(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.
(5) The Secretary must not be satisfied that a part of the 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.
Subdivision B—Considerations for approvals and conditions
136 General considerations
Mandatory considerations
(1) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;
(b) economic and social matters.
Factors to be taken into account
(2) In considering those matters, the Minister must take into account:
(a) the principles of ecologically sustainable development; and
(b) the assessment report (if any) relating to the action; and
(ba) if Division 3A of Part 8 (assessment on referral information) applies to the action—the finalised recommendation report relating to the action given to the Minister under subsection 93(5); and
(bc) 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; and
(c) if Division 5 (public environment reports) of Part 8 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; and
(ca) if Division 6 (environmental impact statements) of Part 8 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; and
(d) if an inquiry was conducted under Division 7 of Part 8 in relation to the action—the report of the commissioners; and
(e) any other information the Minister has on the relevant impacts of the action (including information in a report on the impacts of actions taken 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
(f) any relevant comments given to the Minister in accordance with an invitation under section 131 or 131A; and
(fa) any relevant advice obtained by the Minister from the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development in accordance with section 131AB; and
(g) if a notice relating to the action was given to the Minister under subsection 132A(3)—the information in the notice.
Note: The Minister must also take into account any relevant comments given to the Minister in response to an invitation under paragraph 131AA(1)(b). See subsection 131AA(6).
Person’s environmental history
(4) In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister may consider whether the person is a suitable person to be granted an approval, having regard to:
(a) the person’s history in relation to environmental matters; and
(b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and
(c) if the person is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers.
Minister not to consider other matters
(5) In deciding whether or not to approve the taking of an action, and what conditions to attach to an approval, the Minister must not consider any matters that the Minister is not required or permitted by this Division to consider.
137 Requirements for decisions about World Heritage
In deciding whether or not to approve, for the purposes of section 12 or 15A, the taking of an action and what conditions to attach to such an approval, the Minister must not act inconsistently with:
(a) Australia’s obligations under the World Heritage Convention; or
(b) the Australian World Heritage management principles; or
(c) a plan that has been prepared for the management of a declared World Heritage property under section 316 or as described in section 321.
137A Requirements for decisions about National Heritage places
In deciding whether or not to approve for the purposes of section 15B or 15C the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with:
(a) the National Heritage management principles; or
(b) an agreement to which the Commonwealth is party in relation to a National Heritage place; or
(c) a plan that has been prepared for the management of a National Heritage place under section 324S or as described in section 324X.
138 Requirements for decisions about Ramsar wetlands
In deciding whether or not to approve for the purposes of section 16 or 17B the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention.
139 Requirements for decisions about threatened species and endangered communities
(1) In deciding whether or not to approve for the purposes of a subsection of section 18 or section 18A the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with:
(a) Australia’s obligations under:
(i) the Biodiversity Convention; or
(ii) the Apia Convention; or
(iii) CITES; or
(b) a recovery plan or threat abatement plan.
(2) If:
(a) the Minister is considering whether to approve, for the purposes of a subsection of section 18 or section 18A, the taking of an action; and
(b) the action has or will have, or is likely to have, a significant impact on a particular listed threatened species or a particular listed threatened ecological community;
the Minister must, in deciding whether to so approve the taking of the action, have regard to any approved conservation advice for the species or community.
140 Requirements for decisions about migratory species
In deciding whether or not to approve for the purposes of section 20 or 20A the taking of an action relating to a listed migratory species, and what conditions to attach to such an approval, the Minister must not act inconsistently with Australia’s obligations under whichever of the following conventions and agreements because of which the species is listed:
(a) the Bonn Convention;
(b) CAMBA;
(c) JAMBA;
(d) an international agreement approved under subsection 209(4).
140A No approval for certain nuclear installations
(1) The Minister must not approve an action consisting of or involving the construction or operation of any of the following nuclear installations:
(a) a nuclear fuel fabrication plant;
(b) a nuclear power plant;
(c) an enrichment plant;
(d) a reprocessing facility.
(2) Paragraph (1)(b) does not apply to a naval nuclear propulsion plant related to use in a conventionally‑armed, nuclear‑powered submarine.
Division 2—Requirement to comply with conditions
142 Compliance with conditions on approval
(1) A person whose taking of an action has been approved under this Part must not contravene any condition attached to the approval.
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.
(1A) Subsection (1) does not apply to a person who is not the holder of the approval if:
(a) the person was not informed of the condition; and
(b) the person could not reasonably have been expected to be aware of the condition.
Note: The defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3) of the Criminal Code.
(2) A contravention of a condition attached to an approval under this Part does not invalidate the approval.
142A Offence of breaching conditions on approval
(1) A person whose taking of an action has been approved under this Part commits an offence if:
(a) the person takes an action or omits to take an action; and
(b) the action or omission contravenes a condition attached to the approval and the person is reckless as to that fact; and
(c) the action or omission results or will result in a significant impact on a matter protected by a provision of Part 3.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person whose taking of an action has been approved under this Part commits an offence if:
(a) the person takes an action or omits to take an action; and
(b) the action or omission contravenes a condition attached to the approval and the person is reckless as to that fact; and
(c) the action or omission is likely to have a significant impact on a matter protected by a provision of Part 3 and the person is reckless as to that fact.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(4) An offence against subsection (1) or (3) is punishable on conviction by imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both.
Note 1: 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.
Note 2: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.
Note 3: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.
142B Strict liability offence for breach of approval condition
(1) A person whose taking of an action has been approved under this Part commits an offence if:
(a) the person takes an action or omits to take an action; and
(b) the action or omission contravenes a condition attached to the approval.
Penalty: 60 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: 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.
Note 3: An executive officer of a body corporate convicted of an offence against this section may also commit an offence against section 495.
Note 4: If a person takes an action on land that contravenes this section, a landholder may commit an offence against section 496C.
(2) Subsection (1) does not apply to a person who is not the holder of the approval if:
(a) the person was not informed of the condition; and
(b) the person could not reasonably have been expected to be aware of the condition.
Note: The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 3—Variation of conditions and suspension, revocation and surrender of approvals
143 Variation of conditions attached to approval
(1) The Minister may, by written instrument, revoke, vary or add to any conditions (other than the condition referred to in subsection 134(1A)) attached to an approval under this Part of an action if:
(a) any condition attached to the approval has been contravened; or
(b) both of the following conditions are satisfied:
(i) the action has had a significant impact that was not identified in assessing the action on any matter protected by a provision of Part 3 for which the approval has effect, or the Minister believes the action will have such an impact;
(ii) the Minister believes it is necessary to revoke, vary or add a condition to protect the matter from the impact; or
(ba) all of the following conditions are satisfied:
(i) the action has had a significant impact on a matter protected by a provision of Part 3 for which the approval has effect, or the Minister believes the action will have such an impact;
(ii) the Minister is satisfied that the impact is substantially greater than the impact that was identified in assessing the action;
(iii) the Minister believes it is necessary to revoke, vary or add a condition to protect the matter from the impact; or
(c) the holder of the approval agrees to the proposed revocation, variation or addition, or the Minister has extended the period for which the approval has effect under section 145D, and the Minister is satisfied that any conditions attached to the approval after the proposed revocation, variation or addition are necessary or convenient for:
(i) protecting a matter protected by any provision of Part 3 for which the approval has effect; 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 has been, will be or is likely to be caused by the action).
(1A) If, under paragraph (1)(c), the holder of an approval agrees to conditions mentioned in paragraph 134(3)(e) (about an action management plan) being added and attached to the approval, the holder is taken to have made an election under section 132B before the approval was granted.
(1B) The holder of an approval may request the Minister, in writing, to vary a condition attached to an approval of an action.
(2) The Minister may, by written instrument, revoke any condition (other than the condition referred to in subsection 134(1A)) attached to an approval under this Part of an action if the Minister is satisfied that the condition is not needed to protect any matter protected by a provision of Part 3 for which the approval has effect.
(3) In deciding whether or not to revoke, vary or add to any conditions attached to the approval of the taking of an action by a person, the Minister may have regard to:
(a) the person’s history in relation to environmental matters; and
(b) if the person is a body corporate—the history of its executive officers in relation to environmental matters; and
(c) if the person is a body corporate that is a subsidiary of another body or company (the parent body)—the history in relation to environmental matters of the parent body and its executive officers.
(4) The revocation, variation or addition takes effect on the day specified in the instrument. The Minister must not specify a day earlier than the day the instrument is made.
(5) As soon as possible after making the instrument, the Minister must:
(a) give a copy of it to the holder of the approval; and
(b) publish the instrument in accordance with the regulations.
Note: If the holder is not satisfied with changed conditions attached to the approval of the holder’s action, he or she can ask the Minister to reverse the change by making another change to the conditions under this section.
(6) However, the Minister must not publish so much of the instrument 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 publish.
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.
143A Variation of action management plan
Written application required
(1) If an action management plan is a condition of an approval of an action, the holder of the approval may, at any time, apply to the Minister for a variation of the action management plan.
(2) An application for a variation must be:
(a) in writing; and
(b) accompanied by:
(i) any information or documents required by the regulations; and
(ii) the application fee (if any) prescribed by the regulations.
Minister may approve a variation of action management plan
(3) The Minister may approve a variation to an action management plan if requested to do so.
(4) When making a decision whether to vary an action management plan, if the Minister believes on reasonable grounds that the application does not include enough information, the Minister may request the applicant to provide specified information relevant to making the decision.
(5) If the holder of an approval applies for a variation of an action management plan, the Minister must notify the person, in writing, of the Minister’s decision.