(1B) If the Minister thinks, in relation to an action that is the subject of a proposal referred to the Minister, that section 23, 24A, 24B, 24C, 26, 27A, 27B, 27C or 28 could be a controlling provision for the proposed action because of heritage values of a 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 23, 24A, 24B, 24C, 26, 27A, 27B, 27C and 28 protect the environment, which includes the heritage values of places. See the definition of environment in section 528.
Inviting comments from appropriate State or Territory Minister
(2) As soon as practicable after receiving, from the person proposing to take an action or from a Commonwealth agency, a referral of a proposal to take an action in a State or self‑governing Territory, the Environment Minister must, if he or she thinks the action may have an impact on a matter protected by a provision of Division 1 of Part 3 (about matters of national environmental significance):
(a) inform the appropriate Minister of the State or Territory; and
(b) invite that Minister to give the Environment Minister within 10 business days:
(i) comments on whether the proposed action is a controlled action; and
(ii) information relevant to deciding which approach would be appropriate to assess the relevant impacts of the action (including if the action could be assessed under a bilateral agreement).
Note: Subsection (2) also applies in relation to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Inviting public comment
(3) As soon as practicable after receiving a referral of a proposal to take an action, the Environment Minister must cause to be published on the internet:
(a) the referral; and
(b) an invitation for anyone to give the Minister comments within 10 business days (measured in Canberra) on whether the action is a controlled action.
Note: If the action is also the subject of a permit application under section 200, 215, 237 or 257 and the application is made at the same time as the referral, the referral and invitation for comments that must be published under this subsection may be published together with the application and invitation for comments that must be published under section 200, 215, 237 or 257.
Non‑disclosure of commercial‑in‑confidence information
(3A) The Environment Minister may refuse to cause to be published on the internet, under subsection (3), so much of the information included in a referral as the Minister is satisfied is commercial‑in‑confidence.
(3B) The Environment Minister must not be satisfied that particular information included in a referral is commercial‑in‑confidence unless a person demonstrates to the Minister that:
(a) release of the information would cause competitive detriment to the person; and
(b) the information is not in the public domain; and
(c) the information is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and
(d) the information is not readily discoverable.
74A Minister may request referral of a larger action
(1) If the Minister receives a referral in relation to a proposal to take an action by a person, and the Minister is satisfied the action that is the subject of the referral is a component of a larger action the person proposes to take, the Minister may decide to not accept the referral.
(2) If the Minister decides to not accept a referral under subsection (1), the Minister:
(a) must give written notice of the decision to the person who referred the proposal to the Minister; and
(b) must give written notice of the decision to the person who is proposing to take the action that was the subject of the referral; and
(c) may, under section 70, request of the person proposing to take the action that was the subject of the referral, that they refer the proposal, to take the larger action, to the Minister.
(3) To avoid doubt, sections 73 and 74 do not apply to a referral that has not been accepted in accordance with subsection (1).
(4) If the Minister decides to accept a referral under subsection (1), the Minister must, at the time of making a decision under section 75:
(a) give written notice of the decision to the person who referred the proposal to the Minister;
(b) publish in accordance with the regulations (if any), a copy or summary of the decision.
74AA Offence of taking action before decision made in relation to referral etc.
Referral made: taking action while decision making process still going on
(1) A person commits an offence if:
(a) the person takes an action; and
(b) either:
(i) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister by the person under section 68; or
(ii) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister under section 69 or 71 and the person has been informed of the referral under section 73; and
(c) the referral has not been withdrawn under section 170C; and
(d) the Minister has not decided under subsection 74A(1) not to accept the referral; and
(e) provisions of this Chapter are not stopped by Division 1A from applying in relation to the referral; and
(f) provisions of this Chapter are not stopped by section 155 from applying because of the referral in relation to the action (or a larger action of which the action is a component); and
(g) no decision that the action (or a larger action of which the action is a component) is not a controlled action is in operation under section 75 in relation to the referral; and
(ga) either:
(i) no determination that the action may continue to be taken is in force under section 79E; or
(ii) such a determination is in force, but the action has been taken otherwise than in accordance with one or more of the conditions (if any) specified in the determination; and
(h) no decision is in operation under Part 9 in relation to the referral approving, or not approving, the taking of the action (or a larger action of which the action is a component).
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Subsection (1) does not apply to the taking of an action by a person if:
(a) the taking of the action is reasonably necessary in order to comply with a requirement or request made under this Part or Part 8 or 9 in relation to the action (or a larger action of which the action is a component); and
(b) before taking the action, the person gave the Minister written notice of the taking of the action; and
(c) the notice was given in accordance with any applicable requirements of the regulations.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal Code.
Referral requested: taking action before requested referral is made
(3) A person commits an offence if:
(a) the person takes an action; and
(b) the Minister, under section 70, has requested the referral by the person of a proposal to take the action (or a larger action of which the action is a component) to the Minister; and
(c) the request has not been revoked; and
(d) the referral has not been made.
Penalty: 500 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Division 1A—Decision that action is clearly unacceptable
74B Application of this Division
(1) This Division applies to the referral of a proposal to take an action if, within 20 business days after the Minister receives the referral:
(a) the Minister considers, on the basis of the information in the referral, that it is clear that the action would have unacceptable impacts on a matter protected by a provision of Part 3; and
(b) the Minister decides that this Division should apply to the referral.
(2) If this Division applies to a referral, any other provisions of this Chapter that would, apart from this subsection, have applied to the referral cease to apply to the referral.
(3) Subsection (2) has effect subject to paragraph 74D(6)(a).
74C Informing person proposing to take action that action is clearly unacceptable
(1) As soon as practicable after making the decision under paragraph 74B(1)(b) in relation to a referral, the Minister must give written notice of the decision to:
(a) the person proposing to take the action that is the subject of the referral; and
(b) the person who referred the proposal to the Minister (if that person is not the person proposing to take the action that is the subject of the referral).
(2) The notice must:
(a) state that the Minister considers that the action would have unacceptable impacts on a matter protected by a provision of Part 3; and
(b) set out the reasons for the Minister’s decision.
(3) After receiving the notice under subsection (1), the person proposing to take the action may:
(a) withdraw the referral and take no further action in relation to the proposed action; or
(b) withdraw the referral and refer a new proposal to take a modified action to the Minister in accordance with Division 1; or
(c) request the Minister, in writing, to reconsider the referral.
Note 1: Section 170C sets out the procedure for withdrawing a referral.
Note 2: A referral of a proposal to take a modified action will be a new referral for the purposes of this Chapter.
74D Procedure if Minister is requested to reconsider referral
(1) This section applies if the Minister receives a request under paragraph 74C(3)(c) to reconsider a referral.
Inviting public comment
(2) The Minister must, within 10 business days after receiving the request, publish on the internet:
(a) a notice stating that the Minister proposes not to approve the taking of the action that is the subject of the referral; and
(b) the reasons for the Minister’s decision; and
(c) an invitation for anyone to give the Secretary, within 10 business days (measured in Canberra), comments in writing on:
(i) the impacts that the action would have on a matter protected by a provision of Part 3; and
(ii) the Minister’s proposal to refuse to approve the taking of the action.
Report about relevant impacts of action
(3) Within 10 business days after the end of the period for comment under paragraph (2)(c), the Secretary must:
(a) prepare a written report about the relevant impacts that the action has or will have, or is likely to have, on a matter protected by a provision of Part 3; and
(b) give the Minister:
(i) the report; and
(ii) a copy of any comments received by the Secretary within the period for comment.
In preparing the report, the Secretary must have regard to the comments referred to in subparagraph (b)(ii).
Decision following reconsideration
(4) Within 20 business days after receiving the report under subsection (3), the Minister must:
(a) if the Minister still considers that it is clear that the action would have unacceptable impacts on a matter protected by a provision of Part 3—decide to refuse to approve the taking of the action; or
(b) decide that the referral is to be dealt with under the provisions of this Chapter that, because of subsection 74B(2), have ceased to apply to the referral.
(5) If the Minister decides to refuse to approve the taking of the action, the Minister must, within 10 business days after making the decision, give notice of the decision to:
(a) the person proposing to take the action; and
(b) the person who referred the proposal to the Minister (if that person is not the person proposing to take the action).
Note: The person proposing to take the action may request reasons for the refusal and the Minister must give them. See section 13 of the Administrative Decisions (Judicial Review) Act 1977.
(6) If the Minister makes a decision under paragraph (4)(b):
(a) the provisions of this Chapter that, because of subsection 74B(2), have ceased to apply to the referral start to apply to the referral; and
(b) for the purposes of the application of those provisions, a day is not to be counted as a business day if it is:
(i) on or after the day the Minister received the referral; and
(ii) on or before the day the Minister makes the decision under paragraph (4)(b).
Note: If the Minister had already complied with section 74 in relation to the referral before the Minister made the decision under paragraph 74B(1)(b) in relation to the referral, the Minister is not required to comply with section 74 again.
(a) whether the action that is the subject of a proposal referred to the Minister is a controlled action; and
(b) which provisions of Part 3 (if any) are controlling provisions for the action.
Note: The Minister may revoke a decision made under subsection (1) about an action and substitute a new decision. See section 78.
(1AA) To avoid doubt, the Minister is not permitted to make a decision under subsection (1) in relation to an action that was the subject of a referral that was not accepted under subsection 74A(1).
Minister must consider public comment
(1A) In making a decision under subsection (1) about the action, the Minister must consider the comments (if any) received:
(a) in response to the invitation under subsection 74(3) for anyone to give the Minister comments on whether the action is a controlled action; and
(b) within the period specified in the invitation.
Considerations in decision
(2) If, when the Minister makes a decision under subsection (1), it is relevant for the Minister to consider the impacts of an action:
(a) the Minister must consider all adverse impacts (if any) the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3; and
(b) must not consider any beneficial impacts the action:
(i) has or will have; or
(ii) is likely to have;
on the matter protected by each provision of Part 3.
Note: Impact is defined in section 527E.
(2A) For the purposes of subsection (2), if the provision of Part 3 is subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 24D(3), 24E(3), 26(1) or 27A(1), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or Commonwealth land:
(a) has or will have; or
(b) is likely to have;
on the matter.
(2AA) For the purposes of subsection (2), if the provision of Part 3 is subsection 24B(1) or 24C(1) or (3), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park:
(a) has or will have; or
(b) is likely to have;
on the matter.
(2B) Without otherwise limiting any adverse impacts that the Minister must consider under paragraph (2)(a), the Minister must not consider any adverse impacts of:
(a) any RFA forestry operation to which, under Division 4 of Part 4, Part 3 does not apply; or
(b) any forestry operations in an RFA region that may, under Division 4 of Part 4, be undertaken without approval under Part 9.
Designating a proponent of the action
(3) If the Minister decides that the action is a controlled action, the Minister must designate a person as proponent of the action.
Consent to designation
(4) The Minister may designate a person who does not propose to take the action only if:
(a) the person agrees to being designated; and
(b) the person proposing to take the action agrees to the designation.
Timing of decision and designation
(5) The Minister must make the decisions under subsection (1) and, if applicable, the designation under subsection (3), within 20 business days after the Minister receives the referral of the proposal to take the action.
Note: If the Minister decides, under subsection 75(1), that the action is a controlled action, the Minister must, unless the Minister has requested more information under subsection 76(3) or section 89, decide on the approach to be used for assessment of the relevant impacts of the action on the same day as the Minister makes the decision under subsection 75(1)—see subsection 88(2).
Time does not run while further information being sought
(6) If the Minister has requested more information under subsection 76(1) or (2) for the purposes of making a decision, a day is not to be counted as a business day for the purposes of subsection (5) if it is:
(a) on or after the day the Minister requested the information; and
(b) on or before the day on which the Minister receives the last of the information requested.
Running of time may be suspended by agreement
(7) The Minister and the person proposing to take the action may agree in writing that days within a period worked out in accordance with the agreement are not to be counted as business days for the purposes of subsection (5). If the agreement is made, those days are not to be counted for the purposes of that subsection.
76 Minister may request more information for making decisions
(1) If the Minister believes on reasonable grounds that the referral of a proposal to take an action does not include enough information for the Minister to decide:
(a) whether the action is a controlled action; or
(b) which provisions of Part 3 (if any) are controlling provisions for the action;
the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.