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Schedule 1—Environment Protection and Biodiversity Conservation Act 1999

Schedule 1 Environment Protection and Biodiversity Conservation Act 1999

Part 1 Amendments

Environment Protection and Biodiversity Conservation Act 1999

1  Paragraph 131AA(2)(c)

Omit “subsection 136(4)”, substitute “subsection 136(1A)”.

2  Subsection 136(1)

Repeal the subsection, substitute:

Mandatory considerations

             (1)  In deciding whether or not to approve the taking of an action by a person, and what conditions to attach to an approval, the Minister must consider the following, so far as they are not inconsistent with any other requirement of this Subdivision:

                     (a)  whether the person is a suitable person to be granted an approval;

                     (b)  matters relevant to any matter protected by a provision of Part 3 that the Minister has decided is a controlling provision for the action;

                     (c)  economic and social matters.

Factors the Minister must have regard to—suitable person

          (1A)  For the purposes of paragraph (1)(a), the Minister must have regard to the following, whether within or outside Australia:

                     (a)  the person’s history in relation to environmental matters;

                     (b)  if the person is a body corporate—the history of its executive officers in relation to environmental matters;

                     (c)  if the person is a body corporate that has an associated entity—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                     (d)  any other matter the Minister considers to be relevant.

3  Subsection 136(2) (heading)

Repeal the heading, substitute:

Factors to be taken into account—protected, economic and social matters

4  Subsection 136(2)

Omit “In considering”, substitute “For the purposes of paragraphs (1)(b) and (c), in considering”.

5  Subsection 136(4)

Repeal the subsection.

6  Subsection 143(3)

Repeal the subsection, substitute:

             (3)  In deciding whether or not to revoke, vary or add to any conditions attached to the approval of the taking of an action by a person, the Minister must have regard to the following, whether within or outside Australia:

                     (a)  the person’s history in relation to environmental matters;

                     (b)  if the person is a body corporate—the history of its executive officers in relation to environmental matters;

                     (c)  if the person is a body corporate that has an associated entity—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                     (d)  any other matter the Minister considers to be relevant.

7  Subsection 144(3)

Repeal the subsection, substitute:

             (3)  In deciding whether or not to suspend an approval of the taking of an action by a person, the Minister must have regard to the following, whether within or outside Australia:

                     (a)  the person’s history in relation to environmental matters;

                     (b)  if the person is a body corporate—the history of its executive officers in relation to environmental matters;

                     (c)  if the person is a body corporate that has an associated entity—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                     (d)  any other matter the Minister considers to be relevant.

8  Subsection 145(3)

Repeal the subsection, substitute:

             (3)  In deciding whether or not to revoke an approval of the taking of an action by a person, the Minister must have regard to the following, whether within or outside Australia:

                     (a)  the person’s history in relation to environmental matters;

                     (b)  if the person is a body corporate—the history of its executive officers in relation to environmental matters;

                     (c)  if the person is a body corporate that has an associated entity—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                     (d)  any other matter the Minister considers to be relevant.

9  Subsection 145B(4)

Repeal the subsection, substitute:

Considerations in deciding whether to consent

             (4)  In deciding whether or not to consent to the transfer, the Minister must consider:

                     (a)  whether the transferee would be a suitable person to be granted the approval, having regard to the following, whether within or outside Australia:

                              (i)  the transferee’s history in relation to environmental matters;

                             (ii)  if the transferee is a body corporate—the history of its executive officers in relation to environmental matters;

                            (iii)  if the transferee is a body corporate that has an associated entity—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                            (iv)  any other matter the Minister considers to be relevant; and

                     (b)  whether the transferee can comply with the conditions attached to the approval.

10  Section 528

Insert:

associated entity has the same meaning as in the Corporations Act 2001 .

Part 2 Application and transitional provisions

11  Application

(1)       This item applies in relation to the following decisions under Part 9 of the Environment Protection and Biodiversity Conservation Act 1999 :

                     (a)  to approve or refuse to approve the taking of an action;

                     (b)  to revoke, vary or add a condition attached to an approval;

                     (c)  to suspend an approval;

                     (d)  to revoke an approval;

                     (e)  to consent or refuse to consent to the transfer of an approval.

(2)       The amendments made by this Schedule apply in relation to a decision that is made on or after the day this item commences.

12  Review of existing approvals

(1)       The Secretary must review whether each holder of an approval under the Environment Protection and Biodiversity Conservation Act 1999 relating to the following referral numbers is a suitable person to hold the approval:

                     (a)  referral number 2010/5736 (Adani Mining Pty Ltd/Mining/Moray Downs Cattle Station 160km North West of Clermont/QLD/Carmichael Coal Mine and Rail Project);

                     (b)  referral number 2011/6194 (Adani Abbot Point Terminal Pty Ltd/Mining/Port of Abbot Point/QLD/Abbot Point Coal Terminal 0);

                     (c)  referral number 2013/6885 (Adani Mining Pty Ltd/Transport - land/Carmichael Mine & Rail Project’s rail to Port of Abbot Point/QLD/North Galilee Basin Rail Project).

Note:       In 2017, information relating to referrals was available from the EPBC Act public notices database on the Department’s website (http://www.environment.gov.au/epbc/public-notices).

 (2)      For the purposes of a review under subitem (1), the Secretary must have regard to the following, whether within or outside Australia:

                     (a)  the holder’s history in relation to environmental matters;

                     (b)  if the holder is a body corporate—the history of its executive officers in relation to environmental matters;

                     (c)  if the holder is a body corporate that has an associated entity (within the meaning of the Corporations Act 2001 )—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                     (d)  any other matter the Secretary considers to be relevant.

(3)       Each review under subitem (1):

                     (a)  must start on or before 20 business days after the commencement of this item; and

                     (b)  must be concluded within 40 business days after the commencement of this item.

(4)       The Secretary must:

                     (a)  give the Minister a writt en report of each review; and

                     (b)  publish a copy of each report on the Department’s website as soon as practicable after the day the Minister is given the report.

(5)       The Minister must cause a copy of each report to be tabled in each House of the Parliament within 15 sitting days of that House after the day the Minister is given the report.

(6)       As soon as practicable, but no later than 10 business days, after receiving each report, the Minister must:

                     (a)  consider the report; and

                     (b)  consider or reconsider, as the case may be, whether the holder is a suitable person to hold the approval, having regard to the following, whether within or outside Australia:

                              (i)  the holder’s history in relation to environmental matters;

                             (ii)  if the holder is a body corporate—the history of its executive officers in relation to environmental matters;

                            (iii)  if the holder is a body corporate that has an associated entity (within the meaning of the Corporations Act 2001 )—the history in relation to environmental matters of the associated entity and the entity’s executive officers;

                            (iv)  any other matter the Minister considers relevant.

 (7)      If the Minister considers that the holder is not a suitable person to hold the approval, the Minister:

                     (a)  must notify the holder; and

                     (b)  may, by written instrument, do any of the following:

                              (i)  revoke, vary or add to any conditions attached to the approval;

                             (ii)  suspend the effect of the approval;

                            (iii)  revoke the approval.

(8)       The revocation, variation, addition or suspension takes effect on the day specified in the instrument. The Minister must not specify a day earlier than the day the instrument is made.

(9)       As soon as practicable after making the instrument, the Minister must:

                     (a)  give a copy of it to the holder of the approval; and

                     (b)  publish a copy of the instrument on the Department’s website.

(10)     However, the Minister must not publish so much of the instrument 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 the national interest not to publish.

The Minister may consider the defence or security of the Commonwealth when determining what is in the national interest. This does not limit the matters the Minister may consider.