Commonwealth: Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 (Cth)

Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 No. 125, 2008 An Act to amend the law in relation to the Great Barrier Reef Marine Park, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Objects and application Great Barrier Reef Marine Park Act 1975 Great Barrier Reef Marine Park (Environmental Management Charge—Excise) Act 1993 Great Barrier Reef Marine Park (Environmental Management Charge—General) Act 1993 Schedule 2—Matters relating to the Great Barrier Reef Marine Park Authority Great Barrier Reef Marine Park Act 1975 Schedule 3—Proclaiming the Marine Park, zoning plans and plans of management Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Environment Protection and Biodiversity Conservation Act 1999 Part 2—Amendment of the Great Barrier Reef Marine Park Act 1975 Great Barrier Reef Marine Park Act 1975 Part 3—Amendment of the Legislative Instruments Act 2003 Legislative Instruments Act 2003 Part 4—Transitional, application and saving provisions Schedule 4—Environmental impact assessments Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Environment Protection and Biodiversity Conservation Act 1999 Part 2—Amendment of the Great Barrier Reef Marine Park Act 1975 Great Barrier Reef Marine Park Act 1975 Part 3—Transitional, application and saving provisions Schedule 5—Investigation and enforcement Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Environment Protection and Biodiversity Conservation Act 1999 Part 2—Amendment of the Great Barrier Reef Marine Park Act 1975 Great Barrier Reef Marine Park Act 1975 Part 3—Transitional, application and saving provisions Schedule 6—Offences and civil penalties Part 1—Amendments Great Barrier Reef Marine Park Act 1975 Part 2—Transitional, application and saving provisions Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008 No. 125, 2008 An Act to amend the law in relation to the Great Barrier Reef Marine Park, and for related purposes [Assented to 25 November 2008] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Great Barrier Reef Marine Park and Other Legislation Amendment Act 2008. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information 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. 25 November 2008 2. Schedules 1, 2 and 3 The day after this Act receives the Royal Assent. 26 November 2008 3. Schedules 4, 5 and 6 A single day to be fixed by Proclamation. 25 November However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 2009 Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Objects and application Great Barrier Reef Marine Park Act 1975 1 After section 2 Insert: 2A Objects of this Act (1) The main object of this Act is to provide for the long term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region. (2) The other objects of this Act are to do the following, so far as is consistent with the main object: (a) allow ecologically sustainable use of the Great Barrier Reef Region for purposes including the following: (i) public enjoyment and appreciation; (ii) public education about and understanding of the Region; (iii) recreational, economic and cultural activities; (iv) research in relation to the natural, social, economic and cultural systems and value of the Great Barrier Reef Region; (b) encourage engagement in the protection and management of the Great Barrier Reef Region by interested persons and groups, including Queensland and local governments, communities, Indigenous persons, business and industry; (c) assist in meeting Australia's international responsibilities in relation to the environment and protection of world heritage (especially Australia's responsibilities under the World Heritage Convention). (3) In order to achieve its objects, this Act: (a) provides for the establishment, control, care and development of the Great Barrier Reef Marine Park; and (b) establishes the Great Barrier Reef Marine Park Authority; and (c) provides for zoning plans and plans of management; and (d) regulates, including by a system of permissions, use of the Great Barrier Reef Marine Park in ways consistent with ecosystem‑based management and the principles of ecologically sustainable use; and (e) facilitates partnership with traditional owners in management of marine resources; and (f) facilitates a collaborative approach to management of the Great Barrier Reef World Heritage area with the Queensland government. 2 Subsection 3(1) (definition of Australian coastal sea) Repeal the definition. 3 Subsection 3(1) Insert: Australian jurisdiction has the meaning given by subsection 5(4). 4 Subsection 3(1) Insert: continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973. 5 Subsection 3(1) (definition of continental shelf of Australia) Repeal the definition. 6 Subsection 3(1) (definition of Director) Repeal the definition. 7 Subsection 3(1) (definition of ecological community) Repeal the definition. 8 Subsection 3(1) Insert: ecologically sustainable use has the meaning given by section 3AA. 9 Subsection 3(1) Insert: ecosystem‑based management means an integrated approach to managing an ecosystem and matters affecting that ecosystem, with the main object being to maintain ecological processes, biodiversity and functioning biological communities. 10 Subsection 3(1) Insert: exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973. 11 Subsection 3(1) Insert: Indigenous person means a person who is: (a) a member of the Aboriginal race of Australia; or (b) a descendant of an Indigenous inhabitant of the Torres Strait Islands. 12 Subsection 3(1) Insert: precautionary principle means the principle that 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. 13 Subsection 3(1) Insert: principles of ecologically sustainable use has the meaning given by section 3AB. 14 Subsection 3(1) (definition of right) Repeal the definition. 15 Subsection 3(1) (definition of species) Repeal the definition. 16 Subsection 3(1) Insert: traditional owner means an Indigenous person: (a) who is recognised in the Indigenous community or by a relevant representative Aboriginal or Torres Strait Islander body: (i) as having spiritual or cultural affiliations with a site or area in the Marine Park; or (ii) as holding native title in relation to that site or area; and (b) who is entitled to undertake activities under Aboriginal or Torres Strait Islander custom or tradition in that site or area. 17 After subsection 3(1) Insert: (1A) In this Act, the following terms have the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999: approved conservation advice Australian aircraft Australian IUCN reserve management principles Australian vessel biodiversity bioregional plan cetacean critical habitat ecological community ecosystem environment heritage value IUCN category key threatening process listed marine species listed migratory species listed threatened ecological community listed threatened species recovery plan species threat abatement plan wildlife conservation plan World Heritage Convention world heritage values 18 After section 3 Insert: 3AA Ecologically sustainable use For the purposes of this Act, ecologically sustainable use of the Great Barrier Reef Region or its natural resources is use of the Region or resources: (a) that is consistent with: (i) protecting and conserving the environment, biodiversity and heritage values of the Great Barrier Reef Region; and (ii) ecosystem‑based management; and (b) that is within the capacity of the Region and its natural resources to sustain natural processes while maintaining the life‑support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations. 3AB Principles of ecologically sustainable use For the purposes of this Act, the following principles are principles of ecologically sustainable use: (a) decision‑making processes should effectively integrate both long‑term and short‑term environmental, economic, social and equitable considerations; (b) the precautionary principle; (c) the principle of inter‑generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; (d) the conservation of biodiversity and ecological integrity should be a fundamental consideration in decision‑making; (e) improved valuation, pricing and incentive mechanisms should be promoted. 19 Subsection 4(2) Repeal the subsection. Note: The heading to section 4 is replaced by the heading "Act to bind Crown". 20 Section 5 Repeal the section, substitute: 5 Application of Act Extension to external Territories (1) This Act extends to every external Territory. Limited extraterritorial application (2) This Act applies to acts, omissions, matters and things in the Australian jurisdiction, and does not apply to acts, omissions, matters and things outside the Australian jurisdiction except so far as the contrary intention applies. Application to everyone in Australia and exclusive economic zone (3) A provision of this Act that has effect in relation to a place that is within the outer limits of the exclusive economic zone of Australia (whether the place is in the zone or in Australia or an external Territory), or that is on or in the continental shelf of Australia, applies in relation to the following: (a) all persons (including persons who are not Australian citizens); (b) all vessels (including vessels that are not Australian vessels); (c) all aircraft (including aircraft that are not Australian aircraft); (d) all platforms. Note: A reference to Australia or to an external Territory generally includes a reference to the coastal sea of Australia or the Territory (as appropriate). See section 15B of the Acts Interpretation Act 1901. Definition of Australian jurisdiction (4) In this Act: Australian jurisdiction means: (a) the land, waters, seabed and airspace in, under or above: (i) Australia; or (ii) an external Territory; or (iii) the exclusive economic zone of Australia; or (b) 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 appropriate). See section 15B of the Acts Interpretation Act 1901. 21 At the end of section 7 Add: (3) In managing the Marine Park and performing its other functions, the Authority must have regard to, and seek to act in a way that is consistent with: (a) the objects of this Act in section 2A; and (b) the principles of ecologically sustainable use; and (c) the protection of the world heritage values of the Great Barrier Reef World Heritage Area. (4) The Authority may prepare and publish plans and policies about: (a) the way in which the Authority intends to manage the Marine Park or perform its other functions; and (b) the way in which the Authority considers that this Act or a zoning plan applies: (i) in relation to persons generally or a class of persons; or (ii) in relation to persons generally, or a class of persons, in relation to particular circumstances. (5) A plan or policy prepared under subsection (4) is not a legislative instrument. 22 Section 39Z Repeal the section. 23 Subsections 54(6) and 65(1) Repeal the subsections. 24 Subsection 65(2) Omit "(2)". 25 At the end of section 66 Add: (13) Despite subsection 14(2) of the Legislative Instruments Act 2003, the regulations may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. Great Barrier Reef Marine Park (Environmental Management Charge—Excise) Act 1993 26 Section 3 Repeal the section, substitute: 3 Application of the Great Barrier Reef Marine Park Act 1975 Sections 4 and 5 of the Great Barrier Reef Marine Park Act 1975 apply in relation to this Act in a corresponding way to the way in which they apply in relation to that Act. Great Barrier Reef Marine Park (Environmental Management Charge—General) Act 1993 27 Section 3 Repeal the section, substitute: 3 Application of the Great Barrier Reef Marine Park Act 1975 Sections 4 and 5 of the Great Barrier Reef Marine Park Act 1975 apply in relation to this Act in a corresponding way to the way in which they apply in relation to that Act. Schedule 2—Matters relating to the Great Barrier Reef Marine Park Authority Great Barrier Reef Marine Park Act 1975 1 After subsection 10(6) Insert: (6A) At least one member must be an Indigenous person with knowledge of, or experience concerning, indigenous issues relating to the Marine Park. (6B) At least one member must have knowledge of or experience in the tourism industry associated with the Marine Park. 2 At the end of subsection 17(1) Add: Note: See also section 33B of the Acts Interpretation Act 1901. 3 Subsection 17(8) Repeal the subsection, substitute: (8) If only 2 members are present at a meeting of the Authority and they differ on a question arising at the meeting, a decision on the question must be deferred: (a) until a meeting at which at least 3 members are present; or (b) for decision under section 18. 4 At the end of Part III Add: 18 Decisions without meetings (1) The Authority is taken to have made a decision at a meeting if: (a) without meeting, a majority of the members entitled to vote on the proposed decision indicate agreement with the decision; and (b) that agreement is indicated in accordance with the method determined by the Authority under subsection (2); and (c) all the members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision. (2) Subsection (1) applies only if the Authority: (a) has determined that it may make decisions of that kind without a meeting; and (b) has determined the method by which members are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(a), a member is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that decision if the matter had been considered at a meeting of the Authority. (4) The Authority must keep a record of decisions made in accordance with this section. Schedule 3—Proclaiming the Marine Park, zoning plans and plans of management Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Environment Protection and Biodiversity Conservation Act 1999 1 At the end of section 321 Add: (3) Subsection (2) does not apply in relation to so much of a property as is in the Great Barrier Reef Marine Park. Note: A zoning plan must be prepared under the Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the Australian World Heritage management principles. 2 After subsection 324X(2) Insert: (2A) Subsection (2) does not apply in relation to so much of a place as is in the Great Barrier Reef Marine Park. Note: A zoning plan must be prepared under the Great Barrier Reef Marine Park Act 1975 for areas that are part of the Great Barrier Reef Marine Park. In preparing a zoning plan, regard must be had to the National Heritage management principles. Part 2—Amendment of the Great Barrier Reef Marine Park Act 1975 Great Barrier Reef Marine Park Act 1975 3 Subsection 3(1) Insert: community group having a special interest has a meaning affected by section 39V. 4 Subsection 3(1) (definition of plan of management) Omit "under section 39ZD", substitute "in accordance with Part VB". 5 Subsection 3(1) Insert: public notice means a notice published: (a) in the Gazette; and (b) in a newspaper circulating generally in Queensland; and (c) on the website of the Authority; and (d) in such other manner (if any) as the Authority considers appropriate. 6 Subsection 3(1) (at the end of the definition of zone) Add "(whether designated in the plan as a zone, area or some other designation)". 7 Subsection 3(1) (definition of zoning plan) Omit "in pursuance of section 32", substitute "in accordance with Division 2 of Part V". 8 Subsection 3(3) Repeal the subsection. 9 Paragraph 7(1)(c) Before "Part V", insert "Division 2 of". 10 Before section 30 Insert: Division 1—Great Barrier Reef Marine Park 11 At the end of subsection 31(1) Add: Note: A Proclamation under subsection (1) is a legislative instrument but is not subject to disallowance or sunsetting (see item 23 of the table in subsection 44(2), and item 22 of the table in subsection 54(2), of the Legislative Instruments Act 2003). 12 Subsection 31(3) Omit "subsection (4)", substitute "subsections (4) and (5)". 13 At the end of subsection 31(3) Add: Note: A Proclamation under subsection (3) is a legislative instrument but is not subject to disallowance or sunsetting (see item 23 of the table in subsection 44(2), and item 22 of the table in subsection 54(2), of the Legislative Instruments Act 2003). 14 At the end of section 31 Add: (6) Before preparing the report, the Authority must, by public notice: (a) state that the area is proposed to be included in the Marine Park; and (b) state the boundaries of the area; and (c) state any name or other designation proposed for the area; and (d) invite the public to make comments in connection with the proposal by the date specified in the notice (which must be at least 60 days after the date the notice is published in the Gazette); and (e) specify the address to which comments must be sent. (7) The Authority must include in the report any comments made in accordance with the notice and the Authority's views on the comments. 15 Sections 32 and 33 Repeal the sections, substitute: Division 2—Zoning plans 32 Objects of Division (1) The objects of this Division are: (a) to regulate the use of the Marine Park so as to: (i) protect the ecosystem within the Great Barrier Reef Region; and (ii) ensure the use is ecologically sustainable use; and (iii) manage competing usage demands; and (b) to protect areas in the Marine Park that are of high conservation value; and (c) to protect and conserve the biodiversity of the Marine Park, including ecosystems, habitats, populations and genes; and (d) to regulate activities that exploit the resources of the Great Barrier Reef Region so as to: (i) minimise the adverse effect of those activities on the Great Barrier Reef; and (ii) ensure the ecologically sustainable use of the resources; and (e) to protect the world heritage values of the Great Barrier Reef World Heritage Area; and (f) to provide for the ecologically sustainable use of marine resources by traditional owners consistent with their traditional practices; and (g) to reserve some areas of the Great Barrier Reef Region for public enjoyment and appreciation; and (h) to preserve some areas of the Great Barrier Reef Region in a natural state, undisturbed except for the purposes of scientific research that cannot be undertaken elsewhere in the Marine Park. (2) To achieve these objects, this Division provides for the preparation of zoning plans in respect of areas in the Marine Park. 32A When zoning plans must be prepared As soon as practicable after an area has been declared under section 31 to be part of the Marine Park, the Authority must prepare a zoning plan in respect of the area. 32B Content of zoning plans (1) A zoning plan prepared in respect of an area must provide that, for the purposes of this Act, the area: (a) constitutes a single zone; or (b) is divided into 2 or more zones described in the plan. (2) The plan must do the following in relation to the zone or each of the zones: (a) give the zone a name or other designation; (b) make provision with respect to the purposes for which the zone may be used or entered; (c) designate an IUCN category for the zone, or each part of the zone. 32C Notice of intention to prepare zoning plan (1) Before preparing a zoning plan in respect of an area, the Authority must, by public notice: (a) state that it intends to prepare a zoning plan in respect of the area; and (b) invite the public to make comments in connection with the proposed plan by the date specified in the notice (which must be at least 3 months after the date the notice is published in the Gazette); and (c) specify the address to which comments must be sent; and (d) specify that the following are publicly available and how a copy may be obtained: (i) principles approved under section 34; (ii) a statement prepared under subsection 35(1). (2) The Authority must consider any comments made in accordance with the notice. 16 Subsection 34(9) Omit "section 33", substitute "section 38 of the Legislative Instruments Act 2003". 17 After section 35 Insert: 35A Matters to which Authority must have regard when preparing zoning plans (1) The Authority must, in preparing a zoning plan in respect of an area (the zoning plan area), have regard to the following: (a) the objects of this Division; (b) the principles approved under section 34 relating to the preparation of the plan; (c) any reports that have been given to the Minister under section 54; (d) any matter protected by a provision of Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 that is relevant to the zoning plan area; (e) any approved conservation advice, bioregional plan, recovery plan, threat abatement plan or wildlife conservation plan that is relevant to the zoning plan area; (f) any value, plan or principle referred to in Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 that relates to a property, place, wetland or other area that is in the zoning plan area; (g) any habitat in the zoning plan area that is critical habitat; (h) any plan made under the Marine Parks Act 2004 of Queensland or the Nature Conservation Act 1992 of Queensland that is relevant to the zoning plan area; (i) any other matter prescribed by the regulations for the purposes of this paragraph. (2) In designating an IUCN category in relation to a zone for the purposes of paragraph 32B(2)(c), the Authority must have regard to: (a) the purposes for which the zone may be used or entered; and (b) the Australian IUCN Reserve Management Principles for the category. 35B Notice of preparation of zoning plan (1) When the Authority has prepared a zoning plan in respect of an area, it must, by public notice: (a) state that a zoning plan has been prepared in respect of the area; and (b) invite the public to make comments in connection with the plan by the date specified in the notice (which must be at least 3 months after the date the notice is published in the Gazette); and (c) specify the address or addresses at which copies of the plan may be inspected or purchased; and (d) specify the address to which comments must be sent; and (e) specify that a statement prepared under subsection 35(2) is publicly available and how a copy may be obtained. (2) The Authority must consider any comments made in accordance with the notice and, if it thinks fit, alter the plan accordingly. 35C Zoning plans must be submitted to Minister Submission to Minister (1) When the Authority has prepared a zoning plan in respect of an area, it must submit to the Minister: (a) the plan; and (b) if comments have been made in accordance with a notice under section 35B in connection with the plan—those comments, together with the Authority's views on those comments. Plan may be accepted or referred (2) The Minister may: (a) accept the plan; or (b) refer the plan to the Authority, together with the Minister's suggestions, for further consideration. Process after plan is referred (3) If the plan is referred to the Authority, it must, as soon as practicable after receiving the plan, further consider the plan, having regard to the Minister's suggestions. (4) The Authority must then submit the plan again, with or without alterations, to the Minister, together with its views on the Minister's suggestions. (5) When the plan is again submitted to the Minister, the Minister must, as soon as practicable after receiving the plan: (a) accept the plan; or (b) accept the plan after making such alterations as the Minister thinks fit. (6) If the Minister alters the plan under subsection (5), the Minister must prepare a report: (a) specifying the alterations; and (b) setting out any views expressed by the Authority in respect of the matters to which the alterations relate. (7) The report must accompany the plan when it is laid before both Houses of the Parliament under section 38 of the Legislative Instruments Act 2003. Matters to which Minister must have regard (8) In deciding whether to accept a zoning plan under this section, the Minister must have regard to the obligations of Australia under international law, including obligations under any agreement or arrangement between Australia and another country or countries. 35D Zoning plans are legislative instruments A zoning plan prepared by the Authority and accepted by the Minister is a legislative instrument made by the Minister on the day on which the plan is accepted, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the plan. 35E Disallowance of zoning plans (1) If notice of a motion to disallow a zoning plan is given in a House of the Parliament within 15 sitting days of that House after a copy of the plan was laid before that House, the House may, within 15 sitting days of that House after the giving of that notice, pass a resolution, in pursuance of the motion, disallowing the plan. Note: A zoning plan is a legislative instrument (see section 35D) and must be laid before each House of the Parliament under section 38 of the Legislative Instruments Act 2003. (2) If: (a) notice of a motion to disallow a zoning plan is given in a House of the Parliament within 15 sitting days of that House after a copy of the plan was laid before that House; and (b) before the end of 15 sitting days of that House after the giving of that notice of motion, the House of Representatives is dissolved or expires, or the Parliament is prorogued; and (c) at the time of the dissolution, expiry or prorogation, as the case may be: (i) the notice has not been withdrawn and the motion has not been called on; or (ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of; the plan is taken, for the purposes of this section, to have been laid before the first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be. (3) If either House of the Parliament passes a resolution in accordance with subsection (1) disallowing a zoning plan: (a) the Minister must direct the Authority to prepare a fresh plan; and (b) the Authority must prepare a fresh plan in accordance with this Division. 35F Commencement of zoning plans (1) If: (a) a zoning plan has been laid before both Houses of the Parliament under section 38 of the Legislative Instruments Act 2003; and (b) neither House of the Parliament passes a resolution in accordance with subsection 35E(1) disallowing the plan; the Minister must, as soon as practicable after the end of the last day on which a resolution disallowing the plan could have been passed, state, by public notice, that the plan is to come into operation on the date specified in the notice (which must not be earlier than the date the notice is published in the Gazette). (2) The plan comes into operation on the date specified in the notice. (3) The notice: (a) must specify an address or addresses at which copies of the plan may be inspected or purchased; and (b) may contain: (i) a description of the zone or zones to which the plan relates; and (ii) any other particulars of the plan. 35G Statement about operational principles Within 60 days after the day on which a notice under section 35F is published in the Gazette in relation to a zoning plan, the Authority must make publicly available a report that contains a statement of how the Authority, in preparing the plan, had regard to the principles approved under section 34 relating to the preparation of the plan. 18 Subsection 37(2) Omit "subsection 32(2)", substitute "section 32C". 19 Subsection 37(2) (note) Omit "Subsection 32(2)", substitute "Section 32C". 20 After subsection 37(2) Insert: Amendment is a legislative instrument (2A) An amendment of a zoning plan, prepared by the Authority and accepted by the Minister, is a legislative instrument made by the Minister on the day on which the amendment is accepted, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the amendment. 21 Subsection 37(4) Omit "subsection 32(2)", substitute "section 32C". 22 Subsection 37(4) (note) Omit "Subsection 32(2)", substitute "Section 32C". 23 After subsection 37(4) Insert: Revocation is a legislative instrument (4A) A revocation of a zoning plan, prepared by the Authority and accepted by the Minister, is a legislative instrument made by the Minister on the day on which the revocation is accepted, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the revocation. 24 Subsection 37(8) Omit "to 35", substitute "to 35C and 35E to 35G". Note: The heading to subsection 37(8) is altered by omitting "35" and substituting "35C and 35E to 35G". 25 Subsection 37(8) Omit "section 32", substitute "this Division". 26 Subsection 37(9) Omit "subsection 32(2)", substitute "section 32C". 27 Subsection 37A(2) Omit "Subsections 33(1) to (3) and (5) and (6)", substitute "Subsections 35E(1) and (2) and section 35F". 28 Subsection 37A(2) Omit "section 32", substitute "section 35C". 29 At the end of section 37A Add: (3) An amendment of a zoning plan, prepared by the Authority and approved by the Minister, is a legislative instrument made by the Minister on the day on which the amendment is approved, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the amendment. 30 After section 37A Insert: Division 3—Offences etc. 31 Subsection 39V(1) Omit "(1) A reference in this Part to a community group having a special interest", substitute "A reference in this Act to a community group having a special interest". 32 Subsection 39V(2) Repeal the subsection. 33 At the end of section 39W Add: (3) Plans of management prepared in accordance with this Part may set out: (a) policies and strategies in relation to management of the matters referred to in section 39X; and (b) enforcement provisions (see subsection 39ZD(5)). 34 Paragraphs 39ZB(1)(c) and (d) Repeal the paragraphs, substitute: (c) invite the public to make comments in relation to matters to be included in the plan by the date specified in the notice (which must be at least 1 month after the date the notice is published in the Gazette); and (d) specify the address to which comments must be sent. 35 Subsections 39ZB(2) and (3) Repeal the subsections, substitute: (2) The Authority must take into account any comments made in accordance with the notice. 36 Subsection 39ZD(1) Omit "submissions", substitute "comments". 37 Subsection 39ZD(2) Repeal the subsection, substitute: (1A) The Authority must, in preparing the plan of management, have regard to the following: (a) any key threatening process that is relevant to the area, species or ecological community to which the plan relates; (b) any critical habitat that is in the area, or that is relevant to the species or ecological community, to which the plan relates; (c) if the plan relates to a listed threatened species or a listed threatened ecological community—any approved conservation advice, recovery plan, threat abatement plan or wildlife conservation plan that is relevant to the species or ecological community; (d) any plan made under the Marine Parks Act 2004 of Queensland or the Nature Conservation Act 1992 of Queensland that is relevant to the area, species or ecological community to which the plan relates. (2) The plan of management must not be inconsistent with any of the following: (a) a provision of this Act; (b) a provision of a zoning plan in force for the area, or in force for an area relevant to the species or ecological community, to which the plan of management relates; (c) if the plan of management relates to a listed threatened species or a listed threatened ecological community—a recovery plan or threat abatement plan that is relevant to the species or ecological community. 38 Paragraph 39ZE(1)(c) Repeal the paragraph, substitute: (c) invite the public to make comments in connection with the plan by the date specified in the notice (which must be at least 1 month after the date the notice is published in the Gazette); and 39 Subparagraph 39ZE(1)(d)(ii) Omit "submissions may", substitute "comments must". 40 Subsection 39ZE(2) Repeal the subsection. 41 Subsection 39ZE(3) Omit "submissions so made", substitute "comments made in accordance with the notice". 42 Section 39ZF Repeal the section, substitute: 39ZF Plans of management are legislative instruments A plan of management made under subsection 39ZE(3) is a legislative instrument. Note: A plan of management is not subject to sunsetting (see item 22 of the table in subsection 54(2) of the Legislative Instruments Act 2003). 43 Subsection 39ZG(2) Omit "to 39ZF", substitute "and 39ZE". 44 Paragraph 39ZG(3)(a) Omit "submissions", substitute "comments". 45 At the end of section 39ZG Add: (4) An amendment of a plan of management made in accordance with this section is a legislative instrument. Note: An amendment of a plan of management is not subject to sunsetting (see item 22 of the table in subsection 54(2) of the Legislative Instruments Act 2003). 46 Subsections 39ZH(1), (2) and (3) Repeal the subsections, substitute: (1) The Authority may, by legislative instrument, revoke a plan of management. Note: A revocation of a plan of management is not subject to sunsetting (see item 22 of the table in subsection 54(2) of the Legislative Instruments Act 2003). 47 Section 39ZI Repeal the section, substitute: 39ZI Authority to comply with management plans (1) While a plan of management is in force in relation to an area of the Marine Park, the Authority must perform its functions and exercise its powers in relation to the area in accordance with that plan and not otherwise. (2) While a plan of management is in force in relation to a species within the Marine Park or within an area of the Marine Park, the Authority must perform its functions and exercise its powers in relation to the species, or in relation to the species within the area, in accordance with that plan and not otherwise. (3) While a plan of management is in force in relation to an ecological community within the Marine Park or within an area of the Marine Park, the Authority must perform its functions and exercise its powers in relation to the community, or in relation to the community within the area, in accordance with that plan and not otherwise. Part 3—Amendment of the Legislative Instruments Act 2003 Legislative Instruments Act 2003 48 Subsection 54(2) (table item 22) Omit "zoning plans prepared under section 32 of that Act, instruments made under section 37 of that Act amending or revoking such zoning plans,". Part 4—Transitional, application and saving provisions 49 Zoning plans in force under Part V of the Great Barrier Reef Marine Park Act 1975 (1) This item applies if, immediately before the commencement of this Schedule, a zoning plan was in force under Part V of the Great Barrier Reef Marine Park Act 1975. (2) Despite the amendments made by this Schedule, the zoning plan continues in force after the commencement of this Schedule as if the plan had been prepared in accordance with Division 2 of Part V of the Great Barrier Reef Marine Park Act 1975, as that Division is in force immediately after the commencement of this Schedule. (3) Despite subsection 37(1) of the Great Barrier Reef Marine Park Act 1975, and subject to subsection 35A(2) of that Act as in force immediately after the commencement of this Schedule, the Authority may, with the Minister's approval, amend the zoning plan for the purpose of designating an IUCN category for each zone, or each part of a zone, described in the plan. (4) Subsections 37A(2) and (3) of the Great Barrier Reef Marine Park Act 1975, as in force immediately after the commencement of this Schedule, apply to an amendment under subitem (3) in the same way as they apply to amendments under subsection 37A(1) of that Act. 50 Plans of management in force under Part VB of the Great Barrier Reef Marine Park Act 1975 (1) This item applies if, immediately before the commencement of this Schedule, a plan of management was in force under Part VB of the Great Barrier Reef Marine Park Act 1975. (2) Despite the amendments made by this Schedule, the plan of management continues in force after the commencement of this Schedule as if the plan had been prepared in accordance with Part VB of the Great Barrier Reef Marine Park Act 1975, as that Part is in force immediately after the commencement of this Schedule. 51 Plans of management etc. prepared under Part VB of the Great Barrier Reef Marine Park Act 1975 (1) This item applies if, before the commencement of this Schedule: (a) a plan of management, or an amendment of a plan of management, was prepared under Part VB of the Great Barrier Reef Marine Park Act 1975; and (b) a notice under subsection 39ZE(1) of that Act was given in relation to the plan or amendment; and (c) the plan or amendment had not yet come into force. (2) Despite the amendments made by this Schedule: (a) Part VB of the Great Barrier Reef Marine Park Act 1975 continues to apply in relation to the preparation and coming into force of the plan or amendment as if those amendments had not been made; and (b) after the plan or amendment comes into force, it is taken to be, and continues in force as if it were, a plan or amendment prepared in accordance with Part VB of the Great Barrier Reef Marine Park Act 1975, as that Part is in force immediately after the commencement of this Schedule. 52 Plans of management etc. being prepared under Part VB of the Great Barrier Reef Marine Park Act 1975 (1) If, before the commencement of this Schedule: (a) a plan of management, or an amendment of a plan of management, was being prepared under Part VB of the Great Barrier Reef Marine Park Act 1975; but (b) a notice under subsection 39ZE(1) of that Act had not been given in relation to the plan or amendment; the amendments made by this Schedule apply in relation to the plan or amendment. (2) This item does not limit the application that the amendments made by this Schedule have apart from this item. Schedule 4—Environmental impact assessments Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Environment Protection and Biodiversity Conservation Act 1999 1 Section 11 (simplified outline) Omit "or a plan for managing the Great Barrier Reef", substitute "or it is for a purpose for which, under a zoning plan for a zone made under the Great Barrier Reef Marine Park Act 1975, the zone may be used or entered without permission". 2 After Subdivision F of Division 1 of Part 3 Insert: Subdivision FA—Great Barrier Reef Marine Park 24B Requirement for approval of activities in the Great Barrier Reef Marine Park Actions in Great Barrier Reef Marine Park affecting the environment (1) A person must not take in the Great Barrier Reef Marine Park an action that has, will have or is likely to have, a significant impact on the environment. Civil penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. Actions outside Great Barrier Reef Marine Park affecting the environment in the Marine Park (2) A person must not take outside the Great Barrier Reef Marine Park but in the Australian jurisdiction an action that: (a) has or will have a significant impact on the environment in the Great Barrier Reef Marine Park; or (b) is likely to have a significant impact on the environment in the Great Barrier Reef Marine Park. Civil penalty: (a) for an individual—5,000 penalty units; (b) for a body corporate—50,000 penalty units. Exceptions to prohibition (3) Subsection (1) or (2) 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 the subsection; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection 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 person taking the action is the Commonwealth or a Commonwealth agency; or (e) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). Note: Section 28 regulates actions by the Commonwealth or a Commonwealth agency with a significant impact on the environment. 24C Offences relating to Great Barrier Reef Marine Park Actions in Great Barrier Reef Marine Park affecting the environment (1) A person commits an offence if: (a) the person takes an action; and (b) the action is taken in the Great Barrier Reef Marine Park; and (c) the action results or will result in a significant impact on the environment. Penalty: Imprisonment for 7 years or 420 penalty units, or both. (2) Strict liability applies to paragraph (1)(b). Note: For strict liability, see section 6.1 of the Criminal Code. Actions in Great Barrier Reef Marine Park likely to affect the environment (3) A person commits an offence if: (a) the person takes an action; and (b) the action is taken in the Great Barrier Reef Marine Park; and (c) the action is likely to have a significant impact on the environment. Penalty: Imprisonment for 7 years or 420 penalty units, or both. (4) Strict liability applies to paragraph (3)(b). Note: For strict liability, see section 6.1 of the Criminal Code. Actions outside Great Barrier Reef Marine Park affecting environment in the Marine Park (5) A person commits an offence if: (a) the person takes an action; and (b) the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and (c) the action results in or will result in a significant impact on the environment in an area; and (d) the area is the Great Barrier Reef Marine Park. Penalty: Imprisonment for 7 years or 420 penalty units, or both. (6) Strict liability applies to paragraphs (5)(b) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. Actions outside Great Barrier Reef Marine Park likely to affect environment in the Marine Park (7) A person commits an offence if: (a) the person takes an action; and (b) the action is taken outside the Great Barrier Reef Marine Park but in the Australian jurisdiction; and (c) the action is likely to have a significant impact on the environment in an area; and (d) the area is the Great Barrier Reef Marine Park. Penalty: Imprisonment for 7 years or 420 penalty units, or both. (8) Strict liability applies to paragraphs (7)(b) and (d). Note: For strict liability, see section 6.1 of the Criminal Code. Defences (9) Subsection (1), (3), (5) or (7) 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 the subsection; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of the subsection; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that the subsection 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 person taking the action is the Commonwealth or a Commonwealth agency; or (e) 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. 3 Paragraph 25AA(2)(g) Omit "(6).", substitute "(6);". 4 After paragraph 25AA(2)(g) Insert: (h) subsections 24C(1), (3), (5) and (7). 5 After paragraph 25AA(3)(g) Insert: (ga) subsections 24B(1) and (2); 6 Subsection 29(1) (note 2) After "areas", insert "or in the Great Barrier Reef Marine Park". 7 Subsection 30(3) (note) After "area", insert "or the Great Barrier Reef Marine Park". 8 Section 34 (after table item 13C) Insert: 13D subsection 24B(1) the environment 13E subsection 24B(2) the environment in the Great Barrier Reef Marine Park 13F subsections 24C(1) and (3) the environment 13G subsections 24C(5) and (7) the environment in the Great Barrier Reef Marine Park 9 Paragraph 43(a) Omit "the Great Barrier Reef Marine Park established by the Great Barrier Reef Marine Park Act 1975", substitute "a zone (within the meaning of the Great Barrier Reef Marine Park Act 1975) of the Great Barrier Reef Marine Park". Note: The heading to section 43 is altered by omitting "permission" and substituting "zoning plan". 10 Paragraph 43(b) Repeal the paragraph, substitute: (b) it is for a purpose for which, under the zoning plan for the zone made under the Great Barrier Reef Marine Park Act 1975, the zone may be used or entered without permission. 11 After subsection 49(1) Insert: (1A) A provision of a bilateral agreement does not have any effect in relation to an action in the Great Barrier Reef Marine Park, unless the agreement expressly provides otherwise. Note: The heading to section 49 is replaced by the heading "Certain limits on scope of bilateral agreements". 12 After section 73 Insert: 73A Informing Great Barrier Reef Marine Park Authority of proposal affecting Great Barrier Reef Marine Park If: (a) a proposal to take an action is referred to the Minister; and (b) the action, or a component of the action, is to be taken in the Great Barrier Reef Marine Park; the Minister must, as soon as practicable after receiving the referral, give a copy of the referral to the Great Barrier Reef Marine Park Authority. 13 Subsection 74(1B) After "24A,", insert "24B, 24C,". 14 Subsection 74(1B) (note) After "24A,", insert "24B, 24C,". 15 After subsection 75(2A) Insert: (2AA) For the purposes of subsection (2), if the provision of Part 3 is subsection 24B(1) or 24C(1) or (3), then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park: (a) has or will have; or (b) is likely to have; on the matter. 16 At the end of section 82 Add: (5) For the purposes of subsections (1) and (2), if subsection 24B(1) or 24C(1) or (3) is or would be a controlling provision for the action, then the impacts of the action on the matter protected by that provision are only those impacts that the part of the action that is taken in the Great Barrier Reef Marine Park: (a) has or will have; or (b) is likely to have; on the matter. 17 Subsection 83(1) (note 3) After "areas", insert "or in the Great Barrier Reef Marine Park". 18 After subsection 97(3) Insert: (3A) Tailored guidelines may also provide for the draft report to include information about other certain and likely impacts of the action if: (a) the referral of the proposal to take the action is, because of section 37AB of the Great Barrier Reef Marine Park Act 1975, taken to be an application for a permission for the purposes of that Act; and (b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the draft report includes information about those other impacts for the purposes of deciding whether to grant the permission. 19 Paragraph 97(4)(a) After "(3)", insert "or (3A)". 20 After subsection 102(3) Insert: (3A) Tailored guidelines may also provide for the draft statement to include information about other certain and likely impacts of an action if: (a) the referral of the proposal to take the action is, because of section 37AB of the Great Barrier Reef Marine Park Act 1975, taken to be an application for a permission for the purposes of that Act; and (b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the draft statement includes information about those other impacts for the purposes of deciding whether to grant the permission. 21 Subsection 102(4) After "(3)", insert "or (3A)". 22 Paragraph 107(3)(b) Before "may", insert "if subsection (4) or (4A) applies—". 23 Subsection 107(4) Omit "However, the Minister may specify other certain or likely impacts of the action only", substitute "For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action". 24 After subsection 107(4) Insert: (4A) For the purposes of paragraph (3)(b), the Minister may specify other certain or likely impacts of the action if: (a) the referral of the proposal to take the action is, because of section 37AB of the Great Barrier Reef Marine Park Act 1975, taken to be an application for a permission for the purposes of that Act; and (b) the Great Barrier Reef Marine Park Authority has asked the Minister to ensure that the report includes information about those other impacts for the purposes of deciding whether to grant the permission. 25 Subsection 158A(1) (at the end of paragraph (h) of the definition of listing event) Add: (v) the Great Barrier Reef Marine Park; 26 Paragraph 231(ba) Omit "(2) or", substitute "(2),". 27 Paragraph 231(ba) After "or (4)", insert ", 24B(1) or (2) or 24C(1), (3), (5) or (7)". 28 Subparagraph 231(bb)(i) Omit "(2) or", substitute "(2),". 29 Subparagraph 231(bb)(i) After "or (4)", insert ", 24B(1) or (2) or 24C(1), (3), (5) or (7)". 30 Subparagraph 231(bc)(i) Omit "(2) or", substitute "(2),". 31 Subparagraph 231(bc)(i) After "or (4)", insert ", 24B(1) or (2) or 24C(1), (3), (5) or (7)". 32 Paragraph 255(c) After "or (4),", insert "24B(1) or (2) or 24C(1), (3), (5) or (7),". 33 Subparagraph 255(d)(i) After "or (4),", insert "24B(1) or (2) or 24C(1), (3), (5) or (7),". 34 Subparagraph 255(da)(i) After "or (4),", insert "24B(1) or (2) or 24C(1), (3), (5) or (7),". 35 At the end of Part 20 Add: 515AA Delegation by Minister in relation to Great Barrier Reef Marine Park (1) The Minister may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to: (a) the Great Barrier Reef Marine Park Authority; or (b) the Chairperson of the Great Barrier Reef Marine Park Authority; or (c) a member of the staff of the Great Barrier Reef Marine Park Authority. (2) For the purposes of subsection (1), this subsection applies to a power or function if: (a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park; or (b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park. Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the Great Barrier Reef Marine Park Act 1975. (3) Despite subsection (1), the Minister must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person: (a) is an SES employee or an acting SES employee; or (b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position. (4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Minister. (5) This section does not limit the Minister's power of delegation under section 515. 515AB Delegation by Secretary in relation to Great Barrier Reef Marine Park (1) The Secretary may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to: (a) the Great Barrier Reef Marine Park Authority; or (b) the Chairperson of the Great Barrier Reef Marine Park Authority; or (c) a member of the staff of the Great Barrier Reef Marine Park Authority. (2) For the purposes of subsection (1), this subsection applies to a power or function if: (a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park; or (b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park. Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the Great Barrier Reef Marine Park Act 1975. (3) Despite subsection (1), the Secretary must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person: (a) is an SES employee or an acting SES employee; or (b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position. (4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Secretary. (5) This section does not limit the Secretary's power of delegation under section 515. 36 Section 528 Insert: Great Barrier Reef Marine Park means the Great Barrier Reef Marine Park established under the Great Barrier Reef Marine Park Act 1975. 37 Section 528 Insert: Great Barrier Reef Marine Park Authority means the Great Barrier Reef Marine Park Authority established by the Great Barrier Reef Marine Park Act 1975. Part 2—Amendment of the Great Barrier Reef Marine Park Act 1975 Great Barrier Reef Marine Park Act 1975 38 Subparagraph 7(1)(d)(i) Omit "by this Act", substitute "under this or any other Act". 39 After paragraph 7(1)(d) Insert: (daa) to exercise any powers, and perform any functions, relating to the Marine Park that have been delegated to the Authority under this or any other Act; 40 Subsection 7(1A) Omit "or (cd)", substitute ", (cd), (d) or (daa)". 41 Section 38 Repeal the section, substitute: Division 4—Relationship with the Environment Protection and Biodiversity Conservation Act 1999 37AB Actions affected by the Environment Protection and Biodiversity Conservation Act 1999 (1) If: (a) a proposal to take an action is referred to the Minister under Division 1 of Part 7 of the Environment Protection and Biodiversity Conservation Act 1999; and (b) the action, or a component of the action, involves doing a thing that would be an offence against this Act if done without a permission under the regulations; the referral is taken to be an application made in accordance with the regulations for that permission. Note: A subsequent decision under the Environment Protection and Biodiversity Conservation Act 1999 that the action is not a controlled action does not affect an application that is taken to have been made because of subsection (1). (2) The Authority, or an agency that has responsibility under a zoning plan for granting permissions, must not grant a person permission under the regulations to do a thing if: (a) the thing is, or is part of, an action that is a controlled action for the purposes of the Environment Protection and Biodiversity Conservation Act 1999; and (b) the Minister has not decided under Part 9 of the Environment Protection and Biodiversity Conservation Act 1999 to approve the taking of the action by the person for the purposes of each provision that is, for the purposes of that Act, a controlling provision for the action. 37AC Great Barrier Reef Region not to be reserved under the Environment Protection and Biodiversity Conservation Act 1999 The Governor‑General must not make a Proclamation under section 344 of the Environment Protection and Biodiversity Conservation Act 1999 declaring an area in the Great Barrier Reef Region to be a Commonwealth reserve under that Act. Part 3—Transitional, application and saving provisions 42 Application of amendments (1) The amendments made by this Schedule do not apply in relation to an action that is an exempt action under this item. (2) An action is an exempt action if, immediately before the amendments commenced, an approval to take the action was in operation under Part 9 of the Environment Protection and Biodiversity Conservation Act 1999. (3) An action is an exempt action if, immediately before the amendments commenced: (a) a person was taking the action; and (b) Part 4 of the Environment Protection and Biodiversity Conservation Act 1999 let the person take the action without an approval under Part 9 of that Act. (4) An action is an exempt action if, immediately before the amendments commenced: (a) there was in force a decision of the Minister under Division 2 of Part 7 of the Environment Protection and Biodiversity Conservation Act 1999 that the action is not a controlled action; and (b) the action was not an action the taking of which would be an offence under the Great Barrier Reef Marine Park Act 1975 if taken without a permission having been granted under regulations made under that Act. (5) An action that was the subject of an active referral (see item 43) at the time the amendments commenced is an exempt action: (a) from the time the amendments commence until the time the action ceases to be the subject of an active referral; and (b) if the action ceases to be the subject of an active referral because an approval of the taking of the action starts to operate under Part 9 of the Environment Protection and Biodiversity Conservation Act 1999 as a result of the referral—for so long as the approval is in operation. (6) An action that was the subject of an active application (see item 44) at the time the amendments commenced is an exempt action: (a) from the time the amendments commenced until the time the action ceases to be the subject of an active application; and (b) if the action ceases to be the subject of an active application because a permission to take the action is granted in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975 as a result of the application—for so long as the permission has effect. 43 Actions that are the subject of an active referral For the purposes of subitem 42(5), an action is, at any particular time, the subject of an active referral if, at that time: (a) a proposal to take the action has been referred to the Minister under Division 1 of Part 7 of the Environment Protection and Biodiversity Conservation Act 1999; and (b) the referral has not been withdrawn under section 170C of that Act; and (c) the Minister has not decided under subsection 74A(1) of that Act not to accept the referral; and (d) provisions of Chapter 4 of that Act are not stopped by Division 1A of Part 7 of that Act from applying in relation to the referral; and (e) provisions of Chapter 4 of that Act are not stopped by section 155 of that Act from applying because of the referral in relation to the action (or a larger action of which the action is a component); and (f) the Minister has not decided that the action (or a larger action of which the action is a component) is not a controlled action for the purposes of that Act; and (g) no decision is in operation under Part 9 of that Act approving or not approving the taking of the action (or a larger action of which the action is a component). 44 Actions that are the subject of an active application For the purposes of subitem 42(6), an action is, at any particular time, the subject of an active application if, at that time: (a) an application for permission to take the action has been made in accordance with regulations made under the Great Barrier Reef Marine Park Act 1975; and (b) the application has not been withdrawn; and (c) the application has not been rejected; and (d) the application has not lapsed; and (e) the Great Barrier Reef Marine Park Authority has neither granted nor refused the permission. Schedule 5—Investigation and enforcement Part 1—Amendment of the Environment Protection and Biodiversity Conservation Act 1999 Environment Protection and Biodiversity Conservation Act 1999 1 Para