Compilation #0 | Effective 2026-04-08
FRBR Work URI: /akn/au/act/2026/42
This Act is the High Seas Biodiversity Act 2026.
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.
Note: This table relates only to the provisions of this Act as originally enacted.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.
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.
The object of this Act is to give effect to Australia’s obligations under the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction.
Note: In this Act, the Agreement mentioned in this section is referred to as the BBNJ Agreement (see the definition of that term in section 5).
This Act establishes a framework for giving effect to some of Australia’s obligations under the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (called the BBNJ Agreement).
The objective of the BBNJ Agreement is to ensure the conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction. An area beyond national jurisdiction is an area that is outside the outer limits of the exclusive economic zone and continental shelf of all countries, including Australia.
Part 2 deals with marine genetic resources collected in areas beyond national jurisdiction, and digital sequence information of such marine genetic resources. Broadly, a marine genetic resource is a thing of marine plant, animal, microbial or other origin that contains genetic material.
An Australian entity that collects marine genetic resources in an area beyond national jurisdiction, or carries out research and development on such marine genetic resources or digital sequence information of such marine genetic resources, must comply with notification and information sharing requirements.
If the entity carries out research and development on the marine genetic resources or the digital sequence information, the entity must also comply with requirements for depositing the resources or information into a publicly accessible repository or database. An owner of such a repository or database must comply with reporting and record keeping requirements.
Part 3 sets out the process for giving effect to a decision under the BBNJ Agreement to establish an area-based management tool. Broadly, an area-based management tool contains measures, such as the establishment of a marine protected area, for managing a specific area beyond national jurisdiction.
Depending on whether Australia objects to the decision, the Minister must either:
determine a plan for managing the area that is consistent with the area-based management tool; or
determine alternative measures for managing the area that are equivalent in effect to the area-based management tool.
Part 4 deals with the assessment and authorisation of certain activities carried out by an Australian entity in areas beyond national jurisdiction, or by any person in Australian jurisdiction.
Generally, a person carrying out or proposing to carry out an activity must refer the activity to the Minister if certain requirements are met in relation to the actual or potential impacts of the activity on the marine environment in an area beyond national jurisdiction.
On receiving the referral, the Minister must decide whether the Minister reasonably believes that an actual or potential result of the activity is substantial pollution of, or significant and harmful changes to, the marine environment in an area beyond national jurisdiction. Such an activity cannot be carried out without the Minister’s authorisation.
Before the Minister decides whether to give the authorisation, the person must conduct an environmental impact assessment of the activity. Once the environmental impact assessment is complete, the Minister must decide whether to give the authorisation, and what conditions to attach to the authorisation.
Part 5 provides for the establishment of the High Seas Biodiversity Register.
Part 6 provides for matters relating to compliance and enforcement.
Part 7 provides for the use and disclosure of certain information.
Part 8 contains miscellaneous provisions, including a requirement for 10-yearly reviews of the operation of this Act.
In this Act:
activity includes:
a project; and
a development; and
an undertaking; and
an alteration of any of the things mentioned in paragraph (a), (b) or (c).
activity area means the area in which the activity is, or is proposed to be, carried out.
alternative measure, for an area beyond national jurisdiction, means a measure to manage the area determined in an instrument under section 59.
Antarctica has the same meaning as in the Antarctic Treaty Act 1960.
area-based management tool has the same meaning as in the BBNJ Agreement.
area beyond national jurisdiction means:
an area of water that is outside the outer limits of the exclusive economic zone of all countries, including Australia; or
an area of seabed or subsoil that is outside the outer limits of the continental shelf of all countries, including Australia.
auditor has the meaning given by section 124.
Australia, when used in a geographical sense, includes the external Territories.
Australian aircraft means:
an aircraft that is owned, possessed or controlled by:
the Commonwealth, a State or a Territory; or
an authority of the Commonwealth, a State or a Territory; or
an aircraft that is registered, or required to be registered, in Australia.
Australian entity means:
an Australian citizen; or
an individual who is ordinarily resident in Australia; or
a body (whether incorporated or not) established for a public purpose by or under an Australian law; or
a body corporate incorporated by or under an Australian law; or
a person in command or control of an Australian aircraft or Australian vessel.
Australian jurisdiction means:
the land, waters, seabed, subsoil and airspace in, under or above Australia; or
the land, waters, seabed and subsoil in or under the exclusive economic zone of Australia; or
the seabed and subsoil of the continental shelf of Australia.
Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory, as the case requires (see Acts Interpretation Act 1901).section 15B of the
Australian law means a law of the Commonwealth, a State or a Territory.
Australian vessel means:
a vessel that is owned, possessed or controlled by:
the Commonwealth, a State or a Territory; or
an authority of the Commonwealth, a State or a Territory; or
a vessel that is registered, or required to be registered, in Australia; or
a vessel that is flying the Australian flag.
BBNJ Agreement means the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, done at New York on 20 September 2023, as in force for Australia from time to time.
BBNJ identifier, for a collection activity, means the identifier generated in respect of the activity in accordance with Article 12(3) of the BBNJ Agreement.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Clearing-House Mechanism means the mechanism established under Article 51 of the BBNJ Agreement.
collection activity means an activity constituting the collection of one or more marine genetic resources in an area beyond national jurisdiction.
collection notification certificate, for a collection activity, has the meanings given by subsections 26(2) and 28(2).
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
controlled activity has the meaning given by subsection 71(4).
controlled activity authorisation, for a controlled activity, has the meaning given by paragraph 81(4)(a).
Convention area has the same meaning as in the Antarctic Marine Living Resources Conservation Act 1981.
cumulative impacts has the same meaning as in the BBNJ Agreement.
customs officer means an officer of Customs within the meaning of the Customs Act 1901.
data management plan, for a collection activity, has the meaning given by paragraph 21(2)(l).
digital sequence information of a marine genetic resource:
Note: The BBNJ Agreement could in 2026 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Note: This is a reference to the area to which the Convention on the Conservation of Antarctic Marine Living Resources, done at Canberra on 20 May 1980, applies. The Convention is in Australian Treaty Series 1982 No. 9 ([1982] ATS 9) and could in 2026 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
has the meaning given by the rules; or
if the rules do not give the term a meaning—has its ordinary meaning as understood under the BBNJ Agreement.
domestic activity means an activity carried out, or proposed to be carried out, in Australian jurisdiction.
draft environmental impact assessment report, for a controlled activity, has the meaning given by subsection 77(2).
entrusted person means any of the following: the Minister; the Secretary; an APS employee in the Department; any other person employed in, or engaged by, the Department; any other person prescribed by the rules. exempt activity has the meanings given by subsection 69(1) and (3). final environmental impact assessment report, for a controlled activity, has the meaning given by subsection 80(3).
the Minister;
the Secretary;
an APS employee in the Department;
any other person employed in, or engaged by, the Department;
any other person prescribed by the rules.
exempt activity has the meanings given by subsection 69(1) and (3).
final environmental impact assessment report, for a controlled activity, has the meaning given by subsection 80(3).
foreign country means any country that is outside Australia, whether or not it is an independent sovereign state.
foreign entity means a person other than an Australian entity.
holder means:
in relation to a collection notification certificate or a utilisation notification certificate—the person to whom the certificate is issued; or
in relation to a controlled activity authorisation for a controlled activity:
the proponent of the activity; or
if the authorisation is varied to specify another person as the holder—that other person.
impact includes:
environmental impact; and
economic impact; and
social impact; and
cultural impact; and
impact on human health.
inspector means a person appointed under section 111 as an inspector for the purposes of this Act.
international activity means an activity carried out, or proposed to be carried out, in an area beyond national jurisdiction.
management measure means a measure referred to in Article 22 of the BBNJ Agreement.
marine genetic resource means a thing of, or a thing that is material of, marine plant, animal, microbial or other origin containing functional units of heredity of actual or potential value.
marine protected area has the same meaning as in the BBNJ Agreement.
non-controlled activity has the meaning given by subsection 71(5).
notifying entity:
for a collection activity—has the meanings given by subsections 18(1) and (2); and
for a utilisation activity—has the meaning given by subsection 18(3).
post-collection matters, for a marine genetic resource, has the meaning given by subsection 25(2).
post-collection notice, for a collection activity, has the meanings given by subsections 23(1) and 24(1).
pre-collection matters, for a collection activity, has the meaning given by subsection 21(2).
pre-collection notice, for a collection activity, has the meaning given by subsection 20(1).
premises includes the following: a structure, building, vehicle, vessel or aircraft; a place (whether or not enclosed or built on); a part of a thing mentioned in paragraph (a) or (b).
a structure, building, vehicle, vessel or aircraft;
a place (whether or not enclosed or built on);
a part of a thing mentioned in paragraph (a) or (b).
proponent of an activity means the person who referred the activity to the Minister under section 66.
protected information means information of any of the following kinds obtained by an entrusted person: information the disclosure of which by the entrusted person could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence; information the disclosure of which could reasonably be expected to prejudice the effective working of government; information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences; information the disclosure of which could reasonably be expected to endanger a person’s life or physical safety; information the disclosure of which could reasonably be expected to prejudice the protection of public safety or the environment; information the disclosure of which could reasonably be expected to prejudice the security, defence or international relations of Australia.
information the disclosure of which by the entrusted person could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence;
information the disclosure of which could reasonably be expected to prejudice the effective working of government;
information the disclosure of which could reasonably be expected to prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences;
information the disclosure of which could reasonably be expected to endanger a person’s life or physical safety;
information the disclosure of which could reasonably be expected to prejudice the protection of public safety or the environment;
information the disclosure of which could reasonably be expected to prejudice the security, defence or international relations of Australia.
Register means the High Seas Biodiversity Register established under section 108.
regulated database has the meaning given by subsection 19(1).
regulated fishing activity has the meaning given by subsection 15(1).
regulated repository has the meaning given by subsection 19(2).
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant information means information obtained or generated by a person in: performing functions or duties, or exercising powers, under this Act or the rules, or the Regulatory Powers Act as it applies in relation to this Act or the rules; or assisting another person to perform functions or duties, or exercise powers, under this Act or the rules, or the Regulatory Powers Act as it applies in relation to this Act or the rules. relevant person, for an audit, has the meaning given by section 125.
performing functions or duties, or exercising powers, under this Act or the rules, or the Regulatory Powers Act as it applies in relation to this Act or the rules; or
assisting another person to perform functions or duties, or exercise powers, under this Act or the rules, or the Regulatory Powers Act as it applies in relation to this Act or the rules.
relevant person, for an audit, has the meaning given by section 125.
rules means the rules made under section 156.
Scientific and Technical Body means the body established under Article 49 of the BBNJ Agreement.
screening report, in relation to a referral of an activity, has the meaning given by paragraph 66(4)(c).
Secretary means the Secretary of the Department.
specially managed area means an area declared under paragraph 55(1)(a) to be a specially managed area.
special management plan, for a specially managed area, means a plan to manage the area determined under paragraph 55(1)(b).
State or Territory government body means:
a Department of a State or Territory; or
an agency of a State or Territory; or
an authority of a State or Territory.
utilisation activity has the meanings given by subsections 17(1) and (3).
utilisation matters, for a utilisation activity, has the meaning given by subsection 35(2).
utilisation notice, for a utilisation activity, has the meaning given by subsection 34(1).
utilisation notification certificate, for a utilisation activity, has the meaning given by subsection 36(2).
utilise has the meaning given by section 16.
utilised marine genetic resources, in relation to a utilisation activity, has the meaning given by subsection 17(2).
Note: Other parts of speech and grammatical forms of “utilise” (for example, “utilisation”) have a corresponding meaning (see Acts Interpretation Act 1901).section 18A of the
The Minister must take a precautionary approach to the performance of functions and the exercise of powers under this Act and the rules, to the extent the Minister can do so consistently with the other provisions of this Act and the rules.
(2) A precautionary approach means an approach that recognises that the lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
This Act and the rules, and the Regulatory Powers Act as it applies in relation to this Act and the rules, extend to the external Territories.
Application generally in and outside Australian jurisdiction
Subject to this section, this Act and the rules, and the Regulatory Powers Act as it applies in relation to this Act and the rules, extend to acts, omissions, matters and things outside Australian jurisdiction.
Note: For the meaning of Australian jurisdiction, see section 5.
Application to all persons etc. in Australian jurisdiction
Subject to subsection (4), to the extent that a provision of this Act or the rules, or a provision of the Regulatory Powers Act as it applies in relation to this Act or the rules, has effect in relation to Australian jurisdiction, that provision applies in relation to:
all persons (including persons who are not Australian entities); and
all aircraft (including aircraft that are not Australian aircraft); and
all vessels (including vessels that are not Australian vessels); and
all premises (including premises owned or occupied by persons who are not Australian entities).
Application outside Australian jurisdiction limited to Australian entities etc.
Subject to subsections (4) and (5), to the extent that a provision of this Act or the rules, or a provision of the Regulatory Powers Act as it applies in relation to this Act or the rules, has effect in relation to anywhere outside Australian jurisdiction, that provision applies only in relation to:
the Commonwealth; and
authorities of the Commonwealth; and
Australian entities; and
Australian aircraft; and
Australian vessels; and
members of crews of Australian aircraft and Australian vessels (including persons in charge of those aircraft or vessels).
This Act and the Regulatory Powers Act have effect subject to international law obligations
This Act and the rules, and the Regulatory Powers Act as it applies in relation to this Act and the rules, have effect subject to:
Australia’s obligations under international law, including obligations under any international agreement binding on Australia; and
any law of the Commonwealth giving effect to such an agreement.
The exercise in a foreign country of a power under this Act or the rules, or the Regulatory Powers Act as it applies in relation to this Act or the rules, is subject to the consent of the foreign country, if such consent is required under international law (including requirements under any international agreement binding on Australia).
This Act binds the Crown in each of its capacities.
This Act does not make the Crown liable to be prosecuted for an offence.
This Act (other than Part 7 and paragraph 146(1)(e)) relies on the Commonwealth’s legislative powers under paragraph 51(xxix) (external affairs) of the Constitution as it relates to giving effect to Australia’s obligations under the BBNJ Agreement.
Note: The provisions of Part 7 are about information sharing, and paragraph 146(1)(e) is about funding arrangements and grants for certain purposes. These provisions rely on a range of legislative powers of the Commonwealth.
In addition to section 10, this Act also has effect as provided by this section.
This Act has the effect it would have if its operation were expressly confined to acts, omissions, matters or things taking place outside Australia.
This Act has the effect it would have if its operation were expressly confined to acts, omissions, matters or things with respect to the executive power of the Commonwealth (including with respect to matters incidental to the execution of the executive power of the Commonwealth).
If:
apart from this section, the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph); and
the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay a reasonable amount of compensation to the person.
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia or the Supreme Court of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
Subdivision A—Preliminary
Under Part II of the BBNJ Agreement, Australia has notification and information sharing obligations relating to:
the collection of marine genetic resources in areas beyond national jurisdiction; and
the use of marine genetic resources collected in areas beyond national jurisdiction, or digital sequence information of such marine genetic resources, to carry out research and development on the genetic or biochemical composition of the marine genetic resources (called utilisation).
The purpose of this Part is to enable the Minister to obtain the information needed to meet these obligations.
An Australian entity that carries out an activity constituting the collection of marine genetic resources in an area beyond national jurisdiction must, before and after the activity, give the Minister certain information relating to the activity.
An Australian entity who carries out an activity constituting the utilisation of marine genetic resources collected in an area beyond national jurisdiction, or digital sequence information of such marine genetic resources, must:
give the Minister certain information relating to each result of the utilisation that becomes publicly available; and
in some cases, give the Minister certain information relating to the activity during which the marine genetic resources were collected; and
deposit the utilised marine genetic resources or digital sequence information into a repository or database prescribed by the rules.
An owner of such a database or repository is required to report on, and keep records of, marine genetic resources and digital sequence information held in the database or repository.
A person who fails to comply with a requirement under this Part may be subject to civil or criminal penalties.
This Part does not apply in relation to:
Defence Force activities; or
an area in Antarctica, or the area to which the Convention on the Conservation of Antarctic Marine Living Resources applies; or
certain kinds of fishing activities.
Subject to subsections (2) and (3), this Part applies in relation to an activity that starts to be carried out on or after the commencement of this Act.
(2) This Part does not apply in relation to an operation, exercise or other activity conducted by or on behalf of the Defence Force (within the meaning of the Defence Act 1903).
This Part does not apply in relation to an area beyond national jurisdiction if the area is in:
Antarctica; or
the Convention area.
Subdivision B—Key concepts relating to this Part
(1) An activity is a regulated fishing activity if:
the activity is a fishing activity; and
an international agreement relating to fishing imposes obligations or confers rights in relation to the activity.
(2) For the purposes of paragraph (1)(a), fishing activity means:
an activity that constitutes fishing; or
an activity carried out solely in support of, or in preparation for, fishing; or
any other activity prescribed by the rules to be a fishing activity.
Interpretation
In this section:
fish includes all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms.
fishing means:
searching for, or taking, fish; or
attempting to search for, or take, fish; or
engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish; or
placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons; or
aircraft use relating to any activity described in this definition (except flights in emergencies involving the health or safety of crew members or the safety of a launch, vessel or floating craft of any description); or
the processing, carrying or transhipping of fish that have been taken.
(4) For the purposes of paragraph (d) of the definition of fishing in subsection (3), fish aggregating device means:
a man-made structure that, when in, or brought into, physical contact with the seabed or when floating, is used solely for the purpose of attracting populations of fish so as to facilitate the taking of those fish; or
any electronic or other equipment designed or intended to be ancillary to, or associated with, such a structure while it is being used, or in order to facilitate the use of the structure, for that purpose;
but does not include a net, trap or other equipment for taking, catching or capturing fish.
Marine genetic resources
(1) A person utilises a marine genetic resource if the person carries out research and development (including through the use of biotechnology) on the genetic or biochemical composition of the marine genetic resource.
Digital sequence information
(2) A person utilises digital sequence information of a marine genetic resource if the person uses the information for the purposes of carrying out research and development (including through the use of biotechnology) on the genetic or biochemical composition of the marine genetic resource.
Interpretation
In this section:
biotechnology means any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.
(1) A utilisation activity is an activity constituting the utilisation of:
one or more marine genetic resources collected in an area beyond national jurisdiction; or
digital sequence information of one or more marine genetic resources collected in an area beyond national jurisdiction.
(2) The marine genetic resources covered by paragraph (1)(a) or (b) (as the case requires) are the utilised marine genetic resources in relation to the activity.
(3) However, an activity is not a utilisation activity if:
the activity is a regulated fishing activity; or
all of the following apply:
the activity constitutes the utilisation of one or more marine genetic resources, or digital sequence information of one or more marine genetic resources;
each of those marine genetic resources was collected during a regulated fishing activity;
the activity is carried out for the purposes of a regulated fishing activity.
Collection activities
(1) A person is a notifying entity for a collection activity if:
the collection activity is proposed to be carried out by, or on behalf of, the person; and
the person is an Australian entity; and
the person is not employed or engaged by a foreign entity in connection with the collection activity.
(2) However, the person is not a notifying entity for the collection activity if:
the collection activity is a regulated fishing activity; and
at the time the collection activity is proposed to be carried out, the person does not propose to carry out a utilisation activity in relation to which one or more utilised marine genetic resources will be collected during the collection activity.
Utilisation activities
(3) A person is a notifying entity for a utilisation activity if:
the utilisation activity is carried out or proposed to be carried out by, or on behalf of, the person; and
the person is an Australian entity; and
the person is not employed or engaged by a foreign entity in connection with the utilisation activity.
(1) Regulated database means a database that is prescribed by the rules.
Note: A database may be prescribed by name, or by inclusion in a specified class or classes of databases (see subsection 13(3) of the Legislation Act 2003).
(2) Regulated repository means a repository that is prescribed by the rules.
Note: A repository may be prescribed by name, or by inclusion in a specified class or classes of repositories (see subsection 13(3) of the Legislation Act 2003).
Before making rules for the purposes of subsection (1) or (2), the Minister must be satisfied that the rules are consistent with Australia’s obligations under the BBNJ Agreement.
Subdivision A—Before carrying out a collection activity
(1) A notifying entity for a collection activity must give a notice (a pre-collection notice) for the activity to the Minister.
The entity must give the pre-collection notice:
at least 6 months before the day the collection activity starts to be carried out; or
if that is not possible—as soon as practicable before that day.
A pre-collection notice for a collection activity must:
be in the form approved, in writing, by the Minister; and
include information about the pre-collection matters for the activity; and
include any other information prescribed by the rules; and
meet any other requirements prescribed by the rules.
(2) The pre-collection matters for a collection activity are the following:
the nature, purposes and objectives of the activity;
whether the activity forms part of a research program and, if so, the subject matter of that program;
the marine genetic resources proposed to be collected;
the geographical location of the activity area;
how the activity will be carried out, including:
the scientific equipment or methods to be used; and
the name, tonnage, type and class of the vessels to be used;
whether, and how, the activity will contribute to other research programs;
the period during which the activity will be carried out;
any entity providing financial support or assistance for carrying out the activity;
the contact person for the activity;
whether there are any opportunities for scientists from other countries to be involved in or associated with the activity;
whether there are any opportunities for another country to, if requested by that country, participate or be represented in the activity;
(l) a plan (the data management plan) for managing information relevant to, or resulting from, the activity that:
is based on the principle of open and responsible data governance; and
meets any requirements set out in the rules;
any other matter prescribed by the rules.
A person who gives a pre-collection notice for a collection activity may withdraw the notice, in writing, at any time before the Minister issues a collection notification certificate for the activity.
If a pre-collection notice is so withdrawn, it is taken never to have been given.
Subdivision B—After carrying out a collection activity
(1) A notifying entity for a utilisation activity must give a notice (a post-collection notice) for a collection activity to the Minister if:
the utilisation activity constitutes the utilisation of one or more marine genetic resources collected during the collection activity; and
no pre-collection notice for the collection activity has been given; and
no other post-collection notice for the collection activity has been given.
The entity must give the post-collection notice before, or at the same time as, giving the utilisation notice for the utilisation activity.
Note: Sections 34 and 35 set out the requirements for utilisation notices.
(1) The holder of a collection notification certificate for a collection activity must give a notice (a post-collection notice) for the activity to the Minister within:
10 months after the activity is completed; or
if the Minister agrees in writing to a longer period for the holder—that longer period.
Before agreeing to a longer period for the purposes of paragraph (1)(b), the Minister must be satisfied that doing so is consistent with Australia’s obligations under the BBNJ Agreement.
A post-collection notice for a collection activity must:
be in the form approved, in writing, by the Minister; and
specify the BBNJ identifier for the activity; and
include information about:
if the notice is given under section 23—the post-collection matters for each of the utilised marine genetic resources collected during the collection activity; and
if the notice is given under section 24—the post-collection matters for any marine genetic resources collected during the activity by, or on behalf of, the holder of the collection notification certificate; and
include any other information prescribed by the rules; and
if the person giving the notice is unable to include any of the information mentioned in paragraphs (b) to (d)—set out the reasons why the person is unable to do so; and
meet any other requirements prescribed by the rules.
(2) The post-collection matters for a marine genetic resource collected during a collection activity are the following:
where the marine genetic resource is, or will be, held or stored;
where digital sequence information of the marine genetic resource is, or will be, held or stored;
the geographical location where the marine genetic resource was collected, including the latitude, longitude and depth;
the findings made as a result of the collection activity, to the extent that they are publicly available;
any changes to the data management plan for the collection activity that are required as a result of the carrying out of the activity;
any other matter prescribed by the rules.
Subdivision C—Collection notification certificates
This section applies if a person gives the Minister a pre-collection notice for a collection activity.
(2) The Minister must, as soon as practicable after receiving the notice, issue a certificate (a collection notification certificate) for the collection activity to the person.
Note 1: If no pre-collection notice for the collection activity has been given, a collection notification certificate for the activity may be issued under subsection 28(2).
Note 2: The Minister must publish a copy of the certificate on the Register (see subsection 109(1)).
Contents of certificate
The collection notification certificate issued under subsection (2) must:
set out the information included in the notice in accordance with paragraph 21(1)(b) (about pre-collection matters); and
specify the BBNJ identifier (if known) for the collection activity; and
include any other information the Minister considers relevant.
Note: The collection notification certificate may be varied to include information about the post-collection matters for any marine genetic resources collected during the collection activity (see subsection 29(2)).
This section applies if there is a material change in the pre-collection matters for a collection activity:
after the Minister issues a collection notification certificate for the activity; and
before the day the activity starts to be carried out.
The holder of the collection notification certificate must notify the Minister of the material change as soon as practicable after becoming aware of the change.
The notice must:
be in the form approved, in writing, by the Minister; and
include information about the material change; and
include any other information prescribed by the rules; and
meet any other requirements prescribed by the rules.
Variation of certificate
The Minister must, as soon as practicable after receiving the notice:
vary the collection notification certificate to reflect the material change; and
give a copy of the certificate, as varied, to the holder; and
update the Register accordingly.
This section applies if a notifying entity for a utilisation activity gives the Minister a post-collection notice for a collection activity.
(2) The Minister must, as soon as practicable after receiving the notice, issue a certificate (a collection notification certificate) for the collection activity to the person.
Note 1: A collection notification certificate for a collection activity may be issued under this subsection if no collection notification certificate has been issued under subsection 26(2).
Note 2: The Minister must publish a copy of the certificate on the Register (see subsection 109(1)).
Contents of certificate
The collection notification certificate issued under subsection (2) must:
set out the information included in the notice in accordance with paragraph 25(1)(c) (about post-collection matters); and
specify the BBNJ identifier (if known) for the collection activity; and
include any other information the Minister considers relevant.
This section applies if the holder of a collection notification certificate for a collection activity gives the Minister a post-collection notice for the activity.
The Minister must, as soon as practicable after receiving the notice:
vary the certificate to set out the information included in the notice in accordance with paragraph 25(1)(c) (about post-collection matters); and
give a copy of the certificate, as varied, to the holder; and
update the Register accordingly.
When Minister must vary certificate
If the Minister is satisfied that a collection notification certificate contains a minor or technical error, the Minister must vary the certificate to correct the error.
When Minister may vary certificate
The Minister may vary a collection notification certificate with the agreement of the holder.
Notice of variation
The Minister must, as soon as practicable after varying a collection notification certificate:
give a copy of the certificate, as varied, to the holder; and
update the Register accordingly.
Subdivision D—Offences and civil penalties
A person contravenes this subsection if:
a collection activity is being, or has been, carried out; and
the person is a notifying entity for the collection activity; and
(c) the person is not the holder of a collection notification certificate for the collection activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: 200 penalty units.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
A person contravenes this subsection if:
the person is the holder of a collection notification certificate for a collection activity; and
(b) the person fails to comply with .section 27 (obligation to notify Minister of material changes in pre-collection matters) in relation to the activity
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: 200 penalty units.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
A person contravenes this subsection if:
the person is subject to section 23 or 24 (requirement to give post-collection notice); and
the person fails to comply with that section.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: 200 penalty units.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 300 penalty units.
Subdivision A—Notification of utilisation activity
(1) A notifying entity for a utilisation activity must give a notice (a utilisation notice) for the activity to the Minister.
Note: The notifying entity may also be required to give a post-collection notice under section 23.
The utilisation notice must be given as soon as practicable after the first day on which a result of the activity becomes publicly available.
If there is more than one result of the activity, the notifying entity is not required to give a utilisation notice to the Minister for any result which becomes publicly available after the first notice is given.
Note: However, the entity must notify the Minister of the result and the Minister must vary the utilisation notification certificate accordingly (see section 37 and subsection 38(1)).
A utilisation notice for a utilisation activity must:
be in the form approved, in writing, by the Minister; and
specify the BBNJ identifier (if known) for the collection activity during which the utilised marine genetic resources were collected; and
include information about the utilisation matters for the utilisation activity; and
include any other information prescribed by the rules; and
if the notifying entity is unable to include any of the information mentioned in paragraphs (b) to (d) in the notice—set out the reasons why the entity is unable to do so; and
meet any other requirements prescribed by the rules.
(2) The utilisation matters for a utilisation activity are the following:
where the results of the activity that are publicly available may be found;
any notifications relating to the utilised marine genetic resources that were published through the Clearing-House Mechanism after those marine genetic resources were collected;
where the marine genetic resources or digital sequence information that have been, or are being, utilised are held or stored;
the modalities envisaged for access to the marine genetic resources or digital sequence information that have been or are being utilised, and a data management plan;
sales of any commercially produced goods that have been developed using information produced as a result of the activity;
any other matter prescribed by the rules.
This section applies if a person gives a utilisation notice for a utilisation activity.
(2) The Minister must, as soon as practicable after receiving the notice, issue a certificate (a utilisation notification certificate) for the utilisation activity to the person.
Note: The Minister must also publish a copy of the certificate on the Register (see subsection 109(1)).
The utilisation notification certificate must:
include information about the utilisation matters for the utilisation activity; and
specify the BBNJ identifier (if known) for each collection activity during which the utilised marine genetic resources were collected; and
include any other information the Minister considers relevant.
This section applies if, at any time after the Minister issues a utilisation notification certificate for a utilisation activity, the holder becomes aware of any of the following:
a material change in the utilisation matters for the activity;
new information about the utilisation matters for the activity;
a new publicly available result of the activity.
The holder must notify the Minister as soon as practicable after becoming so aware.
The notice must:
be in the form approved, in writing, by the Minister; and
if the notice relates to a material change in the utilisation matters—include information about the material change; and
if the notice relates to new information about the utilisation matters—include the new information; and
if the notice relates to a new publicly available result of the activity—include information about where the result may be found; and
include any other information prescribed by the rules; and
meet any other requirements prescribed by the rules.
When Minister must vary certificate
If information relating to a utilisation activity is notified to the Minister under section 37, the Minister must vary the utilisation notification certificate for the activity to reflect the information.
If the Minister is satisfied that a utilisation notification certificate contains a minor or technical error, the Minister must vary the certificate to correct the error.
When Minister may vary certificate
The Minister may vary a utilisation notification certificate with the agreement of the holder.
Notice of variation
The Minister must, as soon as practicable after varying a utilisation notification certificate:
give a copy of the certificate, as varied, to the holder; and
update the Register accordingly.
Subdivision B—Depositing utilised material or information
A notifying entity for a utilisation activity must deposit the utilised material or information into a regulated repository or regulated database:
within the deposit period; and
in accordance with any requirements prescribed by the rules.
(2) The utilised material or information is:
the BBNJ identifier (if known) for each collection activity during which the utilised marine genetic resources were collected; and
the marine genetic resources or digital sequence information utilised during the utilisation activity.
The notifying entity is taken to have deposited the utilised material or information into the repository or database when the utilised material or information can be accessed from the repository or database by another person.
Period for depositing utilised material or information
(4) The deposit period is:
the period of 3 years after the day the utilisation activity starts to be carried out; or
if the Minister agrees in writing to a longer period for the entity—that longer period.
Before agreeing to a longer period for the purposes of paragraph (4)(b), the Minister must be satisfied that doing so is consistent with Australia’s obligations under the BBNJ Agreement.
Rules
Before making rules for the purposes of paragraph (1)(b), the Minister must be satisfied that the rules are consistent with Australia’s obligations under the BBNJ Agreement.
On application by a notifying entity for a utilisation activity, the Minister may, in writing, exempt the entity from complying with subsection 39(1) in relation to the activity.
Note: The Minister must publish the exemption on the Register (see subsection 109(1)).
Rules
The rules may make provision for, or in relation to, the giving of an exemption under subsection (1).
Without limiting subsection (2), rules made for the purposes of that subsection may:
specify the manner and form in which an application for an exemption under subsection (1) must be made; and
provide for the circumstances in which such an exemption may be given; and
provide for the conditions that may apply to such an exemption.
Before making rules for the purposes of subsection (2), the Minister must be satisfied that the rules are consistent with Australia’s obligations under the BBNJ Agreement.
Exemptions not legislative instruments
An exemption under subsection (1) is not a legislative instrument.
Subdivision C—Offences and civil penalties
A person contravenes this subsection if:
the person is a notifying entity for a utilisation activity; and
the person fails to comply with section 34 (requirement to give utilisation notice) in relation to the activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 400 penalty units.
A person contravenes this subsection if:
the person is the holder of a utilisation notification certificate for a utilisation activity; and
(b) the person fails to comply with .section 37 (obligation to notify Minister of material changes in utilisation matters etc.) in relation to the activity
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 400 penalty units.
A person contravenes this subsection if:
the person is a notifying entity for a utilisation activity; and
the person fails to comply with subsection 39(1) (requirement to deposit utilised material or information etc.) in relation to the activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: 300 penalty units.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 400 penalty units.
Exception
Subsection (1) does not apply if an exemption under subsection 40(1) is in effect in relation to the person and the utilisation activity.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).
Subdivision A—Reporting and record keeping
An owner of a regulated database or regulated repository must give a report to the Minister in relation to a reporting period if, at any time during the reporting period, the database or repository holds:
a marine genetic resource collected in an area beyond national jurisdiction; or
digital sequence information of a marine genetic resource collected in an area beyond national jurisdiction.
Note 1: If there are multiple owners of a database or repository, see subsection (5).
Note 2: For the meaning of reporting period, see subsection (6).
The report must be given within 6 months after the end of the reporting period.
Contents of report
The report must:
specify the BBNJ identifier (if known) for each collection activity during which a marine genetic resource mentioned in paragraph (1)(a) or (b) (as the case requires) was collected; and
specify the number of times during the period that the marine genetic resource or digital sequence information was accessed (other than access for the purposes of maintaining or operating the database or repository); and
include any other information prescribed by the rules; and
if the owner is unable to include any of the information mentioned in paragraphs (a) to (c) in the report—set out the reasons why the owner is unable to do so; and
meet any other requirements prescribed by the rules.
Note: For the purposes of paragraph (a), a collection activity may include a collection activity under the laws of a foreign country.
(4) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, rules made for the purposes of paragraph (3)(c) or (e) of this section may make different provision in relation to different kinds of regulated databases, regulated repositories, information, circumstances or any other matter.
Multiple owners of a database or repository
Despite subsection (1), an owner of a regulated database or regulated repository is not required to give a report to the Minister in relation to a reporting period if:
there is more than one owner of the database or repository; and
another owner of the database or repository has given a report to the Minister in relation to the reporting period.
Meaning of reporting period
In this section:
reporting period means the following:
the period:
beginning on the commencement of this section; and
ending on the second 30 June that occurs after that commencement;
the period of 24 months beginning on the day after the end of the period mentioned in paragraph (a);
each subsequent 24-month period.
An owner of a regulated database or regulated repository must keep a record of the information specified in subsection (2) for each of the following that is held by the repository or database:
a marine genetic resource collected in an area beyond national jurisdiction;
digital sequence information of a marine genetic resource collected in an area beyond national jurisdiction.
For the purposes of subsection (1), the following information is specified:
evidence that the marine genetic resource, or the marine genetic resource to which the digital sequence information relates, was collected in an area beyond national jurisdiction;
the number of times that the marine genetic resource or digital sequence information was accessed (other than access for the purposes of maintaining or operating the database or repository);
any other information prescribed by the rules;
if the owner is unable to include any of the information mentioned in paragraphs (a) to (c) in the report—the reasons why the owner is unable to do so.
The record must be kept in accordance with any requirements prescribed by the rules.
(4) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, rules made for the purposes of paragraph (2)(c) or subsection (3) of this section may make different provision in relation to different kinds of regulated databases, regulated repositories, information, circumstances or any other matter.
An owner of a regulated database or regulated repository must retain a record mentioned in subsection 45(1) throughout the period:
beginning at the time the record was made; and
ending immediately after the day the database or repository no longer holds the marine genetic resource or digital sequence information for which the record was made.
The Minister may, by notice in writing, require an owner of a regulated database or regulated repository to:
give a copy of any records relating to the repository or database to the Minister; and
do so within the period specified in the notice.
Subdivision B—Offences and civil penalties
A person contravenes this subsection if:
the person is an owner of a regulated database or regulated repository; and
the person fails to comply with section 44 (reporting requirements) in relation to the database or repository.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 30 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
A person contravenes this subsection if:
the person is an owner of a regulated database or regulated repository; and
the person fails to comply with section 45 (record keeping requirements) in relation to the database or repository.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 30 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
A person contravenes this subsection if:
(a) the person is an owner of a regulated database or regulated repository; and
the person fails to comply with section 46 (retention of records) in relation to the database or repository.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 30 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
A person contravenes this subsection if:
the person is an owner of a regulated database or regulated repository; and
the person is given a notice under section 47 (notice to give records); and
the person fails to comply with a requirement of the notice.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 30 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 240 penalty units.
Part III of the BBNJ Agreement provides for the establishment of area-based management tools. An area-based management tool contains measures, such as the establishment of a marine protected area, for managing a specific area beyond national jurisdiction with the aim of achieving conservation and sustainable use objectives.
This Part sets out the process for giving effect to a decision under the BBNJ Agreement to establish an area-based management tool in relation to an area beyond national jurisdiction. However, this Part does not apply in relation to:
an area in Antarctica; or
the area to which the Convention on the Conservation of Antarctic Marine Living Resources applies.
If Australia does not object to the decision, the Minister must:
declare the area as a specially managed area; and
determine a plan (called a special management plan) for managing the area that is consistent with the area-based management tool.
If Australia objects to the decision, and there is no equivalent Australian law in force that applies to the area, the Minister must determine alternative measures for managing the area that are equivalent in effect to the area-based management tool.
An Australian entity that contravenes a special management plan or an alternative measure may be subject to civil or criminal penalties.
This Part does not apply in relation to an area beyond national jurisdiction if the area is in:
Antarctica; or
the Convention area.
This Division applies if:
a decision is made under Article 22 of the BBNJ Agreement to establish an area-based management tool, including a marine protected area, in relation to an area beyond national jurisdiction; and
either:
Australia has not made an objection under Article 23 of the BBNJ Agreement with respect to the decision; or
Australia has made such an objection and the objection is withdrawn.
The Minister must, by legislative instrument:
declare that the area beyond national jurisdiction covered by the decision is a specially managed area; and
determine a plan to manage the area.
Note: The plan is a special management plan for the specially managed area (see the definition of that term in section 5).
Requirements for specially managed area
The instrument must specify that the specially managed area includes:
if the area covered by the decision extends to a particular depth under the sea—that depth; and
if the area covered by the decision includes any part of the seabed in the area—that part of the seabed; and
if the area covered by the decision includes the subsoil to a particular depth beneath the seabed—the subsoil to that depth beneath the seabed.
Requirements for special management plan
The special management plan must be consistent with the area-based management tool (including any management measures or management plans that form part of the area-based management tool).
In particular, the special management plan must:
set out the proposed measures to manage the specially managed area, including any monitoring, research or review activity that may be carried out in the area; and
indicate how the plan takes account of Australia’s obligations under the BBNJ Agreement.
Timing of making of instrument
The Minister must make the instrument, and the instrument must commence:
if Australia has not made an objection under Article 23 of the BBNJ Agreement with respect to the decision—within 120 days after the day the decision is made; or
if Australia has made such an objection and Australia later withdraws the objection—within 90 days after the day the objection is withdrawn; or
if Australia has made such an objection and Australia has not renewed the objection—within 120 days after the day the objection is withdrawn because the objection is not renewed.
Note: See Article 23(8) of the BBNJ Agreement for renewal of objections.
A failure to make the instrument within the period specified in subsection (5) does not affect the validity of the instrument.
Variation
If the area-based management tool (including any management measures or management plans that form part of the area-based management tool) is amended under Article 22 of the BBNJ Agreement, the Minister must vary the instrument consistently with the amendment.
The Minister may vary the instrument to correct a minor or technical error.
Revocation
The Minister may revoke the instrument if the area-based management tool ceases to have effect under the BBNJ Agreement.
The rules may provide for matters that may be specified in a special management plan for a specially managed area.
Rules made under subsection (1) may prohibit the doing of an act or thing by a person in the specially managed area unless:
the person holds a permit issued by the Minister under the special management plan; and
the permit authorises the person to do that act or thing.
Rules made under subsection (1) may provide for the Minister to:
issue a permit under the special management plan; and
include conditions in the permit; and
vary the permit by:
including one or more further conditions; or
varying any conditions; or
revoking any conditions; and
suspend the permit; and
cancel the permit.
Subsections (2) and (3) do not limit subsection (1).
This Division applies if:
a decision is made under Article 22 of the BBNJ Agreement to establish an area-based management tool, including a marine protected area, in relation to an area beyond national jurisdiction; and
Australia has made an objection under Article 23 of the BBNJ Agreement with respect to the decision and the objection is not withdrawn; and
the Minister is satisfied that subsection (2) does not apply.
This subsection applies if another Australian law:
is in force; and
is, to the extent practicable, equivalent in effect to the decision; and
applies to the area covered by the decision.
To avoid doubt, this Division may begin to apply if:
at a time, this Division does not apply because the Minister is satisfied as mentioned in paragraph (1)(c); but
the Minister later ceases to be so satisfied (for example, because the relevant Australian law is repealed).
The Minister must, by legislative instrument:
specify the area beyond national jurisdiction covered by the decision; and
determine one or more measures to manage the area.
Note: Each measure is an alternative measure for the area beyond national jurisdiction (see the definition of that term in section 5).
In making the instrument, the Minister must be satisfied that the instrument is, to the extent practicable, equivalent in effect to the decision.
Without limiting paragraph (1)(b), the measures may include requirements with which a person doing an act or thing in the area must comply.
Variation
The Minister may vary the instrument by:
varying or revoking an existing alternative measure for the area specified in the instrument; or
determining a new alternative measure for the area specified in the instrument.
The Minister may do so only if satisfied that, to the extent practicable, the instrument as varied remains equivalent in effect to the decision.
Revocation
The Minister must revoke the instrument if Australia’s objection is withdrawn.
Note: Division 2 applies if Australia’s objection is withdrawn.
The Minister may revoke the instrument if satisfied that another Australian law:
is in force; and
is, to the extent practicable, equivalent in effect to the decision; and
applies in relation to the area beyond national jurisdiction covered by the decision.
The rules may provide for matters that may be specified in an instrument made under section 59 in relation to an area beyond national jurisdiction.
Rules made under subsection (1) may prohibit the doing of an act or thing by a person in the area unless:
the person holds a permit issued by the Minister under the instrument; and
the permit authorises the person to do that act or thing.
Rules made under subsection (1) may provide for the Minister to:
issue a permit under the instrument; and
include conditions in the permit; and
vary the permit by:
including one or more further conditions; or
varying any conditions of the permit; or
revoking any conditions of the permit; and
suspend the permit; and
cancel the permit.
Subsections (2) and (3) do not limit subsection (1).
A person contravenes this subsection if:
the person is an Australian entity; and
the person does an act or omits to do an act in a specially managed area; and
the act or omission contravenes a special management plan for the area.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
A person contravenes this subsection if:
the person is an Australian entity; and
the person does an act or omits to do an act in an area beyond national jurisdiction; and
the act or omission contravenes an alternative measure for the area.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
Part IV of the BBNJ Agreement establishes an environmental impact assessment process for parties to the Agreement to prevent, mitigate and manage the impacts or potential impacts of planned activities on the marine environment in areas beyond national jurisdiction.
This Part sets out the process for conducting an environmental impact assessment of the following kinds of activities:
an activity carried out, or proposed to be carried out, by a person in Australian jurisdiction;
an activity carried out, or proposed to be carried out, by an Australian entity in an area beyond national jurisdiction.
Generally, a person carrying out or proposing to carry out an activity must refer the activity to the Minister if the person thinks that:
for an activity in Australian jurisdiction—an actual or potential result of the activity is substantial pollution of, or significant and harmful changes to, the marine environment in an area beyond national jurisdiction; or
otherwise—the actual or potential impacts of the activity on the marine environment in an area beyond national jurisdiction are more than minor or transitory, or are unknown or uncertain.
On receiving the referral, the Minister must decide whether the Minister reasonably believes that an actual or potential result of the activity is substantial pollution of, or significant and harmful changes to, the marine environment in an area beyond national jurisdiction. Such an activity (called a controlled activity) cannot be carried out without the Minister’s authorisation.
Before the Minister decides whether to authorise the carrying out of the controlled activity, the person must conduct an environmental impact assessment of the potential impacts of the controlled activity on the marine environment in certain areas and prepare a report of the assessment. The assessment must be conducted in accordance with guidelines that are made by the Minister following a consultation process.
A draft report of the environmental impact assessment must be prepared by the person and given to the Minister for public consultation, which may include consultation with other countries. The person may make changes to the draft report to take into account comments received during the consultation.
Once the report of the environmental impact assessment is finalised and given to the Minister, the Minister must decide whether to authorise the carrying out of the controlled activity (called a controlled activity authorisation), and what conditions to attach to the authorisation.
The Minister may only give a controlled activity authorisation if satisfied that all reasonable efforts have been made to ensure that the controlled activity can be carried out in a manner consistent with the prevention of significant adverse impacts on the marine environment in areas beyond national jurisdiction. The Minister may also vary, suspend or revoke a controlled activity authorisation in some circumstances.
A person may be subject to civil or criminal penalties if the person:
carries out an activity with a significant adverse impact on the marine environment in an area beyond national jurisdiction; or
fails to comply with the requirements relating to referring an activity to the Minister; or
carries out a controlled activity without a controlled activity authorisation; or
carries out a controlled activity in breach of a condition of the controlled activity authorisation.
This Part does not apply in relation to:
an area in Antarctica; or
the area to which the Convention on the Conservation of Antarctic Marine Living Resources applies.
Subject to subsection (2), this Part applies in relation to an activity that starts to be carried out on or after the commencement of this Act.
This Part does not apply in relation to an area beyond national jurisdiction if the area is in:
Antarctica; or
the Convention area.
Subdivision A—Referral of activity
A person carrying out or proposing to carry out an activity must refer the activity to the Minister if:
subsection (2) or (3) applies; and
the activity is not an exempt activity.
Note: For the meaning of exempt activity, see section 69.
Domestic activities
This subsection applies if:
the activity is a domestic activity; and
the person thinks that the impacts of the activity have resulted, or may result, in:
substantial pollution of the marine environment in an area beyond national jurisdiction; or
significant and harmful changes to the marine environment in an area beyond national jurisdiction.
Note: A domestic activity is an activity carried out, or proposed to be carried out, in Australian jurisdiction (see the definition of that term in section 5).
International activities
This subsection applies if:
the activity is an international activity; and
the person is an Australian entity; and
the person thinks that the impacts of the activity on the marine environment in an area beyond national jurisdiction have been, or may be:
more than minor or transitory; or
unknown or uncertain without further assessment.
Note: An international activity is an activity carried out, or proposed to be carried out, in an area beyond national jurisdiction (see the definition of that term in section 5).
Requirements for referrals
A referral under this section of an activity must:
be in writing; and
be given in a form approved, in writing, by the Minister; and
(c) include a report (the screening report) setting out:
details of the activity, including its purpose, location, duration and intensity; and
an analysis of the potential impacts of the activity on the marine environment in areas beyond national jurisdiction; and
an analysis of the feasibility of any alternatives to carrying out the activity; and
be accompanied by any other information or documents:
required by the form; or
prescribed by the rules; and
if the rules specify a fee that must accompany the referral—be accompanied by the fee.
A person who refers an activity to the Minister may withdraw the referral, in writing, at any time before the Minister gives a controlled activity authorisation for the activity.
Note: See Division 4 for matters relating to controlled activity authorisations.
If a referral is so withdrawn, it is taken never to have been made.
If the Minister reasonably believes that a person is carrying out or proposing to carry out an activity that is required to be referred under section 66, the Minister may, by written notice given to the person, request the person to:
make the referral; and
do so within the period specified in the notice.
The person may, as soon as practicable after receiving the request, notify the Minister if:
the person is not carrying out the activity; or
the person is not, or is no longer, proposing to carry out the activity.
If, after being so notified, the Minister is satisfied that the person is not carrying out or proposing to carry out the activity, the Minister may withdraw the request by written notice given to the person.
Domestic activities
(1) A domestic activity is an exempt activity if the activity has been, or is required to be, assessed under an Australian law specified in an instrument under subsection (2).
The Minister may, by legislative instrument, specify an Australian law for the purposes of subsection (1) if the Minister is satisfied that an assessment of an activity under that law is equivalent to an environmental impact assessment of the activity conducted under Division 3 of this Part.
International activities
(3) An international activity is an exempt activity if a determination is in force under subsection (4) in relation to the activity.
The Minister may, in writing, determine that an international activity is not required to be referred under section 66 if:
the impacts of the activity on areas beyond national jurisdiction have been assessed under an Australian law or an international agreement to which Australia is a party; and
a copy of the assessment has been given to the Minister; and
the Minister is satisfied that the assessment is equivalent to an environmental impact assessment of the activity conducted under Division 3 of this Part.
A determination under subsection (4) is not a legislative instrument.
Subdivision B—Decision on referral
The Minister must, as soon as practicable after receiving a referral of an activity under section 66:
publish the referral, including the screening report, through the Clearing-House Mechanism; and
publish on the Department’s website:
the referral, including the screening report; and
an invitation to the public to give written comments on the activity to the Minister within the period specified in the invitation.
The period specified in the invitation must be at least 10 business days (measured in Canberra) after the invitation is published.
The Minister must publish on the Department’s website any relevant comments received:
in response to the invitation; and
within the period specified in the invitation.
The Minister must decide whether the carrying out of the activity without authorisation under this Part should be prohibited.
Request for further information
The Minister may, by notice in writing, require the proponent of the activity to give the Minister, within the period specified in the notice, such further information in relation to the activity as the Minister requires.
The Minister is not required to make a decision under subsection (1) in relation to the activity, and may cease considering whether to make the decision, if the proponent of the activity does not provide the requested information within the period specified in the notice.
Decision on activity
(4) If the Minister decides that the carrying out of the activity without authorisation under this Part should be prohibited, the activity is a controlled activity.
(5) If the Minister decides that the carrying out of the activity should not be so prohibited, the activity is a non-controlled activity.
The Minister must decide that the activity is a controlled activity if the Minister reasonably believes that the activity has resulted, or may result, in:
substantial pollution of the marine environment in an area beyond national jurisdiction; or
significant and harmful changes to the marine environment in an area beyond national jurisdiction.
In deciding whether the Minister has the belief mentioned in subsection (1), the Minister must have regard to the following:
the information included in the referral;
any relevant comments received:
in response to the invitation under paragraph 70(1)(b); and
within the period specified in the invitation;
any matters prescribed by the rules;
any other matters the Minister considers relevant.
The Minister must, as soon as practicable after making a decision under subsection 71(1) in relation to the activity:
give the proponent of the activity written notice of the Minister’s decision and the reasons for the decision; and
publish a copy of the notice on the Department’s website.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the matters (if any) prescribed by rules made under that Act.
If the activity is an international activity, the Minister must also:
publish a copy of the notice through the Clearing-House Mechanism; and
publish on the Department’s website:
any comments provided to the Minister by a party to the BBNJ Agreement in response to the decision; and
any comments or recommendations provided to the Minister by the Scientific and Technical Body in response to the decision.
The Minister may reconsider a decision under subsection 71(1) about whether an international activity is a controlled activity if:
a comment or recommendation has been provided to the Minister in response to the decision by:
a party to the BBNJ Agreement; or
the Scientific and Technical Body; and
the Minister is satisfied, having regard to the comment or recommendation, that it is appropriate to do so.
After reconsidering the decision, the Minister must:
affirm the decision; or
set the decision aside and substitute a new decision.
Notification of new decision
If the Minister decides on reconsideration to set the decision aside and substitute a new decision, the Minister must:
give the proponent of the activity written notice of the substituted decision and the reasons for the substituted decision; and
publish a copy of the notice on the Department’s website.
Note: If the substituted decision is that the activity is a controlled activity, an application may be made to the Administrative Review Tribunal for review of the decision.
When reconsideration decision takes effect
A decision on reconsideration under this section takes effect on the day after it is made.
An application may be made to the Administrative Review Tribunal for review of a decision under subsection 71(1) that an activity is a controlled activity.
Note: This includes a substituted decision made on reconsideration under section 74.
Subdivision A—Conducting the environmental impact assessment
As soon as practicable after the Minister decides that an activity is a controlled activity, the Minister must make written guidelines for conducting an environmental impact assessment of the activity.
Contents of guidelines
The guidelines must set out requirements about the manner in which the assessment is to be conducted, including about the following:
the assessment of the potential impacts of the controlled activity (including any cumulative impacts) and how those impacts will, or may, affect the marine environment in the activity area or any other area, including requiring the use of the following in preparing the assessment:
the best available scientific knowledge;
where available, any traditional knowledge of indigenous persons or local communities that is relevant to the activity area;
the identification of any proposed measures to prevent, mitigate or manage those impacts and, where appropriate, the incorporation of such measures into an environmental management plan;
the analysis of the feasibility of any alternatives to carrying out the controlled activity;
the identification of any strategic environmental assessments conducted in accordance with Article 39 of the BBNJ Agreement that are relevant to the controlled activity;
consultation with relevant stakeholders, including indigenous persons;
any matters prescribed by the rules;
any other matters the Minister considers relevant.
Consultation
Before making the guidelines, the Minister must:
give a draft of the guidelines to the proponent of the controlled activity; and
publish the draft on the Department’s website; and
publish the draft through the Clearing-House Mechanism; and
invite the following to give written comments on the draft within the period specified in the invitation:
the proponent of the controlled activity;
the public; and
if the controlled activity is an international activity—invite the following to give written comments on the draft within the period specified in the invitation:
the parties to the BBNJ Agreement;
any other foreign country, if the Minister reasonably believes that the activity will affect the carrying out of another activity by the country or the exercise of the sovereign rights of the country as a coastal State;
the Scientific and Technical Body.
If any relevant comments are received in response to an invitation under subsection (3) within the period specified in the invitation, the Minister must:
publish the comments on the Department’s website; and
take the comments into account in making the guidelines.
Note: The Minister may redact information from the comments before they are published (see section 106).
Publication of guidelines
As soon as practicable after making the guidelines, the Minister must:
give the guidelines to the proponent of the controlled activity; and
publish the guidelines on the Department’s website; and
publish the guidelines through the Clearing-House Mechanism.
Guidelines not legislative instruments
The guidelines are not a legislative instrument.
The proponent of the controlled activity must:
conduct an environmental impact assessment of the activity in accordance with the guidelines; and
prepare and give a draft report on the assessment to the Minister.
(2) The draft report is the draft environmental impact assessment report for the controlled activity.
The draft report must include the following:
details of the controlled activity, including its location;
how the environmental impact assessment was conducted;
if the environmental impact assessment identified any scientific or other information relating to the controlled activity that is unknown or uncertain—details of that information;
an assessment of the existing marine environment in the activity area and any other area that will be, or may be, affected by the potential impacts of the controlled activity (including any cumulative impacts);
an assessment of the potential impacts of the controlled activity (including any cumulative impacts) and how those impacts will, or may, affect the marine environment in the activity area or any other area;
details of proposed measures to prevent, mitigate or manage those impacts including, where appropriate, a draft environmental management plan;
details of any public consultation undertaken as part of the environmental impact assessment;
any reasonable alternatives to carrying out the controlled activity identified by the proponent, and the feasibility of those alternatives;
a summary of the report that uses plain language;
any other information required by the guidelines;
any other information prescribed by the rules.
Subdivision B—Consultation
The Minister must, as soon as practicable after receiving the draft environmental impact assessment report for the controlled activity:
publish a copy of the report on the Department’s website; and
publish a copy of the report through the Clearing-House Mechanism; and
invite the public to give written comments on the report within the period specified in the invitation; and
if the controlled activity is an international activity—invite the following to give written comments on the report within the period specified in the invitation:
the parties to the BBNJ Agreement;
any other foreign country, if the Minister reasonably believes that the activity will affect the carrying out of another activity by the country or the exercise of the sovereign rights of the country as a coastal State;
the Scientific and Technical Body.
The period specified in the invitation must be at least 20 business days (measured in Canberra) after the invitation is published.
The Minister may also give comments on the draft environmental impact assessment report to the proponent of the controlled activity.
The Minister must:
publish on the Department’s website any relevant comments received:
in response to an invitation under subsection (1); and
within the period specified in the invitation; and
give a copy of the comments to the proponent of the controlled activity; and
if the Minister considers it appropriate to do so:
request the proponent to respond to one or more of the comments; and
publish the proponent’s response on the Department’s website.
Note: The Minister may redact information from the comments or the proponent’s response before they are published (see section 106).
This section applies if:
the controlled activity is an international activity; and
the activity area is adjacent to the exclusive economic zone of one or more foreign countries.
The Minister must, before the final environmental impact assessment report for the controlled activity is prepared:
consult the government of each of the foreign countries on the activity; and
publish on the Department’s website any comments received in response to the consultation; and
give a copy of the comments to the proponent of the activity.
Note: The Minister may redact information from the comments before they are published (see section 106).
If any comments are received in response to the consultation within the period specified by subsection (4):
the proponent of the controlled activity must:
give a written statement to the Minister setting out whether, and how, the proponent has addressed or intends to address the comments; and
do so before preparing the final environmental impact assessment report for the activity; and
the Minister must publish the statement on the Department’s website.
Note: The Minister may redact information from the statement before it is published (see section 106).
The following periods are specified:
if the Minister consults only one country—the period of 20 business days (measured in Canberra) starting on the day the Minister consulted that country;
if the Minister consults more than one country—the period of 20 business days (measured in Canberra) starting on the day the Minister consulted the last of those countries.
Subdivision C—Finalising the environmental impact assessment
After the end of the consultation period, the proponent of the controlled activity must:
make such changes to the draft environmental impact assessment report for the activity as the proponent considers appropriate, having regard to any comments received under section 78 or 79; and
finalise the report; and
give the finalised report to the Minister.
(2) For the purposes of subsection (1), the consultation period ends at the later of the following times:
the end of the period specified in an invitation under subsection 78(1) in relation to the draft environmental impact assessment report for the controlled activity;
if section 79 applies—the end of the period specified by subsection 79(4) in relation to the controlled activity.
(3) The finalised report is the final environmental impact assessment report for the controlled activity.
The Minister must, as soon as practicable after receiving the final environmental impact assessment report:
publish a copy of the report on the Department’s website; and
publish a copy of the report through the Clearing-House Mechanism.
Subdivision A—Decision on authorisation
After receiving the final environmental impact assessment report for a controlled activity, the Minister must decide whether to authorise the carrying out of the activity.
Request for further information
The Minister may, by notice in writing, require the proponent of the controlled activity to give the Minister, within the period specified in the notice, such further information in relation to the activity as the Minister requires.
The Minister is not required to make a decision under subsection (1) in relation to the controlled activity, and may cease considering whether to make the decision, if the proponent does not provide the requested information within the period specified in the notice.
Decision on authorisation
If the Minister decides to authorise the carrying out of the controlled activity:
(a) the authorisation is a controlled activity authorisation for the activity; and
the proponent of the activity is authorised to carry out the activity in accordance with the authorisation.
Note: The proponent is the holder of the authorisation unless the authorisation is varied to specify another person as the holder (see the definition of holder in section 5).
The Minister may give a controlled activity authorisation for a controlled activity only if the Minister is satisfied that all reasonable efforts have been made to ensure that the activity can be carried out in a manner consistent with the prevention of significant adverse impacts on the marine environment in areas beyond national jurisdiction.
In deciding whether the Minister is satisfied as mentioned in subsection (1), the Minister must have regard to the following:
any relevant comments received on the draft environmental impact assessment report for the controlled activity:
in response to an invitation under subsection 78(1); and
within the period specified in the invitation;
any responses given by the proponent of the controlled activity to those comments;
if any comments were received in response to a consultation under section 79:
the comments; and
the written statement given by the proponent of the activity in relation to those comments;
the final environmental impact assessment report for the controlled activity, including:
the proposed measures set out in the report to prevent, mitigate or manage the potential impacts of the activity; and
if the proposed measures include an environmental management plan—the environmental management plan;
any other information prescribed by the rules;
any other information that the Minister considers relevant.
A controlled activity authorisation is subject to the following conditions:
the holder must take the measures specified in the authorisation;
the holder must comply with the requirements specified in the authorisation;
the conditions (if any) imposed by the Minister under subsection (2).
The Minister may impose such conditions on the authorisation that the Minister considers appropriate.
Without limiting subsection (2), the Minister may impose conditions relating to compliance with an environmental management plan included in the final environmental impact assessment report for the controlled activity.
A controlled activity authorisation must be in writing and specify the following:
details of the controlled activity;
the holder;
the period for which the authorisation is in force;
the conditions to which the authorisation is subject (see section 83);
measures to prevent, mitigate or manage any adverse impacts of the controlled activity on the marine environment in an area beyond national jurisdiction;
requirements relating to monitoring, and reporting to the Minister on, the impacts of the controlled activity on the marine environment in an area beyond national jurisdiction;
requirements relating to identifying, and reporting to the Minister on, any significant adverse impacts of the controlled activity on the marine environment in an area beyond national jurisdiction;
any other requirements that the Minister considers necessary to prevent, mitigate or manage the impacts of the controlled activity on the marine environment in areas beyond national jurisdiction.
In specifying requirements for the purposes of paragraph (1)(f), the Minister must take into account Australia’s obligations under Article 35 of the BBNJ Agreement.
The Minister must, as soon as practicable after making a decision under subsection 81(1) in relation to a controlled activity:
give written notice of the decision to the proponent of the activity; and
publish a copy of the notice on the Department’s website; and
publish a copy of the notice through the Clearing-House Mechanism.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the matters (if any) prescribed by rules made under that Act.
The notice must:
if the decision is to give a controlled activity authorisation—include a copy of the authorisation; and
if the decision is not to give a controlled activity authorisation—set out the reasons for the decision.
Domestic activities
The Minister may, at any time, decide to review a controlled activity authorisation for a domestic activity for the purpose of deciding whether to vary, suspend or revoke the authorisation.
International activities
The Minister must decide to review a controlled activity authorisation for an international activity for the purpose of deciding whether to vary, suspend or revoke the authorisation if either of the following applies:
the Minister reasonably believes that the circumstances mentioned in subsection (3) exist in relation to the activity;
the Minister receives, from a party to the BBNJ Agreement or the Scientific and Technical Body, information that suggests that the circumstances mentioned in subsection (3) exist in relation to the activity.
The circumstances are that:
the activity has had, or may have, a significant adverse impact on the marine environment in an area beyond national jurisdiction; and
either:
the nature or severity of the significant adverse impact was not foreseen at the time the authorisation was given; or
the significant adverse impact was, or may be, caused by a breach of a condition to which the authorisation is subject.
Notification of decision to review
The Minister must, as soon as practicable after deciding to review a controlled activity authorisation:
give written notice of the decision to the holder; and
publish a copy of the notice through the Clearing-House Mechanism.
Subdivision B—Variation of authorisation
The Minister may vary a controlled activity authorisation if:
any of subsections (3) to (5) apply; and
the Minister is satisfied that the authorisation, as varied, will ensure that the activity is carried out in a manner consistent with the prevention of significant adverse impacts on the marine environment in an area beyond national jurisdiction.
The Minister may vary the authorisation by:
varying a measure or requirement specified in the authorisation; or
specifying a new requirement that the Minister considers necessary to prevent, mitigate or manage the impacts of the controlled activity on the marine environment in areas beyond national jurisdiction; or
varying or revoking a condition imposed on the authorisation under subsection 83(2); or
imposing a new condition on the authorisation that the Minister considers appropriate.
Variation to address significant adverse impact
This subsection applies if:
the Minister reasonably believes that the controlled activity has had, or may have, a significant adverse impact on the marine environment in an area beyond national jurisdiction; and
either:
the nature or severity of the significant adverse impact was not foreseen at the time the authorisation was given; or
the significant adverse impact was caused by a breach of a condition to which the authorisation is subject; and
the Minister reasonably believes that the variation is necessary to protect the marine environment in the area from:
the significant adverse impact; or
any other impacts of the controlled activity.
Variation by agreement
This subsection applies if the holder agrees to the variation.
Variation in prescribed circumstances
This subsection applies if the Minister reasonably believes that a circumstance prescribed by the rules exists in relation to the controlled activity.
The Minister may, if satisfied that it is appropriate in the circumstances to do so, vary a controlled activity authorisation by:
extending the period for which the authorisation is in force; or
reducing the period for which the authorisation is in force.
The Minister may, on application by the holder of a controlled activity authorisation, vary the authorisation by specifying another person as the holder if the Minister is satisfied that it is appropriate in the circumstances to do so.
The application must:
be in writing; and
be given in a form approved, in writing, by the Minister; and
be accompanied by any other information or documents:
required by the form; or
prescribed by the rules; and
if the rules specify a fee that must accompany the application—be accompanied by the fee.
The Minister must, as soon as practicable after deciding to vary a controlled activity authorisation under section 87 or 88:
give written notice of the decision to the holder; and
publish a copy of the notice on the Department’s website; and
publish a copy of the notice through the Clearing-House Mechanism.
The notice must:
specify the reasons for the variation; and
specify the day the variation takes effect (which must not be earlier than the day after the notice is given); and
include a copy of the authorisation as varied.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the matters (if any) prescribed by rules made under that Act.
(1) If an application is made under prospective holder) as the holder, the Minister must, as soon as practicable after making a decision on the application:section 89 to vary a controlled activity authorisation by specifying another person (the
give written notice of the decision to the applicant and the prospective holder; and
publish a copy of the notice on the Department’s website; and
publish a copy of the notice through the Clearing-House Mechanism.
The notice must:
specify the reasons for the decision; and
if the decision is to vary the authorisation:
specify the day the variation takes effect (which must not be earlier than the day after the notice is given); and
include a copy of the authorisation as varied.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the matters (if any) prescribed by rules made under that Act.
Subdivision C—Suspension
The Minister may suspend a controlled activity authorisation if subsection (2) or (3) applies.
Suspension to address significant adverse impact
This subsection applies if:
the Minister reasonably believes that the controlled activity has had, or may have, a significant adverse impact on the marine environment in an area beyond national jurisdiction; and
either:
the nature or severity of the significant adverse impact was not foreseen at the time the authorisation was given; or
the significant adverse impact was caused by a breach of a condition to which the authorisation is subject; and
the Minister reasonably believes that the suspension is necessary to protect the marine environment in the area from:
the significant adverse impact; or
any other impacts of the controlled activity.
Suspension in prescribed circumstances
This subsection applies if the Minister reasonably believes that a circumstance prescribed by the rules exists in relation to the controlled activity.
While a controlled activity authorisation is suspended under this Subdivision, the authorisation is taken to not authorise any person to carry out the controlled activity.
However, the authorisation remains in force despite the suspension.
The Minister must, as soon as practicable after deciding to suspend a controlled activity authorisation:
(a) give written notice (the suspension notice) of the decision to the holder; and
publish a copy of the suspension notice on the Department’s website; and
publish a copy of the suspension notice through the Clearing-House Mechanism.
The suspension notice must specify:
the reasons for the suspension; and
the day the suspension takes effect (which must not be earlier than the day after the notice is given); and
either or both of the following:
the actions the holder must take for the suspension to end;
a fixed period for the suspension.
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the matters (if any) prescribed by rules made under that Act.
Suspensions subject to specified actions
If the suspension notice specifies actions the holder must take for the suspension to end, and the Minister is satisfied that the holder has taken those actions, the Minister must:
(a) give written notice (the action taken notice) of that fact to the holder; and
publish a copy of the action taken notice on the Department’s website; and
publish a copy of the action taken notice through the Clearing-House Mechanism.
When a suspension ends
The suspension of the controlled activity authorisation ends in accordance with the following table.
Subdivision D—Revocation
The Minister may revoke a controlled activity authorisation if subsection (2) or (3) applies.
Revocation to address significant adverse impact
This subsection applies if:
the Minister reasonably believes that the controlled activity has had, or may have, a significant adverse impact on the marine environment in an area beyond national jurisdiction; and
either:
the nature or severity of the significant adverse impact was not foreseen at the time the authorisation was given; or
the significant adverse impact was caused by a breach of a condition to which the authorisation is subject; and
the Minister reasonably believes that the revocation is necessary to protect the marine environment in the area from:
the significant adverse impact; or
any other impacts of the controlled activity.
Revocation in prescribed circumstances
This subsection applies if the Minister reasonably believes that a circumstance prescribed by the rules exists in relation to the controlled activity.
The Minister must, as soon as practicable after deciding to revoke a controlled activity authorisation:
give written notice of the decision to the holder; and
publish a copy of the notice on the Department’s website; and
publish a copy of the notice through the Clearing-House Mechanism.
The notice under subsection (1) must specify:
the reasons for the decision; and
the day the revocation takes effect (which must not be earlier than the day after the notice is given).
Note: Section 266 of the Administrative Review Tribunal Act 2024 requires a decision-maker to notify persons whose interests are affected by the decision of the making of the decision and their right to have the decision reviewed. In so notifying, the decision-maker must have regard to the matters (if any) prescribed by rules made under that Act.
Subdivision E—Review by Administrative Review Tribunal
An application may be made to the Administrative Review Tribunal for review of the following decisions:
a decision under subsection 81(1) not to authorise the carrying out of a controlled activity;
a decision under subsection 83(2) to impose a condition on a controlled activity authorisation;
a decision under section 86 to review a controlled activity authorisation;
a decision under section 87 to vary a controlled activity authorisation by:
varying a measure or requirement specified in the authorisation; or
specifying a new requirement; or
varying or revoking a condition imposed on the authorisation; or
imposing a new condition on the authorisation;
a decision under section 88 to vary a controlled activity authorisation by extending or reducing the period for which the authorisation is in force;
a decision under section 89 not to vary a controlled activity authorisation by specifying a different holder;
a decision under section 92 to suspend a controlled activity authorisation;
a decision under section 95 to revoke a controlled activity authorisation.
Subdivision A—Domestic activities
A person contravenes this subsection if:
the person carries out a domestic activity; and
the activity has had, or may have, a significant adverse impact on the marine environment in an area beyond national jurisdiction.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 7 years or 1,000 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
Exceptions
Subsection (1) does not apply if:
the activity is an exempt activity; or
the activity is a non-controlled activity; or
the person is the holder of a controlled activity authorisation for the activity.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).
A person contravenes this subsection if:
the person has referred a domestic activity to the Minister under section 66; and
the Minister has not made a decision under subsection 71(1) (decision on whether activity is controlled activity) in relation to the activity; and
the person carries out the activity.
A person contravenes this subsection if:
the Minister has given the person a notice under section 68 requesting the person to refer a domestic activity to the Minister; and
the person has not made the referral within the period specified in the notice; and
the request has not been withdrawn; and
the person carries out the activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1) or (2).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 5,000 penalty units.
A person contravenes this subsection if:
the person carries out a domestic activity; and
the activity is a controlled activity; and
the person is not authorised by a controlled activity authorisation to carry out the activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
A person contravenes this subsection if:
the person is the holder of a controlled activity authorisation for a domestic activity; and
the authorisation is subject to a condition; and
the person does an act or omits to do an act; and
the act or omission breaches the condition.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
Subdivision B—International activities
A person contravenes this subsection if:
the person is an Australian entity; and
the person carries out an international activity; and
the activity has had, or may have, a significant adverse impact on the marine environment in an area beyond national jurisdiction.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 7 years or 1,000 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
Exceptions
Subsection (1) does not apply if:
the activity is an exempt activity; or
the activity is a non-controlled activity; or
the person is the holder of a controlled activity authorisation for the activity.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act).
A person contravenes this subsection if:
the person is an Australian entity; and
the person has referred an international activity to the Minister under section 66; and
the Minister has not made a decision under subsection 71(1) (decision on whether activity is controlled activity) in relation to the activity; and
the person carries out the activity.
A person contravenes this subsection if:
the person is an Australian entity; and
the Minister has given the person a notice under section 68 requesting the person to refer an international activity to the Minister; and
the person has not made the referral within the period specified in the notice; and
the request has not been withdrawn; and
the person carries out the activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1) or (2).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 5,000 penalty units.
A person contravenes this subsection if:
the person is an Australian entity; and
the person carries out an international activity; and
the activity is a controlled activity; and
the person is not authorised by a controlled activity authorisation to carry out the activity.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
A person contravenes this subsection if:
the person is an Australian entity; and
the person is the holder of a controlled activity authorisation for an international activity; and
the authorisation is subject to a condition; and
the person does an act or omits to do an act; and
the act or omission breaches the condition.
Fault-based offence
A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 5,000 penalty units.
This section applies if, under this Part, the Minister is required to publish a document.
The Minister may redact information from the published document if the Minister is satisfied that:
the publication of the information could reasonably be expected to prejudice the security, defence or international relations of Australia; or
all of the following apply in relation to the information:
publication of the information would cause competitive detriment to a person;
the information is not in the public domain;
the information is not required to be published under an Australian law;
the information is not readily discoverable.
If the Minister redacts the information, the Minister must include in the document a statement to that effect.
This Part provides for the establishment of the High Seas Biodiversity Register.
The Register contains information about certain matters dealt with under this Act, including collection notification certificates and utilisation notification certificates issued by the Minister.
The Minister must make the Register available on the Department’s website, but may redact certain information from the Register.
The Minister must establish and maintain a register, to be known as the High Seas Biodiversity Register.
Note: The High Seas Biodiversity Register is known as the Register (see the definition of that term in section 5).
The Register is to be maintained by electronic means.
The Register is to be made available on the Department’s website.
The Minister must ensure that the Register is up to date.
The Minister must publish on the Register:
for each collection notification certificate and utilisation notification certificate issued by the Minister:
a copy of the certificate; and
the name of the holder; and
any variation of the certificate; and
each exemption given by the Minister under subsection 40(1) (exemption from requirement to deposit utilised material or information); and
any other information prescribed by the rules.
Despite subsection (1), the Minister may:
redact or remove information from the Register; or
decide not to publish information on the Register;
if the Minister reasonably believes that:
the information is sensitive information; or
there are exceptional circumstances that make it inappropriate to publish the information on the Register.
(3) For the purposes of paragraph (2)(c), sensitive information is:
information of a culturally sensitive nature; or
information the publication of which could reasonably be expected to:
prejudice the protection of public safety or the environment; or
endanger the life or safety of an individual or group of individuals; or
prejudice the security, defence or international relations of the Commonwealth; or
prejudice relations between the Commonwealth government and the government of a State or Territory.
This Part provides for matters relating to compliance and enforcement.
In particular, this Part:
provides for the Secretary to appoint Commonwealth, State and Territory officers and employees as inspectors for the purposes of this Act; and
applies the framework established by the Regulatory Powers Act in relation to provisions of this Act and the rules; and
confers information gathering powers on the Secretary for the purposes of investigating or preventing contraventions; and
provides for the rules to prescribe record keeping requirements for certain persons; and
provides for the Secretary to require audits of certain activities to be conducted.
The Secretary may, by written instrument, appoint any of the following persons as an inspector for the purposes of this Act:
an officer or employee of the Commonwealth, or of an agency or authority of the Commonwealth;
an officer or employee of a State or Territory, or of an agency or authority of a State or Territory.
The Secretary must not appoint a person under paragraph (1)(b) as an inspector without the agreement of the State or Territory.
The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.
In exercising powers as an inspector, an inspector must comply with any directions of the Secretary.
If a direction under subsection (4) is given in writing, the direction is not a legislative instrument.
If a direction under subsection (4) is given orally, the Secretary must, as soon as reasonably practicable after giving the direction:
make a written record of the direction; and
give a copy of the written record to the inspector.
Subdivision A—Monitoring powers
Provisions subject to monitoring
The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
each provision of this Act and the rules;
(b) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act or the rules.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act and the rules have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
Information given in compliance or purported compliance with a provision of this Act or the rules is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
there are no related provisions; and
an inspector is an authorised applicant; and
an inspector is an authorised person; and
a magistrate is an issuing officer; and
the Secretary is the relevant chief executive; and
each of the following is a relevant court:
the Federal Court of Australia;
the Federal Circuit and Family Court of Australia (Division 2);
a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the rules.
Person assisting
An authorised person may be assisted by other persons in exercising powers, or performing functions or duties, under Part 2 of the Regulatory Powers Act in relation to:
the provisions mentioned in subsection (1); and
the information mentioned in subsection (2).
Premises
Part 2 of the Regulatory Powers Act applies in relation to the provisions mentioned in subsection 112(1) and the information mentioned in subsection 112(2) as if a reference in that Part to premises were a reference to premises as defined in section 5 of this Act.
Additional monitoring powers
For the purposes of determining:
whether a provision mentioned in subsection 112(1) has been, or is being, complied with; or
the correctness of information mentioned in subsection 112(2);
the additional powers mentioned in subsections (3) and (4) of this section are taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act.
The additional monitoring powers are:
the power to sample any thing on premises entered under Part 2 of the Regulatory Powers Act; and
the power to remove, test and analyse such samples; and
the power to secure premises entered under Part 2 of the Regulatory Powers Act; and
the power to secure things on premises entered under Part 2 of the Regulatory Powers Act for the purpose of sampling, testing or analysing those things; and
the power to secure a container on premises entered under Part 2 of the Regulatory Powers Act that contains a thing if the inspector reasonably believes that it is not reasonably practicable to secure the thing without also securing the container (whether or not the container contains any other thing).
Stopping or detaining a vehicle, vessel or aircraft
If an authorised person is authorised under section 18 of the Regulatory Powers Act, as that section applies in relation to:
the provisions mentioned in subsection 112(1) of this Act; and
information mentioned in subsection 112(2) of this Act;
to enter premises that are a vehicle, vessel or aircraft, the monitoring powers under Part 2 of the Regulatory Powers Act are taken to include a power that the authorised person may stop and detain the vehicle, vessel or aircraft for the purposes of:
entering the vehicle, vessel or aircraft; and
exercising monitoring powers under that Part.
Use of force in executing a monitoring warrant
In executing a monitoring warrant under Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection 112(1) and the information mentioned in subsection 112(2):
(a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and
a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.
Communication
An authorised person may communicate a requirement, in relation to an aircraft or vessel, under section 112 or this section by means of:
an international signal code; or
if the requirement relates to a vessel—any other internationally recognised means of communication with a vessel; or
if the requirement relates to an aircraft—any other internationally recognised means of communication with an aircraft.
Identity cards
A reference to an identity card in sections 25 and 26 and subsection 35(6) of the Regulatory Powers Act, as those provisions apply in relation to the provisions mentioned in subsection 112(1) and the information mentioned in subsection 112(2), is taken to include a reference to written evidence identifying the authorised person as a member or special member of the Australian Federal Police or a customs officer (as the case requires).
Subsection 35(1) of the Regulatory Powers Act, as that subsection applies in relation to the provisions mentioned in subsection 112(1) and the information mentioned in subsection 112(2), does not require the relevant chief executive to issue an identity card to an authorised person who is:
a member or special member of the Australian Federal Police; or
a customs officer.
Announcement before entry under a warrant
For the purposes of determining:
whether a provision mentioned in subsection 112(1) has been, or is being, complied with; or
the correctness of information mentioned in subsection 112(2);
paragraph 26(b) of the Regulatory Powers Act is taken not to apply to an authorised person if the authorised person reasonably believes that showing the authorised person’s identity card before entering premises under Part 2 of that Act is not practical in the circumstances.
However, if either of the following persons is present at the premises when the authorised person so enters:
the occupier in relation to the premises;
another person who apparently represents the occupier in relation to the premises;
the Regulatory Powers Act is taken to require the authorised person to show the authorised person’s identity card to the occupier, or other person, as soon as is practicable.
Definitions
In this section:
occupier, in relation to premises, includes a person present at the premises who is in apparent control of the premises.
Subdivision B—Investigation powers
Provisions subject to investigation
The following provisions are subject to investigation under Part 3 of the Regulatory Powers Act:
a civil penalty provision of this Act;
(b) an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act or the rules.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):
there are no related provisions; and
(b) an inspector is an authorised applicant; and
an inspector is an authorised person; and
a magistrate is an issuing officer; and
the Secretary is the relevant chief executive; and
each of the following is a relevant court:
the Federal Court of Australia;
the Federal Circuit and Family Court of Australia (Division 2);
a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the rules.
Person assisting
An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Premises
Part 3 of the Regulatory Powers Act applies in relation to evidential material that relates to a provision mentioned in subsection 114(1) of this Act as if a reference in that Part to premises were a reference to premises as defined in section 5 of this Act.
Additional investigation powers
The additional powers mentioned in subsections (3) and (4) of this section are taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 114(1) of this Act.
The additional investigation powers are:
the power to sample any thing on premises entered under Part 3 of the Regulatory Powers Act; and
the power to remove, test and analyse such samples; and
the power to secure premises entered under Part 3 of the Regulatory Powers Act; and
the power to secure things on premises entered under Part 3 of the Regulatory Powers Act for the purpose of sampling, testing or analysing those things; and
the power to secure a container on premises entered under Part 3 of the Regulatory Powers Act that contains a thing if the authorised person reasonably believes that it is not reasonably practicable to secure the thing without also securing the container (whether or not the container contains any other thing); and
(f) if the authorised person has the power to seize a thing (the seizable thing) under Part 3 of the Regulatory Powers Act—the power to seize a container that contains the seizable thing, and any other thing contained in the container, if the authorised person reasonably believes that it is not reasonably practicable to seize the seizable thing without also seizing the container; and
the power to require a person in command or control, or who appears to be in command or control, of a vehicle, vessel or aircraft to do any of the following:
ensure the vehicle, vessel or aircraft does not remain, or does not come, as the case requires, in Australian jurisdiction;
ensure the vehicle, vessel or aircraft is brought to a specified place at which it is safe and practicable to bring the vehicle, vessel or aircraft;
ensure the vehicle, vessel or aircraft remains at a specified place until an authorised person permits the vehicle, vessel or aircraft to leave;
arrange for goods being carried on the vehicle, vessel or aircraft to be unloaded;
ensure that goods being carried on the vehicle, vessel or aircraft are not unloaded until an authorised person permits their unloading.
Stopping or detaining a vehicle, vessel or aircraft
If an authorised person is authorised under section 48 of the Regulatory Powers Act, as that section applies in relation to evidential material that relates to a provision mentioned in subsection 114(1) of this Act, to enter premises that are a vehicle, vessel or aircraft, the investigation powers under Part 3 of the Regulatory Powers Act are taken to include a power that the authorised person may stop and detain the vehicle, vessel or aircraft for the purposes of:
entering the vehicle, vessel or aircraft; and
exercising investigation powers under that Part.
Use of force in executing an investigation warrant
In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection 114(1):
(a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and
a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.
Communication
An authorised person may communicate a requirement, in relation to an aircraft or vessel, under this section by means of:
an international signal code; or
if the requirement relates to a vessel—any other internationally recognised means of communication with a vessel; or
if the requirement relates to an aircraft—any other internationally recognised means of communication with an aircraft.
Operating electronic equipment etc. that may contain evidential material
Subsection 50(1) of the Regulatory Powers Act, as that subsection applies in relation to evidential material that relates to a provision mentioned in subsection 114(1) of this Act, is taken to include the power (subject to subsections 50(3) and (4) of the Regulatory Powers Act) to:
operate electronic equipment on premises entered under Part 3 of that Act, as that Part applies to evidential material that relates to a provision mentioned in subsection 114(1) of this Act; and
use a disk, tape or other storage device that:
is on those premises; and
can be used with the equipment or is associated with it;
to find out whether the equipment, disk, tape or other storage device contains such evidential material.
Identity cards
A reference to an identity card in sections 55 and 56 and subsection 76(6) of the Regulatory Powers Act, as those provisions apply in relation to evidential material that relates to a provision mentioned in subsection 114(1) of this Act, is taken to include a reference to written evidence identifying the authorised person as a member or special member of the Australian Federal Police or a customs officer (as the case requires).
Subsection 76(1) of the Regulatory Powers Act, as that subsection applies in relation to evidential material that relates to a provision mentioned in subsection 114(1) of this Act, does not require the relevant chief executive to issue an identity card to an authorised person who is:
a member or special member of the Australian Federal Police; or
a customs officer.
Subdivision C—Civil penalty provisions
Enforceable civil penalty provisions
Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act.
Relevant court
For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
the Federal Court of Australia;
the Federal Circuit and Family Court of Australia (Division 2);
a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Maximum penalty—certain contraventions by a body corporate
Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty that a relevant court may order a body corporate to pay for a contravention of a civil penalty provision in Part 3 or 4 of this Act must not be more than 10 times the pecuniary penalty specified for the civil penalty provision.
Note: Under subsection 82(5) of the Regulatory Powers Act, for a contravention of any other civil penalty provision of this Act by a body corporate, the pecuniary penalty imposed for the contravention must not be more than 5 times that specified for the provision.
Subdivision D—Infringement notices
Provisions subject to an infringement notice
Each civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
For the purposes of Part 5 of the Regulatory Powers Act, an inspector is an infringement officer in relation to the provisions mentioned in subsection (1).
Relevant chief executive
For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).
Subdivision E—Enforceable undertakings
Enforceable provisions
Each provision of this Act and the rules is enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
For the purposes of Part 6 of the Regulatory Powers Act, the Secretary is an authorised person in relation to the provisions mentioned in subsection (1).
Relevant court
For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):
the Federal Court of Australia;
the Federal Circuit and Family Court of Australia (Division 2);
a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the rules.
Enforceable undertaking may be published on the Department’s website
The Secretary may cause an undertaking given under Part 6 of the Regulatory Powers Act in relation to a provision mentioned in subsection (1) to be published on the Department’s website.
Subdivision F—Injunctions
Enforceable provisions
Each provision of this Act and the rules is enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
For the purposes of Part 7 of the Regulatory Powers Act, the Secretary is an authorised person in relation to the provisions mentioned in subsection (1).
Relevant court
For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):
the Federal Court of Australia;
the Federal Circuit and Family Court of Australia (Division 2);
a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the rules.
Subdivision A—Information gathering and record keeping
Scope
This section applies if the Secretary believes, on reasonable grounds, that a person is capable of giving information, or producing a document, that is relevant for the purposes of investigating or preventing:
an offence against this Act; or
a contravention of a civil penalty provision of this Act.
Notice to produce
The Secretary may, by written notice, require the person to give the information or produce the document to an inspector.
The notice must specify the following:
how the person is to give the information or produce the document;
the period (which must be at least 14 days after the notice is given) within which the person is to give the information or produce the document;
(c) the effect of subsection (4) of this section and sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).
A person contravenes this subsection if:
the person is given a notice under subsection (2); and
the person fails to comply with the notice.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (4).
Penalty: 30 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 240 penalty units.
An individual is not excused from giving information or producing a document under section 120 on the ground that giving the information or producing the document might tend to incriminate the person in relation to an offence.
Note: A body corporate is not entitled to claim the privilege against self-incrimination.
However:
the information given or document produced; and
the giving of the information or the production of the document; and
any information, document or thing obtained as a direct or indirect consequence of the giving of the information or the production of the document;
are not admissible in evidence against the individual in criminal proceedings other than proceedings for an offence against:
section 120 of this Act; or
(e) Criminal Code (false or misleading information or documents) in relation to giving the information or producing the document.section 137.1 or 137.2 of the
If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information or producing a document under section 120, the individual is not excused from giving the information or producing the document under that provision on that ground.
Note: A body corporate is not entitled to claim the privilege against self-exposure to a penalty.
The rules may make provision for and in relation to requiring records to be made and retained by the following:
a person who carries out an activity in a specially managed area;
a person who carries out an activity in an area beyond national jurisdiction for which one or more alternative measures are determined;
the holder of a controlled activity authorisation.
Without limiting subsection (1), rules made for the purposes of that subsection may make provision for and in relation to one or more of the following:
the kind of records that must be made and retained;
the form in which records must be retained;
the period for which records must be retained.
A person contravenes this subsection if:
the person is required to make or retain a record in accordance with rules made for the purposes of subsection (1); and
the person fails to comply with the requirement.
Strict liability offence
A person commits an offence of strict liability if the person contravenes subsection (3).
Penalty: 30 penalty units.
Civil penalty provision
A person is liable to a civil penalty if the person contravenes subsection (3).
Civil penalty: 240 penalty units.
Subdivision B—Audit powers
The Secretary may, in writing, require an audit to be conducted by an auditor of any of the following:
an activity purportedly authorised by a controlled activity authorisation;
an activity carried out in a specially managed area that is purportedly consistent with a special management plan for that area;
an activity carried out in an area beyond national jurisdiction that is purportedly consistent with the alternative measures determined for the area.
Note: For the meaning of auditor, see section 124.
An audit under subsection (1) must relate to whether an activity mentioned in a paragraph of that subsection:
is authorised by the authorisation, or consistent with the special management plan or the alternative measures (as the case requires); or
complies, has complied or will comply with the conditions of the authorisation (if any), the special management plan or the alternative measures (as the case requires); or
complies, has complied or will comply with any other relevant requirements of this Act or the rules.
An audit under subsection (1) may deal with anything that is:
reasonably necessary for the effective conduct of the audit; or
incidental to the matter to which the audit relates.
The Secretary may require a single audit, or a program of audits, to be conducted in relation to:
a specified matter; or
matters included in a specified class of matters.
(1) Each of the following is an auditor for the purposes of this Subdivision:
an inspector;
a person appointed as an auditor by the Secretary under subsection (2).
The Secretary may, in writing, appoint a person as an auditor if the Secretary is satisfied that the person has the appropriate skills and experience necessary to undertake an audit under this Subdivision.
A relevant person for an audit is as follows:
for an audit of an activity purportedly authorised by a controlled activity authorisation—the holder;
for an audit of any other activity—a person carrying out the activity.
The Secretary need not give notice of an audit required under this Subdivision.
Before starting to conduct an audit, the auditor must give each relevant person for the audit a description of the scope of the audit.
The auditor may be assisted by other persons in relation to the conduct of the audit.
The rules may make provision for and in relation to:
other matters relating to the conduct of an audit; and
the process to be followed after an audit has been completed.
Without limiting subsection (4), the rules may make provision for and in relation to the following:
information that must be provided to each relevant person for the audit before the audit, during the audit or after the audit is completed;
requirements for reports to be provided in relation to an audit.
Each relevant person for an audit must provide the auditor with such assistance as the auditor considers reasonably necessary for the conduct of the audit.
Without limiting subsection (1) of this section, providing assistance that is reasonably necessary includes complying with any request under subsection 128(1) for the audit.
Subsection (1) of this section does not require a person to allow an auditor, or a person assisting an auditor, to:
enter premises; or
take samples of any thing on premises; or
inspect any thing on premises.
Note: See Division 3 in relation to an inspector’s power to enter premises and to take, test and analyse samples on premises.
For the purposes of conducting an audit, the auditor may request a person who the auditor reasonably believes has information or documents that are relevant to the audit to answer questions, provide information in writing, or produce the documents.
Note: A person may commit an offence or be liable to a civil penalty if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code).
An auditor may make copies of, or take extracts from, a document or record produced in an audit.
This Part provides for the use and disclosure of certain information.
In particular, this Part:
prohibits the unauthorised use or disclosure of protected information by current and former entrusted persons; and
contains various authorisations for the Minister and other entrusted persons to use or disclose relevant information.
A person is liable to a civil penalty if:
the person is, or has been, an entrusted person; and
the person has obtained relevant information in the person’s capacity as an entrusted person; and
the information is protected information; and
the person uses or discloses the information.
Civil penalty: 200 penalty units.
Exception—required or authorised by law
Subsection (1) does not apply if the use or disclosure of the information is required or authorised by:
this Act or the rules; or
any other law of the Commonwealth; or
a law of a State or Territory prescribed by the rules.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act).
A person is liable to a civil penalty if:
the person is, or has been, an official of a Commonwealth entity; and
the person has obtained relevant information in the person’s capacity as an official of the entity; and
the information is protected information that was disclosed to the entity under section 132; and
the person uses or discloses the information other than for the purpose for which it was disclosed to the entity.
Civil penalty: 200 penalty units.
The Minister may disclose relevant information to a Commonwealth entity if the Minister is satisfied that the disclosure is for the purposes of assisting the entity to perform its functions or duties or exercise its powers.
The Minister may disclose relevant information to a State or Territory government body if:
the Minister reasonably believes that disclosing the information is necessary for the purposes of:
the Minister performing functions, or exercising powers, under this Act or the rules; or
the administration of a law of a State or Territory; and
the State or Territory government body has undertaken not to use or further disclose the information except in accordance with an agreement that:
is in force between the Commonwealth and the State or Territory; and
applies in relation to the information; and
the Minister is satisfied that the information will be used or further disclosed only in accordance with the agreement.
The Minister may disclose relevant information to an enforcement body if:
the Minister reasonably believes that the disclosure of the information is necessary for:
the enforcement of the criminal law; or
the enforcement of a law imposing a pecuniary penalty; or
the protection of public revenue; and
the functions of that body include that enforcement or protection.
(2) Each of the following is an enforcement body:
a Commonwealth entity;
a State or Territory government body;
the Australian Federal Police;
the police force or police service of a State or Territory.
The Minister may use or disclose relevant information if the Minister reasonably believes that the use or disclosure is necessary to prevent or lessen a serious risk to human health.
The Minister may use or disclose relevant information if the Minister reasonably believes that the use or disclosure is necessary to prevent or lessen a serious risk to the environment.
An entrusted person may use or disclose relevant information for the purposes of:
performing functions or duties, or exercising powers, under this Act or the rules, or another Act administered by the Minister; or
assisting another person to perform functions or duties, or exercise powers, under this Act or the rules, or another Act administered by the Minister.
An entrusted person may disclose relevant information to a court exercising federal jurisdiction.
An entrusted person may disclose relevant information to:
a court; or
a tribunal, authority or person that has the power to require the answering of questions or the production of documents;
for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made or reviewed under a law of the Commonwealth.
An entrusted person may disclose relevant information to:
a foreign government; or
an authority or agency of a foreign government; or
an international body of an intergovernmental character;
for the purposes of giving effect to Australia’s international obligations.
An entrusted person may use or disclose:
summaries of relevant information; or
statistics derived from relevant information;
if those summaries or statistics do not enable the identification of a person.
An entrusted person may use or disclose relevant information if the information has already been lawfully made available to the public.
An entrusted person may use or disclose relevant information that relates to a person if:
the person has consented to the use or disclosure; and
the use or disclosure is in accordance with that consent.
An entrusted person may disclose relevant information to the person to whom the information relates.
An entrusted person may disclose relevant information to the person who provided the information.
This Part deals with miscellaneous matters, including the following:
arrangements for the Commonwealth to make payments or grants of financial assistance for various purposes, including the implementation of Australia’s obligations under the BBNJ Agreement;
general rules about the operation of the offence and civil penalty provisions in this Act;
a requirement for a review of the operation of this Act and the rules to be conducted every 10 years after the commencement of this Act;
the delegations and rules that can be made under this Act.
The Secretary may, on behalf of the Commonwealth, make, vary or administer an arrangement for the making of payments by the Commonwealth, or make, vary or administer a grant of financial assistance, for the purposes of:
implementing any of Australia’s obligations under the BBNJ Agreement; or
contributing to the implementation of any of Australia’s obligations under the BBNJ Agreement; or
giving effect to the objectives set out in Articles 2, 9, 17, 27 and 40 of the BBNJ Agreement; or
a matter that is incidental or ancillary to a matter covered by paragraph (a), (b) or (c); or
a matter that is:
prescribed by the rules; or
incidental or ancillary to a matter prescribed by the rules.
Rules made for the purposes of subparagraph (1)(e)(i) must specify the legislative power or powers of the Parliament in respect of which the rules are made.
Without limiting subsection (1), an arrangement or grant may be made, varied or administered under that subsection in relation to:
the provision of funding in accordance with Article 52 of the BBNJ Agreement; or
activities to promote the conservation and sustainable use of the marine biological diversity of areas beyond national jurisdiction; or
activities to facilitate cooperation between Australia and the other parties to the BBNJ Agreement in promoting the objectives set out in Articles 2, 9, 17, 27 and 40 of the BBNJ Agreement.
Reimbursement of costs or expenses
An arrangement under subsection (1) may provide for the Commonwealth to reimburse, or partly reimburse, costs or expenses.
A grant under subsection (1) may be made by way of the reimbursement, or partial reimbursement, of costs or expenses.
Subsections (4) and (5) do not limit subsection (1).
Definitions
In this section:
administer an arrangement includes give effect to.
arrangement includes a contract, agreement, deed or understanding.
make, in relation to an arrangement, includes enter into.
Grant of financial assistance to a State or Territory
For a grant of financial assistance under section 146 to a State or Territory, the terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State or Territory.
An agreement under subsection (1) may be entered into on behalf of the Commonwealth by the Minister or the Secretary.
Any variation of the grant must be in accordance with the terms or conditions of the grant.
Grant of financial assistance to other persons
For a grant of financial assistance under section 146 to a person other than a State or Territory, this section does not, by implication, prevent the grant from being made subject to terms and conditions.
This Division does not, by implication, limit the executive power of the Commonwealth.
The Secretary, when preparing the Department’s annual report under Public Governance, Performance and Accountability Act 2013 for a period, must include the following information in that report:section 46 of the
the total of the amounts paid in that period under arrangements or grants made under section 146 of this Act;
the total number of such arrangements or grants that were made in that period.
Criminal Code does not apply in relation to an offence against this Act.Division 14 (standard geographical jurisdiction) of the
Note: The extended geographical application that section 8 gives to this Act applies to the offences and civil penalty provisions of this Act.
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence.
(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct provision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.
For the purposes of this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
The Minister must cause independent reviews of the operation of this Act and the rules to be conducted.
Report
The person or persons who conduct a review under subsection (1) must give the Minister a written report of the review.
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
Timing of reviews
The first review under subsection (1) must be completed within 10 years after the commencement of this section.
Each subsequent review under subsection (1) must be completed within 10 years after the completion of the previous review.
For the purposes of subsections (4) and (5), a review is completed when the report of the review is given to the Minister under subsection (2).
The Minister may, in writing, delegate all or any of the Minister’s functions or powers under this Act or the rules to:
the Secretary; or
the CEO; or
the Director of National Parks; or
an SES employee, or acting SES employee, in the Department; or
an APS employee in the Department who holds, or is acting in, an Executive Level 1 or 2, or equivalent, position; or
a member of the staff of NEPA who:
is an SES employee or acting SES employee; or
holds, or is acting in, an Executive Level 1 or 2 position.
Despite subsection (1), the Minister must not delegate a function or power the Minister has under section 156 (about the Minister’s power to make rules).
In performing a function or exercising a power delegated under this section, the delegate must comply with any written directions of the Minister.
Interpretation
In this section:
CEO has the same meaning as in the National Environmental Protection Agency Act 2025.
staff of NEPA means the staff of the National Environmental Protection Agency referred to in section 53 of the National Environmental Protection Agency Act 2025.
Note: This is a reference to the Chief Executive Officer of the National Environmental Protection Agency.
The Secretary may, in writing, delegate all or any of the Secretary’s functions or powers under this Act or the rules to:
the CEO; or
the Director of National Parks; or
an SES employee, or acting SES employee, in the Department; or
a member of the staff of NEPA who is an SES employee or acting SES employee.
The functions or powers that may be delegated under subsection (1) include functions or powers the Secretary has as a relevant chief executive, authorised applicant or authorised person for the purposes of a provision of the Regulatory Powers Act because of this Act.
In performing a function or exercising a power delegated under this section, the delegate must comply with any written directions of the Secretary.
Interpretation
In this section:
CEO has the same meaning as in the National Environmental Protection Agency Act 2025.
staff of NEPA means the staff of the National Environmental Protection Agency referred to in section 53 of the National Environmental Protection Agency Act 2025.
Note: This is a reference to the Chief Executive Officer of the National Environmental Protection Agency.
The Minister may, by legislative instrument, make rules prescribing matters:
required or permitted by this Act to be prescribed by the rules; or
necessary or convenient to be prescribed for carrying out or giving effect to this Act.
To avoid doubt, the rules may not do the following:
create an offence or civil penalty;
provide powers of:
arrest or detention; or
entry, search or seizure;
impose a tax;
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
directly amend the text of this Act.
Fees
The rules may provide for:
the charging and recovery of fees for activities carried out by, or on behalf of, the Commonwealth in the performance of functions or the exercise of powers under this Act or the rules; and
the remission, refund or waiver of those fees, or the exemption of persons from payment of those fees.
A fee must not be such as to amount to taxation.
Incorporation by reference
(5) Despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.
[Minister’s second reading speech made in—
Senate on 4 February 2026
House of Representatives on 26 March 2026]
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