral
As soon as practicable after receiving a referral under section 69 or 71 of a proposal by a person to take an action, the Minister must:
(a) inform the person of the referral; and
(b) invite the person to give the Minister relevant information about whether the action is a controlled action, within 10 business days.
73A Informing Great Barrier Reef Marine Park Authority of proposal affecting Great Barrier Reef Marine Park
If:
(a) a proposal to take an action is referred to the Minister; and
(b) the action, or a component of the action, is to be taken in the Great Barrier Reef Marine Park;
the Minister must, as soon as practicable after receiving the referral, give a copy of the referral to the Great Barrier Reef Marine Park Authority.
74 Inviting provision of information on referred proposal
Inviting other Commonwealth Ministers to provide information
(1) As soon as practicable after receiving a referral of a proposal to take an action, the Minister (the Environment Minister) must:
(a) inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the proposal; and
(b) invite each other Minister informed to give the Environment Minister within 10 business days information that relates to the proposed action and is relevant to deciding whether or not the proposed action is a controlled action.
Inviting comments from the Australian Heritage Council
(1A) If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 15B or 15C could be a controlling provision for the proposed action because of National Heritage values of a National Heritage place, the Minister may invite the Australian Heritage Council to give the Minister comments, within 10 business days (measured in Canberra), on whether the proposed action is a controlled action.
Note: Sections 15B and 15C protect the National Heritage values of National Heritage places.