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ENVIRONMENTAL OFFENCES AND PENALTIES
(AMENDMENT) BILL 1990*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The objects of this Bill are to amend the Environmental Offences and Penalties Act
1989 ("the Principal Act") and certain other Acts, so as:
(a) to vary the provisions concerning existing offences under the Principal Act and,
in particular, to increase the maximum penalty for offences committed by
individuals from $150,000 to $250,000; and
(b) to consolidate provisions concerning the protection of the environment into the
Principal Act; and
(c) to provide that it is an offence to do or omit to do anything outside New South
Wales that results in a substance coming into New South Wales and causing
harm to the environment of New South Wales; and
(d) to increase the penalties for various environmental offences from their current
maximum of $40,000 (in the case of a corporation) and $20,000 (in the case of
an individual) to a new maximum of $125,000 (in the case of a corporation)
and $60,000 (in the case of an individual); and
(e) to transfer to the Principal Act the provisions of the Local Government Act
1919 in relation to littering; and
(f) to include penalty notice provisions in the Principal Act; and
(g) to provide for the enforcement, as a civil debt, of certain orders under the
Justices Act 1902 that relate to environmental offences; and
(h) to provide a right of appeal to the Land and Environment Court against a
conviction under the Justices Act 1902 in relation to environmental offences;
and
(i) to make other minor, consequential and ancillary amendments.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day
be appointed by proclamation.
* Amended in committe - see table at end of volume.
Clause 4 is a formal provision that gives effect to the Schedule of consequential
amendments to other Acts.
Clause 5 continues the provisions of the Justices Act 1902 in relation to appeals to
the District Court in respect of certain environmental offences pending the
commencement of the provisions of proposed Schedule 2 in relation to appeals to the
Land and Environment Court in respect of such offences.
Schedule 1 contains amendments to the Principal Act.
Schedule 2 contains consequential amendments to the following Acts:
Clean Air Act 1961
Clean Waters Act 1970
Criminal Appeal Act 1912
Environmentally Hazardous Chemicals Act 1985
Justices Act 1902
Land and Environment Court Act 1979
Local Government Act 1919
Noise Control Act 1975
State Pollution Control Commission Act 1970
Variation of provisions concerning existing offences under the Principal Act
It is proposed to vary the provisions concerning existing offences in several ways.
The ancillary offences (dealing with attempts, aiding and abetting and conspiracy)
currently apply to the offence of disposing of waste without lawful authority (section 5).
Those offences are now to apply to the offence of causing substances to leak or spill
(section 6) and to the offence of causing the emission of ozone depleting substances
(section 6A--to be inserted by the Ozone Protection Act 1989). The offence of causing
substances to leak or spill is to be extended to include all leaks and spills rather than (as
is currently the case) merely leaks and spills from containers. It is also proposed to
impose liability on the owner of a substance the subject of any of those offences rather
than (as is currently the case) merely the offence of causing substances to leak or spill.
Certain changes are to be made in the wording of the provisions concerning those
offences: in particular, the expressions "harm" and "environment", fundamental to the
operation of those provisions, are to be expressly defined. As already mentioned, the
maximum penalty for an offence committed by an individual is to rise from $150,000 to
$250,000.
Consolidation of provisions concerning the protection of the environment
The provisions concerning the protection of the environment are currently to be
found not only in the Environmental Offences and Penalties Act 1989 but also in
various other Acts. Those provisions create offences, provide for procedural matters
Concerning the initiation and conduct of proceedings for offences and empower the
making of ancillary orders in relation to persons convicted of offences. It is proposed to
gather all those provisions under the Principal Act and, at the same time, to standardise
them. The Acts from which these provisions are to be d r a m - are the Clean Air Act
1961, the Clean Waters Act 1970, the Noise Control Act 1975 and the State Pollution
Control Commission Act 1970.
3
Environmental Offences and Penalties (Amendment) 1990
Acts and omissions outside New South Wales
It is proposed to insert a new section 4A into the Principal Act (Schedule 1 (3))
which will provide that a person is guilty of an offence against that Act if he or she does
or omits to do anything while outside New South Wales that causes any substance that
could harm the environment to come within New South Wales and that would, if done
or omitted within New South Wales, have given rise to such an offence.
Penalties
The penalties for offences, like the provisions creating the offences, are distributed
among various Acts. It is proposed to provide for a uniform scale of penalties within the
Principal Act. The monetary penalties for an offence against the existing sections 5, 6
and 6A of the Principal Act are currently $1,000,000) (in the case of a corporation) and
$150,000 (in the case of an individual). It is proposed to increase the penalty in the case
of an individual to $250,000. The penalties for other offences are currently $40,000 (in
the case of a corporation) and $20,000 (in the case of an individual). It is proposed to
increase these penalties to $125,000 (in the case of a corporation) and $60,000 (in the
case of an individual). Lesser penalties for particular offences will also be included in
the Principal Act (Schedule 1 (23)--proposed Schedule 1).
Littering
Littering is currently dealt with by the provisions of Division 5A of Part 10 of the
Local Government Act 1919. It is proposed to repeal those provisions and to re-enact
them, with minor modification, in the Principal Act (Schedule 1 (11--proposed section
8F).
Penalty notices
notices for the offences brought into the Principal Act are to be governed by
new provisions (Schedule 1 (12)--proposed section 8G and Schedule 1 (23)--proposed
Schedule 2). The persons authorised to issue penalty notices and the penalties payable
under such notices are to be included in the proposed Schedule. A consequential
amendment is to be made to the Justices Act 1902 so as to apply the provisions of that
Act to the penalty notices issued under the principal Act. Persons who elect to be dealt
with by a court in relation to an offence for which a penalty notice has been issued will
be liable to a maximum penalty not exceeding 3 times the amount payable under the
notice or the maximum penalty otherwise payable in respect of the offence, whichever is
the lesser.
Enforcement orders
An enforcement order is currently issued under the Justices Act 1902 to enable
amounts unpaid under penalty notices to be recovered. It is proposed to amend that Act
so as to provide that, in the case of environmental offences, the amount specified in an
enforcement order may be recovered as a debt in a court of competent jurisdiction.
Recovery in this manner is to take the place of enforcement by way of warrant of
commitment to prison, which is the manner in which unpaid fines (and other unpaid
enforcement orders) are currently enforced.
The Justices Act 1902 currently provides for a right of appeal to the District Court
against convictions for offences dealt with summarily under that Act. It is proposed that,
in relation to environmental offences, the right of appeal will be instead to the Land and
Environment Court. Consequential amendments are to be made to the Land and
Environment Court Act 1979 to confer on it the appropriate jurisdiction to hear such
appeals. These amendments will result in that Court having a sixth Division (the
Environmental Offences Appeals Division) to which such appeals will be assigned. A
further amendment to the Criminal Appeal Act 1912 is to be made so as to enable the
Court of Criminal Appeal to hear cases stated to it by the Land and Environment Court
relation to such appeals. Such a provision already exists in relation to cases stated by
the District Court.