(ad) a finalised environmental impact statement under Division 6 of Part 8 (as applied by section 162) relating to the action; or
(b) a report of an inquiry under Division 7 of Part 8 (as applied by section 162) relating to the action.
164 Reporting on response to advice
As soon as practicable after considering the Minister’s advice, the Commonwealth agency or employee of the Commonwealth must give the Minister a report stating:
(a) what action has been taken in relation to the Minister’s advice; and
(b) if the agency or employee did not give effect to some or all of the Minister’s advice—why the agency or employee did not do so.
Subdivision C—Assessment under agreement with State or Territory
166 This Subdivision applies if Ministers agree it should
(1) This Subdivision applies if the Minister and a Minister of a State or self‑governing Territory agree that it should apply in relation to an action that:
(a) is to be taken in the State or Territory by a constitutional corporation; or
(b) if the agreement is with a Minister of a Territory—is to be taken in the Territory; or
(c) is to be taken in the State or Territory by a person for the purposes of trade or commerce:
(i) between Australia and another country; or
(ii) between 2 States; or
(iii) between a State and a Territory; or
(iv) between 2 Territories; or
(d) is to be taken in the State or Territory and is an action whose assessment under this Subdivision is an appropriate means of giving effect to Australia’s obligations under an agreement with one or more other countries.
(2) This section applies to the adoption or implementation of a policy, plan or program in the same way as it applies to any other action.
(3) Despite subsection (1), this Subdivision does not apply in relation to an action to be taken in 2 or more States or self‑governing Territories unless there is an agreement between the Minister and a Minister of each of those States and Territories that this Subdivision should apply in relation to the action.
167 Making an agreement
Power to make agreement
(1) The Minister may make a written agreement with a Minister of a State or self‑governing Territory to apply this Subdivision in relation to an action to be taken in the State or Territory.
Prerequisites for making agreement
(2) The Minister may agree only if he or she is satisfied that the action is not a controlled action.
Minister must not make an agreement that gives preference
(3) The Minister must not enter into an agreement that has the effect of giving preference (within the meaning of section 99 of the Constitution) to one State or part of a State over another State or part of a State, in relation to the taking of the action:
(b) by a person for the purposes of trade or commerce between Australia and another country or between 2 States.
168 Content of an agreement
Generally
(1) An agreement to apply this Subdivision in relation to an action must:
(a) specify that one of the following is to apply in relation to the action:
(i) Division 3A of Part 8;
(ii) Division 4 of Part 8;
(iii) Division 5 of Part 8;
(iv) Division 6 of Part 8;
(v) Division 7 of Part 8;
(vi) Subdivision A of Division 1 of Part 10; and
(b) if it specifies that Division 3A, 4, 5 or 6 of Part 8 is to apply in relation to the action—specify the person who is taken to be the designated proponent of the action for the purposes of that Division.
Agreement applying Division 5 of Part 8
(3) An agreement that specifies that Division 5 of Part 8 (about public environment reports) is to apply in relation to an action may deal with how the Minister will exercise his or her power:
(a) under section 97 to prepare tailored guidelines for the preparation of a draft report; or
(b) under section 98 to approve publication of a draft report or specify a period for comment.
Agreement applying Division 6 of Part 8
(4) An agreement that specifies that Division 6 of Part 8 (about environmental impact statements) is to apply in relation to an action may deal with how the Minister will exercise his or her power:
(a) under section 102 to prepare tailored guidelines for the preparation of a draft statement; or
(b) under section 103 to approve publication of a draft statement or specify a period for comment.
Agreement applying Division 7 of Part 8
(5) An agreement that specifies that Division 7 of Part 8 (about inquiries) is to apply in relation to an action may deal with how the Minister will exercise his or her power under section 107:
(a) to appoint one or more persons as commissioners, and to appoint a person to preside; or
(b) to specify the matters relating to the action that are to be the subject of the inquiry and report; or
(c) to specify the time within which the commission must report to the Minister; or
(d) to specify the manner in which the commission is to carry out the inquiry.
Agreement applying Part 10
(6) An agreement that specifies that Subdivision A of Division 1 of Part 10 is to apply may:
(a) be in the same document as an agreement mentioned in that Subdivision; or
(b) specify the manner in which an agreement the Minister makes under that Subdivision is to provide for matters that that Subdivision requires that agreement to provide for.
169 Application of a Division of Part 8
Provisions that apply
(1) If the agreement states that a particular Division of Part 8 is to apply in relation to the assessment of an action, the following provisions of this Act (the applied provisions) apply in relation to the action as set out in subsection (2):
(a) that Division;
(b) the other provisions of this Act (except Part 9), so far as they relate to that Division.
Modification of applied provisions
(2) The applied provisions apply in relation to the action as if:
(a) the Minister had decided under Division 2 of Part 7 that the action was a controlled action; and
(b) the Minister had decided that the relevant impacts of the action must be assessed under the Division specified in the agreement applying the Division; and
(c) the person specified in the agreement as the person who is taken to be the designated proponent of the action for the purposes of that Division had been designated as the proponent of the action by the Minister under section 75; and
(d) a reference in the applied 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 the applied 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 making an informed report and recommendations relating to the action.
Modification of Division 4 of Part 8
(3) Also, if the agreement states that Division 4 of Part 8 is to apply in relation to the action, that Division applies in relation to the action as if paragraphs 95(2)(a) and (b) and 95A(3)(a), (b) and (c) merely referred to specified information relating to the action.
Minister must give copy of report to State or Territory Minister
(4) The Minister must give a copy of the report he or she receives from the Secretary or commission of inquiry under the applied provisions in relation to the action to each Minister of a State or Territory who is party to the agreement.
170 Application of Subdivision A of Division 1 of Part 10
If an agreement to apply this Subdivision states that Subdivision A of Division 1 of Part 10 is to apply:
(a) that Subdivision applies as if:
(i) the reference in subsection 146(1) to relevant impacts of actions were a reference to the impacts the actions have, will have or are likely to have on the environment; and
(ii) paragraph 146(2)(f) were omitted; and
(b) the Minister must give a copy of the report provided to the Minister under the agreement made under section 146, and of any recommendations made by the Minister under the agreement, to each Minister of a State or Territory who is party to the agreement to apply this Subdivision.
Division 5—Publication of information relating to assessments
170A Publication of information relating to assessments
The Secretary must publish on the internet every week notice of the following:
(a) the publication in the immediately preceding week by the Minister under section 45 of a notice of the Minister’s intention to develop a draft bilateral agreement;
(b) each referral (if any) of an action received by the Minister under Division 1 of Part 7 in the immediately preceding week;
(c) each decision (if any) in the immediately preceding week under Division 2 of Part 7 that an action is a controlled action;
(d) each decision (if any) in the immediately preceding week under Division 3 of Part 8 about which approach is to be used for assessment of the relevant impacts of an action;
(da) each draft recommendation report and invitation (if any) published in the immediately preceding week under Division 3A of Part 8 (about assessment on referral information);
(e) the information and invitations (if any) published in the immediately preceding week under Division 4 of Part 8 (about assessment on preliminary documentation);
(f) each set of guidelines (if any) prepared in the immediately preceding week by the Minister under Division 5 or 6 of Part 8 for a report or statement;
(g) each public invitation (if any) issued in the immediately preceding week by the Minister to comment on a draft of guidelines under Division 5 or 6 of Part 8 for a report or statement;
(h) each draft or finalised report or statement published in the immediately preceding week under Division 5 or 6 of Part 8 by a designated proponent;
(i) each finalised recommendation report given to the Minister under Division 3A of Part 8 in the immediately preceding week;
(ia) each recommendation report given to the Minister in the immediately preceding week under section 95C, 100 or 105;
(j) any other matter prescribed by the regulations.
170B Information critical to protecting matters of national environmental significance not to be disclosed
(1) The Minister may, by notice in writing to a person, direct the person not to disclose specified information when publishing a document or material as required or permitted by a specified provision of this Chapter, if the Minister considers that the information is critical to the protection of a matter protected by a provision of Division 1 of Part 3 (about matters of national environmental significance).
(2) A provision of this Chapter that is specified in a direction under subsection (1) has effect as if it did not require or permit the publication of the information specified in the direction.
(3) A person who is given a direction under subsection (1) must not contravene the direction.
Civil penalty: 100 penalty units.
170BA Designated proponent may request Minister to permit commercial‑in‑confidence information not to be disclosed
(1) This section applies in relation to the assessment documentation that must be published by the designated proponent of an action to which Division 4, 5 or 6 of Part 8 applies.
(2) The designated proponent may request the Minister, in writing, to permit the designated proponent not to publish so much of the assessment documentation relating to the action as the designated proponent considers is commercial‑in‑confidence.
(3) A request under subsection (2) must include the information prescribed by the regulations.
(4) If the Minister is satisfied that a part of the assessment documentation relating to the action is commercial‑in‑confidence, the Minister may, by written notice to the designated proponent, permit the designated proponent not to publish that part of the assessment documentation.
(5) The Minister must not be satisfied that a part of the assessment documentation relating to the action is commercial‑in‑confidence unless a person demonstrates to the Minister 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.
(6) If the Minister permits the designated proponent not to publish a part of the assessment documentation that the Minister considers is commercial‑in‑confidence, the provision of Division 4, 5 or 6 of Part 8 that requires the designated proponent to publish the assessment documentation has effect as if it did not require the publication of that part of the assessment documentation.
(7) In this section:
assessment documentation, in relation to an action to which Division 4, 5 or 6 of Part 8 applies, means:
(a) if Division 4 of Part 8 (assessment on preliminary documentation) applies to the action:
(i) the information referred to in paragraphs 95(2)(a) and (b) or 95A(3)(a), (b) and (c), as the case requires; and
(ii) the document prepared under paragraph 95B(1)(a) or the information referred to in subsection 95B(4), as the case requires; or
(b) if Division 5 of Part 8 (public environment reports) applies to the action:
(i) the draft public environment report relating to the action given to the Minister under paragraph 98(1)(ab); and
(ii) the finalised public environment report relating to the action given to the Minister under section 99; or
(c) if Division 6 of Part 8 (environmental impact statements) applies to the action:
(i) the draft environmental impact statement relating to the action given to the Minister under paragraph 103(1)(ab); and
(ii) the finalised environmental impact statement relating to the action given to the Minister under section 104.
Division 6—Withdrawal of referrals
170C Withdrawal of referral of proposal to take an action
(1) Subject to subsection (2), a person who:
(a) has referred a proposal to take an action to the Minister under section 68; or
(b) is named as the person proposing to take an action in a proposal that is referred to the Minister under section 69 or 71;
may withdraw the referral, by written notice to the Minister.
(2) The referral cannot be withdrawn after the Minister has decided, under Part 9, whether or not to approve the taking of the action.
(3) If the Minister receives a notice withdrawing the referral, the Minister must publish notice of the withdrawal of the referral in accordance with the regulations.
(4) If the referral is withdrawn, the provisions of this Chapter that would, apart from this subsection, have applied to the action cease to apply to the action.
(5) Despite subsection (4), if:
(a) at the time the referral (the original referral) is withdrawn, a determination is in force under section 79E in relation to the action (the original action); and
(b) before the end of the period specified in the determination for the purposes of subsection 79E(5), the person refers another proposal to take an action (the new action) to the Minister under section 68; and
(c) either:
(i) the new action is the same as the original action; or
(ii) a component of the new action is the same as the original action;
then:
(d) any determination in force under section 79E at the time of the withdrawal in relation to the action that is the subject of the original proposal continues in force, and section 79E continues to apply in relation to any such determination; and
(e) any such determination continues to have effect for the purposes of sections 67, 67A and 74AA, and those sections continue to apply, in relation to the action that is the subject of the original proposal.
Division 7—Miscellaneous
170CA Fees
(1) The Minister may, in writing, determine the amounts of fees that may be charged if the approach for assessing the relevant impacts of an action that the Minister has decided is a controlled action is:
(a) assessment by inquiry under Division 7 of Part 8; or
(b) assessment by strategic assessment under Division 1 of Part 10.
(2) Before making a determination, the Minister must consult:
(a) the person proposing to take the action; or
(b) if the person proposing to take the action is not the designated proponent—the designated proponent; or
(c) if the approach is assessment by strategic assessment—the responsible person for the relevant policy, plan or program;
about the amounts of fees to be charged.
(3) The Minister may, in the determination made under subsection (1), determine the way in which a fee is to be worked out.
(4) A determination made under subsection (1) is not a legislative instrument.
Chapter 5—Conservation of biodiversity and heritage
Part 11A—Interpretation
170D References to business days are references to Canberra business days
A reference in this Chapter to a business day is a reference to a day that is a business day in Canberra.
Part 12—Identifying and monitoring biodiversity and making bioregional plans
Division 1—Identifying and monitoring biodiversity
171 Identifying and monitoring biodiversity
(1) The Minister may, on behalf of the Commonwealth, co‑operate with, and give financial or other assistance to, any person for the purpose of identifying and monitoring components of biodiversity.
(2) Without limiting subsection (1), the co‑operation and assistance may include co‑operation and assistance in relation to all or any of the following:
(a) identifying and monitoring components of biodiversity that are important for its conservation and ecologically sustainable use;
(b) identifying components of biodiversity that are inadequately understood;
(c) collecting and analysing information about the conservation status of components of biodiversity;