Section 146DJ — Environment Protection and Biodiversity Conservation Act 1999: Variation of approval under section 146B as a result of a variation of a policy, plan or program

(1) If under section 146DI the Minister approves a variation of an endorsed policy, plan or program, the Minister may, by written notice, vary an approval under section 146B that is in force in relation to the policy, plan or program in a way that the Minister considers appropriate as a result of the approval of the variation of the policy, plan or program. (2) Without limiting subsection (1), the variation of the approval may be one or more of the following: (a) a variation of an action specified in the approval as an action that may be taken in accordance with the endorsed policy, plan or program; (b) specifying another action, or removing an action, that may be taken in accordance with the endorsed policy, plan or program; (c) a variation of a class of actions specified in the approval as a class of actions that may be taken in accordance with the endorsed policy, plan or program; (d) specifying another class of actions, or removing a class of actions, that may be taken in accordance with the endorsed policy, plan or program; (e) a variation of the persons who may take an action in accordance with the endorsed policy, plan or program; (f) the revocation, variation or addition of a condition attached to the approval. Note: The Minister may invite comments from other relevant Ministers before making a variation covered by paragraph (a), (b), (c) or (d): see section 146C. Consultation (3) Before making the variation of the approval the Minister must: (a) give the holder of the approval written notice of the proposed variation; and (b) give the responsible person for the endorsed policy, plan or program written notice of the proposed variation; and (c) in a notice under paragraph (a) or (b), invite the person given the notice to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed variation; and (d) publish on the Department’s website an invitation for anyone to give the Minister, within the period specified in the invitation (which must be at least 10 business days after the day the invitation is given), written comments on the proposed variation; and (e) take into account any relevant comments received in response to an invitation under paragraph (c) or (d). Note: For holder and responsible person, see section 528. Notification of variation (4) The Minister must do the following as soon as practicable after making the variation of the approval: (a) give a copy of the variation to the holder of the approval; (b) give a copy of the variation to the responsible person for the endorsed policy, plan or program; (c) give a copy of the variation to each person specified in the approval as a person who may take an action covered by the approval; (d) publish the variation on the Department’s website. The Minister may give notice of the variation in any other way that the Minister thinks fit. Effect of variation (5) The variation takes effect on the day specified in the variation (which must not be earlier than the day the variation is published). (6) The variation does not take effect in relation to an action covered by the approval if the taking of the action has substantially commenced by the time the variation would, apart from this subsection, take effect, unless the action is specified in a determination made under subsection (7). (7) The Minister may, in writing, determine that the variation applies to a specified action if the Minister is satisfied that it is appropriate for it to apply to the action despite the taking of the action having substantially commenced. Consultation before making determination (8) Before making a determination under subsection (7), the Minister must: (a) give written notice to the person taking the specified action; and (b) invite the person to give the Minister, within the period specified in the notice (which must be at least 10 business days after the day the notice is given), written comments on the proposed determination; and (c) take into account any relevant comments received in response to an invitation under paragraph (b). Notification of determination (9) The Minister must as soon as possible after making a determination under subsection (7): (a) give the person taking the specified action: (i) a copy of the determination; and (ii) if a copy of the variation was not given to the person under subsection (4)—a copy of the variation; and (b) give the holder of the approval a copy of the determination; and (c) give the responsible person for the relevant endorsed policy, plan or program a copy of the determination; and (d) publish the determination on the Department’s website. The Minister may give notice of the determination in any other way that the Minister thinks fit. Exhaustive statement of natural justice hearing rule (10) This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the Minister’s decision to make a variation under subsection (1) or a determination under subsection (7). Notice not a legislative instrument (11) The following instruments made under this section are not legislative instruments: (a) a notice made under subsection (1); (b) a determination made under subsection (7).