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Environmental Protection and Other Legislation Amendment Bill 2010
Environmental Protection and Other
Legislation Amendment Bill 2010
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Environmental Protection and Other
Legislation Amendment Bill 2010.
Policy Objectives of the Legislation
The principal objectives of the Bill are to amend:
· The Coastal Protection and Management Act 1995 to: implement the
new Queensland Coastal Plan; implement the adopted
recommendations of the Webbe-Weller Review of statutory bodies;
implement the Government's planning reform agenda; and clarify
provisions dealing with the allocation of quarry materials from tidal
waters.
· The Environmental Protection Act 1994 to: expand the types of court
orders available and apply them to a broader range of environmental
offences; introduce a new requirement for operators of mobile and
temporary activities to keep a work diary; expand certain authorised
officer powers; and introduce new offences for providing false,
misleading or incomplete information.
· The Queensland Heritage Act 1992 to improve the process for
amending and updating details of places on the Queensland Heritage
Register.
· The Recreation Areas Management Act 2006 to: provide a more
secure investment framework for commercial operators by extending
the maximum term of commercial activity agreements from 10 to 15
years; and an amendment to exempt commercial filming and
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Environmental Protection and Other Legislation Amendment Bill 2010
photography activities undertaken by one or two people where no
structures are involved, from needing a commercial activity permit.
· A number of Acts administered by the Department of Environment
and Resource Management to provide for flexibility in the execution
of warrants.
The remaining amendments are minor or technical and necessary to
provide for effective and efficient administration and enforcement of the
legislation.
Reasons for the objectives and how they will be achieved
The Bill makes amendments to various Acts administered by the
Department of Environment and Resource Management for the purposes of
streamlining legislative processes, providing regulatory simplification, and
improving enforcement tools, officer powers and penalties.
Coastal Protection and Management Act 1995
Amendments to the Coastal Protection and Management Act 1995 are
generally a result of the statutory review of the State Coastal Management
Plan 2001, and are essential to support the implementation of its
replacement, the proposed Queensland Coastal Plan (QCP). The QCP
addresses sustainable development of the Queensland coast and includes
provisions for managing the social and economic risks of climate change
and coastal hazards for planning for coastal-dependant development, and
for the preservation of social and ecological values.
The QCP will remove duplication and overlap with other legislation.
Implementation of the QCP requires minor legislative changes including
enabling the coastal zone and coastal management district to be mapped
using property boundaries and to provide greater clarity in the allocation of
rights to remove quarry material from tidal waters.
Minor amendments to the objectives of the Act will ensure greater focus on
coastal hazards in land use decisions near the coast as hazards become
more significant due to climate change-related sea level rise and increased
intensity of storms and cyclones.
To align the Act with the Government's Planning Reform Agenda,
provisions in the Act relating to regional coastal management plans have
been removed. Instead, regional plans made under the Sustainable
Planning Act 2009 will be relied on to implement the State Planning Policy
component of the QCP.
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Environmental Protection and Other Legislation Amendment Bill 2010
Amendments clarify the current provisions of the Act concerning
allocation of quarry materials from tidal waters including the
considerations for granting an allocation to remove quarry materials under
tidal waters, and the reasons for refusing a request to renew an existing
allocation. The changes will also reduce complexity in the assessment
process for tidal works applications that inadvertently trigger the need for a
resource allocation for the removal of quarry materials.
Amendments are also necessary to implement adopted recommendations
of the Webbe-Weller review of statutory bodies, entitled "Brokering
Balance: A Public Interest Map for Queensland Government Bodies - An
Independent Review of Queensland Government Boards, Committees and
Statutory Authorities". The Government accepted the review
recommendations to abolish the Coastal Protection Advisory Council and
regional coastal planning committees which are set up under this Act.
Environmental Protection Act 1994
Amendments to the Environmental Protection Act 1994 improve the
operation and effectiveness of various provisions by: clarifying the intent of
some provisions; introducing and amending definitions; removing
unnecessary process; improving authorised officer powers, offence
provisions and enforcement tools; introducing new requirements to keep a
work diary for mobile and temporary environmentally relevant activities
(ERAs) (e.g. mobile concrete batching, abrasive blasting, asphalt plants,
crushing and screening) and introducing new types of court orders
following prosecution for certain offences.
Amendments will provide contemporary and flexible penalty options on
sentencing for certain environmental offences, and expand the
circumstances for which court orders can be made. The amendments will
allow the Court to make orders for a range of environmental offences
which do not require environmental harm to have been caused e.g. offences
relating to the contravention of a development condition or condition of an
environmental authority. The range of orders available to the Court are
being expanded to include: Public Benefit Orders - to restore or enhance
the environment in a public place or for the public benefit; Education
Orders - to conduct an advertising or education campaign; Monetary
Benefit Orders - to pay a sum up to the amount of the monetary benefit
derived from the offence; and Publication and Notification Orders - to
publish details of the offence and the orders made by the court, e.g. in a
newspaper or in a company's Annual Report. These orders complement the
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Environmental Protection and Other Legislation Amendment Bill 2010
existing penalty options and will help provide a more effective deterrent for
environmental offences.
Operators of Chapter 4 ERAs require a development permit under the
Sustainable Planning Act 2009 and a registration certificate under the
Environmental Protection Act 1994. Chapter 4 ERAs do not include mining
and petroleum activities as these activities are not regulated under the
Sustainable Planning Act 2009. Chapter 4 ERAs include, for example,
motor vehicle workshops, chemical manufacturing, metal refinery and
beverage production. Amendments provide that a person cannot apply for a
registration certificate until a development permit has taken effect. This
will prevent unintended breaches of the legislation when people mistakenly
believe that the registration certificate is an approval to operate. This will
save industry money as the first year's annual fee for the registration
certificate is waived if the application is made within 30 days after the
development permit takes effect.
Amendments to provisions relating to objections decisions about an
environmental authority application from the Land Court streamline the
process and reduce delays in deciding applications.
A transitional environmental program (TEP) is an enforcement tool used to
achieve compliance with the Act over a stated period of time. Amendments
provide further clarification about the content and compliance
requirements for a TEP. This will improve the operation of this
enforcement tool to ensure compliance is achieved.
Mobile and temporary ERAs are not permitted to operate at a single place
for more than 28 days. Amendments require operators of mobile and
temporary ERAs to keep a work diary. A work diary will provide the
administering authority with certainty that the activity is operating
lawfully. Amendments introduce a new offence (100 penalty units) for not
keeping a work diary. This offence is equivalent to a similar penalty under
the Environmental Protection Act 1994 for failing to keep required
agricultural records.
Currently, it is unlawful to deposit litter at a place unless the person is an
occupier of the place, has consent of an occupier or deposits litter in a bin
provided by an occupier. This offence is difficult to enforce for a vehicle
littering offence as it requires the authorised officer to prove that a person
littering on a road was not an occupier, or did not have the occupier's
consent. The offence provision is amended by this Bill to provide that the
occupier exemption does not apply to a person who litters on a road. A
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Environmental Protection and Other Legislation Amendment Bill 2010
person who deposits litter on a road may still claim reasonable excuse
which, if proved, means they are not liable for the offence. This is
consistent with the operation of other offences.
Amendments expand the powers of an authorised person to enable the
authorised person, by written notice, to require a person to attend an
interview at a place to answer questions. An offence is being introduced
consistent with the existing offence for not answering questions. It is a
reasonable excuse to fail to answer questions if a person might incriminate
themselves. The amendment provides clarity that this excuse only applies
to individuals and not corporations. This is consistent with the common
law position that self-incrimination does not apply to corporations.
New offences are introduced for providing false, misleading or incomplete
information and in instances where a person ought reasonably to have
known the information was false, misleading or incomplete. The penalties
are consistent with others of a similar nature under the Act.
Provisions that allow people to apply for an exemption from disclosure of
information submitted under the Environmental Protection Act 1994 are
removed as protection is now provided through the Right to Information
Act 2009.
Other amendments relate to minor and technical matters to improve
administration of the Act. These include: providing that a fee must be
submitted with an Environmental Impact Statement (EIS); clarifying the
timing of the notification and publication processes for an EIS; providing a
definition of non-commercial for local government activities; and
amending definitions. Necessary transitional provisions will also be
introduced.
Marine Parks Act 2004
Amendments remove the current uncertainty about whether an authorised
person is exempt from needing a permit to undertake day-to-day
management activities within the park. Amendments provide that the chief
executive and authorised persons do not require permission to undertake
activities under the Act, and to ensure officers are protected from
prosecution for such activities. The amendments simplify administration of
the Marine Parks Act 2004 and are consistent with similar provisions of the
Nature Conservation Act 1992.
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Environmental Protection and Other Legislation Amendment Bill 2010
Queensland Heritage Act 1992
Amendments to the Queensland Heritage Act 1992 improve the process for
amending and updating details of places on the Queensland Heritage
Register. Other minor amendments are made to: provisions relating to
applications to include a place on the register; ensure notification of new
heritage places in the Government Gazette; and ensure that a maintenance
work notice can be issued requiring termite treatment of a place.
The amendments to replace the term `registered place' with `Queensland
heritage place' throughout the legislation, including in the dictionary,
require consequential amendments to the Mineral Resources Act 1989,
Sustainable Planning Act 2009, Transport Infrastructure Act 1994 and the
Urban Land Development Authority Act 2007 to reflect this change.
Recreation Areas Management Act 2006
Minor amendments to the Recreation Areas Management Act 2006 include
an amendment to exempt commercial filming and photography activities
undertaken by one or two people where no structures are involved, from
needing a commercial activity permit. This will simplify regulatory and
permitting processes for industry, community and government. These
small-scale activities have minimal impact and the regulatory cost of
administering these activities outweighs any benefits from issuing the
permits.
A minor amendment is being made to provisions for commercial activity
agreements (CAA) to enable a more secure investment environment for
commercial operators, by extending the maximum term of CAAs from 10
to 15 years.
Other Amendments
The Aboriginal Cultural Heritage Act 2003; Environmental Protection Act
1994; Marine Parks Act 2004; Nature Conservation Act 1992; Queensland
Heritage Act 1992; Recreation Areas Management Act 2006; Torres Strait
Islander Cultural Heritage Act 2003; and the Water Supply (Safety and
Reliability) Act 2008 are amended to provide flexibility in the execution of
warrants, consistent with comparable provisions of the Vegetation
Management Act 1999 and the Water Act 2000. The amendments enable a
Magistrate to issue a warrant to any authorised person and to allow the
execution of the warrant by any authorised person. The change allows
flexibility in that the authorised person who obtains the warrant need not be
the authorised person who executes the warrant.
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Environmental Protection and Other Legislation Amendment Bill 2010
The remaining amendments proposed by the Bill are minor, technical or
miscellaneous amendments necessary to provide for effective and efficient
administration and enforcement of the legislation.
A number of minor consequential amendments are also made to the
Mineral Resources Act 1989, Sustainable Planning Act 2009, Transport
Infrastructure Act 1994 and the Urban Land Development Authority Act
2007.
Alternatives to the Bill
There are no other viable alternatives that would achieve the policy
objectives other than the proposed Bill.
Estimated Cost for Implementation
The amendments are to be implemented within current budget allocations.
Consistency with Fundamental Legislative Principles (FLPs)
Powers for entry, search and seizure in the Environmental Protection Act
1994
The amendment to section 453 raises the FLP that legislation should confer
power to enter premises, and for or seize documents or other property, only
with a warrant issued by a judge or other judicial officer, unless appropriate
safeguards are provided.
The amendment of section 453 extends the power of an authorised person
to enter land not only when unlawful environmental harm has been caused
by the release of a contaminant, but when an authorised person believes on
reasonable grounds that unlawful environmental harm has been caused by
the release of a contaminant. The entry provision enables the authorised
person to gain entry to land without consent or a warrant. However, to
obtain entry without consent, five business days written notice must be
given under section 455, and the provisions do not apply to land where a
building is erected.
In addition, the entry is constrained to determining the source of a
contaminant without the need to first prove that environmental harm has
been caused. The amendment is necessary to ensure that environmental
harm does not impact on the community, including the health of the
community. The amendment enables an authorised person to enter land on
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Environmental Protection and Other Legislation Amendment Bill 2010
the belief that harm has been caused and enables samples to be taken to
support and confirm whether environmental harm has been caused.
Consultation
A wide range of public and private sector stakeholders were consulted on
particular amendments relevant to their interests. All government
departments were consulted as part of the Cabinet process in developing
the Bill.
Feedback was considered as part of the drafting of the Bill.
Results of consultation
Community and industry stakeholders
No public consultation was undertaken on the Bill. However, the
government did consult stakeholders about key changes proposed to the
Coastal Protection and Management Act 1995. This occurred as part of the
consultation process for releasing the draft Queensland Coastal Plan (draft
coastal plan) for formal public comment between August and November
2009. In addition, the Queensland Heritage Council was consulted on
amendments to the Queensland Heritage Act 1992, and no issues were
raised. Key industry stakeholders were consulted on the Environmental
Protection Act 1994, and no further changes were required.
Government
Consultation with relevant State agencies was undertaken on the draft Bill
prior to introduction.
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Environmental Protection and Other Legislation Amendment Bill 2010
Notes on Provisions
Part 1 Preliminary
Clause 1 Short title
This clause states that the Act should be cited as the Environmental
Protection and Other Legislation Amendment Act 2010.
Clause 2 Commencement
This clause provides which sections of the Bill will commence by
proclamation. The remaining sections of the Bill commence on assent.
Part 2 Amendment of Aboriginal
Cultural Heritage Act 2003
Clause 3 Act amended
This clause states that this part amends the Aboriginal Cultural Heritage
Act 2003.
Clause 4 Amendment of s 131 (Issue of warrant)
This clause amends section 131 of the Aboriginal Cultural Heritage Act
2003 to provide that, where a Magistrate issues a warrant under this
section, the warrant may state that any authorised officer may enter the
place and exercise the officer's powers. Currently, section 131 is limited to
the Magistrate issuing a warrant to a stated authorised officer, usually the
authorised officer who seeks the warrant. Since warrants are often sought
in a different place to where they are executed, this limits the effective
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Environmental Protection and Other Legislation Amendment Bill 2010
functioning of the Act, since the person who seeks the warrant must
execute the warrant. This amendment allows for flexibility in the execution
of the warrant by any authorised officer and brings these warrant provisions
in line with provisions in the Vegetation Management Act 1999 and the
Water Act 2000. Note that the warrant must still be executed by an
authorised officer under this Act.
Clause 5 Amendment of s 133 (Warrants--procedure
before entry)
This clause amends section 133 of the Aboriginal Cultural Heritage Act
2003 to ensure that any authorised officer entering a place under a warrant
must follow the procedure in this section before entry. This amendment is
consequential to the amendment of section 131.
Clause 6 Amendment of s 138 (Seizing evidence at a
place that may only be entered with consent
or warrant)
This clause amends section 138 of the Aboriginal Cultural Heritage Act
2003 to insert the words `under a' warrant. This amendment is
consequential to the amendment of section 131.
Part 3 Amendment of Coastal
Protection and Management Act
1995
Clause 7 Act amended
This clause states that this part amends the Coastal Protection and
Management Act 1995.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 8 Amendment of s 3 (Main objects of Act)
This clause amends section 3(c) of the Coastal Protection and
Management Act 1995 to include an objective requiring that decisions
made about land use and development have regard to the protection of life
and property from the impacts of hazards such as coastal erosion and tidal
inundation.
Clause 9 Replacement of s 4 (How coastal
management is to be achieved)
This clause replaces section 4 of the Coastal Protection and Management
Act 1995 with a new section 4. The new section 4 introduces the concept of
a single coastal plan which identifies coastal resources and policies for
coastal management for the entire State of Queensland. The new section
also points to declaring erosion prone areas for which provisions are
already outlined within the Act. The new section also mandates
monitoring, reporting and review of the policies and programs established
to achieve the objectives of the Act and inform the revision of those
policies and programs.
Clause 10 Replacement of s 11 (Meaning of coastal
management)
This clause amends section 11 of the Coastal Protection and Management
Act 1995 to change the meaning of coastal management to refer
specifically to the coastal zone and coastal resources. It also provides
separately for the two major components of coastal management being
firstly, the protection, conservation, rehabilitation and management of the
coastal zone and resources; and secondly, the ecologically sustainable
development of the coastal zone.
Clause 11 Replacement of s 15 (Meaning of coastal
zone)
This clause replaces section 15 of the Coastal Protection and Management
Act 1995. The new section 15 changes the meaning of coastal zone to
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Environmental Protection and Other Legislation Amendment Bill 2010
reference all Queensland waters and land within an area shown on the
coastal zone map. For the area shown as the coastal zone, this clause also
provides that the coastal zone includes the airspace above and subsoil
beneath the area shown as the coastal zone on the coastal zone map.
Clause 12 Insertion of new ch 1, pt 3A
This clause inserts a new chapter 1, part 3A into the Coastal Protection and
Management Act 1995 to define and provide for the preparation,
certification, commencement, replacement and provision of copies of the
coastal zone map that shows the coastal zone.
Part 3A Coastal zone map
Section 18A What is the coastal zone map
New section 18A(1) states that that the coastal zone map that the chief
executive certifies is a map showing the coastal zone.
Section 18A(2) states that in showing the coastal zone, the coastal zone is
limited to coastal waters (separately defined) and land and Queensland
waters, but landward of coastal waters and seaward of the coastal zone
inner limit
Section 18A(3) provides that the landward boundary of the coastal zone
(the coastal zone inner limit) is 5km landward of the coastline (high-water
mark) or where the land reaches the height of 10m Australian Height
Datum, whichever extends further inland.
Section 18A(4) provides that the landward boundary of the coastal zone (in
the case where the imaginary line intersects a lot) can be aligned with a
property boundary as shown by the cadastre.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 18B Amending the coastal zone map
New section 18B provides for amending the coastal zone map by replacing
the existing map with a new map of the coastal zone that is certified as
replacing the existing map of the coastal zone.
Section 18C When coastal zone map takes effect
New section 18C specifies that the coastal zone map (including a
replacement coastal zone map) does not take effect until a regulation
approves the map. The regulation must state the date on which the map was
certified by the chief executive.
Section 18D Public inspection and purchase of coastal
zone map
New section 18D requires that the chief executive must make the coastal
zone map available for inspection and purchase by the public and publish
the electronic version of the coastal zone map on the Department of
Environment and Resource Management's website.
Clause 13 Replacement of ch 2, pts 1 and 2
This clause replaces chapter 2, parts 1 and 2 of the Coastal Protection and
Management Act 1995 with a new part 1. Consistent with the
recommendations of "Brokering Balance: A Public Interest Map for
Queensland Government Bodies - An Independent Review of Queensland
Government Boards, Committees and Statutory Authorities" report,
provisions to establish the Coastal Protection Advisory Council or
Regional Consultative Groups are removed by this amendment. This
clause also replaces the provisions relating to State and Regional coastal
management plans with provisions about making a single coastal plan for
the coastal zone.
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Environmental Protection and Other Legislation Amendment Bill 2010
Part 1 Coastal plan
Division 1 Requirement for coastal plan
Division 1 sets out the requirements for a coastal plan.
Section 20 Coastal plan must be prepared
New section 20 requires the preparation of a coastal plan for the coastal
zone by the Minister.
Section 21 Content of coastal plan
New section 21 sets the parameters for the content of the coastal plan.
Section 21 requires that the coastal plan describe how the coastal zone is to
be managed and the matters which must be considered by the Minister in
the preparation of the coastal plan (public access to the foreshore and the
effect of climate change).
Section 21 also provides for the inclusion of a coastal State planning
instrument which provides for the protection, conservation and
ecologically sustainable development of the coastal zone and requires that
decisions made about land use and development have regard to the
protection of life and property from the impacts of hazards such as coastal
erosion and tidal inundation. The coastal plan may also include a map (or
series of maps) showing coastal resource information. It may also include
requirements for the management of coastal resources and as well as
requirements for land management with policies directed at land managers
in the coastal zone.
Section 22 Process for making, amending or replacing
coastal plan
New section 22 inserts a procedural direction that compliance with the
process stated in subsequent divisions (2 and 3) must be achieved when
making, amending or replacing a coastal plan. Section 22 also makes
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Environmental Protection and Other Legislation Amendment Bill 2010
provision for additional requirements to be followed in accordance with a
regulation when making, amending or replacing a coastal plan.
Section 23 Compliance with divs 2 and 3 and regulation
under s 22(2)
New section 23 provides for "substantial compliance" with the stated
process (divisions 2 and 3) in relation to making, amending or replacing a
coastal plan, provided any non-compliance does not adversely affect public
awareness of the coastal plan or restrict the opportunities for the public to
make properly made submissions with respect to making, amending or
replacing a coastal plan.
Division 2 Making coastal plan
Division 2 sets out the process for the preparation of a coastal plan. The
process for the preparation of a coastal plan generally follows the same
process outlined for making, amending or replacing a State planning
instrument under the Sustainable Planning Act 2009.
Section 24 Preparation of draft coastal plan
New section 24 requires the preparation of a draft of the coastal plan prior
to making the coastal plan.
Section 25 Notice about draft coastal plan
New section 25 sets out the requirements for publication of notices
regarding the draft coastal plan, the consultation period and who must be
given a copy of the draft coastal plan and make it available for inspection.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 26 Keeping draft coastal plan available for
inspection
New section 26 requires that the Minister make available a copy of the draft
coastal plan for inspection (and purchase) for all of the consultation period
(40 business days).
Section 27 Making coastal plan
New section 27 requires that the Minister consider all properly made
submissions about the draft coastal plan. After the submissions have been
considered, the Minister can make the coastal plan with or without
amendment.
Section 28 Notice about making coastal plan
New section 28 sets out the requirements for publication of notices
regarding the making of the coastal plan and distribution of the coastal
plan.
Division 3 Amending or replacing coastal plan
Division 3 sets out the process for amending or replacing a coastal plan.
Section 29 Administrative amendments
New section 29 makes provision for the Minister to make an administrative
amendment (defined elsewhere) of the coastal plan without having to
undertake further public consultation as Division 2 does not apply to the
making of an administrative amendment to the coastal plan. Section 29 sets
out the requirements for publication of notices regarding the amendment of
the coastal plan.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 30 Other amendments
New section 30 allows for the Minister to make amendments (other than
administrative amendments) to the coastal plan where the process
contained in Division 2 (relating to making a draft coastal plan and coastal
plan) is followed. In this instance, a reduced consultation period of 20
business days applies.
Section 31 Replacement of coastal plan
New section 31 allows the Minister to replace an old coastal plan with a
new coastal plan by following the process contained in Division 2 (relating
to making a draft coastal plan and coastal plan).
Division 4 When coastal plan or amendment has
effect
Division 4 specifies when a coastal plan or amendment takes effect.
Section 32 When coastal plan or amendment has effect
New section 32 specifies when a coastal plan or an amendment to a coastal
plan takes effect. Specifically the date of effect is the date that a notice
about making a coastal plan or an amendment to a coastal plan is gazetted,
or a later date of commencement if specified in the notice, plan or
amendment.
Section 33 Duration of coastal plan
New section 33 provides that a coastal plan made under Division 2 ceases
to have effect on the day the coastal plan is replaced under Division 3, or 10
years after the day the coastal plan had effect. This 10 year period aligns
the coastal plan with the provisions for State Planning Policies under
section 45 of the Sustainable Planning Act 2009 and with general
legislative standards about an appropriate "life" for a statutory instrument.
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Environmental Protection and Other Legislation Amendment Bill 2010
It is intended that a review of the relevant coastal plan be commenced 8
years after the day the State Planning Policy had effect.
Under subclauses (2) and (3), the life of a coastal plan may be extended by
a regulation, to a maximum period of 12 years after the day the coastal plan
had effect. This provision is intended to ensure that the life of a coastal plan
can be extended if, due to unforseen and exceptional circumstances (such
as a machinery of government change which occurs when the coastal plan
is 9 years old), the coastal plan can not be reviewed within the usual 10
years.
Division 5 Miscellaneous
Division 5 includes provisions relating to the implementation and effect of
a coastal plan, and opportunities for public inspection and purchase of the
coastal plan.
Section 34 Implementation of coastal plan
New section 34 requires the chief executive to implement the coastal plan
and makes provision for the chief executive to arrange for other entities to
carry out activities relating to implementation of the coastal plan. This
may include asking a relevant entity to take coastal management into
account when making decisions about land use, development and
management of land in the coastal zone.
Section 35 Effect of coastal plan
New section 35 defines coastal plans as statutory instruments in accordance
with the Statutory Instruments Act 1992.
Section 36 Public inspection and purchase of coastal
plan or draft coastal plan
New section 36 sets out the requirements for the coastal plan (and any draft
coastal plan) to be published on the department's website and to be made
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Environmental Protection and Other Legislation Amendment Bill 2010
available for inspection by the public and the means by which a copy of the
coastal plan (and any draft coastal plan) may be purchased.
Clause 14 Amendment of s 54 (Declaration of coastal
management districts)
This clause amends section 54(1) of the Coastal Protection and
Management Act 1995 regarding declaration of coastal management
districts to remove reference to regional coastal management plans. It has
the effect of limiting the areas which may (under a regulation) be declared
as coastal management districts to areas within the coastal zone if the
Minister believes the area requires protection or management.
Clause 15 Omission of s 55 (Where coastal
management districts may be declared)
This clause removes existing section 55 of the Coastal Protection and
Management Act 1995 that outlines where a coastal management district
may be declared. Improvements in mapping capability and the removal of
regional coastal management plans (that were previously used to identify
coastal wetland and dune systems and key coastal sites) has resulted in
these references becoming outdated. In addition, the coastal management
district may need to extend further inland than the prescribed distances to
manage development in areas that will become at risk of coastal erosion
from projected sea level rise as a result of climate change. Coastal
management districts are to be declared for areas of the coastal zone that
require specific management or planning responses. In future, the matters
listed for section 56 will be used to direct the location of a coastal
management district.
Clause 16 Amendment of s 56 (Things to be
considered when declaring coastal
management districts)
This clause amends section 56(d) of the Coastal Protection and
Management Act 1995 by replacing the aspect "natural hazards" with the
more relevant "coastal hazards" in relation to matters to be considered
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Environmental Protection and Other Legislation Amendment Bill 2010
when declaring coastal management districts. Coastal hazard is defined
elsewhere to mean erosion of the foreshore or tidal inundation.
This clause also inserts section 56(h) to include an additional matter to be
considered when declaring coastal management districts, being the need to
conserve, protect or rehabilitate coastal ecological systems or geomorphic
features.
Clause 17 Amendment of s 57 (Notice declaring,
changing or abolishing coastal
management district)
This clause amends section 57 of the Coastal Protection and Management
Act 1995 to refer to section 54(1) that provides for an area being declared
as a coastal management district by regulation.
Clause 18 Amendment of s 58 (Amendment,
amalgamation and abolition of coastal
management districts)
This clause amends section 58 of the Coastal Protection and Management
Act 1995 to refer to section 54(1) that provides for an area being declared
as a coastal management district by regulation.
Clause 19 Amendment of s 59 (Coastal protection
notices)
This clause amends section 59(2)(b) of the Coastal Protection and
Management Act 1995 to clarify when the chief executive can give a
coastal protection notice. A coastal protection notice (separately defined)
to stop (or not start) an activity can be given where that activity is causing,
or is likely to cause, wind erosion or an adverse effect on coastal resources.
Clause 20 Amendment of s 60 (Tidal works notices)
This clause amends existing section 60 of the Coastal Protection and
Management Act 1995 to include the protection of coastal resources as
grounds for the issue of a tidal works notice. The clause also clarifies who
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Environmental Protection and Other Legislation Amendment Bill 2010
may be given a tidal works notice and that a tidal works notice may be
directed at tidal works or a structure for which the works were undertaken.
The clause also allows for renumbering of subsections.
Clause 21 Amendment of s 68 (Temporary occupation
of land)
This clause amends section 68 of the Coastal Protection and Management
Act 1995 to remove reference to `a coastal plan' and inserts in its place `the
coastal plan'. This amendment is a consequential administrative
amendment.
Clause 22 Amendment of s 69 (Damaging vegetation)
This clause amends the heading of section 69 of the Coastal Protection and
Management Act 1995 from "Damaging vegetation" to "Damaging or
removing vegetation or damaging coastal dunes".
This clause also amends section 69 of the Coastal Protection and
Management Act 1995 to provide protection for dunes (in addition to
vegetation) and clarify that the offence refers only to State coastal land
above the high-water mark. The section is also amended to clarify the
meaning of damage to exclude minor damage to dunes or vegetation. For
example, minor damage may occur to a dune due to a normal beach related
activity such as a child playing with sand.
Clause 23 Amendment of s 73 (Applications for
allocation of quarry material)
This clause amends section 73 of the Coastal Protection and Management
Act 1995 to refer to quarry material in tidal waters as opposed to quarry
material below the high-water mark. This ensures regulation of the removal
of quarry material under the Coastal Protection and Management Act 1995
complements and does not overlap with the regulation of the removal of
quarry materials from watercourses under the Water Act 2000.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 24 Amendment of s 75 (Criteria for deciding
applications)
This clause amends section 75 of the Coastal Protection and Management
Act 1995 to replace the reference to the superseded State Coastal Plan and
the Regional Plans in subsection (1)(a) of the Coastal Protection and
Management Act 1995 with a reference to the `the coastal plan'.
This clause also amends subsection 75(3)(a) of the Coastal Protection and
Management Act 1995 to clarify that the chief executive can consider the
economic use of State resources when deciding applications for
allocations.
This clause also amends 75(3)(d) to meet current drafting practices.
This clause also amends 75(3)(e) to remove reference to `under tidal water'
in relation to removal or placement of quarry material within the limits of a
port.
Clause 25 Amendment of s 77 (Selling allocation of
quarry material by auction or tender)
This clause amends subsection (1) of section 77 of the Coastal Protection
and Management Act 1995 to refer to quarry material below tidal waters as
opposed to below the high water mark. This ensures regulation of the
removal of quarry material under the Coastal Protection and Management
Act 1995 complements and does not overlap with the regulation of the
removal of quarry materials from watercourses under the Water Act 2000.
Subsection (2) is also amended to provide that the chief executive can
consider the impact the removal of quarry material or placement of spoil
may have on coastal management, as well as other matters mentioned in
section 75.
Clause 26 Amendment of s 78 (Content of allocation
notices)
This clause amends subsection 78(c) of the Coastal Protection and
Management Act 1995 to clarify that the allocation notice is to state either
the royalty or the price payable for the removal of quarry material. This
ensures that allocation notices can state the price payable where the price
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Environmental Protection and Other Legislation Amendment Bill 2010
differs from the royalty rate specified in the regulation because, for
example, the price was determined via tender or auction as provided for in
section 77.
Clause 27 Amendment of s 79 (Conditions of
allocation notice)
This clause amends section 79 of the Coastal Protection and Management
Act 1995 to clarify the range of matters the chief executive can impose
conditions about on an allocation notice. Additional examples include
conditions about the royalty or price payable for the removal of quarry
material and information to be given about the rate of extraction.
Clause 28 Amendment of s 80 (Allocation holder to
give information)
This clause amends section 80 of the Coastal Protection and Management
Act 1995 to insert a new subsection (2) to require the holder of an
allocation notice to give written notice of the quantity of quarry material
removed in compliance with any conditions imposed on the allocation
notice, or otherwise within 20 business days after the end of a quarter, in
order to be consistent with any conditions imposed under section 79(2)(e).
This clause also inserts a new subsection (3) to define "quarter" as a 3
month period ending on either 31 March, 30 June, 30 September, or 31
December, of any year.
Clause 29 Amendment of s 82 (Transferring
allocations)
This clause amends the heading for section 82 of the Coastal Protection
and Management Act 1995 from "Transferring allocations" to "Application
to transfer allocation" to make it clear that a holder of an allocation notice
needs to make an application for transferring an allocation. This clause
also replaces subsections 82(3) to (7) of the Coastal Protection and
Management Act 1995 with a new subsection 82(3) & subsection 82(4).
The new subsection 82(3) provides for the chief executive to ask the
applicant to provide additional information or documents about the
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Environmental Protection and Other Legislation Amendment Bill 2010
application. The new subsection 82(4) states that the application lapses if
the information requested under subsection (3) is not provided by the stated
day.
Clause 30 Insertion of new s 82A
This clause inserts a new section 82A into the Coastal Protection and
Management Act 1995 which sets out the requirements for the chief
executive to decide the application to transfer an allocation. Note there are
no merits based appeals or reviews available for decisions made under this
provision and this raises a question regarding the fundamental legislative
principle about whether the legislation has sufficient regard to the rights
and liberties of individuals. This approach has been taken as it is a decision
about a resource that the State owns and the amendment is consistent with
the other existing provisions for other similar decisions, such as a decision
to grant an allocation.
Section 82A Deciding application to transfer allocation
Section 82A includes:
-- a requirement for the chief executive to make a decision and give a
notice on the decision on the application within 30 days of receiving
the application or, if further information or documents are requested,
the further information or documents
-- a requirement for the chief executive to decide whether to approve the
transfer or the varied transfer, with or without conditions, or refuse the
transfer
-- a requirement for the chief executive to consider the impact the
transfer may have on coastal management, as well as other matters
mentioned in section 75.
Clause 31 Amendment of s 83 (Renewing allocations)
This clause amends the heading of section 83 of the Coastal Protection and
Management Act 1995 from "Renewing allocations" to "Application to
renew allocation". This clause makes it clear that a holder of an allocation
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Environmental Protection and Other Legislation Amendment Bill 2010
notice needs to make an application for renewing an allocation, and that the
chief executive has the power to condition or refuse an application to renew
an allocation.
This clause also replaces subsections 83(3) to (7) of the Coastal Protection
and Management Act 1995 with new subsections 83(3) and 83(4). The new
subsection 83(3) provides for the chief executive to ask the applicant to
provide additional information or documents about the application. The
new subsection 83(4) states that the application lapses if the information
requested under subsection (3) is not provided by the stated day.
Clause 32 Insertion of new s 83A
This clause inserts new section 83A into the Coastal Protection and
Management Act 1995. Section 83 sets out the requirements for the chief
executive to decide the application to renew an allocation which mirrors the
process for deciding an initial application for an allocation of quarry
materials. Note there are no merits based appeals or reviews available for
decisions made under this provision and this raises a question regarding the
fundamental legislative principle about whether the legislation has
sufficient regard to the rights and liberties of individuals. This approach has
been taken as it is a decision about a resource that the State owns and the
amendment is consistent with the other existing provisions for other similar
decisions, such as a decision to grant an allocation.
Section 83 Deciding application to renew allocation
Section 83A includes:
-- a requirement for the chief executive to make a decision and give a
notice on the decision on the application within 30 days of receiving
the application or, if further information or documents are requested,
the further information or documents
-- a requirement for the chief executive to decide whether to approve the
renewal or the varied renewal, with or without conditions, or refuse
the renewal
-- a requirement for the chief executive to consider the impact the
renewal may have on coastal management, as well as other matters
mentioned in section 75.
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Environmental Protection and Other Legislation Amendment Bill 2010
After deciding the application, the chief executive is to give written notice
of the decision, including the reasons for the decision if the renewal was
varied, conditions were attached to the renewal or the renewal was refused.
Clause 33 Omission of ch 2, pt 5, div 2
This clause removes Chapter 2, part 5, division 2 of the Coastal Protection
and Management Act 1995 which contains the provisions providing an
allocation and associated development permit approval via a dredge
management plan. Dredge management plans are being removed as they
are typically under-utilised as a policy tool because they do not serve to
effectively streamline the assessment process. Dredge management plans
will continue to be used as a tool for managing dredging operations
through the coastal plan but will no longer be used to turn off the Integrated
Development Assessment System process under the Sustainable Planning
Act 2009. Other provisions to improve assessment processes for
development applications that also involve quarry material allocations are
included in this Bill.
Clause 34 Renumbering of ch 2, pt 5, div 2A
This clause renumbers Chapter 2, part 5, division 2A to Chapter 2, part 5,
division 2. This is a consequential administrative amendment.
Clause 35 Amendment of s 100A (Removal of quarry
material is subject to other approvals)
This clause amends section 100A of the Coastal Protection and
Management Act 1995 to remove all references to dredge management
plans due to the omission of dredge management plans from the Act (refer
clause 33 above).
Clause 36 Omission of s 100B (Relationship with
Planning Act)
This clause omits section 100B of the Coastal Protection and Management
Act 1995 to remove all references to the relationship between dredge
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Environmental Protection and Other Legislation Amendment Bill 2010
management plan and the Planning Act due to the omission of dredge
management plans in the Act (refer clause 33 above).
Clause 37 Amendment of s 101 (Removing quarry
material)
This clause amends subsection 101(1) and subsection 101(2) of the Coastal
Protection and Management Act 1995 regarding the requirements for
removal of quarry material as a consequence to amendments made in Part 5
(Quarry materials), including:
-- replacing references to `high water mark' with tidal waters; and
-- removing references to dredge management plans.
Clause 38 Amendment of s 102 (Royalty or price for
quarry material)
This clause removes section 102 of the Coastal Protection and
Management Act 1995 which refers to a royalty associated with a dredge
management plan due to the omission of dredge management plans (refer
clause 33 above).
Clause 39 Insertion of new s 104B
Section 104B Applications for operational works involving removal of
quarry material
This clause inserts a new section 104B into the Coastal Protection and
Management Act 1995 which relates to applications for operational work
(tidal works) which also involves the removal of quarry material from tidal
waters as a consequence of undertaking the tidal works.
Section 104B(2)(a) provides that where section 104B(1)(a) and (b) have
been met, the application for tidal works is taken to also be an application
for an allocation of quarry material in accordance with section 73(2) of the
Coastal Protection and Management Act 1995. This is the case despite the
Planning Act ordinarily requiring such an application only be made if
supported by evidence that the development was consistent with an existing
allocation or entitlement to the quarry material.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 104B(2)(b) provides that the procedures relating to the approval of
an application for allocation of quarry material (contained in chapter 2, part
5, division1) will apply to the application for operational works (tidal
works) involving removal of quarry materials.
This provision will allow for decisions about the allocation of quarry
material to be considered concurrently with the development assessment
process instead of only being able to be considered sequentially. This will
improve process efficiency.
Section 104B(3) clarifies that a fee is not payable in relation to section
73(2)(b) of the Coastal Protection and Management Act 1995.
Clause 40 Omission of s 105 (Declaration for Planning
Act, ss 282, 313 and 314)
This clause removes section 105 of the Coastal Protection and
Management Act 1995 which references the Planning Act. The references
to the Planning Act are no longer considered necessary to retain as the
coastal plan will now include a state planning instrument prepared jointly
under the Coastal Protection and Management Act 1995 and the
Sustainable Planning Act 2009. The coastal plan will therefore be readily
identifiable as a policy to be applied by an assessment manager or relevant
concurrence agency.
Clause 41 Omission of s 108 (Development
approvals-conditions for development
partly in a coastal management district)
This clause removes section 108 of the Coastal Protection and
Management Act 1995 as the Sustainable Planning Act 2009 already
establishes the extent to which a development can be conditioned.
Clause 42 Amendment of ch 2, pt 6, div 3, hdg (Land
surrender conditions)
This clause amends the heading of chapter 2, part 6, division 3 of the
Coastal Protection and Management Act 1995 so that the division applies
to all provisions for land surrender.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 43 Amendment of ch 2, pt 6, div 3, sdiv 2, hdg
(Land surrender)
This clause amends the heading for division 3, subdivision 2 of the Coastal
Protection and Management Act 1995 so that the subdivision applies
specifically to land surrender.
Clause 44 Amendment of s 110 (Governor in Council
may approve inclusion of land surrender
condition)
This clause amends section 110 of the Coastal Protection and Management
Act 1995 to replace reference to the Governor in Council with reference to
the Minister as the person who may approve inclusion of land surrender
conditions. This aligns the land surrender application, assessment and
decision process with Integrated Development Assessment System
assessment procedures under the Sustainable Planning Act 2009, as well as
Land Title Act 1994 and Land Act 1994 requirements.
Clause 45 Amendment of s 111 (Notice of condition
about land surrender)
This clause amends section 111(3) of the Coastal Protection and
Management Act 1995 to require that the Integrated Development
Assessment System process under the Planning Act stops on the day the
notice is given to the applicant and assessment manager, rather than is
received by the applicant. This achieves consistency in the section by
providing for the Integrated Development Assessment System process to
both stop and start on the day a notice is given by the chief executive.
Clause 46 Amendment of s 113 (Notice of decision
about land surrender)
This clause amends section 113(2)(b)(i) of the Coastal Protection and
Management Act 1995 as a consequence of the amendment to section 110,
which replaces the Governor in Council with the Minister as the person
who may approve inclusion of land surrender conditions. This aligns the
land surrender application, assessment and decision process with
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Environmental Protection and Other Legislation Amendment Bill 2010
Integrated Development Assessment System assessment procedures under
the Sustainable Planning Act 2009, as well as Land Title Act 1994 and
Land Act 1994 requirements.
Clause 47 Insertion of new ch 2, pt 6, div 3, sdivs 3
and 4
This clause inserts Chapter 2, part 6, division 3, subdivision 3 (Voluntary
land surrender) and 4 (Giving effect to surrender) into the Coastal
Protection and Management Act 1995.
Subdivision 3 Voluntary land surrender
Section 115A Applicant may surrender land voluntarily
New section 115A provides for voluntary surrender of land to the State for
coastal management purposes as part of a development application that
relates to the coastal management district. This would allow an applicant to
identify a parcel of land to be surrendered to the State for coastal
management purposes on a voluntary basis, without needing to seek the
Minister's approval for imposition of a land surrender condition.
Subdivision 4 Giving effect to surrender
Section 115B Surrendered land to be dedicated for
coastal management purposes
New section 115B provides that when surrendering of land occurs either
voluntarily or through the imposition of a land surrender condition, the
plan of subdivision for the development to be registered under the Land
Title Act 1994 must dedicate the surrendered land for coastal management
purposes.
It also provides that once this plan of subdivision is registered, the
surrendered land will automatically be dedicated as a reserve under the
Land Act 1994 as a reserve for coastal management purposes.
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Environmental Protection and Other Legislation Amendment Bill 2010
This can occur without the Minister's specified endorsement or consent as
would otherwise be required under the Land Title Act 1994.
The provision also provides that the trustee for the reserve will be the
relevant local government where the local government approves the
subdivision and endorses its trusteeship of the reserve. However, where this
is not the case the trustee for the reserve would be the State.
Subsection (6) provides that the registrar under the Land Act 1994 must
keep a record of the reserve.
Clause 48 Amendment of s 120C (Chief executive may
give exemption certificate without
application)
This clause amends section 120C of the Coastal Protection and
Management Act 1995 to clarify that the exemption certificate can be given
with or without conditions.
Clause 49 Insertion of new s 120CA
This clause inserts a new section 120CA into the Coastal Protection and
Management Act 1995 in relation to compliance with conditions.
Section 120CA requires a person who holds an exemption certificate to
comply with the conditions imposed on the exemption certificate. The
maximum penalty of 165 penalty units applying to breaches of the
exemption certificate conditions is consistent with the maximum penalty
for breaches of compliance permits for section 576 (Compliance with
compliance permit or compliance certificate) of the Sustainable Planning
Act 2009.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 50 Replacement of ss 123 and 124
Section 123 Right to occupy and use land on which
particular tidal works were, or are to be,
carried out
This clause replaces the existing section 123 to clarify the circumstances in
which a development permit for operational work which is tidal works
located wholly or partly on State tidal land (as defined) confers a right to
occupy and use the State tidal land on which the tidal works are located,
despite the Land Act 1994.
The first circumstance (section 123(1)(b)(i)) relates to work which is
undertaken by or on behalf of the owner or occupier of land which adjoins
the State tidal land. An occupier would include a leasehold land owner for
example.
The provision confers upon the owner or occupier of the land abutting tidal
waters the right to occupy and use the state tidal land for constructing and
using the tidal works such as a jetty, mooring pile, pontoon or domestic
pipeline (inter alia).
Section 123(3) clarifies that the provisions of section 123(1)(b)(i) do not
extend to works or structures to facilitate a commercial enterprise. For
example, a cruise shipping terminal or another commercial facility for
which tidal works were undertaken are specifically excluded from the
application of the right to occupy and use state tidal land under the
provisions of section 123(1)(b)(i).
The second circumstance (section 123(1)(b)(ii)) relates to work which is
undertaken by or on behalf of a public utility provider for the purpose of
providing a public utility service. The example provided is the
construction of infrastructure across a waterway for the provision of
electricity, gas or telecommunication services.
The third circumstance (section 123(2)) relates to works that are for public
infrastructure. An example of public infrastructure would include a public
jetty or a sea wall established to protect public infrastructure such as a road.
Section 123(4) clarifies that the relevant person (and/or their authorised
representative) for the works referred to in section 123(1) and (2) has the
right to occupy and use the state tidal land to carry out the tidal works (in
accordance with the development permit) and maintain and use the
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Environmental Protection and Other Legislation Amendment Bill 2010
structure/s, which in some instances comprise the tidal works without
needing to obtain tenure under the Land Act 1994.
It is implicit to section 123(4) that the right to occupy and use the State
tidal land lapses if and when the development permit lapses. In the event
that the works are not substantially started prior to the end of the currency
period of the development permit, the right to occupy and use the State
tidal land lapses when the development permit lapses. If the works are
completed or substantially completed within the currency period of the
development permit, the right to occupy and use the State tidal land lapses
when the works are removed or destroyed.
It should be noted that the definition of tidal works contained in the
schedule (Dictionary) is amended to include `demolition' (clause 57(3)).
Hence, the right to occupy and use land on which works proposed for
demolition are situated would be granted through the giving of a
development permit for the demolition work.
Section 123(5) provides definitions for public infrastructure, public utility
provider and relevant person. The definition for public infrastructure is a
broad reference to any infrastructure provided for public use, for example,
a boardwalk provided for free public enjoyment. Public infrastructure may
be provided by a local government or another entity including a
commercial entity.
With reference to the definition of a relevant person, a development permit
attaches to land. Consequently, if the ownership of a freehold property
changes, any subsequent owner of the land becomes the relevant person for
any tidal works adjacent that are wholly or partly on State tidal land.
Likewise at any particular time, the current occupier of occupied land is the
relevant person for any tidal works adjacent to the occupied land.
For public infrastructure, the relevant person would be the entity
responsible for the public infrastructure such as a local government or other
public infrastructure provider
Section 124 Obligation to keep particular structure in
safe condition
Clause 50 also replaces the existing section 124 to include that the relevant
person for a structure is obliged to maintain the structure in a safe condition
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Environmental Protection and Other Legislation Amendment Bill 2010
if they have a right to occupy and use State tidal land under section 123 for
the structure.
In replacing the section, other obligations placed on persons responsible for
tidal works to maintain structures in a safe condition have been maintained.
Clause 51 Amendment of s 144 (Indictable and
summary offences)
This clause amends section 144 of the Coastal Protection and Management
Act 1995 to provide for a consequential amendment for administrative
purposes to reference the new numbering of subsections in section 60
(Tidal works notices) following amendments to section 60.
Clause 52 Amendment of s 150 (When compensation
is payable)
This clause amends section 150 of the Coastal Protection and Management
Act 1995 to remove reference to `a coastal plan' and insert in its place `the
coastal plan'. This is a consequential administrative amendment.
Clause 53 Amendment of s 160 (How to start appeal)
This clause amends section 160 of the Coastal Protection and Management
Act 1995 to reference the new numbering of subclauses in section 60
(Tidal works notices). This is a consequential administrative amendment.
Clause 54 Amendment of s 165 (Delegation by chief
executive)
This clause amends section 165 of the Coastal Protection and Management
Act 1995 to delete reference to the Coastal Protection Advisory Council.
This is a consequential amendment.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 55 Amendment of s 167 (Regulation-making
power)
This clause amends section 167 of the Coastal Protection and Management
Act 1995 to remove references to `a coastal plan' and inserts in its place
`the coastal plan'. This is a consequential administrative amendment.
Clause 56 Insertion of new ch 6, pt 6
This clause inserts the transitional provisions which prevail during the
adoption phase of proposed amendments to the Coastal Protection and
Management Act 1995.
Section 195 Definition for pt 6
New section 195 contains a definition for pt 6 of `previous'. Previous
means the provision which was in force immediately prior to adoption of
the proposed amendments.
Section 196 Continuation of coastal zone
New section 196 states that the existing coastal zone remains in force until
such time as a coastal zone map is available.
Section 197 Continuation of existing coastal plans
New section 197 states that existing coastal management plans remain in
force until such time as the coastal plan takes effect.
Section 198 Dissolution of coastal protection advisory
council
New section 198 states that the Coastal Protection Advisory Council will
be dissolved upon adoption of the proposed amendments.
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Environmental Protection and Other Legislation Amendment Bill 2010
The Coastal Protection Advisory Council is being abolished in accordance
with the recommendations of the Webbe and Weller Report 2009
"Brokering Balance: A Public Interest Map for Queensland Government
Bodies - An Independent Review of Queensland Government Boards,
Committees and Statutory Authorities", as a primary part of their role was
the provision of advice regarding regional coastal management plans,
which are also being abolished. Members of the council were paid sitting
fees and travel allowances on a fee for service basis for the period of their
term in accordance with a schedule set by the Governor in Council. There
are no provisions under the current Act for members to be compensated in
the event of changes to the term of service. This is consistent with the
Fundamental Legislative Principles as Council members will not be called
upon to undertake any further service. In addition, the contract for current
members expires on 31 December 2010 and it is proposed that the
provisions to abolish the Council will commence after this time.
Section 199 Application of s80 for existing allocations
for quarry material
New section 199 sets out the transitional reporting requirements for
existing allocation notices. In particular, monthly reporting required by the
previous section 80(2) is to continue until the beginning of the first quarter
following commencement of the amendment. This clause also defines
`quarter".
Section 200 Existing dredge management plan
applications
New section 200 states that any application for approval of a dredge
management plan which has been lodged, but not yet decided is to be
assessed and decided under the provisions that were previously in place for
dredge management plans. In addition, if a dredge management plan is
subsequently approved, it continues in effect as if it the Environmental
Protection and Other Legislation Amendment Act 2010 had never
commenced. This is necessary to ensure that any effort or expenditure
outlaid in the preparation of a proposed dredge management plan is not
wasted.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 201 Existing approved dredge management
plans
New section 201 provides for existing approved dredge management plans
to remain in force in the same manner as per the previous provision.
Section 202 Continuing effect of Governor in Council
approval of land surrender condition
New section 202 clarifies that where a condition requiring land surrender
(for coastal management purposes) in an erosion prone area or within 40
metres of the foreshore has previously been imposed by the Governor in
Council (as a condition of a development permit for reconfiguration of a
lot) the condition continues to apply as if it were a condition imposed by
the Minister.
Clause 57 Amendment of schedule (Dictionary)
This clause amends the schedule (Dictionary) of the Coastal Protection
and Management Act 1995 to remove definitions for advisory council, key
coastal site, regional plan and State plan from the Dictionary as these terms
are no longer referred to in the Coastal Protection and Management Act
1995.
The clause replaces the existing definition of a coastal plan to mean a
coastal plan made under chapter 2, part 1 of the amended Act.
The clause also inserts meanings in the schedule (Dictionary) for
administrative amendment of (a coastal plan), coastal hazard, coastal zone
map, Planning Minister, previous, and State tidal land.
The clause amends the meaning of "tidal works" to clarify that tidal works
includes demolition of structures that are tidal works. The construction of
buoy moorings has been specifically excluded from the definition of tidal
works as this is regulated by the Transport Operations (Marine Safety)
Regulation 2004.
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Environmental Protection and Other Legislation Amendment Bill 2010
Part 4 Amendment of Environmental
Protection Act 1994
Clause 58 Act amended
This clause states that this part amends the Environmental Protection Act
1994.
Clause 59 Amendment of s 47 (When EIS may be
submitted)
This clause amends section 47 of the Environmental Protection Act 1994 to
provide that, when an EIS is submitted, it must be submitted with the fee
prescribed by the Environmental Protection Regulation 2008. Currently, a
fee is required to be paid when submitting the draft terms of reference
(section 41) and when amending an EIS (section 66).
This amendment means that a fee will now also be required when
submitting the EIS. This will remove the need for the applicant to pay a
total upfront fee as part of submitting the EIS terms of reference and then
potentially receive a refund if the applicant does not proceed to the EIS
stage. The amendment provides that the EIS fee is charged separate to the
fee required for the terms of reference.
Clause 60 Amendment of s 51 (Public notification)
This clause amends section 51 of the Environmental Protection Act 1994 to
clarify that the notification requirements outlined in section 51(2) must
happen in the order that they are written in the legislation.
The amendment will ensure that all affected and interested persons, and
other stakeholders nominated under section 51(2)(a)(iii), will receive their
written notice before the EIS notice is published in the newspaper.
This is necessary because proponents have been publishing the EIS notice
required under section 51(2)(b) in the newspaper within a few days of
receiving the section 49(5) notice from the department (which starts the 30
business day submission period for the EIS), but they sometimes have not
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Environmental Protection and Other Legislation Amendment Bill 2010
been notifying affected persons and other stakeholders until well into the
submission period. This limits the opportunity for submitters to provide a
submission on the EIS.
Clause 61 Amendment of s 73D (Application for
registration to carry out chapter 4 activity)
This clause amends section 73 of the Environmental Protection Act 1994 to
insert a new subsection (2) that provides that a person can not apply to be a
registered operator to carry out a chapter 4 activity that is assessable
development until and unless a development permit for the activity takes
effect.
Subsection (2) is intended to ensure that the development permit has taken
effect for a chapter 4 activity before an application for a registration
certificate is made for the activity. This will prevent unintended breaches
of the legislation and minimise annual fees that applicants are currently
paying for chapter 4 activities that cannot be operated lawfully.
For example, in some cases when a registration certificate has been applied
for and granted before the development permit (the timeframe for deciding
the certificate under the Environmental Protection Act 1994 is generally
only 10 business days), some operators mistakenly believe that the
registration certificate is an approval which grants the right to undertake the
activity. This can result in unintended breaches of the legislation.
This also creates a situation where the applicant has paid annual fees for
their registration certificate but cannot lawfully commence the activity until
the development permit has been granted and takes effect.
Subsection (2) does not affect applications already lodged or registration
certificates already issued for chapter 4 activities in circumstances where
the development permit has not taken effect.
Subsection (2) does not apply to self-assessable development (as defined
by the Sustainable Planning Act 2009), since these activities do not require
a development permit. For the purposes of the Environmental Protection
Act 1994, self-assessable activities are those chapter 4 activities, or aspects
of chapter 4 activities, which are operating under a code of environmental
compliance. Hence there is no limitation on when an application can be
made for a registration certificate for an activity to be carried out under a
code of environmental compliance.
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Environmental Protection and Other Legislation Amendment Bill 2010
The current subsections (2) and (3) are renumbered to subsections (3) and
(4) respectively.
Clause 62 Amendment of s 73F (Registration
certificates)
The clause amends section 73F of the Environmental Protection Act 1994
to insert a new subsection 73F(3)(b)(iii) to provide that a single registration
certificate can be granted to a local government for environmentally
relevant activities (ERAs) carried out at 2 or more places if the activities
are not a significant business activity.
This replaces the current section 73F(3)(b)(iii) that required the
administering authority to be satisfied that the activities are
non-commercial. This created uncertainty due to differing interpretations
about when activities are non-commercial and therefore when a single
registration certificate (and consequently a fee discount) can or cannot be
granted.
This clause inserts a definition of "significant business activity" which has
the meaning given by the Local Government Act 2009, section 43.
A fee discount is available to local government for ERAs they carry out at 2
or more places if they are included on a single registration certificate.
These discounts are not available for ERAs that are "significant business
activities" (i.e. commercial activities) because of the anti-competitive
nature of the fee discount.
It is intended that municipal activities that operate on a commercial basis or
in competition with non-governmental operators do not accrue benefits as a
result of their public ownership and are therefore not eligible to apply for a
single registration certificate. This is consistent with the Competitive
Neutrality policy element of the Competition Principles Agreement which
is one of the three agreements under the National Competition Policy that
Queensland became a signatory to in 1995.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 63 Amendment of s 73G (When registration
certificate takes effect)
This clause amends section 73G of the Environmental Protection Act 1994
to remove subsection 73G(3). This is a consequential amendment to
section 73D.
Clause 64 Insertion of new ch 4, pt 5A
This clause inserts the new Chapter 4, Part 5A into the Environmental
Protection Act 1994.
Part 5A Work diary requirements for
particular registered operators
This Part inserts new requirements for operators of mobile and temporary
environmentally relevant activities to keep a work diary.
Section 73PA Application of pt 5A
New section 73PA states that this part applies to a registered operator
carrying out a chapter 4 activity that is a mobile and temporary
environmentally relevant activity, unless the activity is regulated waste
transport.
This section does not apply to regulated waste transport as these operators
would always be mobile and temporary environmentally relevant activities
by definition in the Environmental Protection Act 1994, so would never
trigger a material change of use application under the Sustainable Planning
Act 2009. Therefore recording their work in a work diary would not result
in any change to the type of approval under the Sustainable Planning Act
2009, unlike other mobile and temporary environmentally relevant
activities.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 73PB Requirement to keep a work diary
New section 73PB inserts a new requirement for operators of mobile and
temporary environmentally relevant activities to keep a work diary in an
approved form so that the administering authority and operator can easily
monitor the activity to determine whether the activity continues to meet the
requirements for a mobile and temporary environmentally relevant activity.
Part of the definition of mobile and temporary environmentally relevant
activity in schedule 4 of the Environmental Protection Act 1994 requires
that the activity is carried out at any 1 of the locations for less than 28 days
in a calendar year. If an operator does not meet this requirement (or the
other requirements outlined in the definition) they are not a mobile and
temporary environmentally relevant activity.
If an operator does not meet this requirement (or the other requirements
outlined in the definition) they are not a mobile and temporary
environmentally relevant activity and would trigger a material change of
use under the Sustainable Planning Act 2009.
Without reference to any records of the activity, it is difficult for the
administering authority to determine if the activity meets the requirements
for a mobile and temporary environmentally relevant activity.
Section 73PB(1) establishes an offence if a registered operator for a mobile
and temporary environmentally relevant activity does not keep a work diary
in the approved form.
The maximum penalty for the offence is 100 penalty units which is
consistent with other similar offences under the Environmental Protection
Act 1994 including section 83 which requires operators of agricultural
environmentally relevant activities to keep records of their activities.
Section 73PB(2) sets out that the approved form must provide for the
inclusion of details of each location at which the mobile and temporary
environmentally relevant activity is carried out, and the dates on which the
activity is carried out.
Section 73PB(3) provides that a registered operator must record the
information required under the approval form within 1 day after the day the
operator vacates each location at which the activity is carried out. This
ensures accurate compliance checks can be made if necessary. Section
73PB(3) includes a maximum penalty of 100 penalty units which is
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Environmental Protection and Other Legislation Amendment Bill 2010
consistent with other similar offences under the Environmental Protection
Act 1994.
Section 73PB(4) states that the diary must be kept for 2 years after the day
on which the operator vacates the last location at which the activity was
carried out unless the operator has a reasonable excuse. Section 73PB(4)
includes a maximum penalty of 100 penalty units which is consistent with
other similar offences under the Environmental Protection Act 1994.
The clause commences on a date to be set by proclamation.
Section 73PC Requirement to notify chief executive if
work diary lost or stolen
New section 73PC provides that a registered operator who becomes aware
that the operator's work diary has been lost or stolen must, within 7
business days, give the chief executive written notice that the diary has
been lost or stolen, unless the operator has a reasonable excuse.
This offence has a maximum penalty of 50 penalty units. This penalty unit
amount is based on other similar offences in the Environmental Protection
Act 1994 in relation to providing written notice about a matter (for
example, refer to sections 371, 363, 348, 444A).
Clause 65 Amendment of s 197 (Summary of pt 6
process)
This clause amends section 197 of the Environmental Protection Act 1994
to correct an anomaly in the processes for notifying the Mineral Resources
Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA)
Ministers about an objections decision. This amendment is consequential
to the amendments to sections 222, 224 and 225.
Clause 66 Amendment of s 222 (Nature of objections
decision)
This clause amends section 222 of the Environmental Protection Act 1994
to correct an anomaly in the processes for notifying the Mineral Resources
Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA)
Ministers about an objections decision.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 222 applies to an objections decision for an application for an
environmental authority. All dealings with environmental authorities are
under the EPA Minister.
The amendment to section 222(1) is to provide that the objections decision
for the application must be a recommendation to the EPA Minister, not the
MRA Minister.
Consequently, subsection (3) has also been amended to provide that the
Land Court must, as soon as practicable after the decision is made, give a
copy of the decision to the MRA Minister; and if a relevant mining lease is,
or is included in, a significant project--the State Development Minister.
The State Development Minister has been included in subsection (3) as a
consequential to the amendment in section 224.
Clause 67 Amendment of s 224 (Advice from MRA and
State Development Ministers about
objections decision)
This clause amends section 224 of the Environmental Protection Act 1994
and provides that advice from the Mineral Resources Act 1989 (MRA) and
State Development Ministers about the objections decision must be
provided to the Environmental Protection Act 1994 (EPA) Minister within
10 days after the copy of the decision is received under section 222, or if
the Ministers have, within the 10 business days, agreed to a longer period -
the advice must be provided within the agreed timeframe.
The current process whereby the EPA Minister writes to the MRA and
State Development Ministers to seek their advice on the objectives
decisions has been removed to streamline and simplify the advice process,
reduce administrative burden on government, and reduce possible delays
(and costs) in deciding applications.
Clause 68 Amendment of s 225 (EPA Minister's
decision on application)
This clause amends section 225 of the Environmental Protection Act 1994
and provides that the Environmental Protection Act 1994 (EPA) Minister's
decision on the application must be made within either 10 business days
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Environmental Protection and Other Legislation Amendment Bill 2010
after the last advice by a Minister is received under section 224(2), or 20
business days after the objections decision is made (whichever is later).
The purpose of this amendment is to simplify the advice process, reduce
administrative burden on government and industry, and reduce possible
delays (and costs) in deciding applications.
Clause 69 Amendment of s 322 (When environmental
audit required)
This clause amends section 322 of the Environmental Protection Act 1994
and provides that in addition to other matters outlined in section 322(1), an
environmental audit may be required if a person is, or has been,
contravening section 363E, section 440Q, section 440ZG, or a provision of
chapter 8, part 3D, 3E or 3F.
This amendment follows amendments made to the Environmental
Protection Act 1994 and subordinate legislation which commenced on 1
January 2009 to transfer and update offences that were previously in the
Environmental Protection Regulation 1998, the Environmental Protection
(Air) Policy 1997 and the Environmental Protection (Water) Policy 1997.
Prior to the transfer of these provisions, the provisions under section
322(1)(c) allowed an environmental audit requirement to be made in
relation to a contravention of a regulation or environmental protection
policy.
This amendment will ensure that the grounds for requiring an
environmental audit continue to apply to those equivalent transferred
offences (i.e. sections 363E, 440Q, 440ZG, and provisions of chapter 8,
part 3D, 3E or 3F).
Clause 70 Replacement of s 330 (What is a transitional
environmental program)
This clause deletes the current section 330 and inserts a new section 330
into the Environmental Protection Act 1994.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 330 What is a transitional environmental
program
New section 330 replaces the current section 330 to provide clear direction
about what a transitional environmental program is and the purpose of a
transitional environmental program.
The amendment clearly states that a transitional environmental program
is a specific program that, when complied with, achieves compliance with
this Act for the activity to which it relates by doing 1 or more of the
following--
(a) reducing environmental harm caused by the activity;
(b) detailing the transition of the activity to an environmental standard;
(c) detailing the transition of the activity to comply with--
(i) a condition, including a standard environmental condition, of an
environmental authority or code of environmental compliance; or
(ii) a development condition.
This amendment is part of a suite of amendments to transitional
environmental program provisions that will provide greater certainty to
holders of the approvals and the administering authority about the content,
application and enforceability of the programs.
Clause 71 Replacement of s 331 (Content of program)
This clause deletes the current section 331 and inserts a new section 331
into the Environmental Protection Act 1994.
Section 331 Content of program
New section 331 replaces the current section 331 to provide greater
transparency and certainty about what is required in a transitional
environmental program.
This amendment includes requirements for the transitional environmental
program to state details about:
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Environmental Protection and Other Legislation Amendment Bill 2010
-- objectives to be achieved or maintained under the program;
-- the actions required to achieve these objectives and the timeframe by
when each action must be carried out;
-- how any environmental harm will be prevented or minimised
including any interim measures;
-- any specific environmental standard the activity is required to
transition to and how that is to be achieved before the program ends;
-- any condition of an environmental authority or development condition
the activity is required to transition to and how that is to be achieved
before the program ends;
-- the period of which the program is to be carried out;
-- appropriate performance indicators; and
-- monitoring or reporting on compliance with the program.
This amendment will ensure that, by clearly stating the requirements of a
transitional environmental program, there is greater certainty as to what
constitutes a breach of the program, and the program can be more
effectively audited.
Clause 72 Amendment of s 333 (Voluntary submission
of draft program)
This clause amends section 333 of the Environmental Protection Act 1994
to provide that a person or public authority may voluntarily submit a draft
program if the program contains or provides for the matters mentioned in
section 331.
This amendment ensures that transitional environmental programs that are
required to be submitted under section 332 `Administering authority may
require draft program' and programs that are voluntarily submitted under
section 333 meet the same content requirements.
Clause 73 Replacement of ss 339 and 340
This clause replaces sections 339 and 340 of the Environmental Protection
Act 1994.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 339 Decision about draft program
New section 339 replaces the existing section 339 to more clearly set out
the options available to the administering authority when making a
decision about the program, including imposing any conditions.
The administering authority may approve the program as submitted, or as
amended at the request, or with the agreement, of the administering
authority.
The administering authority may refuse to approve the program.
The administering authority may impose on an approval of a program any
conditions that the authority must impose under a regulatory requirement
and any other conditions the authority considers appropriate.
If the administering authority approves the program the program remains in
force for the period stated in the notice given under section 340.
Section 340 Notice of decision
New section 340 replaces the existing section 340 in relation to giving
notice of the decision.
The administering authority must within 8 business days after making the
decision under section 339 give a written notice about the decision.
If the administering authority approves the program, the notice must:
-- identify the documents forming the approved program, including any
amendments;
-- state any conditions imposed on the approval; and
-- state the day the approval ends.
If the administering authority refuses to approve the program or approves
the program with conditions, the notice must be an information notice. This
means that the review and appeal provisions of the Act will apply.
Section 341 Content of approved program
This section clarifies that an approved transitional environmental program
consists of:
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Environmental Protection and Other Legislation Amendment Bill 2010
(a) the draft of the program submitted under section 332 or 333, as
amended at the request, or with the agreement, of the administering
authority; and
(b) any conditions imposed on the program by the administering
authority.
This amendment will ensure that, by clearly stating the content of an
approved program there is greater certainty as to what the program
contains, what constitutes a breach of the program, and the program can be
more effectively audited.
Clause 74 Amendment of s 358 (When order may be
issued)
This clause amends section 358 of the Environmental Protection Act 1994
and provides that, in addition to other matters outlined in section 358(d), an
environmental protection order may be issued to secure compliance with
section 363E, section 440Q, section 440ZG, or a provision of chapter 8,
part 3D, 3E or 3F.
This amendment follows amendments made to the Environmental
Protection Act 1994 and subordinate legislation on 1 January 2009 to
transfer and update offences that were previously in the Environmental
Protection Regulation 1998, the Environmental Protection (Air) Policy
1997 and the Environmental Protection (Water) Policy 1997. Prior to the
transfer of these provisions, the provisions under section 358(d) allowed an
environmental protection order to be issued to secure compliance with an
environmental protection policy or regulation.
This amendment will ensure that the grounds for issuing an environmental
protection order continue to apply to those equivalent transferred offences
(i.e. sections 363E, 440Q, 440ZG, and provisions of chapter 8, part 3D, 3E
or 3F).
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 75 Amendment of s 365 (Person may show
cause why financial assurance should not
be required for transitional environmental
program or site management plan)
This clause amends section 365 of the Environmental Protection Act 1994
and is consequential to the new section 440 and reflects the amended
reference to an approval notice for a transitional environmental program.
Clause 76 Amendment of s 432 (Contravention of
program)
This clause amends section 432 of the Environmental Protection Act 1994
to clarify that it is an offence to contravene a requirement of a transitional
environmental program. This means that enforcement action may be taken
once any one requirement is breached, rather than arguably having to wait
until the entire program is at an end.
Clause 77 Insertion of new s 432A
This clause inserts new section 432A into the Environmental Protection Act
1994.
Section 432A Contravention of condition of approval
New section 432A introduces a new offence that a person must not
contravene a condition of an approval of a transitional environmental
program. A maximum penalty of 835 penalty units is provided. This
penalty is consistent with the penalty for breaching a requirement of a
transitional environmental program under section 432. The potential
environmental harm for contravening a program is consistent with that for
contravening a condition of a program.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 78 Omission of s 440C (When deposit of litter
unlawful)
This clause omits section 440C of the Environmental Protection Act 1994.
This is a consequential amendment as a result of the amendment to section
440D.
Clause 79 Amendment of s 440D (Depositing litter)
This clause amends section 440D of the Environmental Protection Act
1994 in relation to when depositing litter is an offence.
The amendment to section 440D(1) removes the term unlawfully as a
consequential amendment to the insertion of new section 440D(1A).
New section 440D(1A) provides that the offence of depositing litter at a
place (under section 440D(1)) without a reasonable excuse does not apply
to a person who deposits litter at a place other than a road if -
(a) the person is an occupier of the place; or
(b) the person deposits the litter with the consent of an occupier of the
place; or
(c) the person deposits the litter by placing it in a litter bin or other
container provided by an occupier of the place for the purpose of
depositing litter.
The insertion of section 440D(1A) subsections (a), (b) and (c) are
consistent with the previous section 440C.
New section 440D(1A) clearly states that the section does not apply to a
person who deposits litter on a road. The amendment raises the
Fundamental Legislative Principle in relation to whether the legislation has
sufficient regard to the rights and liberties of individuals by providing that
littering in a litter bin or similar container on a road is no longer
automatically exempt from the offence.
The amendment is justified on the basis of the need to remove uncertainty
with the current provision, and that a reasonable excuse would still apply to
provide an appropriate defence. It is currently arguable under section 440C
that a person who litters from a vehicle on a road is an `occupier of a
place'. This was never the policy intent, particularly as the person may not
exercise lawful authority or control in relation to the road, and the
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Environmental Protection and Other Legislation Amendment Bill 2010
amendment addresses this issue. A reasonable excuse for littering on a road
may include any of the reasons in section 440D(1A). The number of
instances of a person who is acting appropriately having to raise a
reasonable excuse is likely to be limited.
This amendment retains the definition for `occupier' of a place from
section 440D, and inserts a new definition for `road'. The definition of road
is adapted from the definition of road in the Sustainable Planning Act
2009.
Clause 80 Amendment of s 440L (Meaning of audible
noise)
This clause amends section 440L of the Environmental Protection Act 1994
and provides that the definition of audible noise in section 440L(1)
includes a reference to `an affected building'.
This amendment is required to correct an error that occurred as part of
transferring this section from the Environmental Protection Regulation
1998 and to clarify that, when assessing compliance against the noise
standards that have audible noise components, the assessment is carried out
at the affected building.
Clause 81 Amendment of s 453 (Entry of land--search,
test, sample etc. for release of contaminant)
This clause amends section 453 of the Environmental Protection Act 1994
relating to entry of land.
Section 453 currently limits entry by an authorised person to where
unlawful environmental harm has been caused, to confirm the source of the
contaminant that caused the harm.
The amendment provides that an authorised person may enter a land if they
have a reasonable belief that unlawful environmental harm has been caused
by the release of a contaminant into the environment.
The entry provision enables the authorised person to gain entry to land
without consent or a warrant. However, the fundamental legislative
principle is not breached because there are appropriate safeguards in place.
To obtain entry without consent, five business days written notice must be
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Environmental Protection and Other Legislation Amendment Bill 2010
given under section 455, and the provisions do not apply to land where a
building is erected.
The entry is necessary to determine the source of a contaminant without the
need to first prove that environmental harm has been caused. This is
necessary to ensure that environmental harm does not impact on the
community, including the health of the community. This amendment
enables an authorised person to enter land on the belief that harm has been
caused and enables samples to be taken to support and confirm whether
environmental harm has been caused.
The amendment provides for consistent powers of entry under existing
section 454.
Clause 82 Amendment of s 455 (Entry of land for
access)
This clause amends section 455 of the Environmental Protection Act 1994
so that it also applies to entry of land under section 453.
Currently, an authorised person can cross the land (access land) for the
purpose of entering other land (primary land) only if they are exercising the
powers of entry to the primary land under sections 452. The entry provision
enables the authorised person to gain entry to land without consent or a
warrant. However, the fundamental legislative principle is not breached
because there are appropriate safeguards in place. To obtain entry without
consent, five business days written notice must be given under section 455,
and the provisions do not apply to land where a building is erected.
This amendment provides that an authorised person may enter access land
to get to primary land for the purpose of section 453 (Entry of land-search,
test, sample etc. for release of contaminant).
This provides consistent application of section 455 for entry under section
452 and 453.
Clause 83 Amendment of s 456 (Warrants)
This clause amends section 456 of the Environmental Protection Act 1994
to provide that where a Magistrate issues a warrant under this section the
warrant may state that any authorised person may enter the place and
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Environmental Protection and Other Legislation Amendment Bill 2010
exercise the officer's powers. Currently this section is limited to the
Magistrate issuing a warrant to a stated authorised person, usually the
person seeking the warrant. Since warrants are often sought in a different
place to where they are executed, this limits the effective functioning of the
Act, since the person who seeks the warrant must execute the warrant. This
amendment allows for flexibility in the execution of the warrant by any
authorised person and brings these warrant provisions in line with
provisions in the Vegetation Management Act 1999 and the Water Act 2000.
Note that the warrant must still be executed by an authorised person under
this Act.
Clause 84 Amendment of s 465 (Power to require
answers to questions)
This clause amends section 465 of the Environmental Protection Act 1994
to extend the current powers of an authorised person to require a person to
answer a question about a suspected offence, to also be able to require, by
written notice, the person to attend a stated reasonable place at a stated
reasonable time, to answer questions about the suspected offence.
This amendment also sets out the requirements for the notice.
This improves the enforcement of the Environmental Protection Act 1994.
Examples of similar provisions are found in the following legislation:
· section 118BA Environmental Planning and Assessment Act 1979
(NSW)
· sections 203 and 203A of the Protection of the Environment
Operations Act 1997 (NSW)
Clause 85 Amendment of s 473 (Failure to help
authorised person--emergency)
This clause amends section 473 of the Environmental Protection Act 1994
to replace `person' with `individual'. The definition of `person' in the Acts
Interpretation Act 1954 includes a corporation as well as an individual.
This amendment is required to clarify that this section only applies to
individuals and not corporations.
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Environmental Protection and Other Legislation Amendment Bill 2010
This amendment will provide clarity that the rule of law relating to
privilege against self-incrimination, does not apply to a company, but only
to an individual.
This is consistent with the common law position that self-incrimination
does not apply to corporations.
The amendment to subsections 473(4)(c) and (5) provides that new section
480A is relevant for the purpose of these subsections.
Clause 86 Amendment of s 476 (Failure to answer
questions)
This clause amends section 476 of the Environmental Protection Act 1994
to provide an offence for not attending a place to answer questions as a
consequence of amendments to section 465.
This clause also amends section 476 to replace `person' with `individual'
consistent with the amendment to section 473.
The definition of `person' in the Acts Interpretation Act 1954 includes a
corporation as well as an individual. This amendment is required to clarify
that this section only applies to individuals and not corporations.
This is consistent with the common law position that self-incrimination
does not apply to corporations
Clause 87 Amendment of s 480 (False, misleading or
incomplete documents)
This clause amends section 480 of the Environmental Protection Act 1994
to insert a new offence where a person `ought reasonably to know' that a
document is false or misleading. Consequently, someone who made their
best efforts to ensure they were giving correct information would not be
prosecuted.
This places a greater onus on individuals to check information before it is
passed onto the administering authority or authorised person. A penalty
may apply in cases where due diligence has not been carried and false or
misleading information is consequently provided to the administering
authority or authorised person. The prosecution however would still be
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Environmental Protection and Other Legislation Amendment Bill 2010
required to prove that the person knew or ought reasonably to have known
the information was false or misleading.
The new offence retains the maximum penalty of 1665 penalty units. Being
a new offence, it raises the fundamental legislative principle in relation to
whether the legislation has sufficient regard to the rights and liberties of
individuals, however the offence is necessary to improve the operation of
the Environmental Protection Act 1994 and the penalty is appropriate for
the nature and severity of the breach. in comparison to other equivalent
offences.
This section also removes the reference to "incomplete" documents from
this section since this aspect of the offence has been moved to a new
offence provision in the new section 480A.
Clause 88 Insertion of new s 480A
This clause inserts new section 480A into the Environmental Protection Act
1994.
Section 480A Incomplete documents
New section 480A provides a separate offence for providing incomplete
documents to the administering authority or authorised person which was
previously contained in section 480. These sections have been separated
due to ease of drafting.
The new section retains the current intent of section 480 in relation to
incomplete documents and inserts a new offence if a person `ought
reasonably to know' if a document is incomplete.
This places a greater onus on individuals to check information before it is
passed onto the administering authority or authorised person. A penalty
may apply in cases where due diligence has not been carried and false or
misleading information is consequently provided to the administering
authority or authorised person. The prosecution however would still be
required to prove that the person knew or ought reasonably to have known
the document is incomplete. Consequently, someone who made their best
efforts to ensure they were giving complete information would not be
prosecuted.
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Environmental Protection and Other Legislation Amendment Bill 2010
The maximum penalty for this new offence is 1665 penalty units which is
equivalent to the existing penalty for providing false, misleading or
incomplete information.
The new offence and penalty raise the fundamental legislative principle in
relation to whether the legislation has sufficient regard to the rights and
liberties of individuals, however the offence is necessary to improve the
operation of the Environmental Protection Act 1994 and the penalty is
appropriate for the nature of the offence in comparison to other equivalent
offences.
Clause 89 Replacement of s 502 (Court may order
payment of compensation etc.)
This clause replaces the existing section 502 of the Environmental
Protection Act 1994.
Section 502 Court may make particular orders
New section 502 provides the Court with a variety of new orders upon
convicting a person for particular offences.
The new orders are equivalent to the contemporary tools provided in other
environmental jurisdictions. This will provide for a more flexible and
proportionate sentencing response commensurate with the risk and
circumstances of individual cases, enhance industry performance and
provide greater environmental protection outcomes.
The court will have increased flexibility to make orders that are appropriate
to the circumstances of the offence and tailored to achieve the objectives of
the Environmental Protection Act 1994 more effectively. A fine/custodial
sentence is not always an adequate or appropriate punishment.
The ability to impose orders under the existing section 502 is limited to
circumstances where in a proceeding for an offence against the
Environmental Protection Act 1994, the Court finds the defendant has
caused environmental harm by contravention of the Environmental
Protection Act 1994. It is intended to broaden the scope of this section so
the Court can impose orders for a wider range of environmental offences
under Chapter 8 of the Environmental Protection Act 1994. There are
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Environmental Protection and Other Legislation Amendment Bill 2010
benefits from having access to the new orders as well as the existing
provisions requiring the defendant to pay compensation.
These additional offences to which these new Court orders apply are:
-- section 426 (Environmental authority required for mining activity);
-- section 426A (Environmental authority required for chapter 5A
activity);
-- section 427 (Only registered operators may carry out chapter 4
activities);
-- section 430 (Contravention of condition of environmental authority);
-- section 435 (Offence to contravene development condition);
-- section 435A (Offence to contravene standard environmental
conditions);
-- section 440ZG (Depositing prescribed water contaminants in waters
and related matters).
The Court can currently impose limited orders under this section for these
offences if the Court finds that the defendant has also caused environmental
harm. However, because the elements of the above offences do not rely on
proving environmental harm, it is unlikely that the Courts would ever make
a finding that environmental harm has been caused merely to allow the
orders to be issued. The expansion of this section to include proceedings
for contraventions of the above sections, without the need to prove harm,
will provide more flexibility for the Courts to issue orders that are
appropriate for the offence.
For example, if a defendant is unlawfully operating an environmentally
relevant activity without the required environmental authority or
registration certificate (sections 426, 426A and 427), the Court may
consider that a monetary benefit order is also appropriate. The operator
may have benefited from operating the activity without the required
approval (apart from other savings associated with a lack of environmental
conditions etc) by not paying annual fees, which would lead to competitive
advantages over other businesses of the same type. Having access to orders
for this offence would also allow the court to order that the defendant pay
an additional amount (in addition to the fine imposed for the original
offence) that represents the monetary benefit the company derived from not
paying the annual fees.
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Environmental Protection and Other Legislation Amendment Bill 2010
This section inserts the following new types of orders:
1. Rehabilitation or restoration order - which is an order requiring the
person to take stated action to rehabilitate or restore the environment
that was adversely affected because of the act or omission constituting
the offence in relation to which the order is made.
2. Public benefit order - which is an order requiring the person to carry
out a stated project to restore or enhance the environment in a public
place or for the public benefit.
3. Education order - which is an order requiring a person to conduct a
stated advertising or education campaign to promote compliance with
the Act.
4. Monetary benefit order - which is an order requiring a person to pay
an amount representing any financial or other benefit the person has
received because of the act or omission constituting the offence.
5. Notification order - which is an order requiring a person to notify in a
stated way a person, or class of person, of the act or omission
constituting the offence and other stated information about the act or
omission. Examples of a notification order include publishing details
of the offence in the person's annual report or giving the notification
to persons affected.
These orders are available in addition to or in lieu of any fine or custodial
sentence that may be imposed. One or more orders may be made against
the defendant. Whether an order is imposed by the Court is entirely at the
discretion of the Court.
In addition to the orders the Court may, on application of the prosecution,
require the defendant to: (a) pay to the other person an amount of
compensation the court considers appropriate for the loss, reduction or
damage suffered, or costs or expenses incurred; or (b) take stated remedial
action the court considers appropriate.
The Court may order this if the Court finds that because of an act or
omission constituting an offence, another person has:
a) suffered loss of income; or
b) has suffered a reduction in the value of, or damage to, property or;
c) has incurred costs or expenses in replacing or repairing property, or in
preventing of minimising or attempting to prevent or minimise a loss
or reduction or damage in relation to a) or b).
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Environmental Protection and Other Legislation Amendment Bill 2010
An order must state the time within which the order must be complied with.
The introduction of these new court orders following prosecution raises the
fundamental legislative principle that consequences imposed by legislation
should be proportionate and relevant to the actions to which the
consequences are applied by the legislation. The legislation does not
require the imposition of these orders but leaves it up to the Court's
discretion to determine whether the order is proportionate and relevant to
the actions which the consequences are applied.
For instance, a company may choose to breach its environmental authority
and dispose of hazardous material illegally and accept a $100,000 fine,
rather than dispose of the material properly and in an environmentally
responsibly way which would have been much more expensive. In these
circumstances, a monetary benefit order that accounted for the money
saved by the company would have provided a much greater deterrent from
this inappropriate practice.
Another example for which these court orders may be beneficial is where a
person undertaking a large residential subdivision has released sediment to
waters as a result of insufficient sediment and erosion control practices.
This type of offence might be appropriate for the Court to issue an
Education Order that requires the defendant to undertake an education
campaign promoting the importance of installing appropriate erosion and
sediment control devices as part of good building practices.
These new court orders may only be applied by the Court where the Court
determines that imposition of the orders is appropriate. The orders have a
reasonable connection to the type and severity of the breach for which they
are imposed and only apply to offences where the penalty is 165 penalty
units or more.
Section 502A Administering authority may take action and
recover costs
New section 502A provides that if the person fails to comply with an order,
the administering authority is able to carry out the work or take any action
necessary to fulfil the requirements of the order and recover any reasonable
costs of doing so as a debt. This section is intended to be used with the
administering authority's discretion in cases where required works are
necessary or urgent, for example where environmental harm is being
caused.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 90 Amendment of s 530 (Decision for other
appeals)
This clause amends section 530 of the Environmental Protection Act 1994
and is consequential to clause 92 which removes Chapter 12, part 3
(Exemption from disclosure).
Clause 91 Amendment of s 552 (What is the
application date for application or TEP
submission)
This clause amends section 552 of the Environmental Protection Act 1994
in relation to the application date for a transitional environmental program
submission. This amendment provides that if a transitional environmental
program, including a voluntary transitional environmental program, is
submitted that does not comply with section 331 the authority may require
the transitional environmental program to be resubmitted. The application
date for the decision changes based on the date of resubmission.
New subsection 552(4) provides that, where a transitional environmental
program is submitted and the program does not comply with the content
requirements of section 331, the authority may within 8 business days after
the day the submission is made require the person to amend and resubmit a
transitional environmental program that complies with section 331.
New subsection 552(5) provides that the application date in this
circumstance is either the day that is 10 business days after the day the
amended transitional environmental program is submitted to the authority
or, if within 8 business days after the day the amended transitional
environmental program is submitted the authority requires additional
information relating to the amended transitional environmental program,
the day the authority states is the application day in a written notice.
Clause 92 Omission of ch 12, pt 3 (Exemption from
disclosure)
This clause removes Chapter 12, part 3 from the Environmental Protection
Act 1994.
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Environmental Protection and Other Legislation Amendment Bill 2010
Chapter 12 is no longer necessary following the commencement of the
Right to Information Act 2009. The protections provided for under the
Right to Information Act 2009 are sufficient to protect information and
therefore these provisions are unnecessary.
Clause 93 Insertion of new ch 13, pt 17
This clause inserts the new Chapter 13, part 17 (Transitional provisions for
the Environmental Protection and Other Legislation Amendment Act
2010), into the Environmental Protection Act 1994.
Part 17 Transitional provisions for the
Environmental Protection and
Other Legislation Amendment
Act 2010
Section 666 Definitions for pt 17
New section 666 inserts definitions for `amending Act', `commencement'
and `unamended Act' for the purposes of this part.
Section 667 Existing EISs
New section 667 provides that an EIS submitted under section 47 of the
Environmental Protection Act 1994 before the commencement of clause 59
of this Bill, for which the chief executive has not made a decision under
section 49 of the Act, will be considered as though this Bill had not
commenced.
Therefore the application will be considered even though a fee has not been
paid under section 47(2).
This transitional provision maintains the status quo for EISs submitted
before the amendment in clause 59 commences.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 668 Existing application for registration to carry
out chapter 4 activity
New section 668 provides that an application for registration to carry out a
chapter 4 activity made under section 73D of the Environmental Protection
Act 1994 before the commencement of clause 61 of this Bill, that has not
been decided, must be decided under the unamended Act.
This transitional provision maintains the status quo for applications for
registration made before clause 61 commences.
Section 669 Registration to carry out a chapter 4 activity
New section 669 provides that the provisions in section 73G of the
unamended Environmental Protection Act 1994 that apply to when a
registration certificate to carry out a chapter 4 activity takes effect continue
to apply if:
(a) before the Act was amended, the administering authority issued a
registration certificate to a person and, at that time the person did not
have a development permit; or
(b) the administering authority issued a registration certificate to a person
under the unamended Act, as applied by section 668, and the person
does not have a development permit.
This transitional provision maintains the status quo for registration
certificates issued before clause 63 commences.
Section 670 Existing non-code compliant application for
a level 1 mining project
New section 670 provides that the provisions in sections 224 and 225 of the
unamended Environmental Protection Act 1994 continue to apply to an
environmental authority (mining lease) application made before the
commencement if--
(a) it is a non code-compliant application for a level 1 mining project; and
(b) the Land Court has, under section 222 of the unamended Act, given a
recommendation to the Minister for the Mineral Resources Act 1989;
and
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Environmental Protection and Other Legislation Amendment Bill 2010
(c) at the commencement, the Minister for the Environmental Protection
Act 1994 has not decided the application.
This transitional provision maintains the status quo for applications for an
environmental authority (mining lease) which had not been decided before
clauses 67 and 68 commence.
Section 671 Existing draft transitional environmental
programs
This section provides that a draft transitional environment program
submitted, but not decided, under section 332 or 333 of the unamended Act
must be considered, or continue to be considered under the unamended
Act.
This transitional provision maintains the status quo for transitional
environmental programs issued before clauses 72 and 73 commence.
Section 672 Transitional environmental programs
This section provides that a transitional environmental program in force at
commencement, or approved under the unamended Act as applied by
section 671, continues in effect even if it does not comply with the content
requirements for a transitional environmental program in section 331 in
force after commencement.
This transitional provision maintains the status quo for transitional
environmental programs in force before clause 71 commences.
Section 673 Existing application for disclosure
exemption
This section provides that an application for a disclosure exemption made
under section 564 of the unamended Act that has not been decided at
commencement is taken to be withdrawn. The disclosure exemption can be
considered under the Right to Information Act 2009 if an application is
made under that Act to release the information. This transitional is
consequential to clause 92.
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Environmental Protection and Other Legislation Amendment Bill 2010
Section 674 Existing reviews and appeals about
disclosure exemptions
This section provides that an application for a review, or an appeal, of an
`original decision' relating to an application for an exemption from
disclosure of certain information in a document referred to in schedule 2,
part 1, division 5 that have not been completed prior to commencement are
considered to be withdrawn. The Land Court must stop hearing any such
appeal. The disclosure exemption can be considered under the Right to
Information Act 2009 if an application is made under that Act to release the
information. This transitional is consequential to clause 92.
Section 675 Existing disclosure exemptions
This section provides that the process for exemptions from disclosure in
Chapter 12, part 3 of the unamended Act continues to apply to a disclosure
exemption granted prior to commencement. This transitional provision
maintains the status quo for disclosure exemptions granted before clause 92
commences.
Clause 94 Amendment of sch 2 (Original decisions)
This clause removes Schedule 2, part 1, division 5 from the Environmental
Protection Act 1994. The sections cross-referenced in this Division have
been omitted as part of amendments that remove Chapter 12, part 3 from
the Environmental Protection Act 1994, therefore Schedule 2, part 1,
division 5 is no longer necessary.
Clause 95 Amendment of sch 4 (Dictionary)
This clause amends the Dictionary in schedule 4 of the Environmental
Protection Act 1994 to remove definitions for `disclosure exemption', and
`exempted material'.
This clause inserts definitions for the terms `amending Act',
`commencement', `development permit', `environmental standard', `State
Development Minister' and `unamended Act', used in the Bill.
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Environmental Protection and Other Legislation Amendment Bill 2010
The existing definition of `mobile and temporary environmentally relevant
activity' has been replaced to clarify that mobile and temporary
environmentally relevant activities (ERAs) such as abrasive blasting may
be carried out at locations that do not have a building situated on the land,
by replacing the word `premises' with `location'.
Part 5 Amendment of Marine Parks Act
2004
Clause 96 Act amended
This clause states that this part amends the Marine Parks Act 2004.
Clause 97 Amendment of s 62 (Issue of warrant)
This clause amends section 62 of the Marine Parks Act 2004 to provide that
where a Magistrate issues a warrant under this section the warrant must
state that any inspector may enter the place and exercise the inspector's
powers. Currently this section is limited to the Magistrate issuing a warrant
to a stated inspector, usually the inspector who seeks the warrant. Since
warrants are often sought in a different place to where they are executed,
this limits the effective functioning of the Act, since the person who seeks
the warrant must execute the warrant. This amendment allows for
flexibility in the execution of the warrant by any inspector and brings these
warrant provisions in line with provisions in the Vegetation Management
Act 1999 and the Water Act 2000. Note that the warrant must still be
executed by an inspector under this Act.
Clause 98 Amendment of s 65 (Warrants--procedure
before entry)
This clause amends section 65 of the Marine Parks Act 2004 to ensure that
any authorised officer entering a place under a warrant must follow the
procedure in this section before entry. This amendment is consequential to
the amendment of section 62 in this Bill.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 99 Insertion of new ss 145A and 145B
This clause inserts new sections 145A and 145B into the Marine Parks Act
2004.
Section 145A Chief executive's general powers
New section 145A relates to departmental officers undertaking marine park
management activities, for example conducting turtle monitoring, in a
marine park. This section makes it clear that the chief executive does not
require an authority under the Marine Parks Act 2004 to enable marine
park management activities to be undertaken that support achieving the
object of the Act. This section would also apply to persons acting on behalf
of the chief executive. This section does not remove the requirement for
persons not acting on behalf of the chief executive from obtaining a marine
park permit.
Section 145B Entry or use by authorised persons without
permission or giving notice
Similar to section 145A, new section 145B relates to authorised officers
undertaking marine park management activities in a marine park. This
section supports section 145A through confirming that an authorised
officer under the Marine Parks Act 2004 does not require permission and is
not required to give notice to the chief executive to undertake day-to-day
management activities within the park. For example, this provision
provides that turtle research can be conducted by authorised officers under
the Marine Parks Act 2004 without the need to obtain a permission.
Clause 100 Insertion of new s 147A
This clause inserts a new section 147A into the Marine Parks Act 2004 to
provide that an inspector under the Marine Parks Act 2004 is protected
from prosecution when undertaking an action directed by the Minister or
chief executive, or when exercising a function under the Act. In addition, a
person acting under the direction of the Minister, the chief executive or an
inspector is not liable for prosecution.
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Environmental Protection and Other Legislation Amendment Bill 2010
This does not change the status quo, since actions for carrying out statutory
functions do not normally create liability. However, this section provides
certainty to staff members and volunteers of the protection that is afforded
to their actions. In particular, uncertainty about the position under the
Marine Parks Act 2004 arises because the Nature Conservation Act 1992
has a provision conferring the immunity while the Marine Parks Act 2004
does not.
These provisions potentially conflict with the fundamental legislative
principle that legislation should not confer immunity from proceeding or
prosecution without adequate justification. However, immunity is justified
in these circumstances since actions taken in carrying out statutory
functions do not normally attract liability. This section expressly provides
for that protection to clarify the matter and to assure authorised persons,
rangers and volunteer workers that the immunity is in place so they can
carry out marine park duties with assurance, particularly if urgent action is
required for conservation or safety reasons. The amendment mirrors the
existing section 143 in the Nature Conservation Act 1992 and will provide
consistent protection for staff operating across national park and marine
park boundaries.
Part 6 Amendment of Nature
Conservation Act 1992
Clause 101 Act amended
This clause states that this part amends the Nature Conservation Act 1992.
Clause 102 Amendment of s 29 (Dedication of protected
areas)
This clause amends section 29 of the Nature Conservation Act 1992 to
remove superfluous wording in relation to dedication of a forest reserve
that is subject to a lease under the Land Act 1994, as the schedule definition
(dictionary) of state land already includes reference to a forest reserve
subject to a lease under the Land Act 1994.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 103 Amendment of s 148 (Monitoring warrants)
This clause amends section 148(4)(a) of the Nature Conservation Act 1992
to provide that where a Magistrate issues a warrant under this section the
warrant may state that any conservation officer may enter the place and
exercise the officer's powers. Currently section 148 is limited to the
Magistrate issuing a warrant to a stated conservation officer, usually the
conservation officer who seeks the warrant. Since warrants are often
sought in a different place to where they are executed, this limits the
effective functioning of the Act, since the person who seeks the warrant
must execute the warrant. This amendment allows for flexibility in the
execution of the warrant by any conservation officer and brings these
warrant provisions in line with provisions in the Vegetation Management
Act 1999 and the Water Act 2000. Note that the warrant must still be
executed by a conservation officer under this Act.
Clause 104 Amendment of s 149 (Offence related
warrants)
This clause amends section 149(4)(a) of the Nature Conservation Act 1992
to ensure that any conservation officer entering a place under a warrant
must follow the procedure in this section before entry. This amendment is
consequential to the amendment of section 148.
Clause 105 Amendment of s 175 (Regulation-making
power)
This clause amends section 175 of the Nature Conservation Act 1992 to
remove any doubt that a regulation may be made regarding the payment of
royalties and the recovery of unpaid royalties. The Nature Conservation
(Protected Areas Management) Regulation 2006 already contains a royalty
provision in relation to gravel extraction from resource reserves.
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Environmental Protection and Other Legislation Amendment Bill 2010
Part 7 Amendment of Queensland
Heritage Act 1992
Clause 106 Act amended
This clause states that this part amends the Queensland Heritage Act 1992.
Clause 107 Amendment of s 34 (Changing entries in
register)
This clause amends section 34 of the Queensland Heritage Act 1992 to
enable the chief executive to maintain entries in the Queensland heritage
register correctly. The amendment allows for the chief executive to update
information in the register to reflect new historical research and physical
changes to the Queensland heritage place, and to correct any errors of fact
contained in register entries. The amendment also provides for the
boundary of a Queensland heritage place, or statement about the cultural
heritage significance of a Queensland heritage place, to be varied with the
written agreement of the owner.
Clause 108 Amendment of s 36 (Applying to enter place
in, or remove place from, register)
This clause amends section 36 of the Queensland Heritage Act 1992 to
provide greater certainty about what information is required to accompany
an application to enter place in, or remove place from, the Queensland
heritage register.
Clause 109 Amendment of s 44 (Chief executive to give
heritage recommendation to council)
This clause amends section 44 of the Queensland Heritage Act 1992 to
provide the chief executive with the option of recommending that a place
stay on the Queensland heritage register but the entry be varied. This aligns
with the options the Queensland Heritage Council has when making a
decision.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 110 Insertion of new pt 4, div 4A
This clause inserts the new part 4, division 4A into the Queensland
Heritage Act 1992 about destroyed place recommendations.
Division 4A Destroyed place recommendations
Section 46A Chief executive may give destroyed place
recommendation
In the case of a State heritage place that has been destroyed by natural
disaster or by approved development, new section 46A provides for the
chief executive to make a recommendation under the Queensland Heritage
Act 1992, with or without application, that the place be removed from the
Queensland heritage register. The place must no longer satisfy any of the
cultural heritage criteria, and the owner must have been consulted.
This process enables the chief executive to make a timely recommendation
to the Queensland Heritage Council about the destroyed State heritage
place, and for the Queensland Heritage Council to maintain the accuracy
and integrity of the information in the register.
Clause 111 Amendment of s 47 (Council's role in
relation to heritage recommendations)
This clause amends section 47 of the Queensland Heritage Act 1992 to
provide for the consideration of, and a decision about, a destroyed place
recommendation. This amendment is consequential to the insertion of new
section 56A into the Queensland Heritage Act 1992.
Clause 112 Amendment of s 48 (Council may seek
further information)
This clause amends section 48 of the Queensland Heritage Act 1992 to
provide for the Queensland Heritage Council to seek further information in
relation to a destroyed place recommendation before making a decision.
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Environmental Protection and Other Legislation Amendment Bill 2010
This amendment is consequential to the insertion of new section 56A into
the Queensland Heritage Act 1992.
Clause 113 Amendment of s 54 (Notice of council's
decision)
This clause amends section 54 of the Queensland Heritage Act 1992 to
provide for a decision, and notice of the day it was made, to be published in
the gazette.
Currently public notice is carried out when an application is received for a
State heritage place and again at the decision stage. A heritage submission
about an application may be made within 20 business days after notice of
the application is published. Public notice at the decision stage is onerous
and unnecessary as no public submissions are received at this stage. The
requirement to give public notice at the decision stage will be replaced by
the requirement to publish a notice in the gazette to place the decision on
public record.
Clause 114 Insertion of new pt 4, div 5, sdiv 4
This clause inserts the new part 4, division 5, subdivision 4 into the
Queensland Heritage Act 1992.
Subdivision 4 Decisions on destroyed place
recommendations
Section 56A Council to make decision on destroyed
place recommendation
New section 56A provides a process for the Queensland Heritage Council
to make a decision in relation to a destroyed place recommendation. The
process is based on the Queensland Heritage Council's existing decision
making process under section 51 of the Queensland Heritage Act 1992.
The council must make a decision within 60 days after receiving a
destroyed place recommendation.
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Environmental Protection and Other Legislation Amendment Bill 2010
This process enables Queensland Heritage Council to maintain the
accuracy and integrity of the information in the register.
Clause 115 Amendment of s 67 (Notice of council's
decision)
This clause amends section 67 of the Queensland Heritage Act 1992 to
provide for a decision, and notice of the day it was made, to be published in
the gazette.
Currently public notice is carried out when an application is received for an
archaeological place and again at the decision stage. An archaeological
submission about an application may be made within 20 business days after
notice of the application is published. Public notice at the decision stage is
onerous and unnecessary as no public submissions are received at this
stage. The requirement to give public notice at the decision stage will be
replaced by the requirement to publish a notice in the gazette to place the
decision on public record.
Clause 116 Amendment of s 87 (Chief executive may
give notice about essential maintenance
work)
This clause amends section 87 of the Queensland Heritage Act 1992 to
provide for the treatment of termites and other insects under the existing
essential maintenance work provisions. In Queensland, much of our
heritage building stock is constructed of timber, and termites are a
particular problem. Early intervention is the only way to manage termites.
Clause 117 Amendment of s 122 (Changing entries in
register)
This clause amends section 122 of the Queensland Heritage Act 1992 to
enable local governments to maintain entries in a local heritage register
correctly. The amendment allows for the local governments to update
information in the local heritage register to reflect new historical research
and physical changes to the local heritage place, and to correct any errors
of fact contained in local heritage register entries. The amendment also
provides for the boundary of a local heritage place, or statement about the
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Environmental Protection and Other Legislation Amendment Bill 2010
cultural heritage significance of a local heritage place, to be varied with the
written agreement of the owner.
Clause 118 Amendment of s 136 (Issue of warrant)
This clause amends section 136(2)(a) of the Queensland Heritage Act 1992
to provide that where a Magistrate issues a warrant under this section the
warrant may state that any authorised person may enter the place and
exercise the authorised person's powers. Currently this section is limited to
the Magistrate issuing a warrant to a stated authorised person, usually the
authorised person who seeks the warrant. Since warrants are often sought
in a different place to where they are executed, this limits the effective
functioning of the Act, since the person who seeks the warrant must
execute the warrant. This amendment allows for flexibility in the execution
of the warrant by any authorised person and brings these warrant provisions
in line with provisions in the Vegetation Management Act 1999 and the
Water Act 2000. Note that the warrant must still be executed by an
authorised person under this Act.
Clause 119 Amendment of s 138 (Warrants--procedure
before entry)
This clause amends section 138 of the Queensland Heritage Act 1992 to
ensure that any authorised person entering a place under a warrant must
follow the procedure in this section before entry. This amendment is
consequential to the amendment of section 136.
Clause 120 Amendment of s 142 (Seizing evidence at a
place that may only be entered with consent
or warrant)
This clause amends section 142 of the Queensland Heritage Act 1992 to
insert the words `under a' warrant. This amendment is consequential to the
amendment of section 136.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 121 Insertion of new pt 15, div 3
This clause inserts the new part 15, division 3, into the Queensland
Heritage Act 1992.
Division 3 Transitional provision for
Environmental Protection and Other
Legislation Amendment Act 2010
Section 195 References to registered place
New section 195 ensures that a reference to a registered place in an Act or
document is taken to be a reference to a Queensland heritage place. This
will ensure consistency with terminology used in the Sustainable Planning
Act 2009.
Clause 122 Amendment of schedule (Dictionary)
This clause amends the dictionary of the Queensland Heritage Act 1992 to
provide for a definition of `destroyed place recommendation', and a
definition of `Queensland heritage place'. This will ensure consistency
with terminology used in the Sustainable Planning Act 2009.
Part 8 Amendment of Recreation Areas
Management Act 2006
Clause 123 Act amended
This clause states that this part amends the Recreation Areas Management
Act 2006.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 124 Amendment of s 19 (Public notice of draft
management plan)
This clause amends section 19(6) of the Recreation Areas Management Act
2006 and inserts a new subsection (7) to allow the chief executive to charge
a person who requests that a draft management plan be posted to them, for
the postage as well as for the cost of producing the copy. This provision
will facilitate cost recovery.
Clause 125 Amendment of s 26 (Public notice of draft
amendment)
This clause amends section 26(5) of the Recreation Areas Management Act
2006 and inserts a new subsection (6) to allow the chief executive to charge
a person who requests that a draft amendment be posted to them, for the
reasonable cost of postage as well as for the cost of producing the copy.
This provision will facilitate cost recovery.
Clause 126 Amendment of s 32 (Public access to
approved management plans)
This clause amends section 32(3) of the Recreation Areas Management Act
2006 and inserts a new subsection (4) to allow the chief executive to charge
a person who requests that an approved management plan be posted to
them, for the reasonable cost of postage as well as for the cost of producing
the copy. This provision will facilitate cost recovery.
Clause 127 Amendment of s 88 (Term and review of
commercial activity agreements)
This clause amends section 88(1) of the Recreation Areas Management Act
2006 to extend the maximum term of commercial activity agreements from
10 to 15 years. This provision will apply to all new commercial activity
agreements. The Tourism in Protected Areas policy framework
recommended increasing the maximum term to create a more secure
investment environment. The amendment recognises the following:
-- Longer frames are desirable to build a recognised brand in the market;
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Environmental Protection and Other Legislation Amendment Bill 2010
-- Depreciation on capital investment in assets such as tour buses is
generally longer than present permit/agreement periods; and
-- Securing capital investment from financial institutions is easier with a
longer period than present permit/agreement periods allow.
Additionally, the amendment will enhance coordination of the State
government and Great Barrier Reef Marine Park Authority (GBRMPA)
joint management of the Great Barrier Reef by ensuring a consistent length
of tenure periods for authorities, aligning with current GBRMPA maximum
terms of 15 years on tourism permissions.
Clause 128 Amendment of s 111 (Unlawfully conducting
commercial activity)
This clause amends section 111 of the Recreation Areas Management Act
2006 to insert a new exception for conducting a commercial activity, which
has been applied uniformly across the protected area legislation. The effect
of the exception is that when less than 2 people undertake filming or
photography and no structures are used, they will not be required to get a
permit or agreement. These types of activities have been assessed as
having minimal risks involved, having a minimal impact on the
environment and not value adding to the government's business.
Clause 129 Amendment of s 114 (Unauthorised
structures and works)
This clause amends section 114 of the Recreation Areas Management Act
2006 which makes it an offence to construct an unauthorised structure or
work. The amendment to this section is made to complement the change
made in section 111 regarding prescribed filming or photography activities.
Subsection (3) states that it is not an offence to erect a tripod or one person
portable hide, which is used for a prescribed filming or photography
activity. Subsection (4) defines `prescribed filming or photography
activity'.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 130 Amendment of s 115 (Unlawful lighting of
fires)
This clause amends section 115 of the Recreation Areas Management Act
2006, to clarify that it is unlawful to keep and use a fire, as well as light it
when it is prohibited. This removes a possible loophole where a person
may claim that they did not commit the offence of lighting a fire but
assumed control of an existing fire. The exemption in s115(4) has also been
amended so that the exemption to the offence covers lighting, using and
keeping a fire in the circumstances described in the section.
Clause 131 Amendment of s 153 (Issue of warrant)
This clause amends section 153 of the Recreation Areas Management Act
2006 to provide that where a Magistrate issues a warrant under this section
the warrant may state that any authorised officer may enter the place and
exercise the officer's powers. Currently this section is limited to the
Magistrate issuing a warrant to a stated authorised officer, usually the
authorised officer who seeks the warrant. Since warrants are often sought
in a different place to where they are executed, this limits the effective
functioning of the Act, since the person who seeks the warrant must
execute the warrant. This amendment allows for flexibility in the execution
of the warrant by any authorised officer and brings these warrant provisions
in line with provisions in the Vegetation Management Act 1999 and the
Water Act 2000. Note that the warrant must still be executed by an
authorised officer under this Act.
Clause 132 Amendment of s 156 (Warrants procedure
before entry)
This clause amends section 156 of the Recreation Areas Management Act
2006 to ensure that any authorised officer entering a place under a warrant
must follow the procedure in this section before entry. This amendment is
consequential to the amendment to section 153.
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Environmental Protection and Other Legislation Amendment Bill 2010
Clause 133 Amendment of s 163 (Power to stop
persons)
This clause amends section 163 of the Recreation Areas Management Act
2006 to allow an authorised officer to require a person to stop, and not to
move on, when they suspect the person is committing an offence.
Previously this section required the officer to find a person committing a
crime for them to require a person to stop. This was a problem for two
reasons. The first is that for the officer to know beyond doubt that the
person was committing an offence, they would have to stop the person and
talk with them to find out if the person was relying on one of the many
reasonable excuse exemptions. The second reason is that the question of
whether someone has committed an offence is one properly decided by a
court.
Subsection (1)(b) of this section already permits an authorised officer to
require a person to stop if they find the person in circumstances that lead
the officer to reasonably suspect the person has committed an offence
against this Act, or the authorised officer has information that leads the
officer to suspect the person has committed an offence against this Act, so
the authorised officer's powers have not been clarified and only minimally
expanded by this amendment.
Part 9 Amendment of Torres Strait
Islander Cultural Heritage Act
2003
Clause 134 Act amended
This clause states that this part amends the Torres Strait Islander Cultural
Heritage Act 2003.
Clause 135 Amendment of s 131 (Issue of warrant)
This clause amends section 131 of the Torres Strait Islander Cultural
Heritage Act 2003 to provide that where a Magistrate issues a warrant
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Environmental Protection and Other Legislation Amendment Bill 2010
under this section the warrant may state that any authorised officer may
enter the place and exercise the officer's powers. Currently this section is
limited to the Magistrate issuing a warrant to a stated authorised officer,
usually the authorised officer who seeks the warrant. Since warrants are
often sought in a different place to where they are executed, this limits the
effective functioning of the Act, since the person who seeks the warrant
must execute the warrant. This amendment allows for flexibility in the
execution of the warrant by any authorised officer and brings these warrant
provisions in line with provisions in the Vegetation Management Act 1999
and the Water Act 2000. Note that the warrant must still be executed by an
authorised officer under this Act.
Clause 136 Amendment of s 133 (Warrants--procedure
before entry)
This clause amends section 133 of the Torres Strait Islander Cultural
Heritage Act 2003 to ensure that any authorised officer entering a place
under a warrant must follow the procedure in this section before entry.
This amendment is consequential to the amendment to section 131 in this
Bill.
Clause 137 Amendment of s 138 (Seizing evidence at a
place that may only be entered with consent
or warrant)
This clause amends section 138 of the Torres Strait Islander Cultural
Heritage Act 2003 to insert the words `under a' warrant. This amendment
is consequential to the amendment of section 131.
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Environmental Protection and Other Legislation Amendment Bill 2010
Part 10 Amendment of Water Supply
(Safety and Reliability) Act 2008
Clause 138 Act amended
This clause states that this part amends the Water Supply (Safety and
Reliability) Act 2008.
Clause 139 Amendment of s 415 (Issue of warrant)
This clause amends section 415(2)(b) of the Water Supply (Safety and
Reliability) Act 2008 to provide that where a Magistrate issues a warrant
under this section the warrant may state that any authorised officer may
enter the place and exercise the officer's powers. Currently this section is
limited to the Magistrate issuing a warrant to a stated authorised officer,
usually the authorised officer who seeks the warrant. Since warrants are
often sought in a different place to where they are executed, this limits the
effective functioning of the Act, since the person who seeks the warrant
must execute the warrant. This amendment allows for flexibility in the
execution of the warrant by any authorised officer and brings these warrant
provisions in line with provisions in the Vegetation Management Act 1999
and the Water Act 2000. Note that the warrant must still be executed by an
authorised officer under this Act.
Clause 140 Amendment of s 418 (Warrants--procedure
before entry)
This clause amends section 418 of the Water Supply (Safety and
Reliability) Act 2008 to ensure that any authorised officer entering a place
under a warrant must follow the procedure in this section before entry.
This amendment is consequential to the amendment to section 415.
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Clause 141 Amendment of s 422 (Seizing evidence)
This clause amends section 422 of the Water Supply (Safety and
Reliability) Act 2008 to insert the words `under a' warrant. This
amendment is consequential to the amendment of section 415.
Part 11 Other amendments
Clause 142 Acts amended in schedule
This clause provides that the schedule amends the Acts it mentions.
Schedule Amendment of other Acts
This schedule makes minor or consequential amendments to correct minor
errors or update terminology and cross-referencing in the following Acts:
· Environmental Protection Act 1994
· Forestry Act 1959
· Marine Parks Act 2004
· Mineral Resources Act 1989
· Nature Conservation Act 1992
· Queensland Heritage Act 1992
· Sustainable Planning Act 2009
· Transport Infrastructure Act 1994
· Urban Land Development Authority Act 2007
© State of Queensland 2010
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