Commonwealth: Environment and Heritage Legislation Amendment Act (No. 1) 2003 (Cth)

Environment and Heritage Legislation Amendment Act (No. 1) 2003 Act No. 88 of 2003 as amended This compilation was prepared on 21 February 2007 [This Act was amended by Act No. 165 of 2006] Amendments from Act No. 165 of 2006 [Schedule 1 (item 846) amended Heading to subitem 1A(2) of Schedule 3 Schedule 1 (item 847) amended subitem 1A(2) of Schedule 3 Schedule 1 (items 846 and 847) commenced on 19 February 2007] Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendments relating to the National Heritage List and Commonwealth Heritage List Environment Protection and Biodiversity Conservation Act 1999 Schedule 2—Amendments relating to the Director of Indigenous Heritage Protection Environment Protection and Biodiversity Conservation Act 1999 Schedule 3—New listings of places in other lists Schedule 4—Other amendments Environment Protection and Biodiversity Conservation Act 1999 An Act to amend legislation relating to the environment, and for related purposes [Assented to 23 September 2003] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Environment and Heritage Legislation Amendment Act (No. 1) 2003. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent 23 September 2003 2. Schedule 1 A single day to be fixed by Proclamation, subject to subsection (3) 1 January 2004 (s. 2(1); Gazette 2003, GN47) 3. Schedule 2 The later of: (paragraph (b) applies) (a) immediately after the commencement of the provisions covered by item 2 of this table; and (b) the time when section 9 of the Act that establishes the Director of Indigenous Heritage Protection commences 4. Schedule 3 At the same time as the provisions covered by item 2 of this table 1 January 2004 5. Schedule 4 The day on which this Act receives the Royal Assent 23 September 2003 Note 1: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. Note 2: The Director of Indigenous Heritage Protection is expected to be established by the Aboriginal and Torres Strait Islander Heritage Protection Act, which may be enacted in 2002 or a later year. (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. (3) If the provisions covered by item 2 of the table do not commence within the period of 6 months beginning on the latest of the following days: (a) the day on which this Act receives the Royal Assent; (b) the day on which the Australian Heritage Council Act 2002 receives the Royal Assent; (c) the day on which the Australian Heritage Council (Consequential and Transitional Provisions) Act 2002 receives the Royal Assent; they commence on the first day after the end of that period. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to the National Heritage List and Commonwealth Heritage List Environment Protection and Biodiversity Conservation Act 1999 1 After paragraph 3(1)(c) Insert: (ca) to provide for the protection and conservation of heritage; and 2 After paragraph 3(2)(f) Insert: (fa) includes provisions to identify places for inclusion in the National Heritage List and Commonwealth Heritage List and to enhance the protection, conservation and presentation of those places; and 3 Subsection 12(4) Omit "Act", substitute "section". 4 After Subdivision A of Division 1 of Part 3 Insert: Subdivision AA—National Heritage 15B Requirement for approval of activities with a significant impact on a National Heritage place (1) A constitutional corporation, the Commonwealth or a Commonwealth agency must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place. Civil Penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. (2) A person must not, for the purposes of trade or commerce: (a) between Australia and another country; or (b) between 2 States; or (c) between a State and Territory; or (d) between 2 Territories; take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place. Civil Penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. (3) A person must not take an action in: (a) a Commonwealth area; or (b) a Territory; that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place. Civil Penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. (4) A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place. Civil Penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. Note: For indigenous heritage value, see section 528. (5) A person must not take an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention. Civil Penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. (6) Subsection (5) only applies to actions whose prohibition is appropriate and adapted to give effect to Australia's obligations under Article 8 of the Biodiversity Convention. (However, that subsection may not apply to certain actions because of subsection (8).) (7) A person must not take outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the National Heritage values of a National Heritage place outside the Australian jurisdiction. Civil Penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. (8) Subsections (1) to (5) (inclusive) and (7) do not apply to an action if: (a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency, Commonwealth or person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the constitutional corporation, Commonwealth agency, Commonwealth or person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). 15C Offences relating to National Heritage places (1) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, is guilty of an offence if: (a) the corporation or agency takes an action; and (b) the action results or will result in a significant impact on the National Heritage values of a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) A constitutional corporation, or a Commonwealth agency that does not enjoy the immunities of the Commonwealth, is guilty of an offence if: (a) the corporation or agency takes an action; and (b) the action is likely to have a significant impact on the National Heritage values of a National Heritage place; and (c) the corporation or agency is reckless as to the facts in paragraph (b). Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (3) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken for the purposes of trade or commerce: (i) between Australia and another country; or (ii) between 2 States; or (iii) between a State and Territory; or (iv) between 2 Territories; and (c) the action results or will result in a significant impact on the National Heritage values of a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (4) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken for the purposes of trade or commerce: (i) between Australia and another country; or (ii) between 2 States; or (iii) between a State and Territory; or (iv) between 2 Territories; and (c) the action is likely to have a significant impact on the National Heritage values of a National Heritage place; and (d) the person is reckless as to the facts in paragraph (c). Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (5) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken in: (i) a Commonwealth area; or (ii) a Territory; and (c) the action results or will result in a significant impact on the National Heritage values of a National Heritage place. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (6) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken in: (i) a Commonwealth area; or (ii) a Territory; and (c) the action is likely to have a significant impact on the National Heritage values of a National Heritage place; and (d) the person is reckless as to the facts in paragraph (c). Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (7) A person is guilty of an offence if: (a) the person takes an action; and (b) the action results or will result in a significant impact on the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place. Note 1: For indigenous heritage value, see section 528. Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (8) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is likely to have a significant impact on the National Heritage values, to the extent that they are indigenous heritage values, of a National Heritage place; and (c) the person is reckless as to the facts in paragraph (b). Note 1: For indigenous heritage value, see section 528. Note 2: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (9) A person is guilty of an offence if: (a) the person takes an action; and (b) the action results or will result in a significant impact on the National Heritage values of a National Heritage place; and (c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (10) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is likely to have a significant impact on the National Heritage values of a National Heritage place; and (c) the National Heritage place is in an area in respect of which Australia has obligations under Article 8 of the Biodiversity Convention; and (d) the person is reckless as to the facts in paragraphs (b) and (c). Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (11) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken outside the Australian jurisdiction; and (c) the action results or will result in a significant impact on the National Heritage values of a National Heritage place; and (d) the place is outside the Australian jurisdiction. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (12) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken outside the Australian jurisdiction; and (c) the action is likely to have a significant impact on the National Heritage values of a National Heritage place; and (d) the person is reckless as to the facts in paragraph (c); and (e) the place is outside the Australian jurisdiction. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (13) An offence against any of subsections (1) to (12) (inclusive) is punishable on conviction by imprisonment for a term not more than 7 years, a fine not more than 420 penalty units, or both. Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection. Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495. (14) Subsections (9) and (10) only apply to actions whose prohibition is appropriate and adapted to give effect to Australia's obligations under Article 8 of the Biodiversity Convention. (However, those subsections may not apply to certain actions because of subsection (16).) (15) Section 14.1 (standard geographical jurisdiction) of the Criminal Code does not apply to an offence created by this section. Note: Section 5 affects the extra‑territorial operation of this section. (16) Subsections (1) to (12) (inclusive) do not apply to an action if: (a) an approval of the taking of the action by the constitutional corporation, Commonwealth agency or person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the constitutional corporation, Commonwealth agency or person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. 5 Subsection 26(3) (note) Repeal the note, substitute: Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth land, because the heritage values of a place are part of the environment. See the definition of environment in section 528. Note 2: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment. 6 Subsection 27A(6) (note 2) Repeal the note, substitute: Note 2: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place on Commonwealth land, because the heritage values of a place are part of the environment. See the definition of environment in section 528. Note 3: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment. 7 After Subdivision A of Division 2 of Part 3 Insert: Subdivision AA—Protection of Commonwealth Heritage places outside the Australian jurisdiction 27B Requirement for approval of actions with significant impact on Commonwealth Heritage places overseas (1) A person must not take outside the Australian jurisdiction an action that has, will have or is likely to have a significant impact on the environment in a Commonwealth Heritage place outside the Australian jurisdiction. Civil Penalty: (a) for an individual—1,000 penalty units; (b) for a body corporate—10,000 penalty units. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: Subdivision F of Division 1 and Subdivision A of this Division protect the environment in Commonwealth Heritage places inside the Australian jurisdiction because those places are in Commonwealth marine areas or on Commonwealth land. 27C Offences relating to Commonwealth Heritage places overseas (1) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken outside the Australian jurisdiction; and (c) the action results or will result in a significant impact on the environment in a Commonwealth Heritage place; and (d) the place is outside the Australian jurisdiction. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) A person is guilty of an offence if: (a) the person takes an action; and (b) the action is taken outside the Australian jurisdiction; and (c) the action is likely to have a significant impact on the environment in a Commonwealth Heritage place; and (d) the person is reckless as to the facts in paragraph (c); and (e) the place is outside the Australian jurisdiction. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both. Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection. Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495. (4) Section 14.1 (standard geographical jurisdiction) of the Criminal Code does not apply to an offence created by this section. Note: Section 5 affects the extra‑territorial operation of this section. (5) Subsections (1) and (2) do not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code. 8 Application (1) This item is about the application of: (a) Subdivision AA of Division 1 of Part 3 of the Environment Protection and Biodiversity Conservation Act 1999; and (b) Subdivision AA of Division 2 of that Part. Note: So far as those Subdivisions have effect in relation to places and actions outside the Australian jurisdiction, those Subdivisions apply only to persons with a jurisdictional connection with Australia or the external Territories. See subsection 5(3) of that Act. (2) Neither Subdivision applies to a particular action if, before the commencement of this Schedule, the Minister has decided under section 75 of that Act whether the action is a controlled action (whether the decision was that the action is a controlled action or that the action is not a controlled action). 9 Subsection 28(1) (note) Repeal the note, substitute: Note 1: This section protects (among other things) the Commonwealth Heritage values of a Commonwealth Heritage place from an action taken by the Commonwealth or a Commonwealth agency, because the heritage values of a place are part of the environment. See the definition of environment in section 528. Note 2: This section does not apply to decisions to authorise activities. See Subdivision A of Division 1 of Part 23. 10 At the end of Division 2 of Part 3 Add: Subdivision C—Actions that are taken to be covered by this Division 28AA Actions that are taken to be covered by this Division (1) The regulations may provide that a specified action is taken to be an action to which a specified regulatory provision applies. Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901. (2) To avoid doubt, if, as a result of a regulation made for the purposes of subsection (1), a regulatory provision applies to an action, the action is taken to be described in the provision. (3) In this section: regulatory provision means: (a) a civil penalty provision set out in this Division; or (b) a provision of this Division that creates an offence. 11 Section 34 (after table item 1A) Insert: 1B section 15B the National Heritage values of a National Heritage place 1C section 15C the National Heritage values of a National Heritage place 12 Section 34 (after table item 16B) Insert: 16C section 27B the environment in a Commonwealth Heritage place outside the Australian jurisdiction 16D subsections 27C(1) and (2) the environment in a Commonwealth Heritage place outside the Australian jurisdiction 13 After section 34B Insert: 34BA Declarations relating to National Heritage places (1) The Minister may make a declaration under section 33 relating to a National Heritage place only if: (a) the Minister is satisfied that the declaration will promote the management of the place in accordance with the National Heritage management principles; and (b) the declaration meets the requirements (if any) prescribed by the regulations. (2) The Minister may accredit a management plan under section 33 for the purposes of such a declaration only if he or she is satisfied that the management plan will promote the management of the place concerned in accordance with the National Heritage management principles. 14 At the end of Subdivision C of Division 2 of Part 4 Add: 34F Declarations relating to Commonwealth Heritage places (1) The Minister may make a declaration under section 33 relating to a Commonwealth Heritage place only if: (a) the Minister is satisfied that the declaration will promote the management of the place in accordance with the Commonwealth Heritage management principles; and (b) the declaration meets the requirements (if any) prescribed by the regulations. (2) The Minister may accredit a management plan under section 33 for the purposes of such a declaration only if he or she is satisfied that the management plan will promote the management of the place concerned in accordance with the Commonwealth Heritage management principles. 15 After section 51 Insert: 51A Agreements relating to National Heritage places (1) The Minister may enter into a bilateral agreement containing a provision relating to a National Heritage place only if: (a) the Minister is satisfied that the agreement will promote the management of the place in accordance with the National Heritage management principles; and (b) the provision meets the requirements (if any) prescribed by the regulations. (2) The Minister may accredit a management plan under section 46 for the purposes of such a bilateral agreement only if he or she is satisfied that the plan will promote the management of the place concerned in accordance with the National Heritage management principles. 16 After subsection 74(1) Insert: Inviting comments from ATSIC (1A) As soon as practicable after receiving a referral of a proposal to take an action, the Environment Minister must: (a) inform the Aboriginal and Torres Strait Islander Commission; and (b) invite the Commission to give the Minister comments within 10 business days (measured in Canberra) on whether the proposed action is a controlled action; if the Minister thinks that section 15B, 15C, 23, 24A, 26, 27A, 27B, 27C or 28 could be a controlling provision for the action because of the indigenous heritage value of a National Heritage place or Commonwealth Heritage place. Note 1: Subsections 15B(4) and subsections 15C(7) and (8) protect the National Heritage values of National Heritage places, to the extent that those values are indigenous heritage values. Note 2: Sections 23, 24A, 26, 27A, 27B, 27C and 28 protect the environment, which includes the heritage values of places. See the definition of environment in section 528. 17 Subsection 84(3A) Omit "34C, 34D and 34E", substitute "34BA, 34C, 34D, 34E and 34F". 18 After section 137 Insert: 137A Requirements for decisions about National Heritage places In deciding whether or not to approve for the purposes of section 15B or 15C the taking of an action, and what conditions to attach to such an approval, the Minister must not act inconsistently with: (a) the National Heritage management principles; or (b) an agreement to which the Commonwealth is party in relation to a National Heritage place; or (c) a plan that has been prepared for the management of a National Heritage place under section 324S or as described in section 324X. 19 Chapter 5 (heading) Repeal the heading, substitute: Chapter 5—Conservation of biodiversity and heritage 20 After paragraph 176(4)(b) Insert: (ba) heritage values of places; 21 Paragraph 304(a) Repeal the paragraph, substitute: (a) conservation agreements between the Commonwealth and persons related to the protection and conservation of the following: (i) biodiversity; (ii) the world heritage values of declared World Heritage properties; (iii) the National Heritage values of National Heritage places; (iv) the Commonwealth Heritage values of Commonwealth Heritage places; and 22 Section 304 After "biodiversity" (last occurring), insert ", those heritage values or both of those things". 23 Subsections 305(1) to (3) Repeal the subsections, substitute: (1) The Minister may, on behalf of the Commonwealth, enter into an agreement (a conservation agreement) with a person for the protection and conservation of all or any of the following: (a) biodiversity in the Australian jurisdiction; (b) the world heritage values of a declared World Heritage property in the Australian jurisdiction; (c) the National Heritage values of a National Heritage place (whether inside or outside the Australian jurisdiction); (d) the Commonwealth Heritage values of a Commonwealth Heritage place (whether inside or outside the Australian jurisdiction). (1A) The protection and conservation of the matters in subsection (1) include all or any of the following: (a) the protection, conservation and management of any listed species or ecological communities, or their habitats; (b) the management of things in a way necessary for the protection and conservation of: (i) the world heritage values of a declared World Heritage property; or (ii) the National Heritage values of a National Heritage place; or (iii) the Commonwealth Heritage values of a Commonwealth Heritage place; (c) the abatement of processes, and the mitigation or avoidance of actions, that might adversely affect: (i) biodiversity; or (ii) the world heritage values of a declared World Heritage property; or (iii) the National Heritage values of a National Heritage place; or (iv) the Commonwealth Heritage values of a Commonwealth Heritage place. Note: When the Minister is considering entering into a conservation agreement, the Minister must take into account any responsibilities of other Commonwealth Ministers that may be affected by the agreement. (2) However, the Minister must not enter into a conservation agreement unless satisfied that: (a) in the case of a proposed agreement wholly or partly for the protection and conservation of biodiversity—the agreement: (i) will result in a net benefit to the conservation of biodiversity; and (ii) is not inconsistent with a recovery plan, threat abatement plan or wildlife conservation plan; and (b) in the case of a proposed agreement wholly or partly for the protection and conservation of heritage values—the agreement: (i) will result in a net benefit to the conservation of those heritage values; and (ii) is not inconsistent with at least one of the Australian World Heritage management principles, the National Heritage management principles and the Commonwealth Heritage management principles. (3) For the purposes of subsection (2), in deciding whether a proposed agreement will result in a net benefit to the conservation of biodiversity or heritage values, the Minister must have regard to the matters (if any) prescribed by the regulations. 24 Saving of agreements The amendment of section 305 of the Environment Protection and Biodiversity Conservation Act 1999 by this Schedule does not affect the validity of a conservation agreement made before the commencement of this Schedule. 25 Saving of matters prescribed by the regulations Matters prescribed for the purposes of section 305 of the Environment Protection and Biodiversity Conservation Act 1999 immediately before the commencement of this Schedule are taken to be, immediately after the commencement of this Schedule, matters prescribed for the purposes of that section as amended by this Schedule. 26 Subsection 305(6) After "agreement", insert "that is wholly or partly for the protection and conservation of biodiversity". 27 Paragraphs 306(1)(a) and (b) Repeal the paragraphs, substitute: (a) activities that promote the protection and conservation of all or any of the following: (i) biodiversity; (ii) the world heritage values of a declared World Heritage property; (iii) the National Heritage values of a National Heritage place; (iv) the Commonwealth Heritage values of a Commonwealth Heritage place; (b) controlling or prohibiting, in any place covered by the agreement, actions or processes that might adversely affect: (i) the species, ecological communities, habitats or potential habitats covered by the agreement; or (ii) the world heritage values of a declared World Heritage property; or (iii) the National Heritage values of a National Heritage place; or (iv) the Commonwealth Heritage values of a Commonwealth Heritage place; 28 Paragraphs 306(2)(a) and (b) Repeal the paragraphs, substitute: (a) requiring the owner to carry out specified activities, or to do specified things, that promote the conservation of all or any of the following: (i) biodiversity; (ii) the world heritage values of a declared World Heritage property; (iii) the National Heritage values of a National Heritage place; (iv) the Commonwealth Heritage values of a Commonwealth Heritage place; (b) restricting the use of the place, or requiring the owner to refrain from, control or refuse to permit, actions or processes that may adversely affect: (i) the species, ecological communities, habitats or potential habitats covered by the agreement; or (ii) the world heritage values of a declared World Heritage property; or (iii) the National Heritage values of a National Heritage place; or (iv) the Commonwealth Heritage values of a Commonwealth Heritage place; 29 Subsection 309(3) Omit "components of biodiversity.", substitute: : (a) components of biodiversity; or (b) the world heritage values of a declared World Heritage property; or (c) the National Heritage values of a National Heritage place; or (d) the Commonwealth Heritage values of a Commonwealth Heritage place. 30 At the end of section 323 Add: (3) In this section: cultural heritage has the meaning given by the World Heritage Convention. natural heritage has the meaning given by the World Heritage Convention. 31 After Division 1 of Part 15 Insert: Division 1A—Managing National Heritage places Subdivision A—Preliminary 324A Simplified outline of this Division The following is a simplified outline of this Division: The Minister may only include a place in the National Heritage List if the Minister is satisfied that the place has one or more National Heritage values. The Minister must ask the Australian Heritage Council for an assessment of the place's National Heritage values and may invite public comments on the proposed inclusion of the place in the National Heritage List. The Minister must make plans to protect and manage the National Heritage values of National Heritage places. The Commonwealth and Commonwealth agencies must not contravene those plans. The Commonwealth must try to prepare and implement plans for managing other National Heritage places, in co‑operation with the States and self‑governing Territories. The Commonwealth and Commonwealth agencies have duties relating to National Heritage places in States and Territories. The Commonwealth can provide assistance for the identification, promotion, protection or conservation of National Heritage places. Note: Section 15B prohibits an action that has a significant impact on the National Heritage values of a National Heritage place, unless the person taking the action has the approval of the Minister or certain other requirements are met. 324B Extension to places etc. outside the Australian jurisdiction This Division extends to places, acts and omissions outside the Australian jurisdiction, except so far as the contrary intention appears. Subdivision B—The National Heritage List 324C The National Heritage List (1) The Minister must keep a written record of places and their heritage values in accordance with this Subdivision. The record is called the National Heritage List. Note: Later provisions of this Subdivision explain what places and heritage values are included in the National Heritage List. (2) A place may be included in the National Heritage List only if the Minister is satisfied that the place has one or more National Heritage values. A place that is included in the National Heritage List is called a National Heritage place. 324D Meaning of National Heritage values (1) A place has a National Heritage value if and only if the place meets one of the criteria (the National Heritage criteria) prescribed by the regulations for the purposes of this section. The National Heritage value of the place is the place's heritage value that causes the place to meet the criterion. (2) The National Heritage values of a National Heritage place are the National Heritage values of the place included in the National Heritage List for the place. (3) The regulations must prescribe criteria for the following: (a) natural heritage values of places; (b) indigenous heritage values of places; (c) historic heritage values of places. The regulations may prescribe criteria for other heritage values of places. (4) To avoid doubt, a criterion prescribed by the regulations may relate to one or more of the following: (a) natural heritage values of places; (b) indigenous heritage values of places; (c) historic heritage values of places; (d) other heritage values of places. 324E Nominations of places (1) A person may, in accordance with the regulations (if any), nominate to the Minister a place for inclusion in the National Heritage List. (2) The Minister must give the Chair of the Australian Heritage Council a written request for the Council to assess under section 324G whether the place meets any of the National Heritage criteria, unless the Minister rejects the nomination under this section. (3) If the Minister must give the Chair a request, he or she must give the request within 10 business days after receiving the nomination, unless: (a) the place is wholly or partly outside the Australian jurisdiction; or (b) the Minister includes the place in the National Heritage List under section 324F (emergency listing) within that period. (3A) Within 10 business days after giving the request to the Chair of the Australian Heritage Council, the Minister must publish on the Internet a brief description of the nomination. Note: Section 324Q may affect the amount of detail in the description. (4) The Minister may: (a) ask the person who nominated the place to provide additional information about the place within a specified period; and (b) reject the nomination if the information is not provided within that period. The period specified must be reasonable. (5) If the Minister asks the person for additional information, the period in subsection (3) stops running on the day the Minister asks for that information until the day after that information is provided. (6) The Minister may also reject the nomination if satisfied that it is vexatious, frivolous or not made in good faith. (7) If the Minister rejects the nomination under this section, he or she must, as soon as reasonably practicable: (a) advise the person of that fact; and (b) give the person written reasons for the rejection. (7A) If the place is wholly or partly in a foreign country, the Minister must inform the following of the fact that the nomination has been made, unless the Minister rejects the nomination under this section: (a) the Minister responsible for foreign affairs; (b) if another Minister has administrative responsibilities relating to the place (if it is wholly in a foreign country) or to a part of the place that is in a foreign country—that other Minister. (8) To avoid doubt, a member of the Australian Heritage Council may make a nomination in accordance with this section on behalf of the Council. The Council may undertake research and investigations necessary for the purposes of nominating places to be included in the National Heritage List. (9) The Minister may, by publishing a notice in accordance with the regulations, invite nominations of places within a specified theme. 324F Emergency listing (1) This section applies (despite subsection 324C(2)) if the Minister believes that: (a) a place wholly in the Australian jurisdiction has or may have one or more National Heritage values; and (b) any of those values is under threat. (2) The Minister may, by instrument published in the Gazette, include in the National Heritage List the place and the National Heritage values the Minister believes the place has or may have, whether or not the Minister has, under this Subdivision, given the Chair of the Australian Heritage Council a written request for the Council to assess under section 324G whether the place meets any of the National Heritage criteria. (3) Within 10 business days after including the place in the National Heritage List under this section, the Minister must give the Chair of the Australian Heritage Council a written request for the Council to assess under section 324G whether the place meets any of the National Heritage criteria. (4) However, subsection (3) does not apply if the Minister has already received from the Australian Heritage Council an assessment under section 324G whether the place meets any of the National Heritage criteria. (5) If the Minister includes the place in the National Heritage List under this section, he or she must: (a) within 10 business days, publish, on the Internet and in each other way required by the regulations (if any), a copy of the instrument published in the Gazette; and (b) take all practicable steps to: (i) identify each person who is an owner or occupier of all or part of the place; and (ii) advise each person identified that the place has been included in the National Heritage List; and (c) within 10 business days, advise each person (if any) who nominated the place or requested the Minister in writing to include the place in the List under this section that the place has been included in the List. (6) If a person requests the Minister in writing to include a place in the National Heritage List under this section and the Minister has not done so within 10 business days after receiving the request, the Minister must: (a) publish on the Internet notice of those facts; and (b) advise the person that the Minister has not included the place in the List; and (c) give reasons why the Minister has not done so to the person and to anyone who requests them. This subsection has effect (despite subsection (1)) whether or not the Minister has the belief described in that subsection in relation to the place and its heritage values (if any). 324G Assessments by the Australian Heritage Council (1) The Minister may give the Chair of the Australian Heritage Council a written request for the Council to assess whether a place meets any of the National Heritage criteria, whether or not the place is the subject of a nomination. (2) The Australian Heritage Council must give the Minister a written assessment whether a place meets any of the National Heritage criteria: (a) within 12 months after the Minister gives the Chair of the Council (under this section or section 324E) the request for the assessment; or (b) if the place is included in the National Heritage List under section 324F (emergency listing)—within 40 business days after the Minister gives the Chair of the Council (under that section) the request for the assessment. (2A) If the Australian Heritage Council does not give the Minister the assessment within the period required by subsection (2) but makes all reasonable efforts to do so, the Minister may, by notice in writing, extend the period by up to 24 months. (2B) If the Australian Heritage Council does not give the Minister the assessment within the period as extended under subsection (2A) but makes all reasonable efforts to do so, the Minister may, by notice in writing, further extend the period by up to 24 months. (2C) Within 10 business days of extending the period by notice under subsection (2A) or (2B), the Minister must: (a) publish on the Internet: (i) a copy of the notice; and (ii) the reasons for the extension; and (b) give a copy of the notice to each person (if any) who nominated the place being covered by the assessment. (3) The Australian Heritage Council, on its own initiative, may assess whether a place wholly in the Australian jurisdiction meets any of the National Heritage criteria, whether or not the place is the subject of a nomination. If the Council does so, it may give the assessment to the Minister. Requirements relating to assessments generally (3A) Before giving the Minister an assessment under this section whether a place meets any of the National Heritage criteria, the Australian Heritage Council: (a) must publish, in accordance with the regulations (if any), a notice: (i) stating that the Council is assessing whether the place meets any of the National Heritage criteria; and (ii) inviting comments in writing, within a specified period that is reasonable having regard to the time by which the Council must give the assessment to the Minister, on whether the place meets any of the National Heritage criteria and whether the place should be included in the National Heritage List; and (b) must consider, subject to subsection (5), the comments (if any) the Council receives within the period. The Council must give the Minister a copy of the comments with the assessment. (4) If, in making an assessment, the Australian Heritage Council considers that a place within the Australian jurisdiction might have one or more National Heritage values, the Council must: (a) take all practicable steps: (i) to identify each person who is an owner or occupier of all or part of the place; and (ii) if the Council considers the place might have an indigenous heritage value—to identify each indigenous person who has rights or interests in all or part of the place; and (b) take all practicable steps to advise each person identified that the Council is assessing whether the place meets any of the National Heritage criteria; and (c) give persons advised a reasonable opportunity to comment in writing whether the place should be included in the National Heritage List. The Council must give the Minister a copy of the comments with the assessment. Note: For indigenous heritage value, see section 528. (5) In assessing whether a place meets any of the National Heritage criteria, the Australian Heritage Council must not consider any matter that does not relate to the question whether the place meets the National Heritage criteria. (6) If the Minister requests the Australian Heritage Council to assess whether a place meets any of the National Heritage criteria, and the place is wholly or partly in a foreign country and not the subject of a nomination, the Minister must inform the following of the fact that the Council is making the assessment: (a) the Minister responsible for foreign affairs; (b) if another Minister has administrative responsibilities relating to the place (if it is wholly in a foreign country) or to a part of the place that is in a foreign country—that other Minister. 324H Inviting public comments after assessment (1A) This section applies if and only if, within 20 business days after the day on which the Minister receives from the Australian Heritage Council under section 324G an assessment whether a place meets any of the National Heritage criteria, the Minister decides that this section should apply. This section continues to apply even if the Minister revokes the decision. (1) The Minister must publish, in accordance with the regulations (if any), a notice inviting comments on the inclusion or proposed inclusion of the place in the National Heritage List. The notice may specify: (a) that comments should address particular matters relating to the inclusion or proposed inclusion of the place in the List; or (b) that comments are to be given to the Minister in a particular way. (2) The notice must be published within 20 business days after the day on which the Minister receives from the Australian Heritage Council an assessment under section 324G whether the place meets any of the National Heritage criteria. (3) The notice must state that comments are to be given to the Minister within: (a) 40 business days after the notice is published; or (b) if the place is included in the National Heritage List under section 324F (emergency listing)—20 business days after the notice is published. (4) The Minister may ask the Australian Heritage Council or a person with appropriate qualifications or expertise to assess the merits of any comments that are received by the Minister in accordance with the notice. (5) On the first day on which the Minister publishes the notice, the Minister must publish, in accordance with the regulations (if any): (a) the assessment given to the Minister under section 324G for the place; and (b) a summary of the documents (if any), copies of which were given to the Minister by the Australian Heritage Council under that section with the assessment; and (c) if the place has not been included in the National Heritage List—one of the following: (i) a statement (the listing proposal) that the Minister proposes that the place be included in the National Heritage List; (ii) a statement that the Minister proposes that the place not be included in the National Heritage List; (iii) a statement that the Minister does not have a view whether or not the place should be included in the National Heritage List; and (d) if the Minister publishes the listing proposal—a statement: (i) identifying the National Heritage values that the Minister proposes be included in the National Heritage List for the place; and (ii) explaining why the Minister believes the place has those values. 324J Decision about inclusion of a place in the National Heritage List (1) After receiving from the Australian Heritage Council an assessment under section 324G whether a place, except one that is or includes a place included in the National Heritage List under section 324F (whether before, on or after receipt of the assessment), meets any of the National Heritage criteria, the Minister must: (a) by instrument published in the Gazette, include in the National Heritage List the place and its National Heritage values specified in the instrument; or (b) decide not to include the place in the National Heritage List. Note 1: Section 324F is about emergency listing. Note 2: The Minister may include a place in the National Heritage List only if the Minister is satisfied that the place has one or more National Heritage values (see subsection 324C(2)). Note 3: Section 324N deals with how additional National Heritage values may be included in the National Heritage List for a National Heritage place. (2) The Minister must comply with subsection (1): (a) within 20 business days after the day on which the Minister receives the assessment; or (b) if section 324H applies in relation to the place—within 60 business days after the end of the period mentioned in paragraph 324H(3)(a) for the place. However, this subsection does not apply if the place is wholly or partly outside the Australian jurisdiction. (2A) The Minister must not include in the National Heritage List a place that is wholly or partly in a foreign country unless: (a) the Minister is satisfied that the national government of the foreign country has agreed to the inclusion in the List of the place so far as it is in the country; and (b) the Minister has informed: (i) the Minister responsible for foreign affairs; and (ii) if another Minister has administrative responsibilities relating to the place (if it is wholly in a foreign country) or to a part of the place that is in a foreign country—that other Minister; of the proposal to include the place in the List and given the Ministers informed a reasonable opportunity to comment in writing whether the place should be included in the List; and (c) the Minister responsible for foreign affairs has agreed to the inclusion in the List of the place. (3) If the Minister includes the place in the National Heritage List, he or she must, within a reasonable time: (a) take all practicable steps to: (i) identify each person who is an owner or occupier of all or part of the place in the Australian jurisdiction; and (ii) advise each person identified that the place has been included in the National Heritage List; and (b) if the place was nominated by a person—advise the person that the place has been included in the National Heritage List; and (c) publish a copy of the instrument published in the Gazette and the reasons for the decision on the Internet. (4) If the Minister decides not to include in the National Heritage List a place (whether the decision is made after publishing a notice under section 324H or not), the Minister must: (a) give written reasons for the decision to anyone who asks for them; and (b) if the place was nominated by a person—advise the person within 10 business days of the decision and give the person written reasons for the decision; and (c) within 10 business days publish the decision and the reasons for the decision on the Internet. Dealing with an emergency listing (5) After receiving from the Australian Heritage Council an assessment under section 324G whether a place that is or includes a place (the listed place) included in the National Heritage List under section 324F (whether before, on or after receipt of the assessment) meets any of the National Heritage criteria, the Minister must, by instrument published in the Gazette: (a) do one of the following: (i) state that the listed place remains in the National Heritage List with its boundary unaltered; (ii) alter the boundary of the listed place described in the National Heritage List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List); (iii) remove from the National Heritage List the listed place and its National Heritage values; and (b) if the listed place is not removed from the National Heritage List under subparagraph (a)(iii)—do all or any of the following: (i) state that specified National Heritage values included in the List under section 324F for the place remain in the List for the place; (ii) include in the List for the place specified National Heritage values of the place that were not included in the List under section 324F for the place; (iii) remove from the List for the place specified National Heritage values that were included in the List under section 324F for the place. (5A) The Minister must comply with subsection (5): (a) within 20 business days after the day on which the Minister receives the assessment; or (b) if section 324H applies in relation to the place covered by the assessment—within 15 business days after the end of the period mentioned in subsection 324H(3) for the place. However, this subsection does not apply if the place covered by the assessment is partly outside the Australian jurisdiction. Note: Subsection (5) cannot apply to a place wholly outside the Australian jurisdiction, because a place wholly outside the Australian jurisdiction must not be included in the National Heritage List under section 324F. (5B) The Minister must not alter the boundary of the listed place under subparagraph (5)(a)(ii) so as to include within the altered boundary an area in a foreign country unless: (a) the Minister is satisfied that the national government of the foreign country has agreed to the inclusion in the List of the place including the area; and (b) the Minister has informed: (i) the Minister responsible for foreign affairs; and (ii) if another Minister has administrative responsibilities relating to all or part of the area—that other Minister; of the proposal to alter the boundary in that way and given the Ministers informed a reasonable opportunity to comment in writing whether the boundary should be altered in that way; and (c) the Minister responsible for foreign affairs has agreed to the inclusion in the List of the place including the area. (6) Section 324L does not apply to: (a) an alteration (under subparagraph (5)(a)(ii) of this section) of the boundary of a place included in the National Heritage List so as to exclude part of the place (as previously included) from the description of the place in the List (whether or not the alteration results in an overall increase or decrease in the extent of the place included in the List); or (b) the removal of a place and its National Heritage values under subparagraph (5)(a)(iii) of this section; or (c) the removal of a National Heritage value of a place under subparagraph (5)(b)(iii) of this section. (7) If, under subsection (5), the Minister removes from the National Heritage List a place or a National Heritage value of a place, or alters the boundary of a place included in the List, the Minister must: (a) within 10 business days, publish on the Internet: (i) a copy of the instrument published in the Gazette; and (ii) the reasons for the removal or alteration; and (b) within 10 business days, give written reasons for the removal or alteration to each person identified by the Minister as an owner or occupier of all or part of the place; and (c) give written reasons for the removal or alteration to anyone else who asks the Minister for them; and (d) if the place was included on the List following a nomination of it by a person—within 10 business days of the removal or alteration, advise the person of the removal or alteration and give the person written reasons for it. General requirements (8) Before acting under subsection (1) or (5), the Minister must consider: (a) the Australian Heritage Council's assessment whether the place meets any of the National Heritage criteria; and (b) the comments (if any), a copy of which was given to the Minister by the Council under section 324G with the assessment; and (c) the comments (if any) received in accordance with the notice (if any) published under section 324H in relation to the place; and (d) the assessment (if any) requested under subsection 324H(4) of the merits of the comments received in accordance with the notice published under section 324H in relation to the place. (9) The Minister must publish in accordance with the regulations (if any) a copy or summary of an instrument published in the Gazette under this section. 324K Listing process not affected by changing boundaries of a place (1) This section is about compliance with a provision of this Subdivision that is before this section and that requires or permits an act to be done in relation to the place identified by express or implied reference to an earlier provision of this Subdivision. (2) It is sufficient compliance with the provision if the act is done in relation to a place whose boundary overlaps the boundary of the place identified by reference to the earlier provision. (3) This section does not affect the validity of the act so far as that depends on something other than the act being done in relation to the place. 324L Removal of places or National Heritage values from the National Heritage List (1) The Minister may remove all or part of a place from the National Heritage List only if the Minister is satisfied that: (a) ignoring subsection 324D(2), the place no longer has any National Heritage values or the part no longer contributes to any of the National Heritage values of the place; or (b) it is necessary in the interests of Australia's defence or security to do so. Note: A place or part of a place may also be removed from the National Heritage List under subsection 324J(5). (2) The Minister may remove one or more National Heritage values included in the National Heritage List for a National Heritage place only if the Minister is satisfied that: (a) ignoring subsection 324D(2), the place no longer has the National Heritage value or values; or (b) it is necessary in the interests of Australia's defence or security to do so. (3) The Minister may remove all or part of a place, or a National Heritage value of a place, only by instrument: (a) published in the Gazette; and (b) including a statement of the reasons for the removal. Note: The Minister must first obtain and consider the advice of the Australian Heritage Council (see section 324M). (4) The instrument must deal with only one of the following kinds of removal: (a) removal (removal for loss of value) of a place, part or National Heritage value because of paragraph (1)(a) or (2)(a); (b) removal of a place, part or National Heritage value because of paragraph (1)(b) or (2)(b). If the instrument purports to deal with both kinds, it has no effect so far as it deals with a removal for loss of value. (5) If the instrument deals only with removal for loss of value, the instrument: (a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; and (b) takes effect (despite section 48 of that Act) on the first day on which it is no longer liable to be disallowed, or to be taken to have been disallowed, under that section as it applies in relation to the instrument because of section 46A of that Act. (6) Within 10 business days of publication of the instrument in the Gazette, the Minister must publish, on the Internet and in each other way required by the regulations (if any), a copy of the instrument. 324M Minister must consider advice of the Australian Heritage Council and public comments (1) Before the Minister removes from the National Heritage List under section 324L all or part of a place or one or more of a place's National Heritage values in a removal for loss of value, the Minister must: (a) give the Chair of the Australian Heritage Council a written request for the Council to give the Minister advice on the proposed removal; and (b) publish, on the Internet, in a daily newspaper circulating in each State and self‑governing Territory and in each other way required by the regulations (if any), a notice: (i) describing the proposed removal; and (ii) inviting anyone to give the Minister comments, within 20 business days, on the proposed removal. The Minister must publish the notice within 20 business days of giving the request. (2) The Australian Heritage Council must give the advice to the Minister within the period specified by the Minister. (3) The Minister must consider the advice, if he or she receives it by the end of that period, and the comments (if any) received in accordance with the notice. (4) In preparing the advice, the Australian Heritage Council must not consider any matter that does not relate to the National Heritage values of the place concerned. (5) The Minister must: (a) decide whether to remove from the National Heritage List the place or part concerned, or the National Heritage value or values of the place concerned; and (b) if the Minister decides to remove the place or part, or the National Heritage value or values of the place—ensure that an instrument removing the place, part or National Heritage value or values is published in the Gazette under subsection 324L(3); within 60 business days after the earlier of the advice being received by the Minister and the specified period for giving advice to the Minister ending. (6) However, the time limit in subsection (5) does not apply if the place is wholly or partly outside the Australian jurisdiction. 324N Specifying one or more additional National Heritage values for a National Heritage place (1) Subsection (2) has effect for the purposes of including in the National Heritage List for a National Heritage place one or more National Heritage values of the place that were not previously included in the List for the place. (2) Sections 324E, 324F, 324G, 324H and 324J apply as if neither of the following had happened before the application of any of those sections because of this section: (a) the Minister receiving from the Australian Heritage Council an assessment whether the place meets the Nat