Note 3: A national interest exemption is taken to be revoked if the Minister decides to accept the surrender of the exemption under section 157U.
(2) A revocation comes into force on the day specified in the revocation (which must not be earlier than the day the revocation is made).
(3) A revocation made under subsection (1) is not a legislative instrument.
157T Notice of revocation of national interest exemption
As soon as practicable after revoking a national interest exemption under section 157S, the Minister must:
(a) give a copy of the revocation to:
(i) the person to whom the exemption applied immediately before the revocation; and
(ii) if a different person applied for the exemption under subsection 157K(1)—that person; and
(b) publish a copy of the revocation together with the Minister’s reasons for revoking the exemption on the Department’s website.
157U Surrender of national interest exemption
(1) A person to whom a national interest exemption applies may, in writing, request the Minister to accept the surrender of the exemption.
(2) The Minister must decide whether or not to accept the surrender 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)).
(3) In deciding whether or not to accept the surrender, the Minister may have regard to any matter the Minister considers relevant.
Notice of decision
(4) As soon as practicable after the decision is made, the Minister must:
(a) give written notice of the decision to:
(i) the person who made the request; and
(ii) if a different person applied for the exemption under subsection 157K(1)—that person; and
(b) if the Minister decides to accept the surrender—publish the notice on the Department’s website.
Effect of surrender
(5) If the Minister decides to accept the surrender, the exemption is taken to be revoked with effect from the day specified in the notice (which must not be earlier than the day the notice is published under paragraph (4)(b)).
157V Minister may request further information for making decision
(1) The Minister may request any of the following persons to provide specified information if the Minister is satisfied that the information is reasonably necessary in order for the Minister to make an informed decision as to whether to grant, vary, revoke or accept the surrender of a national interest exemption for an action:
(b) if there is no applicant—the person who proposes to take, is taking or has taken the action, or who is the designated proponent of the action;
(c) in any case—the person to whom the exemption applies or is proposed to apply;
(d) any other person the Minister considers appropriate.
(2) If the Minister has requested information under subsection (1) in respect of a decision for which there is an applicant, a day is not to be counted as a business day for the purposes of subsection 157K(3) (application for exemption), 157Q(3) (application to vary exemption) or 157U(2) (application to surrender exemption) 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.
Division 3A—Approval process decisions not affected by listing events that happen after section 75 decision made
158A Approval process decisions not affected by listing events that happen after section 75 decision made
(1) In this section:
approval process decision means any of the following decisions:
(a) a decision under section 75 whether an action is a controlled action;
(b) a decision under section 75 whether a provision of Part 3 is a controlling provision for an action;
(c) a decision under section 78 in relation to a decision referred to in paragraph (a) or (b) of this definition;
(ca) a decision under section 79C in relation to a decision referred to in paragraph (a) or (b) of this definition;
(d) a decision under section 87 on the approach for the assessment of the impacts of an action;
(e) a decision under section 133 whether to approve an action;
(f) a decision under section 134 to attach conditions to an approval of an action;
(g) a decision under section 143 to revoke, vary or add to conditions attached to an approval of an action;
(ga) a decision under section 146DJ to vary an approval under section 146B;
(h) any other decision made under a provision of this Chapter that is specified in the regulations.
listing event means any of the following events:
(a) a property becoming a declared World Heritage property;
(b) a change in the world heritage values of a declared World Heritage property;
(c) a place becoming a National Heritage place;
(d) a change in the National Heritage values included in the National Heritage List for a National Heritage place;
(e) a place becoming a Commonwealth Heritage place;
(f) a change in the Commonwealth Heritage values included in the Commonwealth Heritage List for a Commonwealth Heritage place;
(g) a wetland becoming a declared Ramsar wetland;
(h) a change in the boundaries of any of the following:
(i) a World Heritage property;
(ii) a National Heritage place;
(iii) a Commonwealth Heritage place;
(iv) a declared Ramsar wetland;
(v) the Great Barrier Reef Marine Park;
(i) a species becoming a listed threatened species;
(j) an ecological community becoming a listed threatened ecological community;
(k) a listed threatened species or a listed threatened ecological community becoming listed in another category representing a higher degree of endangerment;
(l) a species becoming a listed migratory species;
(m) any other event of a kind specified in the regulations.
(2) This section applies if:
(a) the Minister has, before or after the commencement of this section, decided under section 75 (the primary decision) whether an action (the relevant action) is a controlled action (whether the decision is that the action is a controlled action, or that the action is not a controlled action) or the Minister has made a decision (also the primary decision) under section 146B to give an approval; and
(b) at a time that is after the commencement of this section and after the primary decision was made, a listing event occurs.
(3) The validity of the primary decision, or any other approval process decision made in relation to the relevant action or the approval under section 146B before the listing event occurred, is not affected by the listing event, nor can it be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to, the listing event.
(4) After the listing event occurs, the listing event is to be disregarded:
(a) in making any further approval process decision in relation to the relevant action or the approval under section 146B; and
(b) in doing anything under this Chapter, in relation to the relevant action or the approval under section 146B, because of the making of an approval process decision in relation to the relevant action or the approval under section 146B (whether that approval process decision is or was made before or after the listing event occurred).
(5) This section has effect despite any other provision of this Act and despite any other law.
Division 4—Application of Chapter to actions that are not controlled actions
Subdivision A—Minister’s advice on authorising actions
159 Simplified outline of this Subdivision
The following is a simplified outline of this Subdivision:
A Commonwealth agency or employee must consider advice from the Minister before authorising one of the following actions with a significant impact on the environment:
(a) providing foreign aid;
(b) managing aircraft operations in airspace;
(c) adopting or implementing a major development plan for an airport;
(d) an action prescribed by the regulations.
The agency or employee must inform the Minister of the proposal to authorise the action.
The environmental impacts of the action must be assessed in accordance with a declaration made by the Minister accrediting a Commonwealth assessment process, or by one of the following methods chosen by the Minister:
(a) a specially accredited process;
(aa) an assessment on referral information under Division 3A;
(b) an assessment on preliminary documentation under Division 4 of Part 8;
(c) a public environment report under Division 5 of Part 8;
(d) an environmental impact statement under Division 6 of Part 8;
(e) an inquiry under Division 7 of Part 8.
The Minister must give the agency or employee advice on protecting the environment from the action, within 30 days of receiving the report of the assessment.
160 Requirement to take account of Minister’s advice
Requirement
(1) Before a Commonwealth agency or employee of the Commonwealth gives an authorisation (however described) of an action described in subsection (2), the agency or employee must obtain and consider advice from the Minister in accordance with this Subdivision.
Note: The giving of an authorisation for an action may be constituted by the renewal of an authorisation of the action or the variation of an authorisation for a different action.
Minister may decide advice is not required
(1A) Subsection (1) does not apply in relation to an authorisation of an action if:
(a) the agency or employee has referred a proposal to give the authorisation to the Minister under subsection 161(1); and
(b) the Minister has decided under subsection 161A(1) that this Subdivision does not apply in relation to the referral or the action.
Relevant actions
(2) Subsection (1) applies in relation to:
(a) the entry by the Commonwealth, under Australia’s foreign aid program, into a contract, agreement or arrangement for the implementation of a project that has, will have or is likely to have a significant impact on the environment anywhere in the world; and
(b) the adoption or implementation of a plan for aviation airspace management involving aircraft operations that have, will have or are likely to have a significant impact on the environment; and
(c) the adoption or implementation of a major development plan (as defined in the Airports Act 1996); and
(d) any other action prescribed by the regulations for the purposes of this paragraph.
(2A) Regulations may prescribe an action for the purposes of paragraph (2)(d):
(a) partly by reference to the action’s having, or being likely to have, a significant impact on the environment; or
(b) partly by reference to a specified person believing that the action has, will have or is likely to have a significant impact on the environment; or
(c) wholly or partly by reference to legislation under which the authorisation of the action is to be granted.
This does not limit the ways in which regulations may prescribe an action.
This section does not apply to actions like those already assessed
(3) Subsection (1) does not apply in relation to a particular authorisation (the later authorisation) if the agency or employee has complied with, or is complying with, this Subdivision in relation to another authorisation or proposed authorisation and is satisfied of one or both of the matters in subsection (4).
Which actions are like actions?
(4) For the purposes of subsection (3), the agency or employee must be satisfied that:
(a) the Minister’s advice relating to the other authorisation deals or will deal with all the impacts that the action to which the later authorisation relates has, will have or is likely to have on the environment; or
(b) the impacts that the action to which the later authorisation relates has, will have or is likely to have on the environment:
(i) are an extension of the corresponding impacts of the action to which the other authorisation relates; and
(ii) are not significantly different in nature from those corresponding impacts; and
(iii) do not significantly add to those corresponding impacts.
State law excluded in relation to aviation
(5) A law of a State or Territory does not apply in relation to the assessment of the certain or likely environmental impacts of an action described in paragraph (2)(b) if subsection (1) applies in relation to authorisation of the action, or would apply apart from subsection (3).
161 Seeking the Minister’s advice
Requirement for referral
(1) If a Commonwealth agency or employee of the Commonwealth proposing to give an authorisation (however described) of an action thinks the agency or employee is required by section 160 (disregarding subsection 160(1A)) to obtain and consider the Minister’s advice before giving the authorisation, the agency or employee must:
(a) refer the proposal to the Minister; and
(b) nominate a person to act as designated proponent of the action.
Minister may request referral
(2) The Minister may request a Commonwealth agency or employee of the Commonwealth to:
(a) refer to the Minister a proposal to give an authorisation (however described) of an action; and
(b) nominate a person to act as designated proponent of the action;
if the Minister thinks the agency or employee is required by section 160 (disregarding subsection 160(1A)) to obtain and consider the Minister’s advice before giving the authorisation.
Complying with Minister’s request
(3) The Commonwealth agency or employee must comply with the Minister’s request.
Content of referral
(4) A referral must include the information prescribed by the regulations.
161A Minister may decide that advice is not required
(1) If:
(a) the Minister receives a referral under subsection 161(1) of a proposal by a Commonwealth agency or employee of the Commonwealth to give an authorisation of an action; and
(b) the Minister is satisfied, on the basis of the information in the referral, that the action does not have, will not have or is not likely to have a significant impact on the environment;
the Minister may decide, in writing, that this Subdivision does not apply in relation to the referral or the action.
(2) If the Minister decides that this Subdivision does not apply in relation to the referral or the action, this Act (other than Divisions 2 and 3 of Part 7) applies as if the Minister had decided under Division 2 of Part 7 that the action is not a controlled action.
(3) If the Minister decides that this Subdivision does not apply in relation to the referral or the action, the Minister must:
(a) give written notice of the decision to the agency or employee who referred the proposal to give an authorisation of the action; and
(b) publish notice of the decision in accordance with the regulations.
161B Certain provisions of other Acts not to apply if Minister decides that advice is not required
(1) This section applies in relation to a provision of another Act that is expressed to apply if:
(a) the advice of the Minister is sought under this Subdivision in relation to a proposal to give an authorisation (however described) of an action; or
(b) a proposal to give an authorisation (however described) of an action is referred to the Minister under this Subdivision.
(2) The provision does not apply in relation to an action if:
(a) a proposal to give an authorisation (however described) of the action has been referred to the Minister under section 161; and
(b) the Minister has decided under section 161A that this Subdivision does not apply in relation to the referral or the action.
Note: See, for example, subsections 94(6A) and 95(3A) of the Airports Act 1996.
162 Assessment of the action
Part 8 (except sections 82, 83 and 84) and the other provisions of this Act (so far as they relate to that Part) apply in relation to the action proposed to be authorised as if:
(a) the referral of the proposal to give the authorisation were a referral of a proposal to take the action; and
(b) the Minister had decided under Division 2 of Part 7 that the action was a controlled action when the proposal to give the authorisation was referred to the Minister; and
(c) the person nominated to act as the designated proponent had been designated as the proponent of the action by the Minister under section 75; and
(d) a reference in Part 8 or those provisions to the relevant impacts of the action were a reference to the impact that the action has, will have or is likely to have on the environment; and
(e) a reference in Part 8 or those provisions to making an informed decision on approving under Part 9 (for the purposes of each controlling provision) the taking of the action were a reference to giving informed advice about the proposal to give an authorisation of the action.
163 Providing advice
(1) The Minister must give advice on the following matters to the Commonwealth agency or employee of the Commonwealth who referred the proposal to give an authorisation of the action:
(a) whether the agency or employee should give the authorisation;
(b) what conditions (if any) should be attached to the authorisation (if possible) to protect the environment;
(c) any other matter relating to protection of the environment from the action.
(2) The Minister must give the advice within 30 business days of receiving:
(a) a report mentioned in subsection 84(3) relating to the action; or
(aa) a finalised recommendation report under Division 3A of Part 8 (as applied by section 162) relating to the action; or
(ab) the documents given to the Minister under subsection 95B(1) (as applied by section 162), or the statement given to the Minister under subsection 95B(3) (as applied by section 162), as the case requires, relating to the action; or
(ac) a finalised public environment report under Division 5 of Part 8 (as applied by section 162) relating to the action; or