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ENVIRONMENTAL MANAGEMENT AND POLLUTION CONTROL
AMENDMENT BILL 2012
Fact Sheet
The Environmental Management and Pollution Control Act 1994 [EMPCA] is
Tasmania's principal pollution control legislation. The Act establishes the Board of
the Environment Protection Authority and the statutory role of the Director.
The Act also confirms a duty of care for local government in the prevention of
pollution from level 1 activities and others that are not level 2 or level 3 activities.
The EPA Division has kept the Act under review since it was last amended in 2007.
Late in 2010, a Statement of Intent, proposing new amendments, was submitted to
key industry and community stakeholder groups and local government for comment.
In August 2011, Cabinet approved the drafting of a Bill to give effect to the
recommended amendments. A copy of the consultation draft of the Bill has been
reviewed by the key stakeholder groups and local government, and changes made
wherever appropriate.
For ease of review, the amendments may be grouped as follows �
General amendments
There are a number of "machinery" changes of a minor nature, designed to improve
the effectiveness of the Act, to better deliver or clarify its intent, to take account of
changes to other legislation, or to correct errors or anomalies.
Substantial amendments
The Bill also includes a range of more significant amendments, some of which
constitute substantial progression in the administration and enforcement of pollution
control policy. In summary -
Section.3 [Interpretation]: The definition of "environmental nuisance" is amended
to clarify that nuisance may be caused by the discharge, depositing or
disturbance of pollutants, and is not restricted to the "emission" of pollutants.
Section 9 [Interaction with other Acts]: Subsection 9(2) is deleted to allow action
to be taken under EMPCA in relation to oil spills in Tasmanian coastal waters,
instead of under the Pollution of Waters by Oil and Noxious Substances Act
1987 [PWONSA], where appropriate. The amendment will allow EMPCA to
apply to such incidents, particularly those of a very minor scale, and those
involving smaller boats and recreational vessels, which is not what PWONSA is
intended to focus on.
Section 27A [Classes of assessment] is substituted, and a new Schedule 5 is
inserted to clarify the criteria that the EPA Board uses to determine the
appropriate environmental impact assessment class for applications. The
amendment does not change what needs to be assessed, only the criteria used
to determine the time frame it is required to be assessed in.
Section 27B [Notice of Intent] is amended to clarify that the information included
in a Notice of Intent must be to the satisfaction of the Board.
Section 27C [Board to advise of assessment class] is amended to confirm that
notification by the Board of its choice of assessment class is linked to receipt of a
satisfactory Notice of Intent.
Section 27E [Board may require further information] is amended to provide that
where the Board requires further information from an applicant to assist it in the
compilation of site and project specific guidelines, the time limit for provision of
those guidelines is suspended, for all three assessment classes, not just Class C
assessments as the current section allows.
Section 28 [Environmental Agreements] is amended to delete subsection (6),
thereby removing the requirement for the EPA Board to seek Ministerial approval
before entering into an environmental agreement to reward industry that
operates beyond the basic environmental performance requirements of the Act.
Section 43A is inserted into Part 4, Division 1 [Information to be supplied] to
provide that it is an offence to submit false or misleading information.
Section 43B is inserted to confirm the existing intent that, for the purposes of
Environment Protection Notices, "environmentally relevant activities" can include
activities that are no longer being conducted, but that may have caused, or still
be causing environmental harm.
Section 44 is amended in respect of notices issued under(1)(d)/(2)(d) [EPNs to
vary permit conditions]. The amendments clearly set out what "vary" may
include, and confirm that a single such EPN may be issued to vary the operating
conditions of multiple permits, where these relate to activities that function as an
integrated whole, provided that the variation and consolidation does not
compromise any of the activities authorised by the individual permits [eg a
sawmill and a woodchip mill, or a quarry and a crusher].
Section 45 [Duties arising under an EPN] is amended to clarify the notification
obligation where a person ceases to be responsible for, or ceases to conduct, an
activity that is subject to an environment protection notice.
Section 45A is inserted to provide that an EPN may be transferred from one
person to another where a notification is received under section 45.
Section 46 is amended to clarify the intent of section 44(6) in relation to an
owner of land that is subject to an EPN that has been registered on the land title.
Section 51B is inserted into Part 4 - [Enforcement Provisions], Division 4 �
[General Offences] to create an offence provision for contravention of conditions
or restrictions that the Board has required to be imposed on a permit, or that the
Director has varied by EPN under s.44(1)(d).
Section 95A is inserted into Part 7, Division 1 [Powers of authorised officers].
The section provides that it is not an excuse for a person to refuse or fail to
answer a question or provide information when required by an authorized officer
or council officer under section 92 on the grounds that to do so might incriminate
the person.
The need for the amendment results from recent Magistrate Court decisions that
have effectively challenged section 95, which makes it an offence to refuse or fail
to comply with a requirement under section 92.
The policy intent does not seek to override the privilege against self-incrimination
for natural persons [although it certainly challenges the "right to silence"], but to
ensure that an officer can readily gather sufficient information to enable an
informed and accurate assessment to be made of the potential for environmental
harm resulting from an incident.
The provision upholds the common law privilege against self incrimination in
respect of individuals, in that it states that the answer or document or
information, is not admissible in evidence against a natural person. This
protection does not extend to corporations, which is consistent with s187 of the
Evidence Act 2001.
Section 102 [Regulations]: Subsection (7)(d) is amended to allow more
substantial fines to be applied to offences under Regulations
Consequential Amendment to PWONSA
During the course of considering the amendment to section 9 to allow EMPCA to
deal with minor marine oil spills, a serious error was discovered in the offence
provision [s.8] of the Pollution of Waters by Oil and Noxious Substances Act 1987
[PWONSA], relating specifically to oil spills from vessels under 400 tonnes. The
Amendment Bill therefore includes a consequential amendment to PWONSA to
rectify the problem, as follows �
Section 8 of the Pollution of Waters by Oil and Noxious Substances Act 1987
[PWONSA] is amended to correct a major error in the provisions that establish a
defence against the offence provision, and to bring the provisions of that section
into line with the corresponding section of the current version of the
Commonwealth Protection of the Sea [Pollution from Ships] Act 1983. [for which
PWONSA is "mirror" legislation for the purposes of Tasmanian waters];
The wording of subsection 8(4)(i) of PWONSA is seriously deficient. Unlike the
corresponding provision in the Commonwealth Act [s9(4)(c)], it does not limit the
defence to a maximum concentration [15 parts per million] of oil in any discharge
from small vessels. This means that the protection of the defence could be
claimed, regardless of volume or concentration of oil in any discharge or spill,
and the defence could also be claimed in any action taken under EMPCA. The
consequential amendment rectifies this by inserting the concentration limit;
In addition, the Commonwealth Act has been progressively amended over the
years to significantly clarify and simplify the provisions relating to the offence of
discharging oil, and to the defences.
Consequently, the Bill substitutes the original wording of section 8 of PWONSA,
with wording and form that closely mirrors section 9 of the current version of the
Commonwealth Act.