(b) an invitation for anyone to give the Minister, within 10 business days (measured in Canberra), comments in writing on the proposed decision and any conditions.
132 Requesting further information for approval decision
If the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to approve for the purposes of a controlling provision the taking of an action, the Minister may request any of the following to provide specified information relevant to making the decision:
(a) the person proposing to take the action;
(b) the designated proponent of the action;
(c) if a commission has conducted an inquiry under Division 7 of Part 8 relating to the action—the commission;
(d) if:
(i) the action is to be taken in a State or self‑governing Territory; and
(ii) a controlling provision for the action is in Division 1 of Part 3 (about matters of national environmental significance); and
(iii) the relevant impacts of the action have been assessed under a law of the State or Territory;
the appropriate Minister of that State or Territory;
(e) any other person the Minister considers appropriate.
132A Requesting notice from appropriate State or Territory Minister about certain actions
(1) This section applies to an action that is to be taken in a State or self‑governing Territory only if the action:
(a) is to be taken by a person for the purposes of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(b) is to be taken by a constitutional corporation; or
(c) is an action whose regulation is appropriate and adapted to give effect to Australia’s obligations under an agreement with one or more other countries.
Note: This section also applies in relation to actions to be taken in an area offshore from a State or the Northern Territory. See section 157.
(2) However, this section does not apply to an action if:
(a) the action:
(i) is a nuclear action; or
(ii) is to be taken entirely in a Commonwealth marine area; or
(iii) is to be taken entirely on Commonwealth land; or
(iv) is to be taken by the Commonwealth or a Commonwealth agency; and
(b) the relevant impacts of the action have been assessed under Part 8.
(3) Before the Minister (the Environment Minister) decides whether or not to approve for the purposes of a controlling provision the taking of the action, and what conditions (if any) to attach to an approval, the Environment Minister may request the appropriate Minister of the State or Territory to give the Environment Minister a notice stating the method that has been used to assess the certain and likely impacts of the action on things other than matters protected by the controlling provisions for the action.
132B Election to have an action management plan approved after approval of the taking of an action granted
(1) A person proposing to take an action may, at any time before an approval of the taking of the action is granted under section 133, elect to submit an action management plan for approval.
(2) An election must:
(a) be in writing; and
(b) be given to the Minister before the Minister grants an approval under section 133.
(3) If, after making an election, the person (the first person) notifies the Minister under section 156F that another person (the second person) proposes to take the action instead, the second person may revoke the election made by the first person under this section.
(4) An election cannot be revoked once the Minister has granted an approval under section 133.
133 Grant of approval
Approval
(1) After receiving the assessment documentation relating to a controlled action, or the report of a commission that has conducted an inquiry relating to a controlled action, the Minister may approve for the purposes of a controlling provision the taking of the action by a person.
(1A) If the referral of the proposal to take the action included alternative proposals relating to any of the matters referred to in subsection 72(3), the Minister may approve, for the purposes of subsection (1), one or more of the alternative proposals in relation to the taking of the action.
Content of approval
(2) An approval must:
(a) be in writing; and
(b) specify the action (including any alternative proposals approved under subsection (1A)) that may be taken; and
(c) name the person to whom the approval is granted; and
(d) specify each provision of Part 3 for which the approval has effect; and
(e) specify the period for which the approval has effect; and
(f) set out the conditions attached to the approval.
Note: The period for which the approval has effect may be extended. See Division 5.
Persons who may take action covered by approval
(2A) An approval granted under this section is an approval of the taking of the action specified in the approval by any of the following persons:
(a) the holder of the approval;
(b) a person who is authorised, permitted or requested by the holder of the approval, or by another person with the consent or agreement of the holder of the approval, to take the action.
Notice of approval
(3) The Minister must:
(a) give a copy of the approval to the person named in the approval under paragraph 133(2)(c); and
(b) provide a copy of the approval to a person who asks for it (either free or for a reasonable charge determined by the Minister).
Limit on publication of approval
(4) However, the Minister must not provide under subsection (3) a copy of so much of the approval as:
(a) is:
(i) an exempt document under section 47 of the Freedom of Information Act 1982 (trade secrets etc.); or
(ii) a conditionally exempt document under section 47G of that Act (business documents) 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 Minister believes it is in the national interest not to provide.
The Minister may consider the defence or security of the Commonwealth when determining what is in the national interest. This does not limit the matters the Minister may consider.
Notice of refusal of approval
(7) If the Minister refuses to approve for the purposes of a controlling provision the taking of an action by the person who proposed to take the action, the Minister must give the person notice of the refusal.
Note: Under section 13 of the Administrative Decisions (Judicial Review) Act 1977, the person may request reasons for the refusal, and the Minister must give them.
Definition
(8) In this section:
assessment documentation, in relation to a controlled action, means:
(a) if the action is the subject of an assessment report—that report; or
(b) if Division 3A of Part 8 (assessment on referral information) applies to the action:
(i) the referral of the proposal to take the action; and
(ii) the finalised recommendation report relating to the action given to the Minister under subsection 93(5); or
(c) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:
(i) the documents given to the Minister under subsection 95B(1), or the statement given to the Minister under subsection 95B(3), as the case requires, relating to the action; and
(ii) the recommendation report relating to the action given to the Minister under section 95C; or
(d) if Division 5 of Part 8 (public environment reports) applies to the action:
(i) the finalised public environment report relating to the action given to the Minister under section 99; and
(ii) the recommendation report relating to the action given to the Minister under section 100; or
(e) if Division 6 of Part 8 (environmental impact statements) applies to the action:
(i) the finalised environmental impact statement relating to the action given to the Minister under section 104; and
(ii) the recommendation report relating to the action given to the Minister under section 105.
134 Conditions of approval
Condition to inform persons taking action of conditions attached to approval
(1A) An approval of the taking of an action by a person (the first person) is subject to the condition that, if the first person authorises, permits or requests another person to undertake any part of the action, the first person must take all reasonable steps to ensure:
(a) that the other person is informed of any condition attached to the approval that restricts or regulates the way in which that part of the action may be taken; and
(b) that the other person complies with any such condition.
For the purposes of this Chapter, the condition imposed by this subsection is attached to the approval.
Generally
(1) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:
(a) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or
(b) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage has been, will be or is likely to be caused by the action).
Conditions to protect matters from the approved action
(2) The Minister may attach a condition to the approval of the action if he or she is satisfied that the condition is necessary or convenient for:
(a) protecting from the action any matter protected by a provision of Part 3 for which the approval has effect; 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 for which the approval has effect.
This subsection does not limit subsection (1).
Examples of kinds of conditions that may be attached
(3) The conditions that may be attached to an approval include:
(aa) conditions requiring specified activities to be undertaken for:
(i) protecting a matter protected by a provision of Part 3 for which the approval has effect (whether or not the protection is protection from the action); or
(ii) repairing or mitigating damage to a matter protected by a provision of Part 3 for which the approval has effect (whether or not the damage may or will be, or has been, caused by the action); and
(ab) conditions requiring a specified financial contribution to be made to a person for the purpose of supporting activities of a kind mentioned in paragraph (aa); and
(a) conditions relating to any security to be given by the holder of the approval by bond, guarantee or cash deposit:
(i) to comply with this Act and the regulations; and
(ii) not to contravene a condition attached to the approval; and
(iii) to meet any liability of a person whose taking of the action is approved to the Commonwealth for measures taken by the Commonwealth under section 499 (which lets the Commonwealth repair and mitigate damage caused by a contravention of this Act) in relation to the action; and
(b) conditions requiring the holder of the approval to insure against any specified liability of the holder to the Commonwealth for measures taken by the Commonwealth under section 499 in relation to the approved action; and
(c) conditions requiring a person taking the action to comply with conditions specified in an instrument (including any kind of authorisation) made or granted under a law of a State or self‑governing Territory or another law of the Commonwealth; and
(d) conditions requiring an environmental audit of the action to be carried out periodically by a person who can be regarded as being independent from any person whose taking of the action is approved; and
(e) if an election has been made, or is taken to have been made, under section 132B in respect of the approval—conditions requiring:
(i) an action management plan to be submitted to the Minister for approval, accompanied by the fee (if any) prescribed by the regulations; and
(ii) implementation of the plan so approved; and
(f) conditions requiring specified environmental monitoring or testing to be carried out; and
(g) conditions requiring compliance with a specified industry standard or code of practice; and
(h) conditions relating to any alternative proposals in relation to the taking of the action covered by the approval (as permitted by subsection 133(1A)).
This subsection does not limit the kinds of conditions that may be attached to an approval.
Note: Paragraph (e)—an election is taken to have been made if an approval is varied to add a condition requiring an action management plan, see subsection 143(1A).
Certain conditions require consent of holder of approval
(3A) The following kinds of condition cannot be attached to the approval of an action unless the holder of the approval has consented to the attachment of the condition:
(a) a condition referred to in paragraph (3)(aa), if the activities specified in the condition are not reasonably related to the action;
(b) a condition referred to in paragraph (3)(ab).
(3B) If the holder of the approval has given consent, for the purposes of subsection (3A), to the attachment of a condition:
(a) the holder cannot withdraw that consent after the condition has been attached to the approval; and
(b) any person to whom the approval is later transferred under section 145B is taken to have consented to the attachment of the condition, and cannot withdraw that consent.
Conditions attached under paragraph (3)(c)
(3C) A condition attached to an approval under paragraph (3)(c) may require a person taking the action to comply with conditions specified in an instrument of a kind referred to in that paragraph:
(a) as in force at a particular time; or
(b) as is in force or existing from time to time;
even if the instrument does not yet exist at the time the approval takes effect.
Conditions attached under paragraph (3)(e)
(3D) When making a decision whether to approve an action management plan, if the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision, the Minister may request the holder of the approval to provide specified information relevant to making the decision.
Considerations in deciding on condition
(4) In deciding whether to attach a condition to an approval, the Minister must consider:
(a) any relevant conditions that have been imposed, or the Minister considers are likely to be imposed, under a law of a State or self‑governing Territory or another law of the Commonwealth on the taking of the action; and
(aa) information provided by the person proposing to take the action or by the designated proponent of the action; and
(b) the desirability of ensuring as far as practicable that the condition is a cost‑effective means for the Commonwealth and a person taking the action to achieve the object of the condition.
Effect of conditions requiring compliance with conditions specified in another instrument
(4A) If:
(a) a condition (the principal condition) attached to an approval under paragraph (3)(c) requires a person taking the action to comply with conditions (the other conditions) specified in an instrument of a kind referred to in that paragraph; and
(b) the other conditions are in excess of the power conferred by subsection (1);
the principal condition is taken to require the person to comply with the other conditions only to the extent that they are not in excess of that power.
Validity of decision
(5) A failure to consider information as required by paragraph (4)(aa) does not invalidate a decision about attaching a condition to the approval.
134A Inviting public comment before approving action management plan
(1) Before approving an action management plan, the Minister may publish:
(a) the plan; and
(b) an invitation for anyone to give the Minister, within 11 business days, written comments on the plan.
(2) The regulations may provide for requirements relating to the way the Minister must publish the plan and invitation to comment.
135 Certain approvals and conditions must not give preference
(1) This section deals with the approval:
(a) for the purposes of section 21 or 22A of a nuclear action:
(i) by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or
(ii) by a constitutional corporation; or
(b) for the purposes of section 25 of an action that is prescribed for the purposes of subsection 25(1) and is taken:
(i) by a person for the purposes of trade or commerce between Australia and another country or between 2 States; or
(ii) by a constitutional corporation.
(2) The Minister must not grant the approval, or attach a condition to the approval, that has the effect of giving 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.
135A Publication of recommendation reports
(1) This section applies in relation to the following reports:
(a) a finalised recommendation report given to the Minister under subsection 93(5);
(b) a recommendation report given to the Minister under section 95C, 100 or 105.
(2) Subject to subsections (3) and (4), the Secretary must provide a copy of a report to which this section applies to a person who asks for it (either at no charge or at a reasonable charge determined by the Secretary).
(3) The Secretary is not required to provide a copy of the report under subsection (2) to anyone until after the Minister has decided, for the purposes of each controlling provision, whether or not to approve the taking of the action concerned.
(4) The Secretary may refuse to provide, under subsection (2), a copy of so much of the 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