Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Act 2014

No. 75, 2014

An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes

Contents

1 Short title 1

2 Commencement 2

3 Schedule(s) 2

Schedule 1—Cost recovery 3

Environment Protection and Biodiversity Conservation Act 1999 3

Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Act 2014

No. 75, 2014

An Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes

[Assented to 30 June 2014]

The Parliament of Australia enacts:
1 Short title

This Act may be cited as the Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Act 2014.
2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information Commencement information Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 30 June 2014
2. Schedule 1 The later of: (a) 1 July 2014; and (b) the day this Act receives the Royal Assent. 1 July 2014 (paragraph (a) applies)

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Cost recovery

Environment Protection and Biodiversity Conservation Act 1999

 1 After subsection 91(1)

Insert:

Note: An action management plan is approved after a decision is made approving the taking of the action.

 1A

In the written notice of the decision, the Minister must also advise the person proposing to take the action that the person may elect under section 132B to submit an action management plan for approval.

 2 After subsection 95B(1)

Insert:

 1A

The designated proponent is taken not to have given the Minister the documents referred to in paragraph (1)(b) if the required fee has not been paid.

 3 After subsection 95B(3)

Insert:

 3A

The designated proponent is taken not to have given the Minister the statement referred to in subsection (3) if the required fee has not been paid.

 4 After subsections 99(3) and 104(3)

Insert:

 3A

The designated proponent is taken not to have given the Minister the documents required under subsection (3) if the required fee has not been paid.

 5 After section 132A

Insert:

 132B Election to have an action management plan approved after approval of the taking of an action granted 1

A person proposing to take an action may, at any time before an approval of the taking of the action is granted under section 133, elect to submit an action management plan for approval.

 2

An election must:

 a

be in writing; and

 b

be given to the Minister before the Minister grants an approval under section 133.

 3

(3) If, after making an election, the person (the first person) notifies the Minister under section 156F that another person (the second person) proposes to take the action instead, the second person may revoke the election made by the first person under this section.

 4

An election cannot be revoked once the Minister has granted an approval under section 133.

 6 Paragraph 134(3)(e)

Repeal the paragraph, substitute:

 e

if an election has been made, or is taken to have been made, under section 132B in respect of the approval—conditions requiring:

 i

an action management plan to be submitted to the Minister for approval, accompanied by the fee (if any) prescribed by the regulations; and

 ii

implementation of the plan so approved; and

 7 At the end of subsection 134(3)

Add:

Note: Paragraph (e)—an election is taken to have been made if an approval is varied to add a condition requiring an action management plan, see subsection 143(1A).

 8 After subsection 134(3C)

Insert:

Conditions attached under paragraph (3)(e)

 3D

When making a decision whether to approve an action management plan, if the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision, the Minister may request the holder of the approval to provide specified information relevant to making the decision.

 9 After section 134

Insert:

 134A Inviting public comment before approving action management plan 1

Before approving an action management plan, the Minister may publish:

 a

the plan; and

 b

an invitation for anyone to give the Minister, within 11 business days, written comments on the plan.

 2

The regulations may provide for requirements relating to the way the Minister must publish the plan and invitation to comment.

 10 After subsection 143(1)

Insert:

 1A

If, under paragraph (1)(c), the holder of an approval agrees to conditions mentioned in paragraph 134(3)(e) (about an action management plan) being added and attached to the approval, the holder is taken to have made an election under section 132B before the approval was granted.

 1B

The holder of an approval may request the Minister, in writing, to vary a condition attached to an approval of an action.

 11 After section 143

Insert:

 143A Variation of action management plan

Written application required

Minister may approve a variation of action management plan

 1

If an action management plan is a condition of an approval of an action, the holder of the approval may, at any time, apply to the Minister for a variation of the action management plan.

 2

An application for a variation must be:

 a

in writing; and

 b

accompanied by:

 i

any information or documents required by the regulations; and

 ii

the application fee (if any) prescribed by the regulations.

 3

The Minister may approve a variation to an action management plan if requested to do so.

 4

When making a decision whether to vary an action management plan, if the Minister believes on reasonable grounds that the application does not include enough information, the Minister may request the applicant to provide specified information relevant to making the decision.

 5

If the holder of an approval applies for a variation of an action management plan, the Minister must notify the person, in writing, of the Minister’s decision.

 12 Subsection 156F(3)

Repeal the subsection, substitute:

Requirements for notice

 3

A notice must:

 a

include the information (if any) prescribed by the regulations; and

 b

be accompanied by the fee (if any) prescribed by the regulations.

 13 At the end of Part 11 of Chapter 4

Add:

 170CA Fees 1

The Minister may, in writing, determine the amounts of fees that may be charged if the approach for assessing the relevant impacts of an action that the Minister has decided is a controlled action is:

 a

assessment by inquiry under Division 7 of Part 8; or

 b

assessment by strategic assessment under Division 1 of Part 10.

 2

Before making a determination, the Minister must consult:

 a

the person proposing to take the action; or

 b

if the person proposing to take the action is not the designated proponent—the designated proponent; or

 c

if the approach is assessment by strategic assessment—the person responsible for the adoption or implementation of the relevant policy, plan or program;

about the amounts of fees to be charged.

 3

The Minister may, in the determination made under subsection (1), determine the way in which a fee is to be worked out.

 4

A determination made under subsection (1) is not a legislative instrument.

 14 Subparagraph 496(1)(b)(iii)

Omit “environmental management plan”, substitute “action management plan”.

 15 After Part 19

Insert:

 514Y Applications for reconsideration of fee 1

This section applies if a fee is worked out by a person to whom a function or power is delegated under section 515.

 2

If:

 a

a method prescribed by the regulations under subsection 520(4C) has been used to work out a fee; and

 b

the person required to pay the fee is dissatisfied with the way the method was used to work out the fee;

the person may apply to the Secretary for the Secretary to reconsider the way the method was used to work out the fee.

 3

The application must:

 a

be in a form prescribed by the regulations; and

 b

set out the reasons for the application.

 4

The application must be made within 30 business days after the applicant is informed of the fee.

 5

A person may apply only once in relation to a fee.

 514YA Reconsideration of fee 1

Upon receiving an application for reconsideration of a fee, the Secretary must:

 a

reconsider the way the method was used to work out the fee; and

 b

either:

 i

confirm the fee; or

 ii

work out a new fee by using the method again.

 2

The person who undertakes the reconsideration must be:

 a

the Secretary; or

 b

an employee in the Department who:

 i

was not involved in working out the fee; and

 ii

occupies a position that is senior to that occupied by any person involved in working out the fee.

 3

The Secretary must give to the applicant a written notice that:

 a

states the outcome of the reconsideration; and

 b

gives reasons for that outcome.

 514YB Deadline for reconsideration

The Secretary must undertake a reconsideration of a fee within 30 business days after receiving an application for reconsideration.

 16 After subsection 520(4)

Insert:

 4A

The regulations may prescribe fees that are payable for services the Minister or Secretary provides in performing functions, or exercising powers, under this Act or the regulations.

 4B

A fee prescribed by the regulations is payable to the Commonwealth.

 4C

Regulations prescribing fees may also:

 a

prescribe fees in respect of:

 i

a particular class of decision; or

 ii

a particular class of action; or

 iii

a particular class of person; and

 b

prescribe 2 or more fees for the same matter; and

 c

prescribe a method for working out a fee; and

 d

prescribe a method for working out the refund of part of a fee; and

 e

(e) deal with other matters, including the following:

 i

specifying the way in which, and times at which, a fee is to be paid;

 ii

specifying the fees that must be paid, and by whom, in the event of a transfer under section 145B or a change of person proposing to take an action under section 156F;

 iii

the consequences of failure to pay a specified fee;

 iv

the circumstances in which the Minister may waive a fee;

 v

the circumstances in which a person is exempt from paying a specified fee;

 vi

the circumstances in which a fee may be refunded, in whole or in part.

 17 Subsection 520(5)

Omit “Subsection (3) does”, substitute “Subsections (3), (4A) and (4C) do”.

 18 After section 521

Insert:

 521A Time does not run if all or part of fee remains unpaid 1

If:

 a

one or more fees are payable in respect of a service the Minister or Secretary provides in performing functions, or exercising powers, under this Act or the regulations; and

 b

a provision of this Act or the regulations:

 i

requires or allows the Minister or Secretary to do a thing relating to the service; or

 ii

requires or allows the Minister or Secretary to do a thing relating to the service within a particular period; and

 c

all of part of a fee relating to the service remains unpaid;

then:

 d

if subparagraph (b)(i) applies—the Minister or Secretary need not do the thing until all of the required fee is paid; and

 e

if subparagraph (b)(ii) applies and the period has not begun—the period does not begin until all of the required fee is paid; and

 f

if subparagraph (b)(ii) applies and the period has begun—the period stops until all of the required fee is paid and, when paid, begins again for the balance of the period.

 2

For the purposes of paragraphs (1)(e) and (f), the day that all of the required fee is paid is not to be counted in the relevant period.

 19 Section 528

Insert:

action management plan, in relation to an action, means a plan for managing the impacts of the action on a matter protected by a provision of Part 3, such as a plan for conserving habitat of a species.

 20 Application

Fees

Action management plans

[Minister’s second reading speech made in—

House of Representatives on 14 May 2014

Senate on 16 June 2014]

(84/14)

 1

The amendments made by items 2 to 5, 12, 13 and 15 to 19 of this Schedule apply in relation to a referral of a proposal to take an action that is received by the Minister on or after 14 May 2014 in respect of which a service is provided on or after the day this item commences.

 2

The amendments made by items 1 and 19 of this Schedule apply in relation to a decision on the approach to be used for assessment of the relevant impacts of an action that is made on or after the day this item commences.

 3

The amendments made by items 6 to 11, 14 and 19 of this Schedule apply in relation to an approval, whether granted before, on or after the day this item commences.