Northern Territory Numbered Acts Northern Territory Numbered ActsSections 117AAB to 117AAE, Part V, Division 3 and Part VA
repeal, insert
(1) A person commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct occurs during the course of an operation; and
(c) the operation is authorised under this Act; and
(d) the conduct results in significant environmental harm and the person is reckless in relation to that result.
Maximum penalty: 6 500 penalty units or imprisonment for 5 years.
Minimum penalty: 650 penalty units.
(2) An offence against subsection (1) is a summary offence.
(3) A person commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct occurs during the course of an operation; and
(c) the operation is authorised under this Act; and
(d) the conduct results in material environmental harm and the person is reckless in relation to that result.
Maximum penalty: 2 600 penalty units.
Minimum penalty: 260 penalty units.
(4) Strict liability applies to subsections (1)(b) and (c) and (3)(b) and (c).
(5) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct occurs during the course of an operation; and
(c) the operation is authorised under this Act; and
(d) the conduct results in significant environmental harm.
Maximum penalty: 2 600 penalty units.
Minimum penalty: 260 penalty units.
(6) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct occurs during the course of an operation; and
(c) the operation is authorised under this Act; and
(d) the conduct results in material environmental harm.
Maximum penalty: 1 300 penalty units.
Minimum penalty: 130 penalty units.
(7) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct occurs during the course of an operation; and
(c) the operation is authorised under this Act; and
(d) the conduct results in environmental harm.
Maximum penalty: 130 penalty units.
(8) An offence against subsection (5), (6) or (7) is an offence of strict liability.
(9) It is a defence to a prosecution for an offence against subsection (1), (3), (5), (6) or (7) if the defendant took reasonable steps and exercised due diligence to prevent the commission of the offence.
(10) The defendant has the legal burden of proof in relation to a matter mentioned in subsection (9).
(1) It is a defence to a prosecution of an offence against section 117AAB if the conduct was authorised under another provision of this Act or another Act.
Note for subsection (1)
The defendant has an evidential burden in relation to the matters in subregulation (1) (see section 43BU of the Criminal Code).
(2) If environmental harm is the result of the release of a contaminant or waste, it is a defence to a prosecution for an offence against section 117AAB, in relation to a particular contaminant or waste, if the defendant complied with:
(a) a provision of an environment protection objective as defined in section 4(1) of the Waste Management and Pollution Control Act 1998 that fixed maximum allowable levels for the particular contaminant or waste; or
(b) a condition of an approval, permit, lease, licence or other authorisation under this Act or another Act that fixed maximum allowable levels for the particular contaminant or waste.
Note for subsection (2)
The defendant has an evidential burden in relation to the matters in subregulation (2) (see section 43BU of the Criminal Code).
In a proceeding against a person charged with an offence against a provision specified in the following Table, column 1 (the prosecuted offence ), the trier of fact may find the person not guilty of the prosecuted offence but guilty of an offence against a provision specified in the Table as an alternative offence for the prosecuted offence (the alternative offence ) if the trier of fact:
(a) is not satisfied beyond reasonable doubt that the person committed the prosecuted offence; and
(b) is satisfied beyond reasonable doubt that the person committed the alternative offence.
Table Alternative offences
|
Prosecuted offence |
Alternative offence |
|---|---|
|
section 57A(14) |
section 57A(16) |
|
section 61E(1) |
section 61E(3) |
|
section 61E(5) |
section 61E(7) |
|
section 77(4), (6) or (7) | |
|
section 89Q(1) |
section 89Q(3) |
|
section 89Z(1) |
section 89Z(3) |
|
section 89ZA(3) |
section 89ZA(5) |
|
section 117AAB(1) |
section 117AAB(3), (5), (6) or (7) |
|
section 117AAB(3) |
section 117AAB(6) or (7) |
|
section 117AAB(5) |
section 117AAB(6) or (7) |
(1) If a person is found guilty of an offence against this Act, the court may make an order (an adverse publicity order ) requiring the person to do any of the following:
(a) to publicise, in the manner specified in the order, the offence, its consequences, the penalty imposed and any other related matter;
(b) to notify a specified person or specified class of person, in the manner specified in the order, of the offence, its consequences, the penalty imposed and any other related matter.
(2) A person subject to an adverse order must give the CEO evidence of compliance with the order within 7 days after the end of the period specified in the order.
(3) The court may make an adverse publicity order on its own motion or on the application of the person prosecuting the offence.
(4) The court must, in determining whether to make an adverse publicity order, take into account any material before the court relating to the effect of the taking of action or actions that the court proposes to specify in the order is likely to have on a person other than the person found guilty of the offence.
(5) If the CEO does not receive evidence in accordance with subsection (2), the CEO, or a person authorised in writing by the CEO, may take the action or actions specified in the order.
(6) If the CEO is not satisfied that the person complied with the order, the CEO may apply to the court for an order authorising the CEO, or a person authorised in writing by the CEO, to take action.
(7) The CEO is entitled to recover from the person subject to the order an amount equal to the reasonable costs and expenses of taking the action or actions as a debt due and payable to the Territory.
(1) If a person is found guilty of an offence against this Act, the court may, in addition to any sanction that it may impose, make an order requiring the person to take specified steps, within a specified period, to remedy any matter caused by the commission of the offence that appears to the court to be within the person's power to remedy.
(2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court if an application for the extension is made before the period expires.
(3) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person contravenes the order.
Maximum penalty: 500 penalty units.
(4) An offence against subsection (3) is an offence of strict liability.
(1) If a person is found guilty of an offence against this Act, the court may, in addition to any sanction that it may impose, make an order requiring the person to pay to the CEO or the Environment CEO:
(a) the costs reasonably incurred for the prosecution of the offence; and
(b) the costs directly related to the investigation of the offence.
(2) Without limiting subsection (1), the costs covered by the subsection may include costs for testing, storing or disposing of evidence.
(1) Subject to this Division, an application for an injunction or other order under this Division may be brought by the following:
(a) the Minister;
(b) the CEO;
(c) a person who is affected by an alleged act or omission that contravenes or may contravene this Act;
(d) an interested person;
(e) a person acting on behalf of an unincorporated organisation that is an interested person;
(f) a person acting with the written consent of the Minister or the CEO.
(2) In this section:
interested person is:
(a) an individual who:
(i) has engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before the commencement of the application; and
(ii) resides, or ordinarily resides, in the Territory; or
(b) an organisation that:
(i) has objects or purposes that include the protection or conservation of, or research into, the environment; and
(ii) is incorporated, or operates on a regular basis, in the Territory.
(1) If a person engaged, is engaging or is proposing to engage in conduct constituting a contravention of this Act, the Supreme Court may grant an injunction restraining the person from engaging in the conduct.
(2) If the Supreme Court grants an injunction restraining a person from engaging in conduct and in the opinion of the Court it is desirable to do so, the Court may make an order requiring the person to do a specified act or thing.
If a person refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act or thing, and the refusal or failure did, does or would constitute a contravention of this Act, the Supreme Court may grant an injunction requiring the person to do the act or thing.
(1) Before deciding an application for an injunction under this Division, the Supreme Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act or thing.
(2) The Supreme Court must not require an applicant for an injunction to give an undertaking as to damages as a condition of granting an interim injunction.
(1) The Supreme Court may grant an injunction restraining a person from engaging in conduct:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person previously engaged in conduct of that kind; and
(c) whether or not there is imminent danger of environmental harm if the person engages, or continues to engage, in conduct of that kind.
(2) The Supreme Court may grant an injunction requiring a person to do a particular act or thing:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and
(b) whether or not the person previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of environmental harm if the person refuses or fails to do that act or thing.
On application, the Supreme Court may discharge or vary an injunction.
(1) On application only by the Minister or the CEO, the Supreme Court may make the following orders in relation to a contravention of this Act:
(a) if the contravention of this Act resulted in environmental harm – an order requiring the person who committed the contravention to:
(i) do a specified act or thing to remediate any specified environmental harm or to rehabilitate any aspect of the environment; and
(ii) if appropriate, do a specified act or thing to prevent or mitigate further environmental harm;
(b) if the Minister or the CEO incurred costs or expenses in doing an act or thing to prevent or mitigate environmental harm resulting from the contravention of this Act or to remediate or rehabilitate the environment as a result of environmental harm – an order against the person who committed the contravention for payment of the reasonable costs and expenses incurred in doing the act or thing.
(2) On application by a person referred to in section 117AA(1)(c) who suffered loss or damage as a result of a contravention of this Act, or incurred costs and expenses in doing an act or thing to prevent or mitigate that loss or damage, the Supreme Court may make an order against the person who committed the contravention for payment of:
(a) compensation for the loss or damage; or
(b) the reasonable costs and expenses incurred in doing the act or thing.
The Supreme Court may, if it considers it appropriate to do so, either on its own initiative or on the application of a party, vary or revoke an order made under section 117ABE.
(1) A proceeding under this Division may be commenced by the Minister or the CEO at any time within 12 months after the date of the alleged act or omission that contravenes or may contravene this Act.
(2) A proceeding under this Division may be commenced by a person referred to in section 117AA(1)(c), (d), (e) or (f) at any time within 6 months after the date of the alleged act or omission that contravenes or may contravene this Act.
(3) The Supreme Court may, on application, extend the time specified in subsection (1) or (2).
(4) An application under subsection (3) may be commenced before or after the end of the time specified in subsection (1) or (2).
(5) In considering an application under subsection (3), the Supreme Court must consider the following if the information is available:
(a) when the alleged contravention occurred;
(b) whether the impact of the alleged contravention ought to have been discovered by the applicant if the applicant had exercised due diligence in finding the impact and whether the applicant exercised that due diligence;
(c) whether extending the time would prejudice the proposed respondent's ability to maintain a defence to the proceeding on the merits;
(d) any other criteria the Court considers relevant.
Subject to section 117D, the Supreme Court may order a person referred to in section 117AA(1)(c), (d), (e) or (f) who is the applicant in a proceeding under this Division:
(a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; and
(b) to give an undertaking as to the payment of any amount of damages that may be awarded under section 117ABJ.
(1) The Supreme Court may make an order under this section if, in a proceeding under this Division in relation to an alleged contravention of this Act commenced by a person referred to in section 117AA(1)(c), (d), (e) or (f), the Court determines:
(a) that the respondent has not contravened this Act; and
(b) that the respondent has suffered loss or damage as a result of the commencement of the proceeding under this Division; and
(c) that in the circumstances it is appropriate to make an order under this section.
(2) The Supreme Court may, on the application of the respondent, and in addition to any order as to costs, require a person referred to in section 117AA(1)(c), (d), (e) or (f) who is the applicant in a proceeding under this Division to pay to the respondent the amount determined by the Court to compensate the respondent for the loss or damage suffered by the respondent.
Subject to section 117D, in any proceeding under this Division, the Supreme Court may make any order as to costs that it considers just and reasonable.
The powers conferred on the Supreme Court under this Division are in addition to the other powers of the Court.
(1) An undertaking under this Division is an enforceable promise given by a person who is alleged to have contravened this Act, in exchange for the stay of any proceedings in respect of the contravention.
(2) An undertaking may contain any terms and conditions that the CEO considers necessary to promote the objectives of this Act or to ensure compliance with this Act.
(3) An undertaking must include time limits for the performance of any obligations and a method to monitor compliance with the undertaking.
(4) The process of negotiating an undertaking is without prejudice to any party's position.
(5) The CEO may accept a written undertaking given by the holder of a petroleum interest in connection with a contravention or alleged contravention by the holder of the petroleum interest of:
(a) this Act; or
(b) a term or condition of the petroleum interest.
(6) The CEO must consider the following before accepting an undertaking:
(a) the nature and gravity of the conduct;
(b) the maximum penalty provided for the alleged contravention;
(c) the benefits of the proposed undertaking and the public interest;
(d) the interests of justice;
(e) any other factor that the CEO considers relevant.
(7) The CEO must give written notice to the person whether or not the person's undertaking is accepted.
(8) An enforceable undertaking may require the holder of the petroleum interest to publish notice of the alleged contravention and any act or thing done, or to be done, by the holder of the petroleum interest.
(9) The CEO must publish on the Agency's website, or in any other way determined to be appropriate by the CEO, notice of the decision to accept the enforceable undertaking and of the reasons for that decision.
(10) The giving of an undertaking does not constitute an admission of guilt by the person giving it in relation to the alleged contravention or offence.
(1) The CEO may apply to the Supreme Court for an order under subsection (2) if the CEO considers that a holder of a petroleum interest contravened an enforceable undertaking accepted by the CEO.
(2) The Supreme Court may make any of the following enforcement orders if the Court is satisfied that the holder of the petroleum interest has contravened an enforceable undertaking:
(a) an order directing the holder of the petroleum interest to comply with the undertaking;
(b) an order directing the holder of the petroleum interest to do any specified act or thing for the purpose of complying with the enforceable undertaking;
(c) an order directing the holder of the petroleum interest to do any specified act or thing to minimise any harm or other impact resulting from the contravention of the enforceable undertaking;
(d) an order that the holder of the petroleum interest pay an amount to the CEO for any costs or expenses reasonably incurred by the CEO in taking action to minimise any harm or other impact resulting from the contravention of the enforceable undertaking, including any investigation, legal or court costs;
(e) an order that the holder of the petroleum interest pay an amount in compensation to any other person who has suffered loss or damage as a result of the contravention of the enforceable undertaking;
(f) an order revoking the enforceable undertaking;
(g) any other order the Court considers appropriate in the circumstances.
(1) The CEO may do any act or thing specified in an enforcement order if the holder of the petroleum interest contravenes the order.
(2) In doing a specified act or thing, the CEO may:
(a) do anything that is necessary or expedient to be done for that purpose; and
(b) publish notice that the holder of the petroleum interest has contravened the enforcement order.
(3) The CEO may recover the reasonable costs and expenses incurred in doing a specified act or thing under this section from the holder of the petroleum interest in a court of competent jurisdiction as a debt due and payable to the Territory.
(4) The CEO may, in writing, authorise another person to exercise a power or perform a function under subsection (1) or (2) on the CEO's behalf.
(5) If a person is authorised to exercise a power or perform a function under subsection (4), anything done by the person in the exercise of the power or the performance of the function has the same effect as if it had been done by the CEO.
(1) The holder of a petroleum interest may vary or withdraw an enforceable undertaking accepted by the CEO with the consent of the CEO.
(2) Despite subsection (1), the provisions of an enforceable undertaking cannot be varied to provide for a different contravention.
(3) An enforceable undertaking is revoked on the withdrawal of the undertaking.
(4) The CEO must publish on the Agency's website, or in any other way determined to be appropriate by the CEO, notice of the decision to consent to the variation or withdrawal of an enforceable undertaking and of the reasons for that decision.
(1) Subject to subsection (3), no proceedings for an alleged contravention of this Act may be commenced or continued against a person if an enforceable undertaking in relation to the contravention:
(a) is in effect; or
(b) is completely discharged.
(2) After accepting an enforceable undertaking from a person, the CEO must take reasonable steps to have the prosecution against the person discontinued as soon as possible.
(3) Proceedings may be instituted or resumed against a person who gave an enforceable undertaking in respect of the alleged contravention or offence if the undertaking is not complied with.
If the CEO is satisfied that an enforceable undertaking in relation to an alleged contravention of this Act has been complied with, a criminal proceeding for an offence that is constituted by the alleged contravention may not be commenced.
The CEO may apply to the Local Court for a civil order under this Division if the CEO is satisfied that a person contravened a provision of this Act that is:
(a) an offence of strict liability; or
(b) an offence under Part V, Division 2 (not being an offence of strict liability) that is prescribed for this Division.
An application under this Division may be commenced at any time within 3 years after the day of the alleged contravention.
In determining whether to make an application under this Division in relation to a contravention of a provision of this Act, the CEO must have regard to:
(a) the seriousness of the contravention; and
(b) the previous record of the offender in complying with this Act; and
(c) any other relevant matter.
(1) The CEO must not apply for a civil order unless the CEO serves on the person to whom the application relates a notice of the CEO's intention to make the application.
(2) The notice must:
(a) be in the approved form; and
(b) specify the maximum amount that the person may be ordered to pay as a civil penalty; and
(c) include a statement advising the person that the person may elect to be prosecuted for the relevant contravention by written notice given to the CEO within the time specified in the notice.
(3) The time specified in the notice must not be less than 30 days.
(4) The CEO must not apply for a civil order in relation to a contravention if the person serves a written notice on the CEO, within the time specified in the notice under subsection (2), electing to be prosecuted for the contravention.
(1) On the application of the CEO, the Local Court may make the following orders against a person if the Local Court is satisfied on the balance of probabilities that the person contravened a provision of this Act that is an offence referred to in section 117ABT:
(a) an order that the person pay to the Territory a pecuniary amount as a civil penalty;
(b) an order mentioned in section 117ABZ;
(c) any other order that the Court considers appropriate.
(2) The amount of a civil penalty ordered under this section to be paid in relation to a contravention of a provision that is an offence must not exceed the amount specified by this Act as the maximum penalty for the offence.
In determining the amount to be paid by a person as a civil penalty, the Local Court must have regard to:
(a) the nature and extent of the contravention; and
(b) any environmental harm resulting from the contravention; and
(c) any financial or economic saving or benefit the person stood to gain by committing the contravention; and
(d) whether the person has previously been found, in a proceeding under this Act, to have engaged in any similar conduct; and
(e) any other matter the Court considers relevant.
For section 117ABX(1)(b), any of the following orders may be made against a person:
(a) an order that the person must take specified measures within a specified time:
(i) to prevent the contravention occurring again; or
(ii) to remediate any environmental harm resulting from the contravention including by rehabilitating any aspect of the environment; or
(iii) to enhance the environment in an area for public benefit;
(b) an order requiring the person to compensate the Territory for the costs of the CEO or the Environment CEO in taking any remedial or preventive action that was made necessary as a result of the act or omission that constituted the contravention;
(c) an order directing the person to pay to the Territory an amount that the Local Court estimates will not exceed the financial or economic benefit that the person or a person associated with the person has gained or can reasonably be expected to gain as a result of the contravention;
(d) an order directing the person to pay an amount in compensation to any person who has suffered loss or damage as a result of the contravention;
(e) an order requiring the person to publicise the contravention and any impact of the contravention in a specified manner.
(1) If a person fails to take any measures specified by an order mentioned in section 117ABZ(a), the CEO may take those measures.
(2) The CEO may recover the reasonable costs of taking any measures under subsection (1) from the person in a court of competent jurisdiction as a debt due and payable to the Territory.
(3) The CEO may, in writing, authorise another person to exercise a power or perform a function under subsection (1) or (2) on the CEO's behalf.
(4) If a person is authorised to exercise a power or perform a function under subsection (3), anything done by the person in the exercise of the power or the performance of the function has the same effect as if it had been done by the CEO.
(1) The jurisdiction conferred by this Division is part of the civil jurisdiction of the Local Court.
(2) The jurisdictional limit for a civil proceeding specified under section 12 of the Local Court Act 2015 does not apply to a proceeding under this Division.
If the conduct of a person constitutes a contravention of 2 or more provisions of this Act that are offences referred to in section 117ABT, an amount of civil penalty may be ordered to be paid by the person under this Division in relation to the contravention of any one or more of the provisions but the person is not liable to pay more than one amount as a civil penalty in relation to the same conduct.
(1) This section applies to a proceeding for:
(a) a civil order in relation to a contravention of this Act; or
(b) enforcement of a civil order mentioned in paragraph (a).
(2) The proceeding is stayed if a criminal proceeding is commenced or has already commenced against the person for an offence constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(3) The stayed proceeding may only be resumed if the criminal proceeding does not result in a finding of guilt being made against the person.
(1) Evidence of information given or evidence of the production of documents by a person is not admissible in a criminal proceeding against a person if:
(a) the person gave the evidence or produced the documents in the course of a proceeding under this Division for the recovery of an amount as a civil penalty in relation to a contravention of this Act; and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct alleged to constitute the contravention.
(2) Subsection (1) does not prevent the use of information given or a document produced by a person to locate or identify further evidence that may be used in evidence against the person in a proceeding for an offence or the imposition of a penalty.
(3) Subsection (1) does not apply to a criminal proceeding in relation to the provision of misleading information or documents.
In a proceeding under this Division, the Local Court may make any order as to costs that it considers just and reasonable, including an order requiring the reimbursement of the costs and expenses incurred by the CEO or the Environment CEO in investigating the alleged offence.
Any amount ordered by the Local Court under this Division to be paid to the Territory may be recovered by the Territory as a judgment debt.
A proceeding for a civil order against a person does not affect any existing compliance direction issued to the person or the issue of a compliance direction to the person during or after the end of the proceeding.