ENVIRONMENTAL PROTECTION AND OTHER LEGISLATION AMENDMENT ACT 2023 - SECT 53 Insertion of new ch 5, pt 14A

ENVIRONMENTAL PROTECTION AND OTHER LEGISLATION AMENDMENT ACT 2023 - SECT 53

53 Insertion of new ch 5, pt 14A

Chapter 5 —

insert—

Part 14A - Temporary authorities for emergency situations

Division 1 - Preliminary

316GA Definitions for part In this part—


"emergency situation" means—

(a) an emergency for which an authorised person may give an emergency direction or take an action under section 467; or

(b) a biosecurity event for which a biosecurity emergency order is made under the Biosecurity Act 2014 , section 113; or

(c) a disaster situation declared under the Disaster Management Act 2003 , part 4; or

(d) the following under Fire and Emergency Services Act 1990 —

(i) a situation in relation to which an authorised fire officer may take measures under section 53 of that Act;

(ii) a state of fire emergency declared under section 87 of that Act; or

(e) an emergency situation declared to exist under the Public Safety Preservation Act 1986 , section 5; or

(f) a public health emergency for which a public health emergency order is declared under the Public Health Act 2005 ; or

(g) a radiation source in relation to which an inspector may exercise a power under the Radiation Safety Act 1999 , section 148; or

(h) a discharge, or likely discharge, of pollutant into coastal waters for which an authorised officer may exercise a power under the Transport Operations (Marine Pollution) Act 1995 , section 95.

"existing ERA" , in relation to an emergency situation, means an environmentally relevant activity—

(a) for which an environmental authority is in effect; and

(b) that has increased or is likely to increase in intensity or scale as a result of the emergency situation; and

(c) for which, other than for this part, either of the following would be required—

(i) an amendment of the environmental authority;

(ii) another environmental authority.

"new ERA" , in relation to an emergency situation, means an activity that—

(a) before the start of the emergency situation, was not carried out, or was not an environmentally relevant activity; and

(b) as a result of the emergency situation—

(i) is, or is likely to be, carried out, or has increased, or is likely to increase, in intensity or scale; and

(ii) becomes an environmentally relevant activity for which, other than for this part, an environmental authority would be required.

"relevant ERA" means either of the following activities in relation to an emergency situation—

(a) an existing ERA;

(b) a new ERA.

"temporary authority" see section 316GC(1).

316GB Exclusion of s 23 in particular circumstances

(1) This section applies if, because of the operation of section 23 and other than for this section, a person would be required under a prevailing Act mentioned in section 23(2) to carry out a relevant ERA in relation to an emergency situation.

(2) Neither section 23(2) nor the prevailing Act limits the application of section 426 of this Act to the person in relation to the relevant ERA.

(3) However, it is a defence for an offence against section 426 if the person proves it would not be reasonable for the person to be required to comply with section 426, having regard to the requirement to which the person is subject under the prevailing Act.

Division 2 - Temporary authorities

316GC Making application

(1) A person may apply to the administering authority for an authority (a
"temporary authority" ) to carry out a relevant ERA in relation to an emergency situation on a temporary basis.

(2) The application must—

(a) be in writing; and

(b) include a description of—

(i) the emergency situation; and

(ii) the reasons why the activity the subject of the application is a relevant ERA in relation to the emergency situation; and

(c) be accompanied by any documents relevant to a matter mentioned in paragraph (b).

316GD Deciding application

(1) The administering authority must consider the application and decide to—

(a) grant the temporary authority; or

(b) refuse the temporary authority.

(2) The administering authority may grant the temporary authority only if the administering authority is satisfied—

(a) the application relates to a relevant ERA in relation to an emergency situation; and

(b) that granting the temporary authority is a necessary and reasonable response to the carrying out, or increase in intensity or scale, of the relevant ERA as a result of the emergency situation.

(3) If the administering authority decides to refuse the application the administering authority must, as soon as practicable after making the decision, give the applicant an information notice for the decision.

316GE Administering authority may impose conditions

(1) This section applies if the administering authority decides to grant the temporary authority to the applicant.

(2) The administering authority may impose on the authority the conditions the administering authority considers necessary or desirable to respond to the carrying out, or increase in intensity or scale, of the relevant ERA as a result of the emergency situation.

(3) Before imposing conditions under subsection (2) the administering authority must notify the applicant of the following matters—

(a) the proposed conditions;

(b) that the applicant may make submissions about the proposed conditions within a stated reasonable period.

(4) In deciding whether to impose the conditions the administering authority must have regard to any submissions made by the applicant within the stated period.

(5) However, the administering authority need not comply with subsections (3) and (4) if the administering authority considers complying with those subsections would delay the grant of the temporary authority to the detriment of the applicant, having regard to—

(a) the nature and urgency of the application; and

(b) the emergency situation to which the application relates.

316GF Granting authority

(1) If the administering authority decides to grant the temporary authority, the administering authority must give the temporary authority to the applicant.

(2) The temporary authority must state—

(a) the name of the applicant; and

(b) the relevant ERA that may be carried out under the authority; and

(c) any conditions imposed on the temporary authority under section 316GE; and

(d) the period for which the temporary authority has effect, including the days on which the period starts and ends.

(3) The period mentioned in the temporary authority under subsection (2)(d) must—

(a) be no longer than the period the administering authority considers necessary to respond to the carrying out, or increase in intensity or scale, of the relevant ERA as a result of the emergency situation; and

(b) end no later than the day that is 4 months after the day the temporary authority is granted.

316GG Effect

(1) For the period a temporary authority is in effect for a relevant ERA—

(a) the temporary authority is taken, other than for this chapter, to be an environmental authority for the relevant ERA; and

(b) if the relevant ERA is an existing ERA—

(i) the conditions of the temporary authority apply in addition to the conditions of the environmental authority for the existing ERA; and

(ii) to the extent there is an inconsistency between the conditions of the temporary authority and the conditions of the environmental authority, the conditions of the temporary authority prevail.

(2) More than 1 temporary authority may be granted under this division in relation to the same relevant ERA.