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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 74AA

Offence of taking action before decision made in relation to referral etc.

Referral made: taking action while decision making process still going on

             (1)  A person commits an offence if:

                     (a)  the person takes an action; and

                     (b)  either:

                              (i)  a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister by the person under section 68; or

                             (ii)  a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister under section 69 or 71 and the person has been informed of the referral under section 73; and

                     (c)  the referral has not been withdrawn under section 170C; and

                     (d)  the Minister has not decided under subsection 74A(1) not to accept the referral; and

                     (e)  provisions of this Chapter are not stopped by Division 1A from applying in relation to the referral; and

                      (f)  provisions of this Chapter are not stopped by section 155 from applying because of the referral in relation to the action (or a larger action of which the action is a component); and

                     (g)  no decision that the action (or a larger action of which the action is a component) is not a controlled action is in operation under section 75 in relation to the referral; and

                     (h)  no decision is in operation under Part 9 in relation to the referral approving, or not approving, the taking of the action (or a larger action of which the action is a component).

Penalty:  500 penalty units.

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

             (2)  Subsection (1) does not apply to the taking of an action by a person if:

                     (a)  the taking of the action is reasonably necessary in order to comply with a requirement or request made under this Part or Part 8 or 9 in relation to the action (or a larger action of which the action is a component); and

                     (b)  before taking the action, the person gave the Minister written notice of the taking of the action; and

                     (c)  the notice was given in accordance with any applicable requirements of the regulations.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal Code .

Referral requested: taking action before requested referral is made

             (3)  A person commits an offence if:

                     (a)  the person takes an action; and

                     (b)  the Minister, under section 70, has requested the referral by the person of a proposal to take the action (or a larger action of which the action is a component) to the Minister; and

                     (c)  the request has not been revoked; and

                     (d)  the referral has not been made.

Penalty:  500 penalty units.

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



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