Subdivision B—Approval of taking of actions in accordance with endorsed policy, plan or program
146A Definitions
(1) In this Division:
endorsed policy, plan or program means a policy, plan or program that has been endorsed by the Minister in accordance with an agreement as mentioned in paragraph 146(2)(f) (including any variation of the policy, plan or program approved by the Minister under section 146DI).
(2) A reference in this Division (except subsection 146D(1) and paragraphs 146E(a) and (b)) to an approval under section 146B includes a reference to an approval under section 146B as varied.
146B Minister may approve taking of actions in accordance with endorsed policy, plan or program
(1) Subject to Subdivision C, the Minister may approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program.
Note 1: Subdivision C sets out matters that the Minister must take into account in deciding whether or not to approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program.
Note 2: See sections 146DJ and 146DK for variation of the approval.
(2) An approval of the taking of an action or a class of actions in accordance with an endorsed policy, plan or program must:
(a) be in writing; and
(b) specify the action or class of actions that may be taken in accordance with the endorsed policy, plan or program; and
(ba) name the person to whom the approval is granted; and
(c) specify each provision of Part 3 for which the approval has effect; and
(d) specify the period for which the approval has effect; and
(e) set out the conditions attached to the approval.
(2A) An approval of the taking of an action or a class of actions in accordance with an endorsed policy, plan or program may specify the person or persons who may take the action or an action in the class of actions (which may include the holder of the approval).
(3) The Minister must:
(a) give a copy of the approval to:
(i) the holder of the approval; and
(ii) the responsible person for the endorsed policy, plan or program; and
(b) publish a copy of the approval:
(i) on the Department’s website; and
(ii) in accordance with any other requirements prescribed by the regulations.
(4) However, the Minister must not give or publish 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); 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.
(5) An approval given under subsection (1) is not a legislative instrument.
146BA Exclusion of certain actions
Despite anything in an approval under section 146B, the approval does not apply in relation to an action if:
(a) an approval of the taking of the action is in operation under Part 9; or
(b) there is in force a decision of the Minister under Division 2 of Part 7 that the action is not a controlled action and, if the decision was made because the Minister believed the action would be taken in a particular manner, the action is being taken in that manner; or
(c) Part 4 lets the person who is taking the action take the action without an approval under Part 9; or
(d) a national interest exemption that allows the action to be taken without an approval is in force; or
(e) the action was referred to the Minister under section 68, 69 or 71 before the approval came into force and, immediately before the approval was granted:
(i) the Minister has not yet decided under section 75 whether the action is a controlled action; or
(ii) the Minister has not decided whether to approve the taking of the action under section 133; or
(f) the taking of the action commenced before the approval was granted.
146C Inviting comments from other Ministers about decisions relating to endorsed policy, plan or program
(1) Before the Minister (the Environment Minister) decides whether or not to approve the taking of an action or a class of actions in accordance with an endorsed policy, plan or program, or to make a variation covered by paragraph 146DJ(2)(a), (b), (c) or (d) of an approval under section 146B, the Environment Minister may:
(a) inform any other Minister whom the Environment Minister believes has administrative responsibilities relating to the action or class of actions to which the proposed decision relates; and
(b) invite each Minister informed to give the Environment Minister, within 10 business days, comments on the proposed decision.
(2) A Minister who is invited to comment may make comments:
(a) that relate to economic and social matters relating to the action or class of actions to which the proposed decision relates; and
(b) that 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.
146CA 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 Minister is deciding whether or not to approve, under section 146B, the taking of an action or a class of actions in accordance with an endorsed policy, plan or program; and
(b) the taking of the action or class of actions involves:
(i) unconventional gas development; or
(ii) large coal mining development; and
(c) the Minister believes that the taking of the action or class of actions is likely to have a significant impact on water resources, including any impacts of associated salt production or salinity.
(2) Before the Minister decides whether or not to approve the taking of the action or class of actions, the Minister must obtain the advice of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.
146D Effect of approval of taking of actions in accordance with endorsed policy, plan or program
(1) Subject to section 146DL, if an approval under section 146B is in force, the following provisions have effect:
(a) the Minister is taken to have decided under Division 2 of Part 7 that:
(i) each action specified in the approval under paragraph 146B(2)(b), or each action in a class of actions specified in the approval under that paragraph, is a controlled action; and
(ii) each provision of Part 3 specified in the approval under paragraph 146B(2)(c) is a controlling provision for each such controlled action;
(b) the Minister is taken to have approved under Part 9, for the purposes of each controlling provision for each controlled action, the taking of the action by any of the following:
(i) the person or persons (if any) specified in the approval under subsection 146B(2A) as the person or persons who may take the action;
(ia) if subparagraph (i) does not apply to the holder of the approval—the holder of the approval;
(ii) any other person who may take the action in accordance with the endorsed policy, plan or program.
(2) Parts 7 and 8 and paragraph 170A(c) do not apply in relation to an action if an approval of the taking of the action, or an approval of the taking of a class of actions that includes the action, in accordance with an endorsed policy, plan or program is in force under section 146B.
(3) Subsection (2) does not apply in relation to an action in respect of which a determination is in force under section 146N (action that is a component of a larger action) or 146P (exclusion determination).
146DA Initial conditions attached to approval under section 146B
(1) For the purposes of paragraph 146B(2)(e), section 134 (conditions of approval) (except subsection 134(1A) and paragraph 134(3)(e)) applies in relation to an approval under section 146B in a way corresponding to the way in which it applies in relation to an approval under Part 9, with the modifications set out in this section.
(2) Section 134 applies as if a reference to an action were a reference to one or more actions covered by the approval under section 146B.
(3) For the purposes of paragraph 134(3)(ac) as applied by subsection (1), the conditions attached to the approval may specify that a person specified in the approval is the person required to pay a restoration contributions charge.
(4) For the purposes of paragraph 134(3A)(c) as applied by subsection (1), the consent of the person specified in the approval as the person required to pay restoration contributions charge is required.
146DB Compliance with conditions attached to approval under section 146B
Division 2 of Part 9 (requirement to comply with conditions) applies in relation to an approval under section 146B in a way corresponding to the way in which that Division applies in relation to an approval under Part 9.
146DC Variation of conditions attached to approval under section 146B
(1) Section 143 (variation of conditions attached to approval) (except subsections 143(1A), (2A) and (2B)) applies in relation to an approval under section 146B in a way corresponding to the way it applies in relation to an approval under Part 9, with the modifications set out in this section.
(2) Section 143 applies as if:
(a) a reference to the holder of the approval included a reference to the responsible person for the relevant endorsed policy, plan or program; and
(b) a reference to an action were a reference to one or more actions covered by the approval under section 146B.
Consultation before revocation, variation or addition of conditions
(3) If, under section 143 as applied by subsection (1), the Minister proposes to revoke, vary or add a condition attached to an approval under section 146B, the Minister must:
(a) give the holder of the approval written notice of the proposed decision (unless the holder has agreed to or requested the revocation, variation or addition); and
(b) give the responsible person for the relevant endorsed policy, plan or program written notice of the proposed decision (unless that responsible person has agreed to or requested the revocation, variation or addition); and
(c) if the Minister proposes to make the revocation, variation or addition because a condition attached to the approval has been contravened—give the person who contravened the condition written notice of the proposed decision; and
(d) in a notice under paragraph (a), (b) or (c), invite the person given the notice to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed decision; and
(e) publish on the Department’s website an invitation for anyone to give the Minister, within the period specified in the invitation (which must be at least 10 business days after the day the invitation is given), written comments on the proposed decision; and
(f) take into account any relevant comments received in response to an invitation under paragraph (d) or (e).
Note: For holder and responsible person, see section 528.
(4) Subsection (3) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision whether or not to revoke, vary or add any conditions attached to an approval under section 146B.
Revocation, variation or addition of conditions does not apply to actions substantially commenced
(5) The revocation, variation or addition of any condition attached to an approval under section 146B does not apply in relation to an action covered by the approval if the taking of the action has substantially commenced by the time the revocation, variation or addition would, apart from this subsection, take effect, unless the action is specified in a determination made under subsection (6).
(6) The Minister may, in writing, determine that the revocation, variation or addition of a condition attached to an approval under section 146B applies to a specified action if the Minister is satisfied that it is appropriate for it to apply to the action despite the taking of the action having substantially commenced.
Consultation before making determination
(7) Before making a determination under subsection (6), the Minister must:
(a) give written notice to each person taking the action to which the contravention relates that the Minister is proposing to make the determination; and
(b) invite the person to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed determination; and
(c) take into account any relevant comments received in response to an invitation under paragraph (b).
(8) Subsection (7) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision to make a determination under subsection (6).
Notification of determination
(9) The Minister must as soon as possible after making a determination under subsection (6):
(a) give each person taking the specified action:
(i) a copy of the determination; and
(ii) if a copy of the revocation, variation or addition was not given to the person under section 143—a copy of the revocation, variation or addition; and
(b) give the holder of the approval a copy of the determination; and
(c) give the responsible person for the relevant endorsed policy, plan or program a copy of the determination; and
(d) publish the determination on the Department’s website.
The Minister may give notice of the determination in any other way that the Minister thinks fit.
Determination not a legislative instrument
(10) A determination under subsection (6) is not a legislative instrument.
146DD Suspension and revocation of approval under section 146B
(1) Sections 144 (suspension of approval) and 145 (revocation of approval) (except subsections 144(2C) and 145(2D)) apply in relation to an approval under section 146B in a way corresponding to the way they apply in relation to an approval under Part 9, with the modifications set out in this section.
(2) Sections 144 and 145 apply as if a reference to an action were a reference to one or more actions covered by the approval under section 146B.
(3) Sections 146G to 146L apply in relation to the Minister’s decision, under section 144 or 145 as applied by subsection (1), whether or not to suspend or revoke an approval, in a way corresponding to the way in which they apply in relation to a decision whether or not to revoke, vary or add to any conditions attached to an approval under section 146B.
146DE Reinstating suspended or revoked approval under section 146B
(1) Section 145A (reinstating suspended or revoked approval) (except subsection 145A(4)) applies in relation to an approval under section 146B in a way corresponding to the way it applies in relation to an approval under Part 9, with the modifications set out in this section.
(2) Section 145A applies as if a reference to an action were a reference to one or more actions covered by the approval under section 146B.
(3) Subdivision C of this Division (relevant considerations) applies to a decision under section 145A whether or not to reinstate an approval under section 146B in the same way as it applies to a decision whether or not to give an approval under section 146B.
146DF Surrender of approval under section 146B
(1) Section 145AA (surrender of approval) applies in relation to an approval under section 146B in a way corresponding to the way in which it applies in relation to an approval under Part 9, with the modifications set out in this section.
(2) Section 145AA applies as if:
(a) a reference in that section to the holder of the approval included a reference to the responsible person for the relevant endorsed policy, plan or program; and
(b) a reference to an action were a reference to one or more actions covered by the approval under section 146B.
Consultation before accepting surrender
(3) If, under section 145AA as applied by subsection (1), the Minister proposes to accept the surrender of an approval under section 146B, the Minister must:
(a) give the holder of the approval written notice of the proposed decision (unless the holder made the request to accept the surrender); and
(b) give the responsible person for the relevant endorsed policy, plan or program written notice of the proposed decision (unless the responsible person made the request to accept the surrender); and
(c) in a notice under paragraph (a) or (b), invite the person given the notice to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed decision; and
(d) publish on the Department’s website an invitation for anyone to give the Minister, within the period specified in the invitation (which must be at least 10 business days after the day the invitation is given), written comments on the proposed decision; and
(e) take into account any relevant comments received in response to an invitation under paragraph (c) or (d).
Note: For holder and responsible person, see section 528.
(4) Subsection (3) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision whether or not to accept the surrender of an approval under section 146B.