22   Meaning of environmental auditor

                   In this Part:

environmental auditor has the meaning given by section 25.

23   Activities in relation to which this Part applies

Circumstances in which Part applies

             (1)  Subject to this section, Divisions 2 and 3 apply for the purposes of the implementation of a NEPM in relation to an activity carried on by the Commonwealth or a Commonwealth authority if the Environment Minister becomes satisfied that:

                     (a)  the NEPM is relevant to the carrying on of the activity; and

                     (b)  the activity is carried on in a place (the relevant place ) referred to in any of the following subparagraphs:

                              (i)  a Commonwealth place in which, in the Environment Minister’s opinion, the NEPM is not being implemented, or satisfactorily implemented, under an applied State law of the State in which the Commonwealth place is situated;

                             (ii)  a State or Territory, or the coastal waters of a State or Territory, in which, in the Environment Minister’s opinion, the NEPM is not being implemented, or satisfactorily implemented, under a law of the State or Territory;

                            (iii)  a Commonwealth place in a State, where a provision of a law of the State for the implementation of the NEPM that applies in the Commonwealth place under the Commonwealth Places (Application of Laws) Act 1970 is not, and is not to be, applied under Part 2 in relation to the carrying on of the activity;

                            (iv)  a State or Territory or the coastal waters of a State or Territory, where a provision of a law of the State or Territory for the implementation of the NEPM is not, and is not to be, applied under Part 3 in relation to the carrying on of the activity;

                             (v)  an external Territory to which this Act extends or its coastal waters;

                            (vi)  a part of the territorial sea of Australia that is not part of the coastal waters of a State or Territory;

                           (vii)  a part of the exclusive economic zone;

                           (viii)  a part of any area of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and

                     (c)  the NEPM is not, and is not to be, implemented in relation to the carrying on of the activity:

                              (i)  by regulations under Part 4; or

                             (ii)  by another law of the Commonwealth in a way that the Environment Minister is satisfied will achieve appropriate environmental outcomes.

Provisions of Part may be excluded by regulation

             (2)  Division 2 or 3, or a provision of Division 2 or 3, does not apply for the purposes of the implementation of a NEPM in relation to an activity if the activity is excluded, under the regulations, from the application of the Division or provision, as the case may be, for the purposes of the implementation of the NEPM.

Period of exclusion

             (3)  Regulations made for the purposes of subsection (2) may exclude an activity for the purposes of the implementation of a NEPM:

                     (a)  indefinitely or for a particular period; and

                     (b)  either wherever the activity is carried on or in a particular place where the activity is carried on.

Exclusion only if required by matter of national interest

             (4)  Regulations may only be made for the purposes of subsection (2) if the Environment Minister is satisfied that it is desirable to make the regulations because of considerations relating to a matter of national interest.

Notice of application of provisions to be given to relevant Minister

             (5)  If all or any of the provisions of Divisions 2 and 3 apply for the purposes of the implementation of a NEPM in relation to an activity carried on by the Commonwealth or a Commonwealth authority, the Environment Minister must notify the relevant Minister accordingly.

Provisions to apply when notice received by relevant Minister

             (6)  If the relevant Minister is so notified, those provisions (other than any provisions that afterwards cease to apply because of regulations made for the purposes of subsection (2) after the notification) have effect for the purposes of the implementation of the NEPM in relation to the activity.

24   Relevant Minister to arrange for carrying out of environmental audit

             (1)  The relevant Minister must arrange for an environmental audit to be carried out for the purposes of the implementation of the NEPM with respect to the carrying on by the Commonwealth or the Commonwealth authority of the activities.

             (2)  The relevant Minister must ensure that the audit is begun within 90 days after he or she is told by the Environment Minister that this Division applies in relation to the activities for the purposes of the implementation of the NEPM.

25   Environmental auditor not to be officer or employee of the relevant Minister’s Department or to be employed by the relevant Commonwealth authority

                   The person (the environmental auditor ) appointed to carry out the environmental audit must be a person who is not an officer of, or employed in, the Department administered by the relevant Minister or is not employed by the Commonwealth authority, as the case may be.

26   Nature of environmental audit

             (1)  The environmental audit for the purposes of the implementation of the NEPM is to consist of:

                     (a)  an evaluation of the nature of the environment that is or will be affected by the activities; and

                     (b)  an assessment of the risks to the environment resulting from the activities; and

                     (c)  an assessment of the existing capacity of the Commonwealth or the Commonwealth authority to comply with the NEPM in carrying on the activities; and

                     (d)  an assessment of what the Commonwealth or the Commonwealth authority will need to do in order so to comply.

             (2)  In carrying out the environmental audit, the environmental auditor may, if:

                     (a)  an environmental audit relating to the implementation of the NEPM was completed within the preceding 2 years; and

                     (b)  the environmental auditor is satisfied that the previous environmental audit is still relevant;

have regard to the results of the previous audit.

             (3)  If:

                     (a)  the environmental auditor is carrying out the environmental audit; and

                     (b)  in the course of carrying out the audit, the environmental auditor conceals, or fails to take into account, any information or document; and

                     (c)  the information or document is relevant to the audit;

the environmental auditor is guilty of an offence punishable on conviction by imprisonment for not more than 6 months.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.

27   Report by environmental auditor

             (1)  After completing the environmental audit, the environmental auditor must prepare, and give the relevant Minister and the Environment Minister, a written report setting out:

                     (a)  the auditor’s qualifications and experience; and

                     (b)  the results of the audit.

             (2)  If:

                     (a)  the environmental auditor includes a statement in the report; and

                     (b)  the statement is false or misleading in a material particular;

the environmental auditor is guilty of an offence punishable on conviction by imprisonment for not more than 6 months.

Note 1:       Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Note 2:       Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.

28   Report of environmental audit not admissible in legal proceedings against the Commonwealth or the relevant Commonwealth authority

                   A report of an environmental audit, and any information obtained as a direct or indirect result of the making of the report, is not admissible in evidence in any civil or criminal proceedings before a court:

                     (a)  if the audit relates to activities carried on, or to be carried on, by the Commonwealth—against the Commonwealth; or

                     (b)  if the audit relates to activities carried on, or to be carried on, by a Commonwealth authority—against the authority.

29   Environment management plan

             (1)  As soon as practicable after receiving the report of the environmental auditor, the relevant Minister must arrange for the Department or the Commonwealth authority that is carrying on, or proposes to carry on, activities relevant to the NEPM to cause an environment management plan to be prepared with respect to the carrying on of the activities.

             (2)  The Secretary of that Department, or the chief executive officer of that authority, as the case may be, must appoint an officer of that Department, or a person employed by that authority, to be the environment manager for the purposes of the environment management plan.

30   Matters to be dealt with in environment management plan

             (1)  An environment management plan in respect of activities relevant to the NEPM must include the matters set out in subsection (2).

             (2)  The matters referred to in subsection (1) are as follows:

                     (a)  the objectives of the plan;

                     (b)  the activities to which the plan relates;

                     (c)  how the NEPM is to be implemented and a timetable for implementation;

                     (d)  if the NEPM relates to ambient environmental quality, how the activities will be carried on so as to give effect to the NEPM;

                     (e)  appropriate performance indicators at designated intervals;

                      (f)  appropriate provision for the participation of, and for consultation with, the community in the development of the plan;

                     (g)  provision for monitoring and reporting on the implementation of the plan;

                     (h)  provision for any necessary up-grading of the manner in which the activities are, or are to be, carried out, and the equipment used, or to be used, in the carrying out of the activities, for the purpose of meeting the objectives of the plan;

                      (i)  provision for action to be taken in a contingency or emergency.

31   Duties of environment manager

             (1)  The duties of the environment manager in relation to an environment management plan are:

                     (a)  to cause a preliminary plan to be prepared; and

                     (b)  to give copies of the preliminary plan to the relevant Minister and the Environment Minister; and

                     (c)  if either of them gives the environment manager any comments on the preliminary plan within a reasonable period—to take the comments into account in the preparation of the final plan; and

                     (d)  to cause a final plan to be prepared and to give copies of it to the relevant Minister and the Environment Minister; and

                     (e)  to ensure, to the maximum extent practicable, that the plan is not contravened; and

                      (f)  unless the regulations otherwise provide, to cause copies of the plan to be made available for inspection, and for purchase at a reasonable price, by members of the public.

             (2)  Regulations may only be made for the purposes of paragraph (1)(f) if the Environment Minister is satisfied that it is desirable to make the regulations because of considerations relating to a matter of national interest.

             (3)  If:

                     (a)  after a final environment management plan has been prepared, a further NEPM comes into force; or

                     (b)  a period of 3 years has elapsed since a final environment management plan was prepared or last revised;

the following paragraphs have effect:

                     (c)  it is the duty of the environment manager to cause the environment management plan to be further revised;

                     (d)  paragraphs (1)(b) to (f) apply to the plan as so revised in the same way as they applied to the original plan.