(2) Before the Minister makes the decisions under subsection 75(1) in relation to the action, the Minister may request the person proposing to take the action to provide information about whether or not the action is a component of a larger action that is proposed to be taken by the person.
(3) If the Minister believes on reasonable grounds that the information given to the Minister in relation to the action is not enough to allow the Minister to make an informed decision on the approach to be used for assessment of the relevant impacts of the action, the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.
(4) Without limiting subsection (3), if the action is to be taken in a State or self‑governing Territory, the Minister may request the person proposing to take the action to provide information about:
(a) whether the relevant impacts of the action have been, or are being, assessed by the State or Territory; and
(b) if so, the method of assessment that was, or is being, used and what stage the assessment has reached.
(5) The Minister may make a request under subsection (3) even if the Minister has not yet made the decisions under subsection 75(1) in relation to the action.
77 Notice and reasons for decision
Giving notice
(1) Within 10 business days after deciding whether an action that is the subject of a proposal referred to the Minister is a controlled action or not, the Minister must:
(a) give written notice of the decision to:
(i) the person proposing to take the action; and
(ii) if the Minister has designated as proponent of the action a person who does not propose to take the action—that person; and
(iii) if the Minister decided that the action is a controlled action because of Division 1 of Part 3 (which deals with matters of national environmental significance)—the appropriate Minister of each State or self‑governing Territory in which the action is to be taken; and
(b) publish notice of the decision in accordance with the regulations.
Note 1: Section 156 sets out rules about time limits.
Note 2: Subparagraph (1)(a)(iii) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Notice must identify any applicable controlling provisions
(2) If the decision is that the action is a controlled action, the notice must identify each of the controlling provisions.
Reasons for decision
(4) The Minister must give reasons for the decision to a person who:
(a) has been given the notice; and
(b) within 28 days of being given the notice, has requested the Minister to provide reasons.
The Minister must do so as soon as practicable, and in any case within 28 days of receiving the request.
77A Action to be taken in a particular manner
(1) If, in deciding whether the action is a controlled action or not, the Minister has made a decision (the component decision) that a particular provision of Part 3 is not a controlling provision for the action because the Minister believes it will be taken in a particular manner, the notice, to be provided under section 77, must set out the component decision, identifying the provision and the manner.
Note: The Minister may decide that a provision of Part 3 is not a controlling provision for an action because he or she believes that the action will be taken in a manner that will ensure the action will not have (and is not likely to have) an adverse impact on the matter protected by the provision.
(1A) For the purposes of subsection (1), it does not matter whether or not the Minister believes that the action will be taken in accordance with:
(a) an accredited management arrangement or an accredited authorisation process for the purposes of a declaration under section 33; or
(b) a bioregional plan to which a declaration made under section 37A relates; or
(c) a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of a bilateral agreement.
(2) A person must not take an action, that is the subject of a notice that includes a particular manner under subsection (1), in a way that is inconsistent with the manner specified in the notice.
Civil penalty:
(a) for an individual—1,000 penalty units, or such lower amount as is prescribed by the regulations;
(b) for a body corporate—10,000 penalty units, or such lower amount as is prescribed by the regulations.
Division 3—Reconsideration of decisions
78 Reconsideration of decision
Limited power to vary or substitute decisions
(1) The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if:
(a) the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; or
(aa) the Minister is satisfied that the revocation and substitution is warranted by a substantial change in circumstances that was not foreseen at the time of the first decision and relates to the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; or
(b) the following requirements are met:
(i) the first decision was that the action was not a controlled action because the Minister believed the action would be taken in the manner identified under subsection 77A(1) in the notice given under section 77;
(ii) the Minister is satisfied that the action is not being, or will not be, taken in the manner identified; or
(ba) the following requirements are met:
(i) the first decision was that the action was not a controlled action because of a provision of a bilateral agreement and 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;
(ii) the provision of the agreement no longer operates in relation to the action, or the management arrangement or authorisation process is no longer in force under, or set out in, a law of a State or a self‑governing Territory identified in or under the agreement; or
(c) the following requirements are met:
(i) the first decision was that the action was not a controlled action because of a declaration under section 33 and a management arrangement or an authorisation process that is an accredited management arrangement or an accredited authorisation process for the purposes of the declaration;
(ii) the declaration no longer operates in relation to the action, or the management arrangement or authorisation process is no longer in operation under, or set out in, a law of the Commonwealth identified in or under the declaration; or
(ca) the following requirements are met:
(i) the first decision was that the action was not a controlled action because of a declaration under section 37A and a bioregional plan to which the declaration relates;
(ii) the declaration no longer operates in relation to the action, or the bioregional plan is no longer in force; or
(d) the Minister is requested under section 79 to reconsider the decision.
Note 1: Subsection 75(1) provides for decisions about whether an action is a controlled action and what the controlling provisions for the action are.
Note 2: A person (other than a Minister of a State or self‑governing Territory) may request the Minister to reconsider a decision made under subsection 75(1) about an action on the basis of a matter referred to in any of paragraphs 78(1)(a) to (ca). See section 78A.
Note 3: If the Minister decides to revoke a decision under subsection (1) and substitute a new decision for it, the Minister is not required to carry out the processes referred to in sections 73 and 74 again before making the new decision.
Note 4: The Minister may also revoke a first decision and substitute a new decision under section 79C (reconsideration of decision that action is not controlled action because taken in particular manner).
Reversing decision that provision of Part 3 is not controlling provision
(2) A provision of Part 3 letting an action be taken if the Minister has decided that a particular provision (the prohibiting provision) of that Part is not a controlling provision for the action does not prevent the Minister from acting under subsection (1) to revoke a decision that the prohibiting provision is not a controlling provision for an action and substitute a decision that the prohibiting provision is a controlling provision for the action.
Decision not to be revoked after approval granted or refused or action taken
(3) The Minister must not revoke the first decision after:
(a) the Minister has granted or refused an approval of the taking of the action; or
(b) the action is taken.
Decision not to be revoked in certain circumstances
(3A) The Minister must not revoke the first decision if:
(a) the first decision was that the action was not a controlled action because the Minister believed the action would be taken in the manner identified under subsection 77A(1) in the notice given under section 77; and
(b) the identified manner included that the action would be taken in accordance with a management arrangement made, approved or administered by the government of a State or self‑governing Territory; and
(c) the action is being taken; and
(d) either:
(i) if the Minister is requested under subsection 78A(1) to reconsider the decision—at the time the request is made, the way in which the action is being taken has been ongoing or recurring for at least 5 years; or
(ii) otherwise—the way in which the action is being taken has been ongoing or recurring for at least 5 years.
General effect of change of decision
(4) When the first decision is revoked and a new decision is substituted for it:
(a) any provisions of this Chapter that applied in relation to the action because of the first decision cease to apply in relation to the action; and
(b) any provisions of this Chapter that are relevant because of the new decision apply in relation to the action.
Change of designation of proponent
(5) If the Minister believes a person (the first proponent) designated under section 75 as proponent of an action is no longer an appropriate person to be the designated proponent of the action, the Minister may revoke the designation and designate another person (the later proponent) as proponent of the action.
Consent to designation
(6) The Minister may designate the other person as proponent of the action only if:
(a) he or she consents to it and the person proposing to take the action agrees to it; or
(b) the other person is the person proposing to take the action.
Effect of change of designated proponent
(7) If the Minister revokes the designation of the first proponent and designates the later proponent:
(a) the provisions of this Chapter that applied to the first proponent cease to apply to the first proponent in relation to the action but apply to the later proponent; and
(b) for the purposes of those provisions the later proponent is taken to have done anything the first proponent did in relation to the action; and
(c) for the purposes of those provisions anything done in relation to the first proponent in relation to the action is taken to have been done in relation to the later proponent.
78A Request for reconsideration of decision by person other than State or Territory Minister
(1) A person (other than a Minister of a State or self‑governing Territory) may request the Minister to reconsider a decision made under subsection 75(1) about an action on the basis of a matter referred to in any of paragraphs 78(1)(a) to (ca).
Note: Section 79 deals with requests for reconsideration by a Minister of a State or self‑governing Territory.
(2) A request under subsection (1) must:
(a) be in writing; and
(b) set out the basis on which the person thinks the decision should be reconsidered; and
(c) if the regulations specify other requirements for requests under subsection (1)—comply with those requirements.
(3) If a request is made under subsection (1) in relation to a decision that an action is a controlled action, or that particular provisions are controlling provisions for an action, then:
(a) if the request is made by the designated proponent of the action—Part 8 ceases to apply in relation to the action until the Minister makes a decision in relation to the request; but
(b) if the request is made by another person—the application of Part 8 in relation to the action is not affected by the making of the request (subject to the outcome of the reconsideration).
(4) If:
(a) because of paragraph (3)(a), Part 8 has ceased to apply in relation to an action; and
(b) the Minister confirms the decision that is the subject of the request under subsection (1);
then:
(c) the application of Part 8 in relation to the action resumes (as does any assessment process under that Part that had previously commenced in relation to the action); and
(d) for the purposes of the resumed application of Part 8, a day is not to be counted as a business day if it is:
(i) on or after the day the Minister received the request; and
(ii) on or before the day the Minister confirms the decision.
78B Minister must inform interested persons of request and invite comments
(1) The Minister (the Environment Minister) must comply with this section if he or she receives a request under section 78A to reconsider a decision made under subsection 75(1) about an action.
Informing designated proponent of request and inviting comments
(2) If the request is made by a person other than the designated proponent of the action, the Environment Minister must:
(a) inform the designated proponent of the request in accordance with subsection (3); and
(b) invite the designated proponent to give the Environment Minister, within 10 business days, comments on the request.
(3) For the purpose of paragraph (2)(a), the Environment Minister must inform the designated proponent of the request by giving the designated proponent such information relating to the request as the Minister considers appropriate. The Minister need not (for example) reveal the identity of the person who made the request.
Inviting other Commonwealth Ministers to provide information
(4) The Environment Minister must:
(a) inform any other Minister who the Environment Minister believes has administrative responsibilities relating to the action of the request; and
(b) invite each Minister informed to give the Environment Minister, within 10 business days, information about whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action.
Inviting comments from appropriate State or Territory Minister
(5) If the request relates to an action proposed to be taken in a State or self‑governing Territory and the Environment Minister 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), the Environment Minister must:
(a) inform the appropriate Minister of the State or Territory of the request; and
(b) invite that Minister to give the Environment Minister, within 10 business days:
(i) comments on whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action; and
(ii) any other information that the Minister of the State or Territory considers relevant to the reconsideration.
Note: Subsection (5) also applies in relation to a request that relates to an action that is to be taken in an area offshore from a State or the Northern Territory. See section 157.
Inviting public comment
(6) The Environment Minister must publish on the internet:
(a) the request; and
(b) an invitation for anyone to give the Environment Minister, within 10 business days (measured in Canberra), comments in writing on whether a matter referred to in any of paragraphs 78(1)(a) to (ca) is applicable in relation to the action.
78C Minister must reconsider decision and give notice of outcome
Reconsideration of decision
(1) As soon as practicable after the end of the time within which information or comments may be given under section 78B in relation to a request under section 78A to reconsider a decision about an action, the Minister must:
(a) reconsider the decision; and
(b) either:
(i) confirm the decision; or
(ii) revoke the decision in accordance with subsection 78(1), and substitute a new decision for it.
(1A) To avoid doubt, the Minister must not revoke the decision if subsection 78(3) or (3A) applies in relation to it.
Notice of outcome of reconsideration
(2) The Minister must give written notice of the outcome of the reconsideration to:
(a) the person who requested the reconsideration; and
(b) the person proposing to take the action (if that person is not the person referred to in paragraph (a)); and
(c) the designated proponent of the action (if the designated proponent is not the person referred to in paragraph (a) or (b)); and
(d) if the reconsideration relates to an action referred to in subsection 78B(5)—the appropriate Minister of the State or Territory.
(3) After giving notice as described in subsection (2), the Minister must publish notice of the outcome of the reconsideration. The regulations may specify how the publication is to be made. Subject to any such regulations, the publication must be made in a way the Minister considers appropriate.
Reasons for outcome of reconsideration
(4) The Minister must give reasons for the outcome of the reconsideration to a person who:
(a) has been given notice of the outcome of the reconsideration under paragraph (2)(a), (b) or (c); and