(4) The manner of assessment that may be specified in a declaration includes assessment by a Commonwealth agency under a law of the Commonwealth. This does not limit subsection (2).
Publishing declaration
(5) The Minister must publish a declaration in accordance with the regulations.
Revoking declaration
(6) The Minister may, by instrument in writing published in accordance with the regulations, revoke a declaration.
Minister must not give preference
(7) In making or revoking a declaration relating to an action taken:
(a) by a person for the purposes of trade between Australia and another country or between 2 States; or
(b) by a constitutional corporation;
the Minister must not give 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.
Division 3—Decision on assessment approach
Subdivision A—Simplified outline of this Division
85 Simplified outline of this Division
The following is a simplified outline of this Division:
The Minister must choose one of the following ways of assessing the relevant impacts of an action the Minister has decided is a controlled action:
(a) an accredited assessment process;
(aa) an assessment on referral information;
(b) an assessment on preliminary documentation;
(c) a public environment report;
(d) an environmental impact statement;
(e) a public inquiry.
Subdivision B—Deciding on approach for assessment
87 Minister must decide on approach for assessment
Minister must choose one assessment approach
(1) The Minister must decide which one of the following approaches must be used for assessment of the relevant impacts of an action that the Minister has decided is a controlled action:
(a) assessment by an accredited assessment process;
(aa) assessment on referral information under Division 3A;
(b) assessment on preliminary documentation under Division 4;
(c) assessment by public environment report under Division 5;
(d) assessment by environmental impact statement under Division 6;
(e) assessment by inquiry under Division 7.
Considerations in making choice
(3) In making the decision, the Minister must consider:
(a) information relating to the action given to the Minister in the referral of the proposal to take the action; and
(b) any other information available to the Minister about the relevant impacts of the action that the Minister considers relevant (including information in a report on the impacts of actions under a policy, plan or program under which the action is to be taken that was given to the Minister under an agreement under Part 10 (about strategic assessments)); and
(c) any relevant information received in response to an invitation under subparagraph 74(2)(b)(ii); and
(d) the matters (if any) prescribed by the regulations; and
(e) the guidelines (if any) published under subsection (6).
Accredited assessment process
(4) The Minister may decide on an assessment by an accredited assessment process only if the Minister is satisfied that:
(a) the process is to be carried out under a law of the Commonwealth, a State or a self‑governing Territory; and
(b) the process and the law meet the standards (if any) prescribed by the regulations; and
(c) the process will ensure that the relevant impacts of the action are adequately assessed; and
(d) he or she will receive a report of the outcome of the process that will provide enough information on 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 purposes of each controlling provision) the taking of the action.
Assessment on referral information
(4A) The Minister may decide on an assessment on referral information under Division 3A only if the Minister is satisfied (after considering the matters in subsection (3)) that the action meets the criteria prescribed in the regulations for the purposes of this subsection.
Assessment on preliminary documentation
(5) The Minister may decide on an assessment on preliminary documentation under Division 4 only if the Minister is satisfied (after considering the matters in subsection (3)) that that approach will allow the Minister to make an informed decision whether or not to approve under Part 9 (for the purposes of each controlling provision) the taking of the action.
Guidelines for choosing assessment approach
(6) The Minister may publish in the Gazette guidelines setting out criteria for deciding which approach must be used for assessing the relevant impacts of an action.
88 Timing of decision on assessment approach
Initial decision
(1) The Minister must decide on the approach to be used for assessment of the relevant impacts of the action within 20 business days after the Minister receives the referral of the proposal to take the action.
Note: Section 156 sets out rules about time limits.
When initial decision must be made
(2) The Minister must make the decision under subsection (1) on the same day as the Minister has decided, under subsection 75(1), that the action is a controlled action, unless the Minister has requested more information under subsection 76(3) or section 89 for the purposes of deciding on the approach to be used for assessment of the relevant impacts of the action.
Time does not run while further information sought
(4) If the Minister has requested more information in relation to the action under subsection 76(1), (2) or (3) or section 89, a day is not to be counted as a business day for the purposes of subsection (1) 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
(5) The Minister and the designated proponent of 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 (1). If the agreement is made, those days are not to be counted for the purposes of that subsection.
89 Minister may request more information for making decision
(1) If the Minister believes on reasonable grounds that the information given to the Minister in relation to an 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 designated proponent to provide specified information relevant to making the decision.
(2) Without limiting subsection (1), if the action is to be taken in a State or self‑governing Territory, the Minister may request the designated proponent of 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.
(3) The Minister may make a request in relation to an action under this section even if the Minister has made a request under subsection 76(3) in relation to the action.
90 Directing an inquiry after starting an assessment
Application
(1) This section applies if:
(a) the Minister has made a decision (the first decision) under section 87 that the relevant impacts of an action must be assessed by:
(i) assessment by public environment report under Division 5; or
(ii) assessment by environmental impact statement under Division 6; and
(b) the designated proponent publishes:
(i) a draft report under section 98 (about public environment reports); or
(ii) a draft statement under section 103 (about environmental impact statements).
Revoking and substituting decision
(2) The Minister may revoke the first decision and make another decision (the new decision) under section 87 (in substitution for the first decision) that the relevant impacts of the action must be assessed by an inquiry under Division 7.
Effect of revocation and substitution
(3) When the first decision is revoked and the new decision is substituted for it:
(a) whichever of Divisions 5 and 6 applied in relation to the action because of the first decision ceases to apply in relation to the action; and
(b) Division 7 applies in relation to the action.
91 Notice of decision on assessment approach
(1) Within 10 business days after making a decision on the approach to be used for assessment of the relevant impacts of an action, the Minister must:
(a) give written notice of the decision to:
(i) the person proposing to take the action; and
(ia) the designated proponent of the action (if the designated proponent is not the person proposing to take the action); and
(ii) if the action is to be taken in a State or self‑governing Territory and a controlling provision for the action is in Division 1 of Part 3 (which deals with matters of national environmental significance)—the appropriate Minister of the State or Territory; 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)(ii) also applies to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(1A) In the written notice of the decision, the Minister must also advise the person proposing to take the action that the person may elect under section 132B to submit an action management plan for approval.
Note: An action management plan is approved after a decision is made approving the taking of the action.
(2) If the Minister decided that the relevant impacts of the action are to be assessed by an accredited assessment process, the written notice and the published notice must specify the process.
Division 3A—Assessment on referral information
92 Application of this Division
This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by assessment on referral information under this Division.
93 Recommendation report
(1) The Secretary must comply with this section within 30 business days after the Minister makes the decision under section 87.
(2) The Secretary must prepare a draft recommendation report that includes recommendations on:
(a) whether the taking of the action should be approved under Part 9; and
(b) if approval is recommended, any conditions that should be attached to the approval.
(3) The Secretary must publish on the internet:
(a) the draft recommendation report; and
(b) an invitation for anyone to give the Secretary, within 10 business days (measured in Canberra), comments in writing relating to the draft recommendation report or the action.
(3A) The Secretary may refuse to publish on the internet, under subsection (3), so much of the draft recommendation report as:
(a) is:
(i) an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ii) a conditionally exempt document under section 47C of that Act (deliberative processes) to which access would, on balance, be contrary to the public interest for the purposes of subsection 11A(5) of that Act; or
(b) the Secretary is satisfied is commercial‑in‑confidence.
(3B) The Secretary must not be satisfied that a part of the draft recommendation report is commercial‑in‑confidence unless a person demonstrates to the Secretary that:
(a) release of the information in that part would cause competitive detriment to the person; and
(b) the information in that part is not in the public domain; and
(c) the information in that part is not required to be disclosed under another law of the Commonwealth, a State or a Territory; and
(d) the information in that part is not readily discoverable.
(4) After the end of the period for comment, the Secretary must finalise the draft recommendation report, taking account of any comments received within that period.
(5) As soon as practicable after finalising the draft recommendation report, the Secretary must give the Minister:
(a) the finalised recommendation report; and
(b) either:
(i) a copy of any comments received within the period for comment; or
(ii) if no comments were received within that period—a written statement to that effect.
Division 4—Assessment on preliminary documentation
94 Application of this Division
This Division applies in relation to an action if the Minister has decided under section 87 that the relevant impacts of the action must be assessed by assessment on preliminary documentation under this Division.
95 Direction to publish referral information and invitation to comment—no further information required
(1) This section applies if the Minister was satisfied, at the time of making the decision (the assessment approach decision) under section 87, that the Minister had enough information in relation to the action to allow the Minister to assess the relevant impacts of the action.
(2) At the same time as the Minister gives notice of the assessment approach decision to the designated proponent of the action under paragraph 91(1)(a), the Minister must give the designated proponent a written direction to publish, within the period specified in the direction (not being less than 10 business days), in accordance with the regulations:
(a) specified information included in the referral to the Minister of the proposal to take the action; and
(b) specified information relating to the action that was given to the Minister after the referral but before the Minister made the assessment approach decision; and
(c) an invitation for anyone to give the designated proponent, within the period specified in the direction, comments in writing relating to the information or the action.
(3) The designated proponent must comply with the direction.
Note: If the designated proponent does not comply with the direction, the Minister may take action under section 155.
(4) A direction given under subsection (2) is not a legislative instrument.
95A Direction to publish referral information and invitation to comment—further information required
(1) This section applies if the Minister was not satisfied, at the time of making the decision (the assessment approach decision) under section 87, that the Minister had enough information in relation to the action to allow the Minister to assess the relevant impacts of the action.
(2) Within 10 business days after the Minister gives notice of the assessment approach decision to the designated proponent of the action under paragraph 91(1)(a), the Minister must request the designated proponent to give the Minister specified information relevant to assessing the relevant impacts of the action, including information about strategies for mitigating any adverse impacts.
(3) Within 10 business days after receiving the information requested under subsection (2), the Minister must give the designated proponent a written direction to publish, within the period specified in the direction (not being less than 10 business days), in accordance with the regulations:
(a) specified information included in the referral to the Minister of the proposal to take the action; and
(b) specified information relating to the action that was given to the Minister after the referral but before the Minister made the assessment approach decision; and
(c) specified information relating to the action that was received in response to the Minister’s request under subsection (2); and
(d) an invitation for anyone to give the designated proponent, within the period specified in the direction, comments in writing relating to the information or the action.
(4) The designated proponent must comply with the direction.
Note: If the designated proponent does not comply with the direction, the Minister may take action under section 155.
(5) A direction given under subsection (3) is not a legislative instrument.
95B Procedure after end of period for comment
Procedure if comments are received
(1) If comments are received by the designated proponent within the period for comment, the designated proponent must, as soon as practicable after the end of that period:
(a) prepare a document that:
(i) sets out the information given to the Minister previously in relation to the action, with any changes or additions needed to take account of the comments; and
(ii) contains a summary of the comments received and how those comments have been addressed; and
(b) give the Minister:
(i) a copy of the document prepared under paragraph (a); and
(ii) a copy of the comments received.
(1A) The designated proponent is taken not to have given the Minister the documents referred to in paragraph (1)(b) if the required fee has not been paid.
(2) Within 10 business days after the designated proponent has given the Minister the documents referred to in paragraph (1)(b), the designated proponent must publish, in accordance with the regulations, a copy of the document prepared under paragraph (1)(a).
Procedure if no comments are received
(3) If no comments are received by the designated proponent within the period for comment, the designated proponent must, as soon as practicable after the end of that period, give the Minister a written statement to that effect.
(3A) The designated proponent is taken not to have given the Minister the statement referred to in subsection (3) if the required fee has not been paid.
(4) Within 10 business days after the designated proponent has given the Minister the statement referred to in subsection (3), the designated proponent must publish, in accordance with the regulations, a copy of the information referred to in paragraphs 95(2)(a) and (b) or 95A(3)(a), (b) and (c), as the case requires.