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Environmental Protection
QUEENSLAND
ENVIRONMENTAL PROTECTION BILL
1994
EXPLANATORY NOTES
The Environmental Protection Bill has been drafted to be consistent with
current legislative drafting practice and in modern language. As a
consequence particular sections, clauses and sub-clauses require little or no
specific further explanation and in these Explanatory Notes those parts may
be repeated or summarised in general terms only.
GENERAL OUTLINE
Objectives of the Legislation
The object of the legislation is to protect Queensland's environment
while allowing for development that improves the total quality of life, now
and in the future, in a way that maintains the ecological processes on which
life depends.
This is to be achieved by an integrated management program that is
consistent with the above stated objective and with the principles of
ecologically sustainable development.
The program is cyclical and is based upon the following phases:
(a) Phase 1 establishing the state of the environment and defining
environmental objectives.
(b) Phase 2 developing effective environmental strategies.
(c) Phase 3 implementing environmental strategies and integrating
them into efficient resource management through delegation to
resource management agencies and devolution to local
government.
(d) Phase 4 ensuring accountability of environmental strategies.
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Reasons for the Bill
Existing environmental legislation in Queensland is generally outdated.
Despite amendments, the present legislation does not reflect modern
environmental management practices, or community expectations for a
clean and safe environment. This Bill supersedes the Clean Air Act 1963,
Clean Waters Act 1971, Noise Abatement Act 1978, Litter Act 1971, Fig
Tree Pocket Noise Emission Act 1984 and the State Environment Act 1988.
The Bill provides for a range of innovative regulatory mechanisms which
enhance accountability, public participation and self-regulation. By
providing greater certainty in enforcement and operation, both industry and
the community understand their rights and obligations regarding
environmental protection. Protection of the environment is ensured by
requiring economic development to be ecologically sustainable.
Estimated Cost of Government Implementation
The estimated cost of implementing this legislation during the rest of the
financial year is $4.78m in 1994-95, $10.13m in 1995-96 and $9.13m in
1996-97. A new initiative to cover the cost in 1994-95 has been approved
provided that a reasonable proportion of this amount is generated by licence
fees and other charges levied on a `user-pays' basis. Greater equity in
distributing the cost of environment protection is to be examined in future
years; the emphasis being on `polluter-pays', in line with other States.
Consultation
In addition to normal inter-departmental consultation on the Bill in
general. and for specific provisions of the Bill, extensive community
consultation was undertaken. In September 1991, 10,000 kits containing the
Public Consultation Papers were distributed to the community. Those kits
included a green paper on the proposed legislation. Following this,
departmental officers attended 60 meetings in 32 locations across the State.
Officers also addressed specific industry and community groups. From the
comments and submissions made by these groups, a draft Bill was
prepared. In November 1993, approximately 4000 copies of the draft Bill
and commentary were supplied to the public for final comment. By the end
of January 1994, 173 submissions had been received from Government
Departments, local governments, industry bodies, unions, interest groups,
private individuals and business people. As a result of these submissions,
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and on-going liaison with the Department's Key Stakeholder group,
considerable amendments were made to the Bill.
NOTES ON PROVISIONS
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTORY PROVISIONS
Section 1 states the short title of the Act.
Section 2 provides for the commencement date of the Act
PART 2--OBJECT AND ACHIEVEMENT OF ACT
Section 3 defines the object of the Act in the terms of ecologically
sustainable development (ESD). ESD is the agreed Government policy for
achieving development both in Queensland and nationally in a manner that
does not lead to irreversible environmental degradation.
Section 4 provides for a logical methodology for achieving the object of
this Act. It demonstrates that the process of protecting Queensland's
environment, consistent with ESD, is a cyclical process of establishing
benchmarks and objectives, developing strategies for fulfilling the
objectives, implementing the strategies and most importantly ensuring that
the strategies are accountable and evaluated.
Section 5 requires all people who are given power under this Act, to use
that power to protect the Queensland environment and to do so consistent
with the principles of ESD.
Section 6 provides that wherever possible the administration of the Act
should be undertaken after consultation with the community. This provision
recognises that environmental protection is a community responsibility, and
therefore the community must have an important role in ensuring that the
objectives of the Act are achieved.
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PART 3--INTERPRETATION
Division 1--Standard Definitions
Section 7 provides that the terms and phrases used in the Act are defined
in the Dictionary which is a schedule to the Act. All definitions must only
be interpreted in their context. Terms not defined there have either the
meaning given to them by the Acts Interpretation Act or by a standard
English Dictionary.
Division 2--Key Definitions
Subdivision 1--The environment and its values
Section 8 provides the definition of "environment". This definition is the
same as the definition of "environment" used in the Local Government
(Planning and Environment) Act 1990 ensuring the consistent application
of the definition across government.
Section 9 provides the definition of "environmental value".
Subdivision 2--Environmental contamination
Section 10 provides the definition of "contamination".
Section 11 provides that the definition of "contaminant" is anything
which has the potential to cause environmental harm. Whether something is
a contaminant depends on the context in which the contaminant occurs. For
example, fresh water may be a contaminant if emptied in large quantities
into an estuary, but it would not be a contaminant if emptied into a river.
Section 12 provides the definition of "noise".
Section 13 provides the definition of "waste".
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Subdivision 3--Environmental harm and nuisance
Section 14 provides that "environmental harm" is any activity that has an
adverse or potentially adverse effect on the environment. Environmental
harm only becomes unlawful when it exceeds the thresholds of the offences
of serious, material or environmental nuisance.
Section 15 provides the definition of "environmental nuisance".
Section 16 provides that "material environmental harm" is harm that is
neither trivial nor negligible; or it causes actual or potential loss or damage
to property of more than $5,000; or it results in costs of more than $5,000
but less than $50,000 to prevent or minimise the harm, and to rehabilitate
the environment. Determining whether harm is trivial or negligible requires
the context of the harm to be considered, and the potential long term effects
of the harm. Where the consequences of the harm are uncertain the
precautionary principle should be used to help determine the level of harm.
Section 17 provides that "serious environmental harm" is harm that
causes actual or potential harm to an environmental value that is irreversible,
of a high impact or widespread, or causes actual or potential harm to an area
of high conservation value or of special significance; or causes actual or
potential loss or damage to property of more than $50,000; or results in
costs of more than $50,000 to prevent or minimise the harm and to
rehabilitate the environment. Where the consequences of the harm are
uncertain, the precautionary principle should be used to help determine the
level of harm.
Subdivision 4--Environmental management
Section 18 provides that "best practice environmental management" is
the management of the activity to achieve an on-going minimisation of the
activity's environmental harm through cost effective measures assessed
against the measures currently used nationally and internationally for the
activity. Best practice environmental management is not a static measure,
but rather one which changes as technology, knowledge and skills improve.
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PART 4--OPERATION OF ACT
Section 19 provides for the Act to cover all persons, the State, and where
possible the Commonwealth and other States. This ensures that
Government must achieve the same standards and has the same obligations
as the rest of the community.
Section 20 provides that with the exception of the Acts listed, this Act
does not effect any other Act.
Section 21 provides that no common law actions are limited by the
application of the Act and ensures that the breach of the general
environmental duty does not lead to civil right or action in common law.
Section 22 provides that where the Queensland environment is harmed
by actions taken by persons outside the State, they will be prosecuted for a
breach of this Act. Pollution does not cease at a jurisdictional boundary and
therefore it is necessary that polluters in other States that affect Queensland
may be found liable for breaches of Queensland law.
CHAPTER 2--ENVIRONMENTAL PROTECTION
POLICIES
General
Environmental Protection Policies (EPPs) are subordinate legislation
which provide issue-specific standards and criteria for particular
environmental problems. Policies may cover the whole State or an area
such as an airshed or a catchment. The first EPPs will address the
management of air, water, noise and waste.
EPPs will also be developed to enable other Departments to administer
their environmental responsibilities.
EPPs:
(i) control environmental problems in a consistent manner;
(ii) provide frameworks for decision-making by listing
environmental constraints;
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(iii) act as a guide to protecting the environment by preventing,
controlling or reducing deterioration of the environment;
(iv) are reviewed every seven years for effectiveness in protecting the
environment; and
(v) allow national standards to be easily incorporated into Queensland
environmental protection.
Section 23 provides that only the Minister can determine whether or not
to proceed with an EPP.
Section 24 provides for the content of an EPP and provides a non-
exclusive list of possible areas an EPP may cover.
Section 25 provides the details on what an EPP must contain to ensure
that EPPs are consistent and effective in their approach to managing
environmental issues by ensuring that all EPPs contain common elements
and are assessed against pre-determined performance indicators.
Section 26 provides that ample public notice is given that the Minister
intends to prepare a draft EPP. It details the minimum requirements for that
notification, who may make submissions, and the minimum time frame for
submissions to be made.
Section 27 requires the Minister to consider all submissions that were
properly made on the notice to prepare a draft EPP.
Section 28 provides that ample public notice is given that the Minister has
prepared a draft EPP. It sets out the minimum requirements for that
notification, who may make submissions, and the minimum time frame for
submissions to be made.
Section 29 requires the Minister to consider all submissions that were
properly made on the draft EPP, and provides that the Minister must give a
written response on whether the submission was accepted or rejected to any
person asking for a response to their submission. If the submission is
rejected by the Minister, then reasons for that rejection must be provided.
This ensures public accountability by providing feedback to those who
request information about their submission.
Section 30 states that EPPs are subordinate legislation and require
approval of the Governor in Council prior to them having effect. This
section also requires that local governments and the State Government
make the EPP available for inspection by the public. This provision
guarantees that the public has access to laws that affect them.
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Section 31 ensures that once an EPP has been approved by the
Governor-in-Council, administering authorities must implement the policy.
EPPs are not optional. They are an essential component of this Act and
must be enforced.
Section 32 provides that substantive policy amendments to an EPP can
occur after going through similar public consultation processes as were
required to prepare the original policy. This assures the community that the
consensus nature of an EPP continues, despite amendments being made to
it over its life.
Section 33 requires the Minister to review each EPP at least once every
seven years. The chief executive must prepare a report on the EPP's
environmental effectiveness and economic efficiency, which the Minister
must consider. This provides that the standards and values reflected in
EPPs are an accurate reflection of the requirements of the community.
Section 34 implements the requirements of the National Environment
Protection Council (Queensland) Act 1994. This provision fulfils
Queensland's obligation under the Intergovernmental Agreement on the
Environment and ensures that Queensland environmental standards are at
least as strong as any national environmental standards.
CHAPTER 3--ENVIRONMENTAL
MANAGEMENT
General
This chapter states that the entire community has an obligation to protect
the environment. Ultimately this obligation can be fulfilled by integrating
environmental considerations into decision-making. Once this is done, a
major component of ecologically sustainable development is achieved.
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PART 1--INTERPRETATION
Section 35 provides that "application date" means a date used in licences
or environmental management programs for administrative purposes.
PART 2--ENVIRONMENTAL DUTIES
Section 36 requires that all members of the community abide by their
general environmental duty to ensure that environmental harm is
minimised. This duty, although absolute, provides that decisions regarding
environmental protection should take into account:
(i) the nature of the harm or potential harm;
(ii) the sensitivity of the receiving environment;
(iii) the current state of technical knowledge relating to the activity;
(iv) the likelihood of successful mitigation of the harm; and
(v) the financial implications of the various measures that relate to the
type of activity.
No offence is associated with this provision. This provision has another
important role in that it provides a defence to the offences related to causing
unlawful environmental harm. If defendants can show that they fulfilled
their `general environmental duty', then they cannot be found guilty of
causing unlawful environmental harm.
Section 37 requires that a person who becomes aware that serious or
material environmental harm is being caused or threatened by an activity
they are involved in, has a duty to report that harm. Employees have a duty
to report the harm to their employer who then assumes the duty to notify
the administering authority. Where an employer cannot be contacted, the
person must notify the administering authority. People are exempt from this
requirement if the harm is occurring under an environmental protection
policy, an environmental management program, an environmental
protection order, an authorisation or a direction from an authorised person
in an emergency.
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Any notice given by the person is inadmissible in evidence in
proceedings for an offence against the Act.
This provision recognises that it is impossible for administering
authorities to inspect and monitor all polluting activities, and that people
have a responsibility to assist in protecting the environment.
PART 3--ENVIRONMENTALLY RELEVANT
ACTIVITIES
General
All human activities have some impact on the environment. Some
activities have a greater effect than others. This part recognises this by
categorising human activities according to the harm they do. The greater the
harm or risk of harm, the greater the regulation of the activity.
Section 38 provides that activities can be prescribed by regulation as
environmentally relevant activities if they release, or may release
contaminants, and the release of the contaminant may cause environmental
harm. Environmentally relevant activities are prescribed as either a level 1
activity or a level 2 activity. Level 1 activities involve a more serious risk of
environmental harm.
Section 39 provides that carrying out a level 1 environmentally relevant
activity without a licence is an offence.
Section 40 provides that a regulation may be written to provide that a
level 2 environmentally relevant activities must require approval before it
can be carried out.
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PART 4--ENVIRONMENTAL AUTHORITIES
Division 1--Applications for, and grant of, environmental authorities
General
This division recognises that, although all human activities cause harm, it
is not possible with current levels of technology to make human activities
benign to the environment. Therefore, an appropriate strategy to manage the
more environmentally damaging activities is to licence them and then
control and monitor the discharges they make into the environment.
Section 41 provides that applications for environmental authorities must
be made in an approved form, be supported by adequate environmental
information, and be accompanied by an application fee. Information
requirements and fees are set with the aim of internalising environmental
costs into the business structure of the enterprise and getting applicants to
take responsibility for their discharges.
Section 42 requires that applicants for a licence publicly notifies the local
community of their application. The notice must be in an approved form
and invite submissions from interested parties to be provided to the
administering authority. This will avoid disputes and provide investment
certainty by gaining all points of view before decisions are made.
Section 43 provides a 28 day time-frame within which the administering
authority must decide the application for an environmental authority. Before
deciding the application the administering authority must be satisfied that
proper public notice of the application had been given.
Section 44 provides a list of the criteria that must be taken into account by
the administering authority prior to making a decision about the application
for environmental authority. This ensures that the decision-making process
is fair and transparent.
Section 45 provides that upon approval, all environmental authorities
must be recorded in a public register. Those who made submissions must
receive notification of the authority, stating the reasons for the decision. This
ensures accountability and transparency for the decision-making process.
Section 46 provides that the administering authority may issue a licence
subject to any conditions the authority considers necessary or desirable to
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meet the objects of the Act. Such conditions may be appealed by the
applicant and interested parties.
Section 47 provides that an applicant may obtain a provisional licence
only if the applicant undertakes to comply with all relevant EPPs. Such a
provisional licence sets out the site-specific standards required for a full
licence and will contain agreed performance indicators and reporting
requirements to ensure the administering authority is informed of progress.
A provisional licence may operate for a maximum period of five years.
Section 48 provides that the administering authority may refuse an
application for a licence if it is satisfied that the applicant is unsuitable to
hold a licence. Some examples of unsuitable applicants are listed.
If an application is refused, the administering authority must give the
applicant and interested parties written reasons for refusal within ten days of
making the decision. Such a decision can be appealed by the applicant.
Division 2--Amendment of licences
Section 49 provides for the amendment of licence conditions by the
licensee. The proposed amendments must be advertised where there is an
increased likelihood of environmental harm. It is considered that an increase
in ten percent of a contaminant into the environment provides an increased
likelihood of environmental harm. The applicant may appeal the
administering authority's decision.
Section 50 provides for the amendment of licence conditions in certain
circumstances by the administering authority. The licensee's view is sought
and then the administering authority makes a decision which is open for
review and subsequent appeal. This process ensures fairness to the licensee.
Section 51 provides that if the administering authority amends a licence, a
copy of the amended licence must be given to the licensee to ensure that the
licensee is aware of any new responsibilities.
Division 3--Dealing with licences
Section 52 provides for licensees to surrender a licence if they provide
written notice to the administering authority.
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Section 53 provides that a seller of a licensed premise is obliged to notify
any prospective buyer that the activity is licenced. This ensures that the
purchase price of the activity reflects the environmental management
requirements of the activity. This section allows the potential purchaser to
rescind a contract to purchase if the seller has not made a disclosure about
licence obligations.
Section 54 provides that the licensee must give written notice to the
administering authority that the activity has ceased, within 14 days of the
environmentally relevant activity ceasing.
Section 55 provides that applications for transfer of licence must be in an
approved form, be supported by adequate information and be accompanied
by a fee to cover administrative costs.
Section 56 provides that the administering authority must make a
decision about the transfer of a licence within 28 days.
Section 57 provides the administrative and time requirements for an
administering authority to transfer a licence.
Section 58 provides that the administering authority may refuse an
application for a transfer of a licence if it is satisfied that the applicant is
unsuitable to hold a licence.
If an application is refused, the administering authority must give the
applicant and interested parties written reasons for refusal within ten days of
making the decision. Such a decision can be appealed by the applicant.
Division 4--Suspension and cancellation of licences
Section 59 provides that the administering authority may cancel or
suspend a licence if the administering authority is satisfied that the licensee
has been convicted of an offence under the Act, or the licence was issued
because false or misleading information was provided to the administering
authority. Any suspension or cancellation can only be done by providing
written notice to the licensee. Licences will only be cancelled in extreme
circumstances as the cancellation may have the effect of shutting down the
business.
Section 60 provides the procedure for suspension and cancellation of a
licence. It allows the licensee to make written representations to the
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administering authority showing why the licence should not be suspended
or cancelled. This provision ensures that licences are not cancelled without
the licensee's knowledge and without giving the licensee an opportunity to
argue against the cancellation.
Division 5--General
Section 61 provides that, before making a decision, the administering
authority may require an applicant for an authority to provide further
information to assist the administering authority in properly gauging the
environmental risk. The decision to require additional information is subject
to review and appeal.
Section 62 provides that the administering authority may investigate the
suitability of an applicant to hold an environmental authority.
Section 63 allows the administering authority to call a conference of the
applicant, interested parties and itself, to discuss issues relating to the
issuing of the licence. Mediation should be used in the conference in an
attempt to gain agreement and avoid court action.
Section 64 provides that the administering authority may extend the time
for deciding an application where the information is inadequate or the issues
are more complex than usual. Written notice of a decision to extend and
reasons for the decision must be given to the applicant and interested
parties.
Section 65 provides that where only a minor fault has occurred in the
public notification process, the administering authority may, at its
discretion, decide the application. This ensures that the approval system
does not get delayed by technical argument if the administering authority is
satisfied that there has been substantial compliance.
Section 66 provides that where the administering authority fails to make a
decision within the time, the failure is taken to be a decision to refuse the
application. This system ensures that the administering authority makes a
decision within the time limit otherwise it faces the threat of an internal
appeal and perhaps eventual appeal through the courts.
Section 67 provides that the licensee pays an annual fee and provides
certain information on the activity. A licensee who pays late after being
reminded once will pay a late fee. A licensee who does not pay after a
second notification will have the licence cancelled.
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Section 68 provides that after the death of a licensee, another person can
hold the licence if this is approved by the administering authority.
Section 69 provides that a licensee must not breach a condition of the
licence. Such breaches are particularly serious as they contravene known
and previously agreed legal requirements.
PART 5--ENVIRONMENTAL EVALUATIONS
General
Ecological processes and environmental interactions are highly complex.
Such complexity can make environmental decision-making difficult.
Environmental evaluations provide an important way of gaining
environmental information so that rational and informed decisions can be
made.
Section 70 explains the meaning of environmental evaluation. There are
two kinds of environmental evaluations: environmental audits and
environmental investigations. An environmental audit is site specific and
addresses serious or potentially serious environmental problems that cannot
be evaluated by normal inspections. Environmental investigations are
designed to examine serious or potentially serious environmental problems
that are not necessarily site specific.
Section 71 provides the triggers that allow an administering authority to
require an environmental audit and makes it an offence not to comply.
Section 72 provides the triggers that allow an administering authority to
require an environmental investigation and makes it an offence not to
comply.
Section 73 specifies what information the administering authority must
include in a notice to a person before the person needs to undertake an
environmental evaluation. The requirements of the evaluation will be
tailored to the particular environmental problem to ensure a useful yet cost-
effective investigation.
Section 74 provides for an accountability mechanism to ensure the
environmental audit or investigation is credible. The report must be
accompanied by a statutory declaration.
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Section 75 provides for the administering authority to respond to the
environmental report. If the evaluation is inadequate, then it may be re-done
to address the terms of reference properly. If the evaluation discloses a need
for remedial action, this may be taken. If the evaluation shows a need for
more data, this may be required. This approach is used to enable a staged
and cost-effective approach to investigating a complex problem by keeping
the terms of reference as narrow as possible.
Section 76 provides that the cost of undertaking an environmental
evaluation and report is borne by the person from whom it is required. This
ensures that those who get a benefit from using the environment are those
who pay for ensuring that it is protected. Internalising the costs of
environmental protection are an important component of ensuring that
ecologically sustainable development occurs.
Section 77 provides that under certain circumstances an administering
authority may extend the time prescribed for making its decision on the
environmental report.
Section 78 provides that if the administering authority fails to make a
decision on the environmental report within the given time, this will deemed
to be a decision to refuse to accept the report. This decision may be appealed
by the applicant. This provision ensures that action is taken by the
administering authority to evaluate the report. If the authority takes no
action, it opens itself to internal appeals and possible expensive court action.
PART 6--ENVIRONMENTAL MANAGEMENT
PROGRAMS
General
Environmental management programs (EMPs) are powerful tools for
managing the environmental impacts of human activities. EMPs have
several uses. They allow businesses which are not complying with an
environmental standard the time necessary to improve their processes to
compliance level, without fear of prosecution. They allow businesses to
develop their own licence conditions to ensure that the licence provides the
most cost-effective environmental management. If such `applicant
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developed' licences meet all applicable environmental standards they can be
approved by the administering authority. EMPs can also provide protection
to businesses that notify authorities that they have broken the law and who
undertake to develop an EMP. They allow a controlled method for
temporary situations where environmental harm may arise, such as for
equipment maintenance. Finally, administering authorities can ask
businesses to prepare an EMP to cover potential or actual environmental
problems.
EMPs are accountable documents and failure to comply with one is a
serious offence.
Section 79 defines an environmental management program as a site-
specific program designed to minimise environmental harm or outline the
transition to an environmental standard.
Section 80 provides the requirements for the content of an EMP. An
EMP requires measurable performance indicators upon which the
performance of the EMP holder will be held legally accountable.
Section 81 allows an administering authority to request the preparation
and submission of a draft EMP as a licence condition. This ensures that
where a process is inherently environmentally risky, or a licensee cannot
immediately reach the required environmental standard, a legally
enforceable mechanism is in place to ensure that the required standards are
met and kept. Where an EMP is part of a licence condition, failure to
comply with the EMP may lead to a charge for breach of EMP or breach of
a licence condition.
The administering authority may also require an EMP where a public
authority's or person's activity is causing, or may cause, environmental
harm; or the person or authority cannot comply with an EPP immediately.
The written notice requiring the draft EMP must detail what led to the
notice, the environmental problem to be addressed, and the period over
which the program is to be carried out.
Section 82 provides that a draft EMP may be submitted voluntarily to the
administering authority for consideration. The draft EMP may be a
document not prepared for the purposes of this Act, but which complies
with the requirements for an EMP. This ensures that companies that have
prepared environmental management plans do not have to go through the
process again to prepare an environmental management program.
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Section 83 provides that a draft EMP submitted for approval to the
administering authority must be accompanied by a fee.
Section 84 provides that draft EMPs that have a projected life of more
than three years must go for public consultation. An EMP operating beyond
three years suggests that the company has a significant compliance problem
and it is appropriate that the community which has to endure the
environmental problems caused by non-compliance have an opportunity to
comment on the draft EMP. The provision requires that the notice to
produce a draft EMP is advertised in a geographically appropriate
newspaper, that the notice is placed on the premises subject to a draft EMP
and the notice is provided to all adjoining premises.
The notice must be in an approved form, it must invite submissions on
the draft EMP, and give interested parties at least ten days to provide their
submissions to the administering authority.
Section 85 provides that where a draft EMP is submitted, the
administering authority may require additional information.
Section 86 allows the administering authority to call a conference of the
applicant, interested parties and itself, to discuss issues relating to the
issuing of the licence. More formal methods of mediation may be used in
the conference in an attempt to gain agreement and avoid court action.
Section 87 requires the administering authority to decide whether to
approve or reject a draft EMP within 28 days of the application date and
what criteria must be used in making its decision.
If the administering authority approves the draft EMP then the
administering authority must issue the applicant with a certificate of
approval for the EMP. This certificate may be issued subject to any
conditions that the administering authority considers appropriate. The
applicant may appeal against the conditions. If the EMP was refused then
written reasons must be given. This ensures accountability of the decision-
making process.
Section 88 provides the criteria for deciding the draft EMP.
Section 89 provides that where an EMP has been approved by an
administering authority, a certificate of approval must be given to the EMP
holder. Any conditions that the administering authority considers
appropriate may be specified in the certificate.
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Section 90 provides that where a draft EMP is not approved then the
applicant must be given notice and the applicant may appeal the decision.
Section 91 provides that under certain circumstances the administering
authority may extend the period for considering the draft EMP.
Section 92 provides that where only a minor fault has occurred in the
public notification process, the administering authority may, at its
discretion, decide the application. This ensures that the approval system
does not get `bogged down' by technical argument if the administering
authority is satisfied that there has been substantial compliance.
Section 93 provides that if an administering authority does not make a
decision on the draft EMP within 28 days, the administering authority is
deemed to have decided to reject the draft EMP. This decision may be
appealed by the applicant. This provision ensures that action is taken by the
administering authority to evaluate the EMP. If the authority takes no
action, it opens itself to internal appeals and possible expensive court action.
Section 94 provides that the holder of a certificate of approval for an
EMP must produce an annual return within 30 days of the annual
anniversary of the approval. This ensures accountability for the EMP
process and gives the administering authority guaranteed warning of
potential problems with the EMP.
Section 95 makes it an offence for an EMP holder to contravene the
EMP.
Section 96 provides that an approved EMP holder cannot be prosecuted
for a breach of a licence condition or an environmental protection policy, if
the approved EMP specifically addresses the contravention of the specific
licence condition or specific provision of the environmental protection
policy. This section aims to encourage potential offenders against the Act to
notify the administering authority of their potential breach and undertake to
improve their environmental performance through entering into an EMP.
Section 97 provides that the seller of a business to which an EMP relates
must give written notice to a prospective buyer before a sale contract is
made. If notice is not given, the purchaser may rescind the contract.
The holder of an EMP must inform the administering authority of the
sale of a place or the cessation of an activity to which the EMP relates. This
ensures that records are maintained and the administering authority is aware
of what potential threats to the environment exist within its jurisdiction.
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Section 98 provides that where an activity conducted under an EMP
stops, the holder of the EMP must advise the administering authority.
Section 99 states that the purpose of an EMP is to ensure that the Act is
complied with by the time the environmental management program expires.
PART 7--SPECIAL PROVISIONS ABOUT
VOLUNTARY SUBMISSION OF ENVIRONMENTAL
MANAGEMENT PROGRAMS
General
This part provides companies which breach this Act and voluntarily
inform the administering authority of that breach with a mechanism which
protects them from prosecution in certain circumstances.
A company is only protected if it notifies the administering authority as
soon as it commits the breach; undertakes to prepare an Environmental
Management Program (EMP) covering the event causing the breach; and it
complies with the EMP.
It is impossible to ensure comprehensive environmental surveillance of
all relevant human activities and therefore to protect the environment it is
essential that people audit their own activities and look for environmental
harm. If they should find harm it generally would be inequitable for them to
be punished for it if they tell the administering authority. This provision
provides them with the incentive to look, the incentive to halt the harm and
the incentive to repair the damage.
Section 100 requires that prior to protection being given for the breach
and documents relating to the breach, certain conditions must be met.
Section 101 provides that documents submitted as evidence of a breach
along with the notice of that breach are inadmissible in evidence against the
person for a prosecution relating to that breach.
Section 102 requires that the administering authority provides the person
with a written receipt and a date by which a draft EMP covering the breach
must be submitted for approval.
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Environmental Protection
Section 103 provides that on receipt of the notice of the breach by the
administering authority the person cannot be prosecuted for a continuation
of the original offence that occurs after the administrative authority receives
the notice.
This protection from prosecution does not apply if the EMP is refused
by the administering authority or the draft EMP is not submitted by the date
specified previously by the administering authority. The person submitting
the program notice may appeal the decision of the administering authority.
Section 104 provides that if an EMP issued under this division for
protection for a particular breach is not complied with, the person may be
prosecuted for the original breach and any subsequent or continuing
breaches arising out of the original event.
Section 105 provides that if an administering authority considers that the
breach was wilful or so serious or the actual or threatened environmental
harm was so great that no protection should be granted, then the authority
can apply to the court to stop the protection from prosecution arising.
Section 106 provides what criteria the court must take into account in
determining whether to allow protection from prosecution to stand.
Section 107 provides that the court may make an interim order while it is
deciding an application from an administering authority that the protection
from prosecution does not apply.
PART 8--ENVIRONMENTAL PROTECTION
ORDERS
General
This Act is designed to protect the environment using a variety of
regulatory tools. Most of these aim to elicit a cooperative response from
those who are damaging the environment. However, in some cases, where
cooperation has failed, it is necessary to legally force people and businesses
to undertake an activity or stop an activity. In such cases, Environmental
Protection Orders (EPOs) can be used.
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Environmental Protection
Section 108 provides for the circumstances in which an EPO will be
issued.
Section 109 provides that before issuing an EPO, the administering
authority must consider the standard criteria. This ensures transparency of
the process and fairness in application of EPOs.
Section 110 provides for the form and content of an EPO. The recipient
of an EPO may seek review and appeal the decision to issue the EPO.
Section 111 provides for penalties where an EPO is contravened.
Contravening an EPO is a serious offence as it is likely that defendants will
have had extensive dealings with the administering authority prior to the
issuing of the EPO, and they would have a clear understanding of the
environmental harm they were causing.
Section 112 provides that prospective buyers of a place or business to
which an EPO relates, must be informed in writing of the existence of the
EPO. This allows potential buyers to investigate any consequent financial
implications before entering into the contract of sale. It also allows the
buyers to rescind a contract to purchase if the sellers have failed to disclose
the existence of the EPO.
Section 113 provides that where an activity covered by an EPO stops, the
holder of the EPO must notify the administering authority.
PART 9--FINANCIAL ASSURANCES
General
At times where untried technologies are being used, or the risk of
environmental harm is high, it is appropriate that the person undertaking the
risky activity puts up a financial assurance. This financial assurance can then
be called upon if environmental harm occurs and the person is no longer in
a position to rehabilitate the environment.
Section 114 provides that under certain circumstances an administering
authority may approve an operation that involves inherent environmental
risks, subject to a form of financial assurance, such as an insurance policy,
bond or other financial instrument being held over the operation. This
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Environmental Protection
financial assurance may extend until a time when the administering
authority is satisfied no claim is likely to be made. This is to ensure that the
public does not have to pay the costs for remediation of environmental
problems.
Section 115 provides that before requiring a financial assurance, the
administering authority must give the applicant a written "show cause"
notice. This is to give the applicant opportunity to respond and provide
information as to why the assurance is not necessary or to propose
alternatives to ensure that taxpayers or ratepayers are not left with a liability.
Section 116 provides a mechanism for an applicant to reclaim an
assurance once obligations are met.
Section 117 provides for the circumstances where an administering
authority may claim the financial assurance. The decision to claim on the
financial assurance may be reviewed and appealed.
PART 10--ENVIRONMENTAL OFFENCES
Section 118 provides that any act or omission that causes serious or
material environmental harm or environmental nuisance is unlawful, unless
it is authorised under an environmental protection policy, an environmental
management program, an environmental protection order, a licence or a
direction from an authorised person during an emergency.
It is a defence to this charge if the defendant can prove that the harm
happened while a lawful activity was being carried out and the defendant
complied with the general environmental duty. This provision recognises
that under some circumstances environmental degradation does occur and
the degradation should be punishable, unless the person causing the
degradation attempted to minimise the degradation to the best of their
ability.
Section 119 provides the offence that a person must not wilfully and/or
unlawfully cause serious environmental harm.
Section 120 provides the offence that a person must not wilfully and/or
unlawfully cause material environmental harm.
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Environmental Protection
Section 121 provides that where a person is found not guilty of serious
environmental harm, they may be found guilty of material environmental
harm. This provides the courts with greater discretion in determining the
existence of environmental harm.
Section 122 provides the offence that a person must not wilfully and/or
unlawfully cause an environmental nuisance.
Section 123 provides that a person must not contravene an environmental
protection policy (EPP). Wilful contraventions attract greater penalties than
contraventions arising from a failure to take adequate precautions.
Environmental offences under EPPs are classed from 1 to 3 to cover
different scales of environmental problems. Class 1 is the most serious
offence and attracts the greatest penalty. If a court is satisfied that an offence
occurred, but the offence was less than that with which the defendant was
charged, the defendant can be found guilty of the lesser offence. This
provides the court with greater discretion.
Section 124 defines "prescribed contaminant" and makes it an offence to
release a prescribed contaminant, other than under an authorised person's
direction within the emergency criteria provided by the Act.
The section provides for an offence where it is not necessary to prove
environmental harm.
Section 125 provides for the offence of causing or allowing a
contaminant to be placed in a position where it could cause environmental
harm or nuisance. This mirrors a provision in the Clean Waters Act to
encourage prevention rather than waiting for damage to occur.
This section provides for an offence where it is not necessary to prove
environmental harm.
Section 126 provides for the offence of interfering with any monitoring
equipment used by any person under this Act.
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Environmental Protection
CHAPTER 3--INVESTIGATION AND
ENFORCEMENT
PART 1--ADMINISTRATION GENERALLY
Section 127 provides that the chief executive of a State government
department, or the local government (for devolved activities) may appoint
authorised persons to investigate and enforce the Act.
Section 128 provides the terms of appointment for authorised persons
and lists when an authorised person ceases to hold office.
Section 129 provides that authorised persons have powers and those
powers given to local government authorised persons may only be used for
the administration and enforcement of devolved activities.
Section 130 requires that authorised persons are issued with an identity
card by the administering executive.
Section 131 provides that authorised persons, except uniformed police
officers, must identify themselves before exercising their powers.
Section 132 provides that authorised persons are not civilly liable for their
actions or omissions undertaken for the purposes of this Act if they were
done honestly and without negligence. This ensures that authorised persons
do not act, or fail to act out of fear for their own property. Any liability
which may arise through the failure of an authorised person attaches itself to
the administering authority.
Section 133 provides that the administering authority may require a
person to give it information relevant to the administration or enforcement
of the Act, by issuing them with a notice. This notice may be appealed
against by the recipient. If the recipient objects to giving information on the
grounds that it may incriminate them, the information is not admissible in
evidence against the person for any offence against this Act.
Owing to the nature of environmental offences, it is often necessary to
rely on evidence other than that able to be collected from the site of the
offence. To do this successfully, the cooperation of the community is
required. Where this is not possible, coercive powers are needed and this
provision provides these powers.
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Environmental Protection
PART 2--GENERAL POWERS OF AUTHORISED
PERSONS FOR PLACES AND VEHICLES
General
Entry of premises is a sensitive issue that requires a balance between the
needs for investigation and a person's right to privacy and intrusion. This
part provides the balance required, by ensuring that the person's consent
must be given prior to entry, otherwise the authorised person must gain a
warrant. The warrant system provides a neutral arbiter - `the magistrate' -
who ensures that the community gets the ease of investigation they require
and individuals get the protection they want. Warrants provide the balance
between community needs and individual needs. Warrants to search
premises or monitor premises are only issued after a magistrate believes
that they are necessary.
Section 134 provides that an authorised person may enter a place under
certain circumstances to find out whether the Act is being breached. It is
essential that authorised persons have an ability to enter premises, for
without that power, investigation and enforcement of the Act would be
extremely difficult owing to the nature of environmental harm.
Section 135 provides than an authorised person may enter a land under
certain circumstances if the officer suspects on reasonable grounds that
there is evidence of an offence against this Act.
Section 136 provides that an authorised person may apply to a magistrate
for a warrant to enter a place. This provision details the application
processes that need to be followed.
Section 137 provides that authorised persons do not need to apply for a
warrant in person, where they are not in a position to do so.
Section 138 provides that under certain circumstances an authorised
person may enter or board a vehicle if s/he suspects that the vehicle is being,
or has been used in an offence against the Act. This power is essential for
the control and enforcement of illegal toxic waste dumping and other illegal
waste transporting activities.
Section 139 provides the general powers that an authorised person has on
entering a place or vehicle.
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Environmental Protection
Section 140 provides that under certain circumstances authorised persons
can seize evidence.
Section 141 provides that those who have had their property seized have
certain rights and that seized evidence must be returned to the owners within
certain time limits.
Section 142 provides that if a person is convicted under this Act, items
seized may become the property of the administering authority or may be
destroyed.
PART 3--OTHER ENFORCEMENT POWERS OF
AUTHORISED PERSONS
Section 143 provides that in certain circumstances the authorised person
may require a person to give their name and address. Police officers who
are authorised to exercise powers under the special environmental protection
provisions for noise may arrest the person if the person was not complying
with the officer's request to give their name and address.
Section 144 provides that under certain circumstances the authorised
person may require a person to answer questions.
Section 145 provides that under certain circumstances the authorised
person may require a person to produce a document required to be held or
kept by the person under this Act, for inspection.
PART 4--SPECIAL ENVIRONMENTAL
PROTECTION PROVISIONS FOR CERTAIN NOISE
General
This part recognises that noise is a special environmental problem and
that the police are in a better position to handle complaints than are
authorised persons. This is particularly true when noise complaints relate to
domestic residences, such as noisy parties.
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Environmental Protection
Section 146 provides definitions specific to this part.
Section 147 provides when the part applies.
Section 148 provides that a person may complain to a police officer about
any noise which they believe is excessive. Unless the complaint is frivolous
or vexatious, the police officer must investigate the complaint.
Section 149 provides the powers of police officers, when upon
investigating a noise complaint they find that the noise is excessive.
Section 150 provides that where the occupants of a place do not heed a
noise abatement notice given by the police, the police may physically act to
stop the noise.
Section 151 provides that the owner of a thing damaged by the police
whilst stopping the noise is advised of the damage.
Section 152 provides that seized property must be returned.
Section 153 provides for the recovery of reasonable costs incurred by a
police officer during an investigation of excessive noise. This protects the
taxpayer from having to pay costs where an offence has occurred.
Section 154 provides a police officer investigating a complaint about
excessive noise with powers.
PART 5--EMERGENCY POWERS OF AUTHORISED
PERSONS
General
Where an emergency arises authorised persons need to have different
powers to that which they would exercise in their day-to-day work. For
example, if a toxic waste storage tank ruptures then they will be required to
act quickly to mitigate the damage. They would not be in a position to
obtain warrants to enter a premise, rather it is imperative that to minimise
environmental harm they have the powers to act immediately. This part
provides them with these powers.
Section 155 provides the powers that an authorised person has in an
emergency.
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Environmental Protection
Section 156 provides that in certain circumstances an authorised person
can order the release of contaminants.
PART 6--OFFENCES
Section 157 provides that it is an offence for authorised persons who
cease to be authorised not to return their identity card.
Section 158 provides that it is an offence when asked to provide
information for a person not to give it without a reasonable excuse.
Section 159 provides that it is an offence not to obey a signal under the
entry or boarding of vehicles provision, unless the person has a reasonable
excuse for not doing so.
Section 160 provides that it is an offence not to give an authorised person
reasonable help to enter or board a vehicle or bring the vehicle to a place
when requested, unless the person has a reasonable excuse for not helping.
Section 161 provides that it is an offence not to assist an authorised
person in an emergency unless the person has a reasonable excuse for not
assisting.
Section 162 provides that it is an offence not to assist an authorised
person when requested to do so unless the person has a reasonable excuse
for not assisting.
Section 163 provides that it is an offence in certain circumstances for a
person not to provide their correct name and address when requested to do
so.
Section 164 provides that it is an offence not to answer a question from
an authorised person in an emergency unless the person has a reasonable
excuse for not answering.
Section 165 provides that it is an offence for a person not to produce a
document when requested to do so, unless the person has a reasonable
excuse for not complying.
Section 166 provides that it is an offence for a person not to comply with
a noise abatement direction.
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Environmental Protection
Section 167 provides that it is an offence for a person to unlock, unseal or
use property which was, locked, sealed or restrained by an authorised
person within 24 hours of the noise abatement direction being given.
Section 168 provides that it is an offence for a person to whom a notice
was given under the emergency powers provision not to comply with the
notice.
Section 169 provides that it is an offence for a person, to whom a
direction is given to release a contaminant, not to comply with the direction,
unless the person has a reasonable reason for not complying with it. When
complying the person must attempt to minimise harm.
Section 170 provides that it is an offence for a person to give to an
authorised person a document that the person knows is false or misleading.
This section does not apply if the person informs the authorised person
of the extent and nature of the misleading or false information and gives the
officer the correct information.
Section 171 provides that it is an offence for a person to give to an
authorised person information that the person knows is false or misleading.
Section 172 provides that it is an offence to obstruct an authorised person
without reasonable excuse. This section also provides that a person must
not abuse or intimidate an authorised person.
Section 173 provides that it is an offence to impersonate an authorised
person.
Section 174 provides that a person who attempts to commit an offence
against this Act does commit an offence.
PART 7--GENERAL
Section 175 provides that before seeking entry to a place the authorised
person must inform occupiers of their right to refuse entry. If consent is
given, the authorised person may ask the occupiers to sign an
acknowledgment of their consent to entry.
Section 176 provides for the accountability of an authorised person where
equipment is seized or damaged. Written notice of the particulars of the
seizure or damage must be given immediately.
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Environmental Protection
Section 177 provides that a person who incurs loss or expense because
an authorised person has exercised a power may seek compensation.
Compensation may be ordered by a court only if it is just in the
circumstances of the particular case. Compensation may be claimed from
the local government (if applicable) or the State.
Section 178 provides that a person who has been required to carry out the
direction of an authorised person in an emergency may claim for the
reasonable costs and expenses incurred. The section does not include the
person who caused or allowed the situation or emergency to occur. The
claim for compensation is to be made to the administering authority.
CHAPTER 4--LEGAL PROCEEDINGS
PART 1--EVIDENCE
Section 179 limits the debate on technicalities such as the authorisation of
persons, the records of administering authorities, the procedures adopted in
handling samples and instrumentation specifications. The defence may still
challenge the facts of a case including the accuracy of evidence.
Section 180 provides that an authorised person may present evidence of
environmental nuisance based on their senses.
This is consistent with legislation in other States and relates to the
transient or non-residual nature of problems such as odour or noise and the
question of whether such nuisance is "unreasonable interference". Such
evidence is not conclusive but merely admissible.
Section 181 allows for the establishment of the "will or intent" of a
corporation where many people are involved and it is impossible to
determine the collective state of mind. For example, to determine a breach
by a company, it is necessary only to prove that an officer of the company
breached the act whilst doing their normal duties. This section also allows
for the will of a person to be inferred from the activities of their
representatives.
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An individual who is convicted of an offence against this Act is not liable
to punishment by imprisonment if they would not have been guilty but for
this section.
PART 2--EXECUTIVE OFFICER LIABILITY
Section 182 requires that executive officers of a corporation must ensure
that their corporation complies with this Act. If they fail to ensure this then
they are deemed to have committed the offence of failing to ensure the
corporation complies with this Act.
It is a defence for an executive officer to prove that: if in a position to do
so, all reasonable steps were taken to ensure the corporation complied with
the Act; or, that the officer was not in a position to influence the conduct of
the corporation in relation to the offence.
This provision ensures that those individuals who were actually
responsible for an offence, can be punished for the offence. It is no longer
acceptable that executive officers can hide behind the `corporate veil.'
PART 3--LEGAL PROCEEDINGS
Section 183 provides that in this Act, an indictable offence is one that has
a maximum penalty of 2 years imprisonment or more. Any other offence is
a summary offence.
Section 184 states how proceedings for offences against this Act will be
undertaken.
Section 185 provides that proceedings for the summary conviction of an
indictable offence and the examination of witnesses for an indictable
offence, must be before a Magistrate.
Where proceedings for an indictable offence are brought before a justice
other than a Magistrate, action is limited by the Justices of the Peace and
Commissioners for Declarations Act 1991.
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Environmental Protection
Section 186 provides that summary proceedings for an offence against
this Act must be commenced within one year of the offence.
However, where an offence is not immediately apparent, proceedings
may be commenced within one year of the offence coming to the
complainant's knowledge, provided the offence did not occur more than
two years previously.
Section 187 provides that a person can use the defence of complying with
the general duty only where the prosecutor has been given notice. This is
done to ensure that court cases are not delayed whilst information is
collected to rebut the defence.
Section 188 provides that for the purposes of the operation of s76 of the
Justices Act 1886 unlawful acts or omissions under this Act done under
environmental authorities are exemptions.
Section 189 provides that, where powers under this Act have been
devolved to a local government, any fines are to be paid to the local
government.
However, if some party other than the local government prosecutes the
offence, a court may order that any part of the fine be paid to that party.
Section 190 provides that costs incurred by an administering authority in
repairing or remediating damage caused by an offence against this Act can
be recovered from the offender.
Whether a court will order a particular offender to pay will depend on
what is just and equitable in the circumstances.
Section 191 provides that, where a person has caused environmental
harm, the court may order that the offender pay compensation to any person
who has incurred loss or damage as a result of the offence.
A court may further order an offender to carry out rehabilitation or
restoration of the environment.
Section 192 provides that the reasonable costs of investigation are
recoverable by the administering authority from an offender convicted of an
offence under this Act.
Whether a court will order a particular offender to pay compensation will
depend on what is considered just and equitable in the circumstances.
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Environmental Protection
PART 4--RESTRAINT ORDERS
General
This part allows the Minister, an administering authority, some one
whose interests are affected by a person offending against this Act, or under
certain circumstances, any other person, to go to court and get an order
from the court to restrain a person from doing something which may be an
offence under this Act.
Section 193 provides that an order may be sought from the Court to stop
an offence or an anticipated offence against this Act and ensure that
appropriate remedies be applied. This section provides that any person may
go to Court to restrain or remedy an offence against the Act, regardless of
whether they have been directly affected. To ensure that the Court's time is
not wasted and the alleged offender is justly treated, the Court must
consider whether the application meets certain criteria. The criteria are:
· the evidence has been presented to the responsible authority and
that authority has failed to act within a reasonable time;
· that environmental harm has occurred or is threatened and the
application is likely to succeed;
· that the application has been adequately prepared and is in the
public interest;
· the case would not be an abuse of process, such as a series of
applications on the same matter, aimed at delaying a project; and
· any other matter that the Court considers relevant for maintaining
justice and equity.
When uncertainty exists in whether the case should be heard or not,
preference should be given to hearing the case, as this ensures that justice is
`seen to be done'.
To ensure that Court actions are genuine the Court may order costs if the
case was brought for obstruction and delay.
Section 194 empowers the Court to prevent environmental harm pending
the outcome of a proceeding.
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Environmental Protection
CHAPTER 5--ADMINISTRATION
PART 1--DEVOLUTIONS
General
This part enables local government to control activities of local
significance while the State retains control of activities of regional or State
significance. The powers are limited to a schedule of environmentally
relevant activities. Devolution provides the vital link between environmental
planning and local government planning.
Section 195 provides that the State Government may give local
governments power to administer or enforce the Act for all parts of the Act
other than the development of Environmental Protection Policies.
The local government must perform its devolved functions and in doing
so may charge fees and make by-laws to administer and enforce its
devolved responsibilities.
If the local government does not carry out its devolved responsibilities,
the State Government may do so and charge any costs and expenses to the
local government.
PART 2--DELEGATIONS
Section 196 provides that the Minister may delegate powers to public
servants.
Section 197 provides that the Chief Executive may delegate powers to
authorised persons or any officer of the public service.
Section 198 lists to whom the administering authority may delegate its
powers.
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Environmental Protection
PART 3--REVIEW OF DECISIONS AND APPEALS
Division 1--Interpretation
Section 199 provides that a "dissatisfied person" is a person who may
appeal against a specified decision made under this Act. Appeals go through
an internal appeals process within the administering authority making the
decision. If the person is still dissatisfied with the decision, the person can
take the appeal to the Planning and Environment Court.
Section 200 provides that those decisions listed in Schedule 1 are original
decisions and are appealable.
Division 2--Internal review of decisions
Section 201 provides that a dissatisfied person may apply for the review
of an original decision. However, if the decision was made by the most
senior officer the only recourse is to the Court as there is nobody within the
administering authority who is in a position to review the decision.
The intent of this provision is that, whilst matters of policy may not be
resolved by the review of a decision, technical mistakes or
misunderstandings may be resolved without reference to the Court.
A notice must be provided to the applicant within fourteen days of the
review decision, and must include reasons for the decision and any rights of
appeal.
Section 202 provides then an applicant in an appeal may request that the
Court delays the commencement of the original decision, while the appeal is
being heard.
Division 3--Appeals
Section 203 provides that a person dissatisfied with a review decision or
an original decision to which internal appeal does not apply may appeal
against the decision to the Court. The Chief Executive may appeal against
the decision of another administering authority.
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Environmental Protection
Section 204 provides for the timing and content of an appeal to the
Planning and Environment Court.
Section 205 provides that parties who were interested in the original
decision, are notified of the appeal and are given an opportunity to
participate in the appeal.
Section 206 provides that a person may become a respondent in the
appeal if the person properly files an interest with the Court.
Section 207 provides that a stay of the decision appealed against may be
granted on such conditions as the court deems appropriate. However, the
original or review decision remains in place until the appeal is determined or
a stay granted.
Section 208 provides for the appeal to be heard in accordance with the
applicable rules of the court. The appeal is heard afresh and the Court has
complete discretion to make a decision in place of the administering
authority.
Section 209 provides that, if in the Judge's opinion the appeal involves a
question of special knowledge, the Judge may appoint assessors to help in
deciding the appeal.
Section 210 provides that, upon application of a party to either of the
following appeals:
· the decision of an administering authority to refuse to grant a
licence or to impose conditions on a license; or
· the decision of a local authority under the Local Government
Planning & Environment Act 1990 which relates to the premises
which are the subject of the licence application or licence;
the court may order that both appeals be heard together or consecutively, or
one stayed until the other is decided. This may occur even if the parties to
the appeals are not the same. This ensures that needless delays are
minimised.
Section 211 lists the powers of the court in deciding an appeal.
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Environmental Protection
PART 4--GENERAL
Section 212 lists those matters which must be set out in a public register.
This provides for public accountability of environmental information and
decisions.
Section 213 provides that the register must be open for public access at
the administration authority's head office and other appropriate regional
offices. Extracts are available on payment of a fee.
Section 214 provides that forms may be approved by the administering
executive for use in administering this Act.
Section 215 provides that the Minister may set up advisory committees
to help administer the legislation. Members may be paid sitting fees.
Section 216 provides that a report on the administration of this Act shall
be presented by local government to the Chief Executive Officer each year.
The Chief Executive Officer must provide a report to the Parliament each
year on the administration of the Act. This ensures that administration of the
Act is publicly accountable.
Should the Minister reject a request to prepare an EPP, a brief statement
of reasons must be provided in the Annual Report. This ensures that
consistency is maintained and yet provides accountability by ensuring that
people who propose EPPs receive information about why the Minister
made a decision about their proposal.
Section 217 provides that at least every four years the chief executive
must prepare and publish a report on the state of Queensland's environment
which will establish environmental priorities and measure the success of
previous strategies.
CHAPTER 6--MISCELLANEOUS
Section 218 provides that the Minister may approve codes of practice to
ensure an activity complies with the general environmental duty. A code of
practice will be subordinate legislation and will be open for public
inspection.
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Environmental Protection
Section 219 lists those matters for which the Governor in Council may
make regulations. A regulation may prescribe fees.
Section 220 lists what regulations and guidelines a local government may
make if it has powers delegated to it by the administering authority.
CHAPTER 7--REPEALS, AMENDMENTS,
SAVINGS AND TRANSITIONAL
PART 1--REPEALS AND CONSEQUENTIAL
AMENDMENTS
Section 221 provides that those Acts specified in Schedule 2 are repealed.
Section 222 provides that those Acts specified in Schedule 3 are
amended.
PART 2--SAVINGS AND TRANSITIONAL
Division 1--Preliminary
Section 223 provides the definitions used in this Part.
Section 224 provides that this Division expires two years after
proclamation.
Division 2--Savings and transitional provisions (Clean Air Act 1963 and
Clean Waters Act 1971)
Section 225 provides that licences issued before proclamation of this Act
under the Clean Air Act 1963 or the Clean Waters Act 1971 continue in
force until cancelled by the administering authority.
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Environmental Protection
The purpose of this section is to keep current licences and ensure their
validity under this Act. Current licences will be reviewed over a period of
time to establish whether they are still appropriate given the new standards
of the environmental protection policies (EPP) and the requirement that
licences are issued subject to the standard criteria.
Section 226 provides that applications for licences made under the Clean
Air Act 1963 or the Clean Waters Act 1971 are deemed to be licence
applications under this Act.
Section 227 provides that this Division expires one year after
proclamation. This provides a time limit for the administering authority to
ensure that all licences have been reviewed.
Division 3--Transitional provisions (State Environment Act 1988)
Section 228 provides that, in keeping with current Treasury policy, all
money from licences and fines that stand to the credit of the State
Environment Trust under the State Environment Act 1988 are to be paid to
the Consolidated Fund.
Section 229 provides that this Division expires at the end of the
commencing day.
Division 4--Transitional provisions (Noise Abatement Act 1978)
Section 230 provides that an unhealthy, dangerous or offensive condition
caused by noise is not an environmental nuisance. This is to exclude noise
from the jurisdiction of this Act until the Noise Abatement Act 1978 is
repealed and replaced by a Environmental Protection Policy about noise.
Section 231 provides that this Division expires one year after
commencement or on the repeal of the Noise Abatement Act 1978,
whichever is the earlier.
Division 5--Savings and transitional provisions (Health Act 1937)
Section 232 provides that agreements made under the Health Act
regarding the discharge of waste water into a watercourse remains in force
until cancelled by the administering authority.
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Section 233 provides that this Division expires one year after
proclamation of this Act.
Division 6--Miscellaneous transitional provisions
Section 234 provides the definitions used in this Division.
Section 235 provides the time within which people carrying on
environmentally relevant activities must apply for a licence.
Section 236 allows for the prior preparation of Environmental Protection
Policies and enables the department to prepare air, noise, water and waste
policies before the legislation is proclaimed. The purpose of this provision
is to enable a smooth transition to the new Act.
Section 237 provides a special transitional provision for the agricultural
industry. Persons will comply with the general environmental duty if they
carry out an activity in accordance with current and appropriate industry
practice.
The Department of Primary Industries (DPI), in consultation with rural
producers, will develop an Environmental Protection Policy (EPP) on
agriculture. Until then, this provision is designed to protect persons who
carry out normal and accepted practices.
Section 238 provides that existing mining activities are considered to be
environmental approvals under this Act. This ensures that current mining
operations are not jeopardised by having to go through a retrospective
approval regime for activities already underway. All new mining
instruments will be environmental approvals only if the standard criteria in
this Act have been considered.
Section 239 permits interim regulations if they are necessary in the
transitional period.
Section 240 provides that this Division, other than provisions relating to
ERAs, EPPs and transitional regulations shall expire 6 months after the
commencing day.
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Environmental Protection
DICTIONARY
The dictionary provides the terms and phrases used in the Act. All
definitions must only be interpreted in their context. Terms not defined there
have either the meaning given to them by the Acts Interpretation Act or by a
standard English Dictionary. Some of the more complex definitions are
further explained below.
"environmentally relevant activity" is an activity where a contaminant
may be released into the environment and that release may cause
environmental harm. An environmentally relevant activity is
prescribed by regulation to be environmentally relevant and is
classified as a level 1 or level 2 activity. Level 1 activities involve a
more serious risk of environmental harm. Because of the risk, these
activities require specific permission for some aspects of their
operation.
"environmental management program" (EMP) is an approved and
accountable program that complies with this Act by minimising
environmental harm or by providing for the transition to a new
environmental standard. It establishes indicators of performance, the
time-frame in which they are to be achieved, and a mechanism for
monitoring compliance. An EMP provides the means by which a
business can make a voluntary, yet legally binding, commitment to
attaining accepted performance. EMPs are prepared by the business,
not by the administering authority and this ensures that the EMP is
suitable for the specific business. In return for producing an EMP, the
company is given certainty of operations while it improves its
performance. EMPs are publicly available and provide a transparent
way of ensuring a transition to normal environmental management.
"environmental protection order" is an order by the administering
authority requiring a person to do, or refrain from doing, some activity
where: an environmental evaluation shows that environmental harm
has been caused or is likely to be caused by that activity; a request to
conduct or prepare an environmental evaluation or environmental
management program has not been complied with; or to ensure
compliance with the general environmental duty, an environmental
protection policy or a condition of a license.
"environmental protection policy" (EPP) is subordinate legislation
produced by the Minister which relates to the environment or anything
that affects or may affect the environment. EPPs provide the specific
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Environmental Protection
objectives and standards that must be met for particular types of
environmental problems. Four EPPs are proposed during the first year
of this Act's life covering air, water, noise and waste. EPPs are
flexible tools and can cover any environmental issue, such as specific
industries, or geographic areas.
"monitoring warrant" is a warrant which allows an authorised person to
gain access to premises (other than those premises used exclusively
for residential purposes) to gather evidence to determine whether the
Act is being complied with. A monitoring warrant will only be granted
where there is a risk of environmental harm, actual or threatened.
© The State of Queensland 1994