(1) Section 145B (transfer of approval) (except subsection 145B(3A)) 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 145B applies 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 145B as applied by this section, whether or not to consent to the transfer of the 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.
Subdivision BA—Minor variations to policies, plans or programs
146DH Request to approve minor variation of a policy, plan or program
(1) If a policy, plan or program has been endorsed by the Minister in accordance with an agreement as mentioned in paragraph 146(2)(f), the responsible person for the policy, plan or program may, in writing, request the Minister to approve a minor variation of the policy, plan or program.
Note: For responsible person, see section 528.
Content of request
(2) The request:
(a) must include details of the proposed variation; and
(b) must include the reasons for the request; and
(c) must include the reasons why the responsible person considers the proposed variation is minor; and
(d) may include any other matters the responsible person considers appropriate.
When a variation is minor
(3) For the purposes of this Subdivision, a variation of a policy, plan or program is minor if:
(a) the adverse impacts (if any) on matters protected by a provision of Part 3 of actions under the policy, plan or program, as proposed to be varied, would not be greater than the adverse impacts on those matters of actions under the policy, plan or program as in force at the time of the request; and
(b) the measures in the policy, plan or program, as proposed to be varied, to mitigate, repair, or compensate for, damage to matters protected by a provision of Part 3 would not be reduced as compared with such measures in the policy, plan or program as in force at the time of the request.
(4) For the purposes of paragraph (3)(a), disregard any proposed compensation for damage caused by impacts to matters protected by a provision of Part 3.
146DI Minister’s decision on request
(1) If:
(a) a request is made under section 146DH; and
(b) the Minister is satisfied that the proposed variation is minor;
the Minister may, by written notice (the variation approval), approve the variation.
(2) If the Minister approves the variation, the Minister must do the following as soon as practicable:
(a) give the responsible person a copy of the variation approval;
(b) if an approval under section 146B is in force in relation to the policy, plan or program—give a copy of the variation approval to:
(i) the holder of the approval; and
(ii) each person specified in the approval under section 146B as a person who may take an action covered by that approval; and
(c) publish a copy of the variation approval on the Department’s website.
The Minister may give notice of the variation approval in any other way that the Minister thinks fit.
Note: For holder and responsible person, see section 528.
(3) If the Minister approves the variation, the approval takes effect on the day specified in the notice of the approval (which must not be earlier than the day the notice is published).
(4) The Minister must refuse to approve the variation if the Minister is not satisfied that the proposed variation is minor. If the Minister refuses to approve the variation, the Minister must give the responsible person written notice of the refusal and the reasons for the refusal as soon as practicable.
(5) A notice under subsection (1) is not a legislative instrument.
Subdivision BB—Variations of approvals under section 146B
146DJ Variation of approval under section 146B as a result of a variation of a policy, plan or program
(1) If under section 146DI the Minister approves a variation of an endorsed policy, plan or program, the Minister may, by written notice, vary an approval under section 146B that is in force in relation to the policy, plan or program in a way that the Minister considers appropriate as a result of the approval of the variation of the policy, plan or program.
(2) Without limiting subsection (1), the variation of the approval may be one or more of the following:
(a) a variation of an action specified in the approval as an action that may be taken in accordance with the endorsed policy, plan or program;
(b) specifying another action, or removing an action, that may be taken in accordance with the endorsed policy, plan or program;
(c) a variation of a class of actions specified in the approval as a class of actions that may be taken in accordance with the endorsed policy, plan or program;
(d) specifying another class of actions, or removing a class of actions, that may be taken in accordance with the endorsed policy, plan or program;
(e) a variation of the persons who may take an action in accordance with the endorsed policy, plan or program;
(f) the revocation, variation or addition of a condition attached to the approval.
Note: The Minister may invite comments from other relevant Ministers before making a variation covered by paragraph (a), (b), (c) or (d): see section 146C.
Consultation
(3) Before making the variation of the approval the Minister must:
(a) give the holder of the approval written notice of the proposed variation; and
(b) give the responsible person for the endorsed policy, plan or program written notice of the proposed variation; 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 variation; 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 variation; 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.
Notification of variation
(4) The Minister must do the following as soon as practicable after making the variation of the approval:
(a) give a copy of the variation to the holder of the approval;
(b) give a copy of the variation to the responsible person for the endorsed policy, plan or program;
(c) give a copy of the variation to each person specified in the approval as a person who may take an action covered by the approval;
(d) publish the variation on the Department’s website.
The Minister may give notice of the variation in any other way that the Minister thinks fit.
Effect of variation
(5) The variation takes effect on the day specified in the variation (which must not be earlier than the day the variation is published).
(6) The variation does not take effect in relation to an action covered by the approval if the taking of the action has substantially commenced by the time the variation would, apart from this subsection, take effect, unless the action is specified in a determination made under subsection (7).
(7) The Minister may, in writing, determine that the variation 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
(8) Before making a determination under subsection (7), the Minister must:
(a) give written notice to the person taking the specified action; 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).
Notification of determination
(9) The Minister must as soon as possible after making a determination under subsection (7):
(a) give the person taking the specified action:
(i) a copy of the determination; and
(ii) if a copy of the variation was not given to the person under subsection (4)—a copy of the variation; 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.
Exhaustive statement of natural justice hearing rule
(10) This section 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 variation under subsection (1) or a determination under subsection (7).
Notice not a legislative instrument
(11) The following instruments made under this section are not legislative instruments:
(a) a notice made under subsection (1);
(b) a determination made under subsection (7).
146DK Variation of approval under section 146B on request
(1) If an approval under section 146B is in force in relation to the taking of an action or a class of actions in accordance with an endorsed policy, plan or program, the Minister may, on request under subsection (2) of this section, by written notice, vary the approval by:
(a) if the approval does not specify the person or persons who may take the action or an action in the class of actions—specifying the person or persons who may take the action or an action in the class of actions; or
(b) if the approval specifies the person or persons who may take the action or an action in the class of actions—specifying one or more additional persons who may take the action or an action in the class of actions.
Note: Subsection 146B(2A) deals with specifying the person or persons who may take the action or an action in the class of actions.
(2) A request for a variation under subsection (1) may be made, in writing, by:
(a) the holder of the approval; or
(b) the responsible person for the endorsed policy, plan or program.
Note: For holder and responsible person, see section 528.
Consultation
(3) Before making the variation the Minister must:
(a) if the request was under paragraph (2)(a)—give the responsible person for the endorsed policy, plan or program written notice of the proposed variation; and
(b) if the request was under paragraph (2)(b)—give the holder of the approval written notice of the proposed variation; 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 variation; and
(d) take into account any relevant comments received in response to an invitation under paragraph (c).
Notification of variation
(4) The Minister must do the following as soon as practicable after making the variation:
(a) give a copy of the variation to the holder of the approval;
(b) give a copy of the variation to the responsible person for the endorsed policy, plan or program;
(c) give a copy of the variation to each person who, after the variation is made, is specified in the approval as a person who may take an action covered by the approval;
(d) give a copy of the variation to a person who asks for it;
(e) publish the variation on the Department’s website.
The Minister may give notice of the variation in any other way that the Minister thinks fit.
Effect of variation
(5) The variation takes effect on the day specified in the variation (which must not be earlier than the day the variation is published).
Exhaustive statement of natural justice hearing rule
(6) This section 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 variation under subsection (1).
Notice not a legislative instrument
(7) A notice under subsection (1) is not a legislative instrument.
Subdivision BC—Effect of actual decisions on decisions the Minister is taken to have made
146DL Effect of actual decisions on decisions the Minister is taken to have made
Decisions taken to have been made under Division 2 of Part 7
(1) If:
(a) the Minister, under section 146DJ, varies an approval under section 146B; and
(b) the effect of the variation is to vary an action, or vary a class of actions, that may be taken in accordance with the endorsed policy, plan or program;
then, at the time the variation of the approval takes effect, the Minister is taken to have decided under Division 2 of Part 7 that:
(c) the action as varied, or each action in the class of actions as varied, is a controlled action; and
(d) each provision of Part 3 specified in the approval under paragraph 146B(2)(c) is a controlling provision for each such controlled action.
(2) If:
(a) the Minister, under section 146DJ, varies an approval under section 146B; and
(b) the variation specifies another action, or another class of actions, that may be taken in accordance with the endorsed policy, plan or program;
then, at the time the variation of the approval takes effect, the Minister is taken to have decided under Division 2 of Part 7 that:
(c) the action, or each action in the class of actions, is a controlled action; and
(d) each provision of Part 3 specified in the approval under paragraph 146B(2)(c) is a controlling provision for each such controlled action.
Approval taken to have been given under Part 9
(3) The following things done in relation to an approval under section 146B are also taken to have been done in relation to the approval that is taken to have been given under Part 9 because of paragraph 146D(1)(b):
(a) a thing done under section 134 or Division 3 or 4 of Part 9 (as applied by Subdivision B);
(b) a variation under section 146DJ or 146DK.
Subdivision C—Relevant considerations
146E Minister must comply with this Subdivision
The Minister must comply with this Subdivision in deciding:
(a) 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) in the case of a decision to approve the taking of such an action or class of actions, what conditions (if any) to attach under section 134 (as applied by section 146DA) to the approval; and
(c) whether or not, under section 143 (as applied by section 146DC), to revoke, vary or add to any conditions attached to the approval; and
(d) whether or not to make a variation of the approval covered by paragraph 146DJ(2)(a), (b), (c), (d) or (f).
Note 1: For the meaning of endorsed policy, plan or program, see section 146A.
Note 2: This Subdivision also applies if the Minister is deciding whether to reinstate a suspended or revoked approval (see section 146DE).
Note 3: Some provisions in this Subdivision also apply if the Minister is deciding whether to suspend or revoke an approval (see subsection 146DD(3)) or whether to consent to a transfer of an approval (see subsection 146DG(3)).
146F General considerations
(1) The Minister must consider the following, so far as they are not inconsistent with any other requirements of this Subdivision:
(a) matters relevant to any matter protected by a provision of Part 3 that the Minister considers is relevant to the approval;
(b) economic and social matters.
(2) In considering those matters, the Minister must take into account:
(a) the principles of ecologically sustainable development; and
(b) any bioregional plan, and any bioregional guidance plan, that the Minister considers relevant; and
(c) 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 146CA.
146G Approvals relating to declared World Heritage properties
If the approval relates to a declared World Heritage property, 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 the declared World Heritage property under section 316 or as described in section 321.
146H Approvals relating to National Heritage places
If the approval relates to a National Heritage place, 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 the National Heritage place; or
(c) a plan that has been prepared for the management of the National Heritage place under section 324S or as described in section 324X.
146J Approvals relating to declared Ramsar wetlands
If the approval relates to a declared Ramsar wetland, the Minister must not act inconsistently with Australia’s obligations under the Ramsar Convention.
146K Approvals relating to listed threatened species and ecological communities
(1) This section applies if the approval relates to a listed threatened species or a listed threatened ecological community.
(2) 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 for the species or community or a threat abatement plan.