Environmental Protection Regulations Amendment (Publication and Confidentiality) Regulations 2021 (WA)

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4766

GOVERNMENT GAZETTE, WA

22 October 2021

ENVIRONMENT
EV301
Environmental Protection Act 1986

Environmental Protection Regulations

Amendment (Publication and Confidentiality)
Regulations 2021

(a) Part 1 — on the day on which these regulations are

published in the Gazette;
SL 2021/178

Made by the Governor in Executive Council.
Part 1 — Preliminary

1. Citation
These regulations are the Environmental Protection Regulations
Amendment (Publication and Confidentiality) Regulations 2021.
2. Commencement
These regulations come into operation as follows —

22 October 2021 GOVERNMENT GAZETTE, WA 4767

(b)

Part 2—on the day on which the Environmental Protection Amendment Act 2020 section 57 conies uto operation;

(c)

Part 3—on the day on which the Environmental Protection Amendment Act 2020 section 16 comes into operation.

Part 2— Environmental Protection (Clearing of Native
Vegetation) Regulations 2004 amended
3. Regulations amended

This Part amends the Environmental Protection (Clearing of
Native Vegetation) Regulations 2004.
4. Part 1 heading inserted Before regulation I insert:
Part 1 - Preliminary

5. Part 2 heading inserted After regulation 3 insert:
Part 2 - General matters

6. Regulation 8 replaced
Delete regulation 8 and insert:

8. Public records of particulars to be kept by CEO
(s. 51Q(a))

(1)

For the purposes of section 51 Q(a) of the Act, the particulars are set out in subregulations (2) to (8).

(2)

The particulars of applications for clearing permits under section 51 E( 1) of the Act are as follows -

(a) the name of the applicant;

(b)

whether the application is for an area permit or a purpose permit;

(c)

a description of the land to which the application relates;
(d) the purpose of the proposed clearing;

(e)

in the case of an application for an area permit - the size of the area to be cleared or the number of trees to be cleared;

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22 October 2021

(f) the period for which the permit is sought.

(3) The particulars of applications for amendments of
clearing permits under section 51 K(2)(a) of the Act are
as follows -

(a) the name of the applicant;

(b)

whether the application is for the amendment of an area permit or a purpose peitiiit;

(c)

in the case of an application for amendment of an area permit - any change in the size of the area to be cleared or the number of trees to be cleared;

(d)

in the case of an application to amend the period during which the permit is in force - the period for which the permit is sought.

(4) The particulars of clearing permits that are in force are
as follows -

(a) the name of the permit holder;
(b) whether the permit is an area permit or a purpose permit;
(c) a description of the land to which the permit relates;
(d) the purpose of the clearing;
(e) in the case of an area permit - the size of the area to be cleared or the number of trees to be cleared;
(I) the conditions to which the permit is subject;

(g) the period during which the permit is in force.

(5)

The particulars of undertakings given by the CEO under section 51 E(9) of the Act are as follows -

(a) undertaking is given;
the name of the person to whom the

(b)

a description of the land to which the permit that will be granted in accordance with the undertaking relates;
(c) the purpose of the proposed clearing;

(d)

the size of the area to be cleared or the number of trees to be cleared under the permit that will be granted in accordance with the undertaking;

(e)

the conditions to which the permit that will be granted in accordance with the undertaking is to be subject
(I) the period for which the permit that will be
granted in accordance with the undertaking is to
be in force.

22 October 2021 GOVERNMENT GAZETTE, WA 4769

(6) The particulars of notifications received under
section 51N(l) of the Act of the transfer or passing of
the owner's interest in the land are as follows -

(a) the name of the person giving the notification;
(I,) the date on which the interest was transferred or
passed, or will transfer or pass, to the person
giving the notification;

(c) the date on which the notice was received by
the CEO.

(7) The particulars of the surrender of clearing permits
accepted by the CEO under section 51 MA(7)(a) of the
Act are as follows -

(a)

the name of the person who applied to surrender the permit;
(b) the identification number of the permit:

(c)

the date on which the CEO accepted the surrender.

(8) The particulars of clearing permits revoked or
suspended by the CEO under section 51L(1) of the Act
are as follows -

(a)

the name of the permit holder at the time of the revocation or suspension;
(b) the identification number of the permit;
(c) the grounds for the revocation or suspension

(d)

the date on which the permit was revoked or suspended.

8A. Public records of other information and documents
to be kept by CEO (s. 51Q(b))
For the purposes of section 51Q(b) of the Act, the CEO

must keep a public record of information and
documents given to the CEO in response to a written
notice given by the CEO under section 51E(1A),
51KA(2) or 51MA(3) of the Act.

7. Part 3 inserted
After i-eu1at ion 9 insert:
Part 3 - Publication and confidentiality
10. Terms used
In this Part each of the following terms has the meaning given in section 12213(l) of the Act - documentation

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GOVERNMENT GAZETTE, WA

22 October 2021

publish submit

11. CEO may keep docume ntation confidential on
request

(1) In this regulation -
clearing referral means a referral of proposed clearing
under section 51DA(2) of the Act;
confidential material means either of the follow ing

(a) trade secrets of a person;

(b)

confidential inibrimttion (other than trade secrets) that has a commercial value to a person that would be, or could reasonably be expected to be, destroyed or diminished if the confidential information were published.

(2) A person may, when submitting documentation to the
CEO in relation to a clearing referral or a clearing
permit, request in writing that the CEO not publish the
whole or part of the documentation (the relevant
documentation) because of the confidential nature of
the relevant documentation.
(3) If a request is made under subregulation (2) by
electronic communication (as defined in the Electronic
Transactions Act 2011 section 5(1)), the CEO must
acknowledge receipt of the request in writing.
(4) On receipt of a request under subregulation (2) and, if
subregulation (3) applies, after the CEO has
acknowledged receipt of the request the CEO -

(a)

must, if satisfied that the whole or part of the relevant documentation contains confidential material, refrain from publishing that whole or

part; and

(b)

may refrain from publishing the whole or part of the relevant documentation if the CEO -

(1) is not satisfied of the ratters referred to
in paragraph (a); but
(n) is satisfied that it is desirable to refrain
from publishing that whole or part
because of the confidential nature of
that whole or part

12. CEO must keep certain matters confidential

(1) The CEO must refrain from publishing any BSB
number or bank account number contained in
documentation submitted to the CEO in relation to a
clearing referral (as defined in regulation 11(1)) or a
clearing permit.

22 October 2021 GOVERNMENT GAZETTE, WA 4771

(2) Subregulation (1) applies whether or not a request has
been made under regulation 11(2).

B. CEO may keepcertain matters confidential

(1) In this regulation -
Aboriginal site has the meaning given in the
Aboriginal Heritage Act 1972 section 4;
native species has the meaning given in the
Biodiversity Conservation Act 2016 section 5(1);
priority list means either of the following -

(a) the document titled 'Threatened and Priority Flora List", as retitled or amended from time to time, published by the department principally assisting in the administration of the Biodiversity Conservation Act 2016 (the department) on its website;
(b) the document titled 'Threatened and Priority Fauna List", as retitled or amended from time to time, published by the depaitirtnt on its
website;

species has the meaning given in the Biodiversity
Conservation Act 2016 section 5(1);
threatened species has the meaning given in the
Biodiversity Conservation Act 2016 section 5(1).

(2) The CEO may at any time refrain from publishing any
of the following information if it is confidential
(whether or not a request has been made under
regulation 11(2)) -

(a) personal information;
(b) the precise location of any of the following -

(I) a threatened species;
any other species listed, designated or
declared as threatened, endangered or
vulnerable under or for the purposes of a
written law;
(iii)
a listed threatened species as delined in section 528;
(iv) a species listed on a priority list;
(v) a breeding area of a species referred to in subparagraphs (i) to (iv);

(c)

the precise location of a population of a native species, or a breeding area of a native species, if the CEO considers that the survival of a
population of the native species could be
threatened by -

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GOVERNMENT GAZETTE, WA

22 October 2021

(i) publishing that information; or

(II) the presence or actions of persons if that
information were published;

(d) the precise location of an Aboriginal site, if the
precise location of that site is identified in
documentation provided to the CEO in relation
to a clearing referral (as defined in
regulation 11(1)) or a clearing permit.

Notes:
1. The heading to regulation 4 is to read: Intentionally sown, planted or propagated vegetation (s. 51A)
2. The heading to regulation 5 is to read: Prescribed clearing (s. 51 C)

Part 3—Environmental Protection Regulations 1987

amended

8. Regulations amended

This Part amends the Environmental Protection
Regulations 1987.
9. Regulation 2B replaced
Delete regulation 2B and insert:

2B. Publication of Authority minutes and records

(1) In this regulation -
exempt matter means matter that is exempt under the

Freedom ofInformation Act 1992 Schedule I;
minute means a minute of proceedings of a meeting of
the Authority,
record means a record kept under section 14A(7) of the
Act.
(2) Subject to subregulation (4), the Authority must -

(a)

cause a minute to be published within 6 months alter the date of the meeting to which the minute relates; and

(b)

cause a record to be published within 6 months alter the date of the decision to which the record relates.

(3) The Authority may determine that a minute or record,
or a part of a minute or record, contains exempt matter.

22 October 2021 GOVERNMENT GAZETTE, WA 4773

(4) The Authority must not publish a minute or record, or a
part of a minute or record, that is the subject of a
deternination under subregulation (3).
(5) The Authority may revoke a determination made under
subregulation (3).
10. Regulation 3 replaced
Delete regulation 3 and insert:
3. Details prescribed for records of referred proposals
The Authority must in a public record of a referred proposal kept under section 39 of the Act set out -

(a)

the title or number or other means of identification of the proposal; and

(b)

the name of or the office or position held or acted in by, the proponent of the proposal.

11. Part 2A inserted
After regulation 3 insert:
Part 2A - Publication and confidentiality

3A. Terms used
In this Part each of the following terms has the
meaning given in section 12213(l) of the Act
documentation
publish

submit

3B. Authority may keep documentation relating to
proposals confidential on request

(1) In this regulation -
confidential material means either of the following -

(a) trade secrets of a person
(b)
secrets) that has a conniercial value to a person
confidential information (other than trade to be, destroyed or diminished if the confidential information were published.

(2)

The proponent of a referred proposal or an approved proposal may, when submitting documentation to the Authority in relation to the proposal, request in writing

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GOVERNMENT GAZETTE, WA

22 October 2021

that the Authority not publish the whole or part of the documentation (the relevant documentation) because of the confidential nature of the relevant
documentation.

(3) If a request is nude under subregulation (2) by
electronic communication (as defined in the Electronic
Transactions Act 2011 section 5(1)), the Authority
must acknowledge receipt of the request in writing.
(4) On receipt of a request under subregulation (2) and, if
subregulation (3) applies, after the Authority has
acknowledged receipt of the request the Authority -

(a) must, if satisfied that the whole or part of the relevant documentation contains confidential material, refrain from publishing that whole or
part; and

(b)

may refrain from publishing the whole or part of the relevant documentation if the Authority -

(I) is not satisfied of the matters referred to
in paragraph (a); but
(I') is satisfied that it is desirable to refrain
from publishing that whole or part
because of the confidential nature of
that whole or part

3C. Authority must keep certain matters confidential

(1) The Authority must refrain from publishing any BSB
number or bank account nunier contained in
documentation submitted to the Authority in relation to
a referred proposal or an approved proposal
(2) Subregulation (1) applies whether or not a request has

been made under regulation 313(2).

3D. Authority may keep certain matters relating to
proposals confidential

(1) In this regulation -
Aboriginal site has the meaning given in the
Aboriginal Heritage Act 1972 section 4;
native species has the meaning given in the
Biodiversity Conservation Act 2016 section 5(1);
priority list means either of the following -

(a) the document titled "Threatened and Priority
Flora List", as retitled or amended from time to
time, published by the depai1irint principally
assisting in the administration of the
Biodiversity Conservation Act 2016 (the
department) on its website;

22 October 2021 GOVERNMENT GAZETTE, WA 4775
(b) the document titled "Threatened and Priority
Fauna List", as retitled or amended from time to time, published by the depaitirtnt on its website;

species has the meaning given in the Biodiversity
Conservation Act 2016 section 5(1);
threatened species has the meaning given in the
Biodiversity Conservation Act 2016 section 5(1).

(2) The Authority may at any time refrain from publishing
any of the following information if it is confidential
(whether or not a request has been nude under
regulation 313(2)) -

(a) personal information;
(b) the precise location of any of the following -

(1) a threatened species;
any other species listed, designated or
declared as threatened, endangered or
vulnerable under or for the purposes of a
written law;
(iii) a listed threatened species as defined in

the Coiuiitnwealth Environment Act
section 528;
(iv) a species listed on a priority list;
(v)a breeding area of a species referred to
in subparagraphs (i) to (iv);

(c) the precise location of a population of a native species, or a breeding area of a native species, if the Authority considers that the survival of a population of the native species could be
threatened by -
(i) publishing that infomtion; or

the presence or actions of persons if that
infbrntion were published;

(d) the precise location of an Aboriginal site, if the
precise location of that site is identified in
documentation provided to the Authority in
relation to a referred proposal or an approved
proposal.

V. MOLAN, Clerk of the Executive Council.

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Environmental Protection Regulations Amendment (Publication and Confidentiality) Regulations 2021 (WA)

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(b)	Part 2—on the day on which the Environmental Protection Amendment Act 2020 section 57 conies uto operation;
(c)	Part 3—on the day on which the Environmental Protection Amendment Act 2020 section 16 comes into operation.

8.	Public records of particulars to be kept by CEO (s. 51Q(a))
(1)	For the purposes of section 51 Q(a) of the Act, the particulars are set out in subregulations (2) to (8).
(2)	The particulars of applications for clearing permits under section 51 E( 1) of the Act are as follows -

(a)	the name of the applicant;
(b)	whether the application is for an area permit or a purpose permit;
(c)	a description of the land to which the application relates;
(d)	the purpose of the proposed clearing;
(e)	in the case of an application for an area permit - the size of the area to be cleared or the number of trees to be cleared;

(a)	the name of the applicant;
(b)	whether the application is for the amendment of an area permit or a purpose peitiiit;
(c)	in the case of an application for amendment of an area permit - any change in the size of the area to be cleared or the number of trees to be cleared;
(d)	in the case of an application to amend the period during which the permit is in force - the period for which the permit is sought.

(a)	the name of the permit holder;
(b)	whether the permit is an area permit or a purpose permit;
(c)	a description of the land to which the permit relates;
(d)	the purpose of the clearing;
(e)	in the case of an area permit - the size of the area to be cleared or the number of trees to be cleared;

(a)	undertaking is given;
the name of the person to whom the
(b)	a description of the land to which the permit that will be granted in accordance with the undertaking relates;
(c)	the purpose of the proposed clearing;
(d)	the size of the area to be cleared or the number of trees to be cleared under the permit that will be granted in accordance with the undertaking;
(e)	the conditions to which the permit that will be granted in accordance with the undertaking is to be subject

(a)	the name of the person who applied to surrender the permit;
(b)	the identification number of the permit:
(c)	the date on which the CEO accepted the surrender.

(a)	the name of the permit holder at the time of the revocation or suspension;
(b)	the identification number of the permit;
(c)	the grounds for the revocation or suspension
(d)	the date on which the permit was revoked or suspended.

8A.	Public records of other information and documents to be kept by CEO (s. 51Q(b))
For the purposes of section 51Q(b) of the Act, the CEO

11.	CEO may keep docume ntation confidential on request
(1)	In this regulation - *clearing referral* means a referral of proposed clearing under section 51DA(2) of the Act; *confidential material* means either of the follow ing

(a)	trade secrets of a person;
(b)	confidential inibrimttion (other than trade secrets) that has a commercial value to a person that would be, or could reasonably be expected to be, destroyed or diminished if the confidential information were published.

(2)	A person may, when submitting documentation to the CEO in relation to a clearing referral or a clearing permit, request in writing that the CEO not publish the whole or part of the documentation (the *relevant* *documentation)* because of the confidential nature of the relevant documentation.
(3)	If a request is made under subregulation (2) by electronic communication (as defined in the Electronic Transactions Act 2011 section 5(1)), the CEO must acknowledge receipt of the request in writing.
(4)	On receipt of a request under subregulation (2) and, if subregulation (3) applies, after the CEO has acknowledged receipt of the request the CEO -

(2)	Subregulation (1) applies whether or not a request has been made under regulation 11(2).
B.	CEO may keepcertain matters confidential
(1)	In this regulation - Aboriginal site has the meaning given in the Aboriginal Heritage Act 1972 section 4; *native species* has the meaning given in the Biodiversity Conservation Act 2016 section 5(1); priority list means either of the following -

(a)	the document titled 'Threatened and Priority Flora List", as retitled or amended from time to time, published by the department principally assisting in the administration of the Biodiversity Conservation Act 2016 (the *department)* on its website;
(b)	the document titled 'Threatened and Priority Fauna List", as retitled or amended from time to time, published by the depaitirtnt on its

(a)	personal information;
(b)	the precise location of any of the following -

(I)	a threatened species;
any other species listed, designated or
declared as threatened, endangered or vulnerable under or for the purposes of a written law;
(iii)
a listed threatened species as delined in section 528;
(iv)	a species listed on a priority list;
(v)	a breeding area of a species referred to in subparagraphs (i) to (iv);

(c)	the precise location of a population of a native species, or a breeding area of a native species, if the CEO considers that the survival of a
population of the native species could be threatened by -

This Part amends the Environmental Protection Regulations 1987.
9.	Regulation 2B replaced Delete regulation 2B and insert:

(a)	cause a minute to be published within 6 months alter the date of the meeting to which the minute relates; and
(b)	cause a record to be published within 6 months alter the date of the decision to which the record relates.

(4)	The Authority must not publish a minute or record, or a part of a minute or record, that is the subject of a deternination under subregulation (3).
(5)	The Authority may revoke a determination made under subregulation (3).

(a)	the title or number or other means of identification of the proposal; and
(b)	the name of or the office or position held or acted in by, the proponent of the proposal.

3A.	Terms used
In this Part each of the following terms has the meaning given in section 12213(l) of the Act *documentation* *publish*

3B.	Authority may keep documentation relating to proposals confidential on request
(1)	In this regulation - *confidential material* means either of the following -

(a)	trade secrets of a person
(b)	secrets) that has a conniercial value to a person

(3)	If a request is nude under subregulation (2) by electronic communication (as defined in the Electronic Transactions Act 2011 section 5(1)), the Authority must acknowledge receipt of the request in writing.
(4)	On receipt of a request under subregulation (2) and, if subregulation (3) applies, after the Authority has acknowledged receipt of the request the Authority -

(I)	is not satisfied of the matters referred to in paragraph (a); but
(I')	is satisfied that it is desirable to refrain from publishing that whole or part because of the confidential nature of that whole or part

the presence or actions of persons if that
infbrntion were published;
(d)	the precise location of an Aboriginal site, if the precise location of that site is identified in documentation provided to the Authority in relation to a referred proposal or an approved proposal.