(1) In performing his or her duties as a commissioner, a commissioner has the same protection and immunity as a Justice of the High Court.
Rights and obligations of witnesses
(2) A person appearing before a commission as a witness at an inquiry:
(a) has the same protection as a witness in proceedings in the High Court; and
(b) is subject to the same liabilities in any civil or criminal proceedings as such a witness (in addition to the penalties provided by this Division).
Interfering with witness is an offence
(3) A person must not:
(a) use violence to or inflict injury on; or
(b) cause or procure violence, damage, loss or disadvantage to; or
(c) cause or procure the punishment of;
another person (the witness) because the witness will appear or did appear as a witness at an inquiry or because of any submission or evidence the witness gave to a commission.
Interference with a witness’ employment
(4) An employer must not dismiss an employee, or prejudice an employee in his or her employment, because the employee appeared as a witness or gave any submission or evidence at an inquiry by a commission.
Interference with employee who proposes to give evidence
(5) An employer must not dismiss or threaten to dismiss an employee or prejudice, or threaten to prejudice, an employee in his or her employment, because the employee proposes to appear as a witness or to give a submission or evidence at an inquiry by a commission.
Offences
(6) A person who contravenes subsection (3), (4) or (5) commits an offence punishable on conviction by imprisonment for not more than 6 months, a fine of not more than 30 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Burden of proof in proceedings relating to witness
(7) In proceedings arising out of subsection (4), the employer has the burden of proving that the employee was not dismissed or prejudiced because the employee appeared as a witness or gave a submission or evidence at an inquiry by a commission, if it is established that:
(a) the employee was dismissed from, or prejudiced in, his or her employment; and
(b) before the employee was dismissed or prejudiced, the employee appeared as a witness, or gave any submission or evidence, at an inquiry by a commission.
Burden of proof in proceedings relating to employee proposing to give evidence
(8) In any proceedings arising out of subsection (5), the employer has the burden of proving that the employee was not dismissed, prejudiced in his or her employment or threatened with dismissal or prejudice because the employee proposed to appear as a witness or give evidence at an inquiry by a commission, if it is established that:
(a) the employee was dismissed, prejudiced or threatened; and
(b) the employee made the proposal before the employee was dismissed, prejudiced or threatened.
Relationship of subsections (3), (4) and (5)
(9) Subsections (4) and (5) do not limit subsection (3).
Subdivision D—Inquiry reports
121 Timing of report
The commission must report to the Minister on the inquiry within the period specified by the Minister in the terms of reference.
122 Publication of report
(1) After reporting to the Minister, the commission must publish the report in accordance with the regulations.
(2) However, the commission must not publish the report so far as it sets out any submission or evidence whose publication the commission prohibited or restricted by a direction under paragraph 110(3)(b).
Subdivision E—Commissioners’ terms and conditions
123 Basis of appointment
(1) A commissioner is to be appointed on a full‑time basis or a part‑time basis.
(2) A commissioner appointed on a full‑time basis must not engage in paid employment outside the duties of the commissioner’s office without the Minister’s approval.
(3) A commissioner appointed on a part‑time basis must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the commissioner’s duties.
124 Remuneration
(1) A commissioner who is not appointed or engaged under the Public Service Act 1999 is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration is in operation, the commissioner is to be paid the remuneration that is prescribed.
(2) A commissioner is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
125 Leave of absence
(1) A commissioner appointed on a full‑time basis has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant a commissioner appointed on a full‑time basis leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
(3) The commissioner (the presiding commissioner) appointed to preside at an inquiry may grant leave of absence to any other commissioner for the inquiry on the terms and conditions that the presiding commissioner determines, if the other commissioner has been appointed on a part‑time basis.
126 Resignation
A commissioner may resign his or her appointment by giving the Minister a written resignation.
127 Termination of appointment
(1) The Minister may terminate a commissioner’s appointment for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the appointment of a commissioner if:
(a) the commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the commissioner fails, without reasonable excuse, to comply with section 128 (about disclosure of interests); or
(c) the Minister becomes aware that the commissioner has a pecuniary or other interest in the subject‑matter of the inquiry and the Minister considers that the commissioner should not continue to participate in the conduct of the inquiry.
(3) The Minister must terminate the appointment of a commissioner on a full‑time basis if:
(a) the commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(b) the commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office.
(4) The Minister must terminate the appointment of a commissioner on a part‑time basis if:
(a) the commissioner is absent, except on leave of absence, from 3 consecutive meetings of his or her commission (if it consists of 2 or more commissioners); or
(b) the commissioner engages in paid employment that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the duties of his or her office.
128 Disclosure of interests
(1) A commissioner must give written notice to the Minister of all direct and indirect pecuniary interests that he or she has or acquires in a business or in a body corporate carrying on a business.
(2) If a commissioner has or acquires an interest, pecuniary or otherwise, that could conflict with the proper performance of his or her duties, he or she must:
(a) inform the Minister of the interest; and
(b) ensure that the interest is disclosed in the report of his or her inquiry.
129 Other terms and conditions
A commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
Part 9—Approval of actions
Division 1—Decisions on approval and conditions
Subdivision A—General
130 Timing of decision on approval
Basic rule
(1) The Minister must decide whether or not to approve, for the purposes of each controlling provision for a controlled action, the taking of the action.
(1A) The Minister must make the decision within the relevant period specified in subsection (1B) that relates to the controlled action, or such longer period as the Minister specifies in writing.
(1B) The relevant period, in relation to a controlled action, is as follows:
(a) if the action is the subject of an assessment report—the period of 30 business days beginning on the first business day after the Minister receives the assessment report;
(b) if Division 3A of Part 8 (assessment on referral information) applies to the action—the period of 20 business days beginning on the first business day after the Minister receives the finalised recommendation report under subsection 93(5);
(c) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action—the period of 40 business days beginning on the first business day after the Minister receives the documents under subsection 95B(1) or the statement under subsection 95B(3), as the case requires;
(d) if Division 5 (public environment reports) or Division 6 (environmental impact statements) of Part 8 applies to the action—the period of 40 business days beginning on the first business day after the Minister receives the finalised public environment report or the finalised environmental impact statement, as the case requires;
(e) if a commission has conducted an inquiry relating to the action—the period of 40 business days beginning on the first business day after the Minister receives the report of the commission.
What is an assessment report?
(2) An assessment report is a report given to the Minister as described in:
(a) subsection 47(4) (about assessments under a bilateral agreement); or
(b) subsection 84(3) (about assessments in a manner specified in a declaration); or
(c) subsection 87(4) (about assessments by accredited assessment processes).
Notice of extension of time
(4) If the Minister specifies a longer period for the purposes of subsection (1A), he or she must:
(a) give a copy of the specification to the person proposing to take the action; and
(b) publish the specification in accordance with the regulations.
Time does not run while awaiting advice from Independent Expert Scientific Committee
(4A) If, under section 131AB, the Minister is required to obtain advice from the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development before making a decision whether or not to approve the taking of an action, a day is not to be counted as a business day for the purposes of subsection (1B) if it is:
(a) on or after the day the Minister requested the advice; and
(b) on or before the day on which the Minister obtains the advice.
Time does not run while further information is sought
(5) If, under section 132, the Minister has requested more information for the purposes of making a decision whether or not to approve the taking of an action, a day is not to be counted as a business day for the purposes of subsection (1B) 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.
131 Inviting comments from other Ministers before decision
(1) Before the Minister (the Environment Minister) decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she must:
(a) inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the action of the decision the Environment Minister proposes to make; and
(b) invite the other Minister to give the Environment Minister comments on the proposed decision within 10 business days.
(2) A Minister invited to comment may make comments that:
(a) relate to economic and social matters relating to the action; and
(b) may be considered by the Environment Minister consistently with the principles of ecologically sustainable development.
This does not limit the comments such a Minister may give.
131AA Inviting comments before decision from person proposing to take action and designated proponent
(1) Before the Minister decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she must:
(a) inform the person proposing to take the action, and the designated proponent of the action (if the designated proponent is not the person proposing to take the action), of:
(i) the decision the Minister proposes to make; and
(ii) if the Minister proposes to approve the taking of the action—any conditions the Minister proposes to attach to the approval; and
(b) invite each person informed under paragraph (a) to give the Minister, within 10 business days (measured in Canberra), comments in writing on the proposed decision and any conditions.
(2) If the Minister proposes not to approve, for the purposes of a controlling provision, the taking of the action, the Minister must provide to each person informed under paragraph (1)(a), with the invitation given under paragraph (1)(b):
(a) a copy of whichever of the following documents applies to the action:
(i) an assessment report;
(ii) a finalised recommendation report given to the Minister under subsection 93(5);
(iii) a recommendation report given to the Minister under section 95C, 100 or 105; and
(b) any information relating to economic and social matters that the Minister has considered; and
(c) any information relating to the history of a person in relation to environmental matters that the Minister has considered under subsection 136(4); and
(d) a copy of any document, or part of a document, containing information of a kind referred to in paragraph 136(2)(e) that the Minister has considered.
(3) The Minister is not required to provide under subsection (2):
(a) information that is in the public domain; or
(b) a copy of so much of a document as is in the public domain; or
(c) in the case of information referred to in paragraph (2)(b) or (c)—any conclusions or recommendations relating to that information included in documents or other material prepared by the Secretary for the Minister.
(4) The Minister must not provide under subsection (2):
(a) a copy of so much of a document as:
(i) is an exempt document under subparagraph 33(a)(i) of the Freedom of Information Act 1982 (documents affecting national security, defence or international relations); or
(ia) is 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
(ii) the Minister is satisfied contains information that is commercial‑in‑confidence; or
(b) information that:
(i) is of such a nature that its inclusion in a document would cause that document to be an exempt document of the kind referred to in subparagraph (a)(i); or
(ii) the Minister is satisfied is commercial‑in‑confidence.
(5) The Minister must not be satisfied that information (including information in a document) 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.
(6) In deciding whether or not to approve, for the purposes of a controlling provision, the taking of the action, the Minister must take into account any relevant comments given to the Minister in response to an invitation given under paragraph (1)(b).
(7) This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to:
(a) the Minister’s decision under section 133 whether or not to approve, for the purposes of a controlling provision, the taking of the action; and
(b) if the decision is to approve, for the purposes of a controlling provision, the taking of the action, and the Minister decides, under section 134, to attach conditions to the approval—the Minister’s decision under section 134 to attach those conditions to the approval.
131AB Minister must obtain advice from Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development
(1) This section applies if:
(a) the taking of an action, for the purposes of a controlling provision, involves:
(i) unconventional gas development; or
(ii) large coal mining development; and
(b) the Minister believes that the taking of the action:
(i) is likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity; and
(ii) may have an adverse impact on a matter protected by a provision of Part 3.
(2) Before the Minister decides whether or not to approve, for the purposes of the controlling provision, the taking of the action, the Minister must obtain the advice of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.
131A Inviting public comment before decision
Before the Minister decides whether or not to approve, for the purposes of a controlling provision, the taking of an action, and what conditions (if any) to attach to an approval, he or she may publish on the internet:
(a) the proposed decision and, if the proposed decision is to approve the taking of the action, any conditions that the Minister proposes to attach to the approval; and