(1) If the Minister believes on reasonable grounds that a request under subsection 156A(1) to accept a varied proposal to take an action does not include enough information for the Minister to decide whether or not to accept the varied proposal, the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.
(2) If the Minister has requested more information under subsection (1), a day is not to be counted as a business day for the purposes of subsection 156B(1) 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.
156D Effect of Minister’s decision to accept or not accept a varied proposal
(1) If the Minister decides to accept a varied proposal to take an action:
(a) any provisions of this Chapter that, because of subsection 156A(4), have ceased to apply in relation to the original proposal start to apply in relation to the varied proposal; and
(b) for the purpose of the application of those provisions, anything done in relation to the original proposal is taken to have been done in relation to the varied proposal.
Note: Provisions of this Chapter that relate to section 79E (determination that certain reconsidered actions may continue to be taken) do not cease to apply in relation to the original proposal (see subsection 156A(5)).
(2) If the Minister decides not to accept a varied proposal to take an action, any provisions of this Chapter that, because of subsection 156A(4), have ceased to apply in relation to the original proposal start to apply in relation to that proposal.
Note: Provisions of this Chapter that relate to section 79E (determination that certain reconsidered actions may continue to be taken) do not cease to apply in relation to the original proposal (see subsection 156A(5)).
(3) For the purpose of the application of the provisions of this Chapter in relation to the varied proposal under subsection (1), or in relation to the original proposal under subsection (2), a day is not to be counted as a business day if it is:
(a) on or after the day the Minister received the request under subsection 156A(1) to accept the varied proposal; and
(b) on or before the day the Minister made the decision under subsection 156B(1).
156E Notice of decision
(1) Within 10 business days after deciding under subsection 156B(1) whether or not to accept a varied proposal to take an action, the Minister must give written notice of the decision to:
(a) the person proposing to take the action; and
(b) the designated proponent of the action (if the designated proponent of the action is not the person proposing to take the action).
(2) If:
(a) the request to accept the varied proposal related to an action that is to be taken in a State or self‑governing Territory; and
(b) a controlling provision for the action is in Division 1 of Part 3 (which deals with matters of national environmental significance); and
(c) the Minister decided to accept the varied proposal;
the Minister must also, within the period referred to in subsection (1), give written notice of the decision to the appropriate Minister of the State or Territory.
(3) If the Minister decided to accept the varied proposal, the Minister must, within the period referred to in subsection (1), publish the request to accept the varied proposal and notice of the decision in accordance with the regulations.
Division 1B—Change of person proposing to take action
156F Change of person proposing to take action
Notice of change of person proposing to take action
(1) At any time:
(a) after a proposal by a person to take an action has been referred to the Minister under Division 1 of Part 7; and
(b) before the Minister has approved, or refused to approve, the taking of the action under section 133;
the person (the first person) proposing to take the action and another person (the second person) may notify the Minister, in writing, that:
(c) the first person no longer proposes to take the action; and
(d) the second person proposes to take the action instead.
Note: A person who is the holder of an approval under Part 9 may transfer the approval to another person under section 145B.
When notice cannot be given
(2) Subsection (1) does not apply if:
(a) the Minister has made a decision under section 74A to not accept the referral of the proposal to take the action; or
(b) the Minister has made a decision under section 75 that the action is not a controlled action; or
(c) a particular manner for taking the action is identified under subsection 77A(1) in the notice given under section 77 in relation to the action.
Requirements for notice
(3) A notice must:
(a) include the information (if any) prescribed by the regulations; and
(b) be accompanied by the fee (if any) prescribed by the regulations.
Effect of notice
(4) If a notice is given to the Minister under subsection (1):
(a) any provisions of this Chapter that, apart from this paragraph, would have applied to the first person in relation to the action cease to apply to that person and start to apply to the second person; and
(b) for the purposes of the application of those provisions:
(i) the second person is taken to be named in the referral of the proposal to take the action as the person proposing to take the action; and
(ii) the second person is taken to have done anything the first person did in relation to the action; and
(iii) anything done in relation to the first person in relation to the action is taken to have been done in relation to the second person.
Publication of notice
(5) Within 10 business days after receiving a notice under subsection (1), the Minister must publish a copy of the notice in accordance with the regulations.
Division 2—Actions in area offshore from a State or the Northern Territory
157 Actions treated as though they were in a State or the Northern Territory
(1) A provision of this Chapter that is expressed to apply in relation to actions taken or to be taken in a State also applies in the same way to actions taken or to be taken on, under or over the seabed vested in the State by section 4 of the Coastal Waters (State Title) Act 1980.
(2) So far as a provision of this Chapter that is expressed to apply in relation to actions taken or to be taken in a self‑governing Territory relates to the Northern Territory, the provision also applies in the same way to actions taken or to be taken on, under or over the seabed vested in the Northern Territory by section 4 of the Coastal Waters (Northern Territory Title) Act 1980.
Division 3—National interest exemption
157H National interest exemption from provisions of Part 3 or this Chapter
(1) The Minister may, by written instrument, grant an exemption (a national interest exemption) for an action from a provision of Part 3 or this Chapter:
(a) on the Minister’s initiative; or
(b) on application under section 157K.
Note: The Minister may request information to make an informed decision under subsection 157V(1).
(2) To avoid doubt, the Minister may do so whether or not the action has been referred to the Minister under a provision of Part 7.
Content of exemption
(3) The exemption must specify:
(a) the action; and
(b) each provision from which the action is exempt; and
(c) the person to whom the exemption applies; and
(d) the period for which the exemption is in force; and
(e) any conditions imposed on the exemption under section 157M.
(4) The Minister must be satisfied that the period specified for the purposes of paragraph (3)(d) is reasonably necessary to address the national interest that is the basis for the exemption.
When exemption comes into force
(5) An exemption comes into force at the start of the period specified for the purposes of paragraph (3)(d) (which must not be earlier than the day the exemption is made).
Not a legislative instrument
(6) An exemption made under subsection (1) is not a legislative instrument.
157J Effect of national interest exemption
While a national interest exemption from a provision of Part 3 or this Chapter is in force for an action, the provision does not apply in relation to the taking of the action if:
(a) the action is taken by the person to whom the exemption applies; and
(b) the person takes the action in accordance with the conditions (if any) of the exemption.
Note 1: For conditions of an exemption, see section 157M.
Note 2: To the extent a defendant seeks to rely on this section as a defence to an offence, the defendant bears an evidential burden in relation to the matter in this section: see subsection 13.3(3) of the Criminal Code.
157K Application for national interest exemption
(1) The following may apply to the Minister (the Environment Minister) for a national interest exemption for an action:
(a) the person who proposes to take the action;
(b) the designated proponent of the action;
(c) if a person mentioned in paragraph (a) or (b) agrees in writing—a Minister (other than the Environment Minister), or a Minister of a State or Territory.
(2) The application must:
(a) be in writing; and
(b) specify the provision or provisions from which the person is applying for an exemption for the action.
Timeframe for decision
(3) The Minister must decide whether to grant the exemption under section 157H within 20 business days of receiving the application.
Note: If the Minister requests information to make an informed decision under section 157V, days between the request and receipt of the information do not count towards this timeframe (subsection 157V(2)).
Notice if Minister decides not to grant exemption
(4) If the Minister decides not to grant the exemption, the Minister must give the applicant written notice of the Minister’s decision as soon as practicable after the decision is made.
Note: If the Minister grants the exemption, the Minister must give each person to whom the exemption applies a copy of the exemption (see section 157N).
157L Grounds for grant of national interest exemption
(1) Before granting a national interest exemption for an action from a provision of Part 3 or this Chapter, the Minister must be satisfied that:
(a) the action is, or is likely to be, a controlled action; and
(b) for an exemption from a provision of Part 3—the provision is, or is likely to be, a controlling provision for the action; and
(c) it is in the national interest that the provision not apply to the taking of the action by the person to whom the exemption is to apply.
(2) In deciding whether the Minister is satisfied as required by paragraph (1)(a) or (b), the Minister:
(a) if the action has been referred under a provision of Part 7—must have regard to the information provided in relation to the referral; and
(b) whether or not the action has been referred under a provision of Part 7—may have regard to any other information the Minister considers relevant.
(3) In determining the national interest for the purposes of a provision of this Division, the Minister may consider:
(a) Australia’s defence or security; or
(b) a national emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates.
This does not limit the matters the Minister may consider.
Note: The following provisions of this Division require the Minister to consider the national interest:
(a) paragraph (1)(c) of this section;
(b) subsection 157P(3);
(c) paragraph 157S(1)(a).
157M Conditions of national interest exemption
(1) The Minister may impose one or more conditions on a national interest exemption for an action.
(2) The Minister must be satisfied that any condition imposed is necessary or convenient for:
(a) protecting, from the action, any matter protected by a provision of Part 3 that the Minister is satisfied is, or is likely to be, a controlling provision for the action; or
(b) repairing or mitigating damage that has been, will be, or may be caused by the action on a matter protected by a provision of Part 3 that the Minister is satisfied is, or is likely to be, a controlling provision for the action.
157N Notice of national interest exemption
(1) As soon as practicable after granting a national interest exemption under section 157H, the Minister must:
(a) give a copy of the exemption to:
(i) the person to whom the exemption applies; and
(ii) if a different person applied for the exemption under subsection 157K(1)—that person; and
(b) publish a copy of the exemption together with the Minister’s reasons for granting the exemption on the Department’s website.
(2) However, the Minister must not publish under paragraph (1)(b) so much of the exemption or reasons 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 Australia’s national interest not to provide.
Note: Subsection 157C(2) applies in relation to determining Australia’s national interest.
157P Variation of national interest exemption
(1) The Minister may, by written instrument, vary a national interest exemption:
(a) on the Minister’s initiative; or
(b) on application under section 157Q.
Note: The Minister may request information to make an informed decision under subsection 157V(1).
(2) The variation may vary any one or more of the following:
(a) the specified action;
(b) the provisions from which the action is exempt, but not in a way that results in the action being exempt from additional provisions;
(c) the person to whom the exemption applies;
(d) the period for which the exemption is in force;
(e) the conditions of the exemption, including by imposing additional conditions.
Grounds for variation
(3) The Minister must not vary the exemption as mentioned in paragraph (2)(a), (b) or (c) unless the Minister is satisfied that the exemption as varied is in the national interest.
Note: Subsection 157L(3) applies in relation to determining the national interest.
(4) The Minister must not vary the exemption as mentioned in paragraph (2)(d) unless the Minister is satisfied that the variation is reasonably necessary to address the national interest that is the basis for the exemption as varied.
(5) The Minister must not vary the exemption as mentioned in paragraph (2)(e) unless the Minister is satisfied that the conditions as varied are necessary or convenient for a purpose mentioned in subsection 157M(2).
When variation comes into force
(6) A variation comes into force on the day specified in the variation (which must not be earlier than the day the variation is made).
Not a legislative instrument
(7) A variation made under subsection (1) is not a legislative instrument.
157Q Application to vary national interest exemption
(1) The following may apply to the Minister to vary a national interest exemption:
(a) the person to whom the exemption applies (the exempt person);
(b) if a different person applied for the exemption under subsection 157K(1)—that person, with the agreement in writing of the exempt person.
(2) The application must:
(a) be in writing; and
(b) specify the variation applied for.
Note: For the types of variations that may be made, see subsection 157P(2).
Timeframe for decision
(3) The Minister must decide whether to vary the exemption under section 157P within 20 business days of receiving the application.
Note: If the Minister requests information to make an informed decision under section 157V, days between the request and receipt of the information do not count towards this timeframe (subsection 157V(2)).
Notice if Minister decides not to vary exemption
(4) If the Minister decides not to vary the exemption, the Minister must give the applicant written notice of the Minister’s decision as soon as practicable after the decision is made.
Note: If the Minister varies the exemption, the Minister must give the applicant a copy of the variation (see section 157R).
157R Notice of variation of national interest exemption
(1) As soon as practicable after varying a national interest exemption under section 157P, the Minister must:
(a) give a copy of the variation to:
(i) the person to whom the exemption, as varied, applies; and
(ii) if a different person applied for the variation—that person; and
(b) publish a copy of the variation together with the Minister’s reasons for varying the exemption on the Department’s website.
(2) However, the Minister must not publish under paragraph (1)(b) so much of the variation or reasons 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 Australia’s national interest not to provide.
Note: Subsection 157C(2) applies in relation to determining Australia’s national interest.
157S Revocation of national interest exemption
(1) The Minister may, by written instrument, revoke a national interest exemption, on the Minister’s initiative, if the Minister reasonably believes that:
(a) the exemption is no longer in the national interest; or
(b) a condition of the exemption has been contravened.
Note 1: The Minister may request information to make an informed decision under subsection 157V(1).
Note 2: For paragraph (a), subsection 157L(3) applies in relation to determining the national interest.