Section 74AA — Environment Protection and Biodiversity Conservation Act 1999: Offence of taking action before decision made in relation to referral etc.

Referral made: taking action while decision making process still going on (1) A person commits an offence if: (a) the person takes an action; and (b) either: (i) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister by the person under section 68; or (ii) a proposal to take the action (or a larger action of which the action is a component) has been referred to the Minister under section 69 or 71 and the person has been informed of the referral under section 73; and (c) the referral has not been withdrawn under section 170C; and (d) the Minister has not decided under subsection 74A(1) not to accept the referral; and (e) provisions of this Chapter are not stopped by Division 1A from applying in relation to the referral; and (f) provisions of this Chapter are not stopped by section 155 from applying because of the referral in relation to the action (or a larger action of which the action is a component); and (g) no decision that the action (or a larger action of which the action is a component) is not a controlled action is in operation under section 75 in relation to the referral; and (ga) either: (i) no determination that the action may continue to be taken is in force under section 79E; or (ii) such a determination is in force, but the action has been taken otherwise than in accordance with one or more of the conditions (if any) specified in the determination; and (h) no decision is in operation under Part 9 in relation to the referral approving, or not approving, the taking of the action (or a larger action of which the action is a component). Penalty: 500 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) Subsection (1) does not apply to the taking of an action by a person if: (a) the taking of the action is reasonably necessary in order to comply with a requirement or request made under this Part or Part 8 or 9 in relation to the action (or a larger action of which the action is a component); and (b) before taking the action, the person gave the Minister written notice of the taking of the action; and (c) the notice was given in accordance with any applicable requirements of the regulations. Note: A defendant bears an evidential burden in relation to the matters in subsection (1): see subsection 13.3(3) of the Criminal Code. Referral requested: taking action before requested referral is made (3) A person commits an offence if: (a) the person takes an action; and (b) the Minister, under section 70, has requested the referral by the person of a proposal to take the action (or a larger action of which the action is a component) to the Minister; and (c) the request has not been revoked; and (d) the referral has not been made. Penalty: 500 penalty units. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.