An application may be made to the Administrative Review Tribunal for review of a decision under subsection 71(1) that an activity is a controlled activity.
Note: This includes a substituted decision made on reconsideration under section 74.
Division 3—Environmental impact assessments
Subdivision A—Conducting the environmental impact assessment
76 Environmental impact assessment guidelines
(1) As soon as practicable after the Minister decides that an activity is a controlled activity, the Minister must make written guidelines for conducting an environmental impact assessment of the activity.
Contents of guidelines
(2) The guidelines must set out requirements about the manner in which the assessment is to be conducted, including about the following:
(a) the assessment of the potential impacts of the controlled activity (including any cumulative impacts) and how those impacts will, or may, affect the marine environment in the activity area or any other area, including requiring the use of the following in preparing the assessment:
(i) the best available scientific knowledge;
(ii) where available, any traditional knowledge of indigenous persons or local communities that is relevant to the activity area;
(b) the identification of any proposed measures to prevent, mitigate or manage those impacts and, where appropriate, the incorporation of such measures into an environmental management plan;
(c) the analysis of the feasibility of any alternatives to carrying out the controlled activity;
(d) the identification of any strategic environmental assessments conducted in accordance with Article 39 of the BBNJ Agreement that are relevant to the controlled activity;
(e) consultation with relevant stakeholders, including indigenous persons;
(f) any matters prescribed by the rules;
(g) any other matters the Minister considers relevant.
Consultation
(3) Before making the guidelines, the Minister must:
(a) give a draft of the guidelines to the proponent of the controlled activity; and
(b) publish the draft on the Department’s website; and
(c) publish the draft through the Clearing‑House Mechanism; and
(d) invite the following to give written comments on the draft within the period specified in the invitation:
(i) the proponent of the controlled activity;
(ii) the public; and
(e) if the controlled activity is an international activity—invite the following to give written comments on the draft within the period specified in the invitation:
Section 75 - High Seas Biodiversity Act 2026 - Review by Administrative Review Tribunal | Zoe
(i) the parties to the BBNJ Agreement;
(ii) any other foreign country, if the Minister reasonably believes that the activity will affect the carrying out of another activity by the country or the exercise of the sovereign rights of the country as a coastal State;
(iii) the Scientific and Technical Body.
(4) If any relevant comments are received in response to an invitation under subsection (3) within the period specified in the invitation, the Minister must:
(a) publish the comments on the Department’s website; and
(b) take the comments into account in making the guidelines.
Note: The Minister may redact information from the comments before they are published (see section 106).
Publication of guidelines
(5) As soon as practicable after making the guidelines, the Minister must:
(a) give the guidelines to the proponent of the controlled activity; and
(b) publish the guidelines on the Department’s website; and
(c) publish the guidelines through the Clearing‑House Mechanism.
Guidelines not legislative instruments
(6) The guidelines are not a legislative instrument.
77 Conducting an environmental impact assessment
(1) The proponent of the controlled activity must:
(a) conduct an environmental impact assessment of the activity in accordance with the guidelines; and
(b) prepare and give a draft report on the assessment to the Minister.
(2) The draft report is the draft environmental impact assessment report for the controlled activity.
(3) The draft report must include the following:
(a) details of the controlled activity, including its location;
(b) how the environmental impact assessment was conducted;
(c) if the environmental impact assessment identified any scientific or other information relating to the controlled activity that is unknown or uncertain—details of that information;
(d) an assessment of the existing marine environment in the activity area and any other area that will be, or may be, affected by the potential impacts of the controlled activity (including any cumulative impacts);
(e) an assessment of the potential impacts of the controlled activity (including any cumulative impacts) and how those impacts will, or may, affect the marine environment in the activity area or any other area;
(f) details of proposed measures to prevent, mitigate or manage those impacts including, where appropriate, a draft environmental management plan;
(g) details of any public consultation undertaken as part of the environmental impact assessment;
(h) any reasonable alternatives to carrying out the controlled activity identified by the proponent, and the feasibility of those alternatives;
(i) a summary of the report that uses plain language;
(j) any other information required by the guidelines;
(k) any other information prescribed by the rules.
Subdivision B—Consultation
78 Consultation on draft environmental impact assessment report
(1) The Minister must, as soon as practicable after receiving the draft environmental impact assessment report for the controlled activity:
(a) publish a copy of the report on the Department’s website; and
(b) publish a copy of the report through the Clearing‑House Mechanism; and
(c) invite the public to give written comments on the report within the period specified in the invitation; and
(d) if the controlled activity is an international activity—invite the following to give written comments on the report within the period specified in the invitation:
(i) the parties to the BBNJ Agreement;
(ii) any other foreign country, if the Minister reasonably believes that the activity will affect the carrying out of another activity by the country or the exercise of the sovereign rights of the country as a coastal State;
(iii) the Scientific and Technical Body.
(2) The period specified in the invitation must be at least 20 business days (measured in Canberra) after the invitation is published.
(3) The Minister may also give comments on the draft environmental impact assessment report to the proponent of the controlled activity.
(4) The Minister must:
(a) publish on the Department’s website any relevant comments received:
(i) in response to an invitation under subsection (1); and
(ii) within the period specified in the invitation; and
(b) give a copy of the comments to the proponent of the controlled activity; and
(c) if the Minister considers it appropriate to do so:
(i) request the proponent to respond to one or more of the comments; and
(ii) publish the proponent’s response on the Department’s website.
Note: The Minister may redact information from the comments or the proponent’s response before they are published (see section 106).
79 Consultation on certain international activities
(1) This section applies if:
(a) the controlled activity is an international activity; and
(b) the activity area is adjacent to the exclusive economic zone of one or more foreign countries.
(2) The Minister must, before the final environmental impact assessment report for the controlled activity is prepared:
(a) consult the government of each of the foreign countries on the activity; and
(b) publish on the Department’s website any comments received in response to the consultation; and
(c) give a copy of the comments to the proponent of the activity.
Note: The Minister may redact information from the comments before they are published (see section 106).
(3) If any comments are received in response to the consultation within the period specified by subsection (4):
(a) the proponent of the controlled activity must:
(i) give a written statement to the Minister setting out whether, and how, the proponent has addressed or intends to address the comments; and
(ii) do so before preparing the final environmental impact assessment report for the activity; and
(b) the Minister must publish the statement on the Department’s website.
Note: The Minister may redact information from the statement before it is published (see section 106).
(4) The following periods are specified:
(a) if the Minister consults only one country—the period of 20 business days (measured in Canberra) starting on the day the Minister consulted that country;
(b) if the Minister consults more than one country—the period of 20 business days (measured in Canberra) starting on the day the Minister consulted the last of those countries.
Subdivision C—Finalising the environmental impact assessment
80 Final environmental impact assessment report
(1) After the end of the consultation period, the proponent of the controlled activity must:
(a) make such changes to the draft environmental impact assessment report for the activity as the proponent considers appropriate, having regard to any comments received under section 78 or 79; and
(b) finalise the report; and
(c) give the finalised report to the Minister.
(2) For the purposes of subsection (1), the consultation period ends at the later of the following times:
(a) the end of the period specified in an invitation under subsection 78(1) in relation to the draft environmental impact assessment report for the controlled activity;
(b) if section 79 applies—the end of the period specified by subsection 79(4) in relation to the controlled activity.
(3) The finalised report is the final environmental impact assessment report for the controlled activity.
(4) The Minister must, as soon as practicable after receiving the final environmental impact assessment report:
(a) publish a copy of the report on the Department’s website; and
(b) publish a copy of the report through the Clearing‑House Mechanism.
Division 4—Ministerial decision whether to authorise controlled activity