Commonwealth Numbered Acts

ENVIRONMENTAL LEGISLATION AMENDMENT ACT 2001 NO. 118, 2001 - SCHEDULE 2

Environment Protection (Sea Dumping) Act 1981

1 Subsection 19(4)

Omit "subsection (5) or (5A)", substitute "subsection (7)".

Fuel Quality Standards Act 2000

2 Subsection 35(4)

Omit "Administrative Review Tribunal", substitute "Administrative Appeals Tribunal".

3 Subsection 35(4)

Omit "Administrative Appeals Tribunal", substitute "Administrative Review Tribunal".

4 Section 37

After:

Divisions 3 to 7 deal with the powers and obligations of inspectors and the rights and responsibilities of an occupier of premises when an inspector seeks to exercise powers.

insert:

Division 7A deals with the analysis of samples taken under this Part and the evidentiary value of certificates containing information about the analysis of such samples.

5 At the end of subsection 41(1)

Add:

Note: See also Division 7A (about the dealing with samples taken by an inspector and the evidentiary value of certificates containing information about the analysis of such samples).

6 At the end of subsection 44(1)

Add:

Note: See also Division 7A (about the dealing with samples taken by an inspector and the evidentiary value of certificates containing information about the analysis of such samples).

7 After Division 7 of Part 3

Insert:

Division 7A—Analysing samples taken under this Part etc.
58A How sample is to be dealt with

(1)

The regulations may prescribe procedures for dealing with samples of any fuel, fuel additive or evidential material, taken by an inspector under this Part.

Conducting of tests

(2)

The regulations may provide for inspectors to arrange for tests to be carried out on such samples by other persons.

Substantial compliance with some procedures is sufficient

(3)

The regulations may provide that particular procedures (the routine procedures ) prescribed for the purposes of this section need not be strictly complied with and substantial compliance is sufficient.

(4)

However, subsection (3) does not apply to procedures for ensuring that a sample is not interfered with by anyone who is not authorised to do so.

Effect of non-compliance with the procedures

(5)

If:

(a)

the routine procedures are not substantially complied with in relation to a sample; or

(b)

the other procedures are not strictly complied with in relation to a sample;

then any certificate given under section 58B in relation to the sample is of no effect.

Subsection (1) not limited

(6)

Subsections (2) and (3) do not limit subsection (1).

58B Evidentiary certificates in relation to certain matters

Proceedings to which section applies

(1)

This section applies to any proceedings ( offence proceedings ) for an offence against a provision of Part 2.

Signing of certificate

(2)

Subject to subsection (4), in any offence proceedings, a certificate signed by any of the following persons:

(a)

an accredited person;

(b)

an authorised person in relation to an accredited laboratory;

stating, in respect of a substance, any one or more of the following:

(c)

that the person who signed the certificate was an accredited person or an authorised person in relation to an accredited laboratory (as the case may be);

(d)

when and from whom the substance was received;

(e)

what, if any, labels or other means of identifying the substance accompanied it when it was received;

(f)

what container or containers the substance was contained in when it was received;

(g)

the state of the seals on the container or containers when the substance was received;

(h)

a description of the substance received;

(i)

when the substance, or a portion of it, was analysed;

(j)

a description of the method of analysis;

(k)

the results of the analysis;

is admissible as prima facie evidence of the matters stated in the certificate and of the correctness of the results of the analysis.

Document taken to be a certificate under subsection (2) unless contrary intention established

(3)

For the purposes of this section, a document purporting to be a certificate referred to in subsection (2) is, unless the contrary intention is established, taken to be such a certificate and to have been duly given.

Certificate not to be admitted unless copy given to defendant 14 days before certificate to be admitted in evidence

(4)

A certificate must not be admitted in evidence under subsection (2) in offence proceedings unless:

(a)

the person charged with the offence; or

(b)

a barrister or solicitor who has appeared for the person in those proceedings;

has, at least 14 days before the certificate is sought to be so admitted, been given a copy of the certificate together with reasonable evidence of the intention to produce the certificate as evidence in the proceedings.

Person signing the certificate may be called to give evidence

(5)

Subject to subsection (6), if, under subsection (2), a certificate is admitted in evidence in offence proceedings, the person charged with the offence may require the person who signed the certificate to be called as a witness for the prosecution and cross-examined as if he or she had given evidence of the matters stated in the certificate.

(6)

Subsection (5) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless:

(a)

the prosecutor has been given at least 4 days notice of the person's intention to require the person who signed the certificate to be so called; or

(b)

the Court, by order, allows the person charged to require the person who signed the certificate to be so called.

Evidence in support of rebuttal of matters in certificate to be considered on its merits

(7)

Any evidence given in support, or in rebuttal, of a matter stated in a certificate given under subsection (2) must be considered on its merits and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.

Interpretation

(8)

In this section: