(b) within 28 days after 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 after receiving the request.
79 Reconsideration of decision on request by a State or Territory
(1) This section applies if the Minister (the Environment Minister) has made a decision under subsection 75(1) about whether a provision of Division 1 of Part 3 is a controlling provision for an action proposed to be taken in a State or a self‑governing Territory.
Note 1: Division 1 of Part 3 deals with requirements for approvals for actions involving matters of national environmental significance.
Note 2: This section also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(2) Within 10 business days after the appropriate Minister of the State or Territory is notified of the decision under subparagraph 77(1)(a)(iii), that Minister may request the Environment Minister to reconsider the Environment Minister’s decisions made under subsection 75(1).
(3) Within 20 business days after receiving a request to reconsider a decision, the Environment Minister must:
(a) reconsider the decision; and
(b) either confirm it or revoke it and substitute a new decision for it; and
(c) give written notice of the outcome of the reconsideration and reasons for the outcome to:
(i) the Minister who requested the reconsideration; and
(ii) the person proposing to take the action; and
(iii) the designated proponent of the action; and
(d) after giving notice as described in paragraph (c), publish notice of the outcome and the reasons for it in accordance with the regulations.
Note: Section 156 sets out rules about time limits.
79A Application for reconsideration of decision that action is not controlled action because taken in particular manner
(1) If:
(a) a decision is in operation under subsection 75(1) that an action a person proposes to take or is taking is not a controlled action because the Minister believes the action will be taken in the manner identified under subsection 77A(1) in the notice given under section 77; and
(b) the person considers the identified manner is no longer appropriate for the action;
the person may apply to the Minister for reconsideration of the decision.
(2) The application must:
(a) be in writing; and
(b) if the person proposes to take the action in a manner different to the identified manner—set out the manner in which the person proposes to take the action; and
(c) include any other information prescribed by the regulations.
79B Minister must inform interested persons of application under section 79A and invite comments
Other Commonwealth Ministers
(1) If the Minister (the Environment Minister) receives an application under section 79A, the Environment Minister may:
(a) inform any other Minister who the Environment Minister believes has administrative responsibilities relating to the action of the application; and
(b) invite each other Minister informed to give the Environment Minister, within 10 business days, any information the other Minister considers relevant to the reconsideration.
State and Territory Ministers
(2) If the application 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 may:
(a) inform the appropriate Minister of the State or Territory of the application; and
(b) invite that Minister to give the Environment Minister, within 10 business days:
(i) any comments the Minister considers relevant to the reconsideration; and
(ii) any other information that the Minister of the State or Territory considers relevant to the reconsideration.
Note: Subsection (2) also applies in relation to an application that relates to an action that is to be taken in an area offshore from a State or the Northern Territory. See section 157.
Public
(3) The Environment Minister must publish on the Department’s website:
(a) the application; and
(b) an invitation for anyone to give the Environment Minister, within 10 business days, comments in writing on any matters relevant to the reconsideration.
79C Reconsideration of decision on application under section 79A
(1) If the Minister receives an application under section 79A from a person for reconsideration of a decision (the first decision), the Minister must reconsider the first decision and do one of the following:
(a) revoke the first decision and substitute a new decision under subsection 75(1) for the first decision;
(b) refuse the application.
(2) As soon as practicable after either revoking the first decision and substituting a new decision, or refusing the application, the Minister must:
(a) give the person written notice of the Minister’s decision; and
(b) if the decision is to revoke the first decision and substitute a new decision—publish a copy of the notice on the Department’s website.
(3) 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 taking action 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.
(4) If the first decision is revoked and a new decision 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.
79D Withdrawal of application under section 79A
A person who makes an application under section 79A may, by written notice, withdraw the application at any time before the Minister does one of the things mentioned in paragraph 79C(1)(a) or (b).
79E Determination that certain reconsidered actions may continue to be taken
When determination may be made
(1) If all of the following apply:
(a) the Minister makes a decision (the first decision) under subsection 75(1) that an action that is the subject of a proposal (the original proposal) referred to the Minister is not a controlled action;
(b) the Minister revokes the first decision under subsection 78(1) or 79C(1) and substitutes the first decision with a decision (the subsequent decision) under subsection 75(1) that:
(i) the action is a controlled action; and
(ii) one or more provisions of Part 3 are controlling provisions for the action;
(c) the taking of the action commences before the subsequent decision is made;
(d) the Minister is satisfied, based on information before the Minister at the time of making the determination, that allowing the action to continue in accordance with any conditions specified under subsection (2) would not be inconsistent with Australia’s obligations under a designated international agreement;
then the Minister may determine, in writing, that the action may continue to be taken.
Note: In some cases the first decision may have been that an action is 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.
Content of determination
(2) The determination may specify conditions to which the taking of the action is subject.
(3) The Minister must be satisfied that any conditions specified for the purposes of subsection (2) are necessary or convenient for:
(a) protecting from the action any matter protected by a provision of Part 3 of this Act that the Minister has decided is a controlling provision for the action; or
(b) repairing or mitigating damage that may or will be, or has been, caused by the action to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action.
(4) The determination must specify a day on which the determination ceases to be in force.
Note: The determination may cease to be in force earlier than the specified day (see paragraphs (7)(a) to (g)).
(5) The determination must specify a period within which the original proposal may be withdrawn and a new proposal referred.
Note: This period is relevant to the determination continuing despite withdrawal of the original proposal (see paragraph 170C(5)(b)).
Variation of determination
(6) The Minister may, in writing, vary the determination to specify:
(a) different conditions for the purposes of subsection (2); or
(b) a later day for the purposes of subsection (4) or (5).
When determination ceases to be in force
(7) The determination ceases to be in force at the time the first of the following occurs after the determination is made:
(a) the Minister decides under Part 9 whether to approve the taking of the action;
(b) if the Minister accepts a variation of the original proposal under section 156B—the Minister decides under Part 9 whether to approve the taking of the action that is the subject of the varied proposal;
(c) if subsection 170C(5) applies in relation to the determination—the Minister decides under section 75 that the new action referred to in subsection 170C(5) is not a controlled action;
(d) if subsection 170C(5) applies in relation to the determination—the Minister decides under Part 9 whether to approve the taking of the new action referred to in subsection 170C(5);
(e) if subsection 170C(5) applies in relation to the determination and a variation of the proposal to take the new action is accepted by the Minister under section 156B—the Minister decides under section 75 that the action that is the subject of the varied proposal is not a controlled action;
(f) if subsection 170C(5) applies in relation to the determination and a variation of the proposal to take the new action is accepted by the Minister under section 156B—the Minister decides under Part 9 whether to approve the taking of the action that is the subject of the varied proposal;
(g) the end of the day specified in the determination for the purposes of subsection (4).
Notice of making, or varying, determination
(8) Within 10 business days after making a determination under subsection (1), or varying a determination under subsection (6), in relation to the taking of an action, the Minister must give written notice of the making of the determination or variation to:
(a) the person taking the action; and
(b) the designated proponent of the action (if the designated proponent of the action is not the person taking the action).
Publication of determination
(9) The Minister must publish a copy of a determination made under subsection (1), or a variation made under subsection (6), on the Department’s website as soon as practicable after giving notice of the determination or variation under subsection (8).
Determination or variation not a legislative instrument
(10) A determination under subsection (1), or a variation under subsection (6), is not a legislative instrument.
Part 8—Assessing impacts of controlled actions
Division 1—Simplified outline of this Part
80 Simplified outline of this Part
The following is a simplified outline of this Part:
This Part provides for the assessment of impacts of controlled actions, to provide information for decisions whether or not to approve the taking of the actions. However, this Part does not apply to actions that a bilateral agreement or Ministerial declaration says are to be assessed in another way.
For actions that are to be assessed under this Part, the Minister must choose one of the following methods of assessment:
(a) an accredited assessment process;
(aa) an assessment on referral information (see Division 3A);
(b) an assessment on preliminary documentation (see Division 4);
(c) a public environment report (see Division 5);
(d) an environmental impact statement (see Division 6);
(e) a public inquiry (see Division 7).
Division 2—Application of this Part
81 Application
(1) This Part applies to the assessment of the relevant impacts of an action that the Minister has decided under Division 2 of Part 7 is a controlled action.
(2) This section has effect subject to sections 83 and 84.
(3) This section does not limit section 82.
82 What are the relevant impacts of an action?
If the Minister has decided the action is a controlled action
(1) If the Minister has decided under Division 2 of Part 7 that an action is a controlled action, the relevant impacts of the action are the impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3 that the Minister has decided under that Division is a controlling provision for the action.
If the Minister has not decided whether the action is controlled
(2) If an action is a controlled action or would be apart from Division 1, 2, 3 or 3A of Part 4 (which provide that approval under Part 9 is not needed for an action covered by a bilateral agreement or declaration)—the relevant impacts of the action are impacts that the action:
(a) has or will have; or
(b) is likely to have;
on the matter protected by each provision of Part 3 that is a controlling provision for the action or would be apart from whichever of those Divisions is relevant.
Relationship between subsections (1) and (2)
(3) Subsection (1) has effect despite subsection (2).
(4) For the purposes of subsections (1) and (2), if subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 24D(3), 24E(3), 26(1) or 27A(1) is, or would be, a controlling provision for the action, 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.
(5) For the purposes of subsections (1) and (2), if subsection 24B(1) or 24C(1) or (3) is or would be a controlling provision for the action, 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.
83 This Part does not apply if action covered by bilateral agreement
(1) This Part does not apply in relation to an action if:
(a) the action is to be taken in a State or self‑governing Territory; and
(b) a bilateral agreement between the Commonwealth and the State or Territory declares that actions in a class that includes the action need not be assessed under this Part; and
(c) the provision of the bilateral agreement making the declaration is in operation in relation to the action.
Note 1: Subsection (1) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
Note 2: Section 47 deals with bilateral agreements making declarations described in paragraph (1)(b).
Note 2A: An action will be in a class of actions declared not to need assessment under this Part only if the action has been assessed in a manner specified in the bilateral agreement.
Note 3: Division 3 of Part 5 explains how the operation of a bilateral agreement may be ended or suspended. Also, under section 49, bilateral agreements do not operate in relation to actions in Commonwealth areas or in the Great Barrier Reef Marine Park, or actions taken by the Commonwealth or a Commonwealth agency, unless they expressly provide that they do.
(2) If the action is to be taken in 2 or more States or self‑governing Territories, this section does not operate unless it operates in relation to each of those States or Territories.
84 This Part does not apply if action covered by declaration
When this Part does not apply
(1) This Part does not apply in relation to an action if:
(a) the Minister has declared in writing that actions in a class that includes the action need not be assessed under this Part; and
(b) the declaration is in operation.
Note: An action will be in a class of actions declared not to need assessment under this Part only if the action has been assessed in a manner specified in the declaration.
Declaration
(2) The Minister may declare in writing that actions in a specified class of actions assessed by the Commonwealth or a Commonwealth agency in a specified manner do not require assessment under this Part.
Prerequisites for making a declaration
(3) The Minister may make a declaration only if he or she is satisfied that:
(a) assessment of an action in the specified manner will include assessment of the impacts the action:
(i) has or will have; or
(ii) is likely to have;
on each matter protected by a provision of Part 3; and
(b) the specified manner of assessment meets the standards (if any) prescribed by the regulations; and
(c) if the taking of an action assessed in the specified manner must be approved under Part 9, he or she will receive a report including, or accompanied by, enough information about the relevant impacts of the action to let him or her make an informed decision whether or not to approve under Part 9 (for the purpose of each controlling provision) the taking of the action.
Further requirements for making a declaration
(3A) Sections 34A, 34B, 34BA, 34C, 34D, 34E and 34F apply in relation to the making of a declaration under this section in the same way that they apply to the making of a declaration under section 33.