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ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 - SECT 75

Does the proposed action need approval?

Is the action a controlled action?

             (1)  The Minister must decide:

                     (a)  whether the action that is the subject of a proposal referred to the Minister is a controlled action; and

                     (b)  which provisions of Part 3 (if any) are controlling provisions for the action.

Note:          The Minister may revoke a decision made under subsection (1) about an action and substitute a new decision. See section 78.

       (1AA)  To avoid doubt, the Minister is not permitted to make a decision under subsection (1) in relation to an action that was the subject of a referral that was not accepted under subsection 74A(1).

Minister must consider public comment

          (1A)  In making a decision under subsection (1) about the action, the Minister must consider the comments (if any) received:

                     (a)  in response to the invitation under subsection 74(3) for anyone to give the Minister comments on whether the action is a controlled action; and

                     (b)  within the period specified in the invitation.

Considerations in decision

             (2)  If, when the Minister makes a decision under subsection (1), it is relevant for the Minister to consider the impacts of an action:

                     (a)  the Minister must consider all adverse impacts (if any) the action:

                              (i)  has or will have; or

                             (ii)  is likely to have;

                            on the matter protected by each provision of Part 3; and

                     (b)  must not consider any beneficial impacts the action:

                              (i)  has or will have; or

                             (ii)  is likely to have;

                            on the matter protected by each provision of Part 3.

Note:          Impact is defined in section 527E.

          (2A)  For the purposes of subsection (2), if the provision of Part 3 is subsection 15B(3), 15C(5), 15C(6), 23(1), 24A(1), 24D(3), 24E(3), 26(1) or 27A(1), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in or on a Commonwealth area, a Territory, a Commonwealth marine area or Commonwealth land:

                     (a)  has or will have; or

                     (b)  is likely to have;

on the matter.

       (2AA)  For the purposes of subsection (2), if the provision of Part 3 is subsection 24B(1) or 24C(1) or (3), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park:

                     (a)  has or will have; or

                     (b)  is likely to have;

on the matter.

          (2B)  Without otherwise limiting any adverse impacts that the Minister must consider under paragraph (2)(a), the Minister must not consider any adverse impacts of:

                     (a)  any RFA forestry operation to which, under Division 4 of Part 4, Part 3 does not apply; or

                     (b)  any forestry operations in an RFA region that may, under Division 4 of Part 4, be undertaken without approval under Part 9.

Designating a proponent of the action

             (3)  If the Minister decides that the action is a controlled action, the Minister must designate a person as proponent of the action.

Consent to designation

             (4)  The Minister may designate a person who does not propose to take the action only if:

                     (a)  the person agrees to being designated; and

                     (b)  the person proposing to take the action agrees to the designation.

Timing of decision and designation

             (5)  The Minister must make the decisions under subsection (1) and, if applicable, the designation under subsection (3), within 20 business days after the Minister receives the referral of the proposal to take the action.

Note:          If the Minister decides, under subsection 75(1), that the action is a controlled action, the Minister must, unless the Minister has requested more information under subsection 76(3) or section 89, decide on the approach to be used for assessment of the relevant impacts of the action on the same day as the Minister makes the decision under subsection 75(1)--see subsection 88(2).

Time does not run while further information being sought

             (6)  If the Minister has requested more information under subsection 76(1) or (2) for the purposes of making a decision, a day is not to be counted as a business day for the purposes of subsection (5) if it is:

                     (a)  on or after the day the Minister requested the information; and

                     (b)  on or before the day on which the Minister receives the last of the information requested.

Running of time may be suspended by agreement

             (7)  The Minister and the person proposing to take the action may agree in writing that days within a period worked out in accordance with the agreement are not to be counted as business days for the purposes of subsection (5). If the agreement is made, those days are not to be counted for the purposes of that subsection.



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