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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Environmental Protection Amendment Bill 2002
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. The Act amended 2
Part 2 -- Assessment and
implementation of proposals
4. Section 3 amended 3
5. Section 37B inserted 4
6. Section 38 amended 5
7. Section 38A inserted 8
8. Sections 39A and 39B inserted 8
9. Section 40 amended 11
10. Sections 40A and 40B inserted 13
11. Section 41 amended 14
12. Section 41A inserted 15
13. Section 43 amended 16
14. Section 43A inserted 16
15. Section 44 amended 17
16. Section 45 amended 18
17. Sections 45A, 45B and 45C inserted 19
18. Section 46 replaced by sections 46 to 46C 21
19. Section 47 replaced 25
20. Section 48 amended 26
21. Section 48F amended 27
22. Section 89 amended 28
23. Section 100 amended 28
24. Section 101 amended 30
page i
131--3
Environmental Protection Amendment Bill 2002
Contents
25. Schedule 1 amended 32
26. Schedule 2 amended 32
Part 3 -- Environmental regulation
Division 1 -- Amendments to Environmental
Protection Act 1986
27. Long title amended 33
28. Section 3 amended 33
29. Section 3A inserted 35
30. Section 15 amended 37
31. Section 16 amended 37
32. Section 26 amended 37
33. Section 35 amended 37
34. Section 48 amended 38
35. Heading to Part V replaced 38
36. Section 49 amended 38
37. Sections 50A, 50B, 50C and 50D inserted 39
38. Section 51 amended 41
39. Part V Division 3 heading inserted 41
40. Section 53 amended 42
41. Section 56 amended 43
42. Section 60 amended 43
43. Section 63A inserted 43
44. Part V Division 4 heading and section 64A inserted 44
45. Section 65 amended and transitional 44
46. Various references to "pollution abatement notice"
amended 48
47. Section 66 amended 48
48. Section 69 amended 49
49. Section 71 amended 49
50. Section 72 amended 49
51. Section 73 amended and transitional 50
52. Sections 73A and 73B inserted 53
53. Part V Division 5 heading inserted 56
54. Section 74 amended 56
55. Sections 74A and 74B inserted 57
56. Section 75 amended 59
57. Section 89 amended 59
58. Section 90 amended 61
59. Section 92 amended 61
page ii
Environmental Protection Amendment Bill 2002
Contents
60. Section 92B amended 61
61. Section 95 amended 62
62. Section 96 amended 62
63. Section 103 amended 62
64. Section 111 amended 63
65. Section 122A inserted 63
66. Schedule 1 amended 64
67. Schedule 2 amended 65
Division 2 -- Consequential amendments to other
Acts
68. Consequential amendments 66
Part 4 -- Licensing and works
approvals
69. Section 3 amended 69
70. Section 52 amended 69
71. Section 53 amended 70
72. Section 54 amended 70
73. Section 55 amended 71
74. Section 56 amended 71
75. Section 57 amended 72
76. Section 58 amended 73
77. Section 59 replaced by sections 59, 59A and 59B 73
78. Section 60 amended 77
79. Sections 61 and 62 replaced by sections 61, 62 and
62A 78
80. Section 64 amended 83
81. Section 68A inserted 83
82. Section 102 amended 86
83. Section 105 amended 86
84. Section 109 amended 86
85. Schedule 1 amended 86
86. Schedule 2 amended 87
Part 5 -- Financial assurances
87. Part VA inserted 89
88. Schedule 1 amended 96
89. Schedule 2 amended 96
page iii
Environmental Protection Amendment Bill 2002
Contents
Part 6 -- Environmental protection
policies
90. Section 5 amended 97
91. Section 26 amended 97
92. Section 28 amended 97
93. Section 30 replaced 98
94. Section 35 amended 98
95. Section 36 amended 99
96. Schedule 2 amended 100
97. Approved policies amended and savings provisions 100
Part 7 -- Appeals
98. Section 3 amended 103
99. Section 102 amended 103
100. Section 106 replaced 104
101. Section 107 amended 105
102. Sections 107A, 107B, 107C and 107D inserted 106
103. Section 109 amended 108
104. Schedule 7 inserted 109
Part 8 -- Bilateral Agreements
105. Section 3 amended 112
106. Section 16 amended 112
107. Section 17 amended 112
108. Section 120 amended 113
Part 9 -- Clearing permits
Division 1 -- Amendments to Environmental
Protection Act 1986
109. Section 3 amended 114
110. Part V Division 2 inserted and transitional provisions 114
111. Section 70 replaced and transitional provisions 136
112. Section 101A inserted 141
113. Section 105 amended 143
114. Section 109 amended 143
115. Schedule 1 amended 143
116. Schedules 5 and 6 inserted 144
page iv
Environmental Protection Amendment Bill 2002
Contents
Division 2 -- Consequential repeal and
amendment of Soil and Land Conservation
Regulations
117. Soil and Land Conservation (Clearing Control)
Regulations 1991 repealed 149
118. Soil and Land Conservation Regulations 1992
amended 149
119. Transitional provisions 149
120. Wildlife Conservation Act 1950 sections 16 and 23D
amended 150
Part 10 -- Miscellaneous
121. Section 3 amended 152
122. Section 4A inserted 152
123. Section 5 amended 154
124. Section 12 amended 154
125. Section 16 amended 155
126. Section 23 repealed 155
127. Section 81A amended 155
128. Section 99 amended 156
129. Section 99A amended 156
130. Section 99J amended 156
131. Section 99K amended 156
132. Section 111A inserted and Schedule 1 amended 157
133. Section 114 amended 158
134. Section 114A inserted 159
135. Section 118 replaced 160
136. Section 121 replaced 162
137. Section 123 amended 162
138. Schedule 2 amended 162
139. Schedule 3 amended 163
140. References to "Chief Executive Officer" 164
141. Environmental Protection (Landfill) Levy Act 1998
amended 166
142. Control of Vehicles (Off-road Areas) Act 1978
amended 166
Schedule 1 -- Minor amendments to
section 3(1)
page v
Environmental Protection Amendment Bill 2002
Contents
page vi
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Environmental Protection Amendment
Bill 2002
A Bill for
An Act to amend the Environmental Protection Act 1986 and for
consequential and related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Environmental Protection Amendment Bill 2002
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Environmental Protection
Amendment Act 2002.
5 2. Commencement
(1) This Act comes into operation on a day to be fixed by
proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
10 (3) The day fixed under subsection (1) for Part 9 or a provision in
Part 9 is not to be earlier than the earliest day on which
regulations made for the purposes of section 51C(c) of the
Environmental Protection Act 1986 as inserted by section 110
are laid before the Legislative Assembly under section 42(1) of
15 the Interpretation Act 1984.
3. The Act amended
The amendments in this Act are to the Environmental
Protection Act 1986* unless otherwise indicated.
[* Reprinted as at 11 January 2002.
20 For subsequent amendments see Act No. 25 of 2001.]
page 2
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 4
Part 2 -- Assessment and implementation of proposals
4. Section 3 amended
(1) Section 3(1) is amended as follows:
(a) by inserting in the appropriate alphabetical positions the
5 following definitions --
"
"implementation agreement or decision" means an
agreement or decision under section 45 (or under
section 45 as applied by section 46(8)) as to
10 whether or not a proposal to which a report
published under section 44(3) relates may be
implemented and, if that proposal may be
implemented, as to what conditions and
procedures, if any, that implementation is subject;
15 "implementation conditions" means the conditions
and procedures, if any, agreed or decided in
relation to a proposal under section 45 (or under
section 45 as applied by section 46(8));
"person" includes a public authority;
20 ";
(b) in the definition of "proponent" by deleting "nominated
under section 38 as being".
(2) After section 3(2a) the following subsection is inserted --
"
25 (2b) If a person is for the time being nominated under
section 38(6) as being responsible for a proposal that
person is to be regarded, for the purposes of the
definition of "proponent" in subsection (1), as the
person responsible for the proposal.
30 ".
page 3
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 5
(3) After section 3(3) the following subsection is inserted --
"
(3a) A reference in this Act to the changing of
implementation conditions is a reference to --
5 (a) varying, removing or adding implementation
conditions; or
(b) inserting implementation conditions where
none existed.
".
10 5. Section 37B inserted
Before section 38 the following section is inserted in Part IV
Division 1 --
"
37B. Definitions
15 (1) In this Division --
"significant proposal" means a proposal likely, if
implemented, to have a significant effect on the
environment;
"strategic proposal" has the meaning given by
20 subsection (2).
(2) A proposal is a "strategic proposal" if and to the
extent to which it identifies --
(a) a future proposal that will be a significant
proposal; or
25 (b) future proposals likely, if implemented in
combination with each other, to have a
significant effect on the environment.
".
page 4
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 6
6. Section 38 amended
(1) Section 38(1) to (5) are repealed and the following subsections
are inserted instead --
"
5 (1) Subject to subsections (2) and (5j), any person may
refer a significant proposal to the Authority.
(2) In the case of a proposal under an assessed scheme,
only the proponent can refer the proposal to the
Authority under subsection (1).
10 (3) Subject to subsection (5j), the proponent of a strategic
proposal may refer the proposal to the Authority.
(4) If it appears to the Minister that there is public concern
about the likely effect of a proposal, if implemented, on
the environment, the Minister may refer the proposal to
15 the Authority.
(5) Subject to subsection (5j), as soon as a
decision-making authority has notice of a proposal that
appears to it to be --
(a) a significant proposal; or
20 (b) a proposal of a prescribed class,
the decision-making authority is to refer the proposal to
the Authority.
(5a) Subsection (5) does not apply if the proposal has been
referred to the Authority under subsection (1) or (4).
25 (5b) In the case of a proposal under an assessed scheme, the
application of subsection (5)(a) is subject to
section 48I.
(5c) If the Authority considers that a proposal that is --
(a) a significant proposal; or
page 5
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 6
(b) a proposal of a prescribed class,
has not been referred to it under subsection (1), (4) or
(5), the Authority is to require the proponent or a
decision-making authority to refer the proposal to the
5 Authority.
(5d) A requirement under subsection (5c) is to be in writing
and is to specify the period within which it has to be
complied with.
(5e) In the case of a proposal under an assessed scheme, the
10 Authority can only require the referral of the proposal
under subsection (5c) if it did not, when it assessed the
assessed scheme under Division 3, have sufficient
scientific or technical information to enable it to assess
the environmental issues raised by the proposal.
15 (5f) A requirement under subsection (5c) has effect despite
section 48I(2).
(5g) In subsections (5)(b) and (5c)(b), a reference to a
proposal of a prescribed class includes a reference to a
proposal of a prescribed class under an assessed
20 scheme.
(5h) A proponent or decision-making authority that has to
refer a proposal to the Authority under a requirement
under subsection (5c) is to do so within the period
specified in the requirement.
25 (5i) A referral under this section is to be in writing.
(5j) Subject to section 46B(2), a proposal cannot be
referred to the Authority under this section more than
once unless assessment of it has been terminated under
section 40A.
30 ".
page 6
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 6
(2) After section 38(6) the following subsection is inserted --
"
(6a) If the person nominated under subsection (6) ceases to
have responsibility for a proposal, that person is to give
5 the Authority written notice advising the name of the
person to whom or which responsibility for the
proposal will pass or has passed.
".
(3) Section 38(7) is amended by deleting ", unless the proposal
10 concerned is no longer referred or required to be referred, or no
longer ought to be referred, under this section,".
(4) After section 38(7) the following subsection is inserted --
"
(7a) Subsections (6a) and (7) apply even if a report on the
15 proposal has been published under section 44(3) but do
not apply if the assessment of the proposal has been
terminated under section 40A.
".
(5) After section 38(8) the following subsection is inserted --
20 "
(9) For the purposes of subsections (6a) and (7) and
section 3(2b), a person that has been notified under
section 39A(3)(a) that the Authority is going to assess a
proposal is to be regarded as having been nominated
25 under subsection (6) as being responsible for the
proposal whether or not such a nomination has been
made.
".
page 7
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 7
7. Section 38A inserted
After section 38 the following section is inserted --
"
38A. Request for further information
5 (1) If the Authority considers that it does not have enough
information about a proposal referred to it under
section 38 to enable it to decide --
(a) whether or not to assess the proposal;
(b) whether or not to agree to a request made under
10 section 39B(1); or
(c) on the level of assessment if the proposal is
going to be assessed,
it may, by written notice, request any person to provide
it with additional information about the proposal.
15 (2) The 28 day period set by section 39A(3) is not to be
regarded as having begun in relation to a proposal until
each notice issued under subsection (1) in relation to
the proposal has been complied with or, in the case of a
notice sent to a person other than the person who
20 referred the proposal, the period specified in the notice
for complying with that notice has expired.
".
8. Sections 39A and 39B inserted
After section 39 the following sections are inserted --
25 "
39A. Authority must decide whether to assess proposals
referred
(1) When a proposal is referred to the Authority under
section 38, the Authority is to decide whether or not to
30 assess the proposal.
page 8
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 8
(2) The Authority's decision under subsection (1) is to be
based on information --
(a) submitted in or with the referral or under
section 38A; or
5 (b) derived from the Authority's own
investigations and inquiries.
(3) Within 28 days after the referral of the proposal the
Authority is to give written notice of whether or not it
is going to assess the proposal to --
10 (a) the proponent;
(b) if the proposal was not referred by the
proponent, the person that referred it; and
(c) any relevant decision-making authority.
(4) If, for any reason, a relevant decision-making authority
15 is not given notice as required by subsection (3)(c) that
a proposal is going to be assessed, the Authority may
give written notice to the decision-making authority
under this subsection.
(5) Notice under subsection (4) may be given by the
20 Authority of its own motion or at the request of the
decision-making authority, and may be given at any
time before a report on the proposal is given to the
Minister under section 44.
(6) If the Authority decides to assess a proposal, it is to
25 begin the assessment as soon as practicable after the
notices are given under subsection (3).
(7) If the Authority decides not to assess a proposal, it may
nevertheless give advice and make recommendations
on the environmental aspects of the proposal to the
30 proponent or any other relevant person or authority.
(8) This section does not apply if the proposal is declared
under section 39B to be a derived proposal.
page 9
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 8
39B. Derived proposals
(1) If a proposal (the "referred proposal") is referred to
the Authority under section 38 the proponent may
request the Authority in writing to declare the referred
5 proposal to be a derived proposal.
(2) If the proposal is referred by the proponent, a request
under subsection (1) may be made in the referral.
(3) If a request under subsection (1) is made, the Authority
is to declare the referred proposal to be a derived
10 proposal if it considers that --
(a) the referred proposal was identified in a
strategic proposal that has been assessed under
this Part (the "strategic proposal"); and
(b) after a report on the strategic proposal was
15 published under section 44(3), it was agreed or
decided under section 45 that the referred
proposal could be implemented, or could be
implemented subject to conditions and
procedures agreed or decided under that
20 section.
(4) Despite subsection (3), the Authority may refuse to
declare the referred proposal to be a derived proposal if
it considers that --
(a) environmental issues raised by the proposal
25 were not adequately assessed when the strategic
proposal was assessed;
(b) there is significant new or additional
information that justifies the reassessment of
the issues raised by the proposal; or
30 (c) there has been a significant change in the
relevant environmental factors since the
strategic proposal was assessed.
page 10
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 9
(5) If the Authority declares the referred proposal to be a
derived proposal, it is to --
(a) record the declaration in the public record kept
under section 39(1); and
5 (b) give written notice of the declaration to the
Minister.
(6) If the Authority declares the referred proposal to be a
derived proposal, it is not to assess the proposal except
for the purposes of conducting an inquiry under
10 section 46(4).
(7) If the Authority refuses to declare the referred proposal
to be a derived proposal it is to give written notice of
the refusal to the proponent.
(8) The notice may be included in the notice given under
15 section 39A(3)(a).
".
9. Section 40 amended
(1) Section 40(1) is repealed and the following subsection is
inserted instead --
20 "
(1) This section and section 40A apply if the Authority
assesses a proposal.
".
(2) Section 40(2) is amended as follows:
25 (a) by deleting "under subsection (1)(b)";
(b) by deleting the comma after paragraph (c) and inserting
a full stop;
(c) by deleting the portion of the subsection after
paragraph (c).
page 11
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 9
(3) After section 40(2) the following subsection is inserted --
"
(2a) As well as taking one or more of the courses of action set
out in subsection (2)(a) to (c), the Authority may make
5 such other investigations and inquiries as it thinks fit.
".
(4) Section 40(6) is repealed and the following subsection is
inserted instead --
"
10 (6) When the Authority causes any information or report to
be made available for public review under
subsection (4) --
(a) the proponent must --
(i) at the proponent's own expense and to the
15 satisfaction of the Authority, make copies
of that information or report and advertise
its availability for public review;
(ii) provide copies of that information or
report free of charge to such public
20 authorities and persons, at such places
and times as the Authority determines;
and
(iii) provide copies of that information or
report to members of the public at such
25 places and times, and at a price not
exceeding such maximum price, as the
Authority determines;
and
(b) the Authority may require the proponent to
30 respond to any submissions made to the
Authority in respect of that information or report
in such manner as the Authority thinks fit.
".
page 12
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 10
(5) After section 40(8) the following subsection is inserted --
"
(9) A proponent or other person upon whom a requirement
is imposed under subsection (2)(a) or (b) or (6)(b) has
5 to comply with that requirement.
".
10. Sections 40A and 40B inserted
After section 40 the following sections are inserted --
"
10 40A. Termination of assessment
(1) The Authority may terminate the assessment of a
proposal if --
(a) the proponent agrees with the termination;
(b) the proponent has failed to comply with --
15 (i) a requirement made under
section 40(2)(a) or (b);
(ii) section 40(6)(a); or
(iii) a requirement made under
section 40(6)(b),
20 within such period as the Authority considers to
be reasonable in the circumstances; or
(c) a decision-making authority has refused to
approve the proposal.
(2) Subsection (1)(c) does not authorise the termination of
25 the assessment if the refusal by the decision-making
authority --
(a) is being appealed against or reviewed under an
enactment; or
(b) is capable of being appealed against or
30 reviewed under an enactment.
page 13
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 11
40B. Assessment of a strategic proposal: application of
sections 41, 41A, 44 and 45
(1) Sections 41, 41A and 45(7) do not apply in relation to a
strategic proposal.
5 (2) Section 44 and section 45 (other than subsection (7))
apply in relation to a strategic proposal as if references
in them to implementation were references to the
implementation of a future proposal identified in the
strategic proposal in the event of that future proposal
10 being declared under section 39B to be a derived
proposal.
(3) This section does not affect the application of
sections 41, 41A, 44 and 45 in relation to a strategic
proposal to the extent to which the strategic proposal is
15 itself a significant proposal.
".
11. Section 41 amended
(1) Section 41(1) is repealed.
(2) Section 41(2)(a) is amended by deleting "or has been notified
20 under subsection (1) that a proposal has been referred to the
Authority under that section".
(3) Section 41(2)(c) is amended by deleting "40(1)(a) that the
Authority considers that the proposal should not be assessed by
the Authority under this Part" and inserting instead --
25 "
39A(3)(b) that the Authority is not going to
assess the proposal
".
page 14
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 12
(4) After section 41(2) the following subsection is inserted --
"
(3) Without limiting subsection (2), a decision-making
authority that has been given notice under
5 section 39A(3)(c) or (4) that a proposal is going to be
or is being assessed is not to make any decision that
could have the effect of causing or allowing the
proposal to be implemented without having had an
authority under section 45(7) served on it.
10 ".
12. Section 41A inserted
After section 41 the following section is inserted --
"
41A. Implementation to await authorisation
15 (1) If a decision of the Authority that a proposal is to be
assessed has been set out in the public record under
section 39, a person who does anything to implement
the proposal before a statement is published under
section 45(5)(b) or a notification is given under
20 section 45(8) commits an offence.
(2) Subsection (1) applies even if the assessment of the
proposal has been terminated under section 40A and
applies as if the references to section 45(5)(b) and (8)
were references to the application of those provisions
25 to any revised or further proposal referred to the
Authority under section 38 in place of the terminated
proposal.
(3) Subsection (1) does not apply to minor or preliminary
work done with the Authority's consent.
30 ".
page 15
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 13
13. Section 43 amended
(1) Section 43(2) is amended by deleting "40(1)(b)," and inserting
instead --
" 39, 39A(3), 40 ".
5 (2) After section 43(2) the following subsections are inserted --
"
(3) A direction cannot be given under subsection (1) if a
statement has been served under section 45(5) or a
notification has been given under section 45(8).
10 (4) The Minister is to cause copies of the reasons for
giving a direction under subsection (1) to be --
(a) given to the Authority; and
(b) published as soon as practicable after the
direction is given.
15 ".
14. Section 43A inserted
After section 43 the following section is inserted --
"
43A. Changes to proposals before report
20 While a proposal is being assessed, the Authority may
consent to the proponent changing the proposal without
a revised proposal being referred to the Authority
under this Part if the Authority considers that the
change is unlikely to significantly increase any impact
25 that the proposal may have on the environment.
".
page 16
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 15
15. Section 44 amended
(1) Section 44(1) and (2) are repealed and the following subsections
are inserted instead --
"
5 (1) If the Authority assesses a proposal, it is to prepare a
report on the outcome of its assessment of the proposal
and give that report (the "assessment report") to the
Minister.
(2) The assessment report must set out --
10 (a) what the Authority considers to be the key
environmental factors identified in the course
of the assessment; and
(b) the Authority's recommendations as to whether
or not the proposal may be implemented and, if
15 it recommends that implementation be allowed,
as to the conditions and procedures, if any, to
which implementation should be subject.
(2a) The Authority may, if it thinks fit, include other
information, advice and recommendations in the
20 assessment report.
(2b) Subject to subsection (2d), the assessment report may
be given to the Minister at any time but, so far as is
practicable, it must be given not later than 6 weeks
after the Authority completes its assessment or
25 reassessment of the proposal.
(2c) The Minister may, after consulting the Authority, direct
the Authority to prepare the assessment report and give
it to the Minister --
(a) within a specified period after the day on
30 which --
(i) the proposal was referred to the
Authority under section 38; or
page 17
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 16
(ii) a direction was given to the Authority
under section 43(1),
as the case requires; or
(b) before a specified date.
5 (2d) If a direction is given under subsection (2c) the
Authority must give the assessment report to the
Minister within the specified period or before the
specified date.
".
10 (2) Section 44(3) is amended as follows:
(a) by deleting "a report given to him under subsection (1)"
and inserting instead --
" the assessment report ";
(b) in paragraph (b)(ii) by deleting "notified under
15 section 41(1) that that proposal had been referred to the
Authority" and inserting instead --
"
given notice under section 39A(3)(c) or
(4) in relation to the proposal
20 ".
16. Section 45 amended
(1) Section 45(5) is repealed and the following subsection is
inserted instead --
"
25 (5) If the implementation agreement or decision is that the
proposal may be implemented, or may be implemented
subject to implementation conditions, the Minister is
to --
(a) cause copies of a statement setting out the
30 implementation agreement or decision to be
served on --
(i) the Authority;
page 18
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 17
(ii) each decision-making authority that was
consulted under subsection (1);
(iii) the proponent of the proposal; and
(iv) the person who referred the proposal (if
5 it was not referred by a person referred
to in subparagraph (ii) or (iii));
and
(b) cause the statement to be published as soon as
is practicable after it is served under
10 paragraph (a).
".
(2) Section 45(6)(a) is amended by deleting "100(2)" and inserting
instead --
" 100(1)(d) ".
15 (3) Section 45(8) is amended by deleting "an agreement is reached
or a decision is made under this section that a" and inserting
instead --
" the implementation agreement or decision is that the ".
17. Sections 45A, 45B and 45C inserted
20 After section 45 the following sections are inserted --
"
45A. Implementation of derived proposal
(1) In this section --
"section 39B declaration" means a declaration under
25 section 39B that a proposal is a derived proposal.
(2) Subject to subsection (3), when a section 39B
declaration is final, the implementation agreement or
decision previously made in relation to the derived
proposal takes effect and the Minister is to cause
page 19
Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 17
written notice of the taking effect of the agreement or
decision to be served on --
(a) the Authority;
(b) each decision-making authority that was
5 notified of the agreement or decision under
section 45(5)(a)(ii);
(c) the proponent of the derived proposal; and
(d) the person who referred the derived proposal (if
it was not referred by a person referred to in
10 paragraph (b) or (c)).
(3) If the implementation agreement or decision previously
made in relation to the derived proposal included
implementation conditions relating generally to 2 or
more future proposals, the Minister may, in the notice
15 under subsection (2), specify which of those
implementation conditions apply to the derived
proposal and, subject to sections 46 to 46C, the
conditions and procedures so specified are the
implementation conditions relating to the derived
20 proposal.
(4) For the purposes of subsection (2), a section 39B
declaration is final when --
(a) an appeal under section 100(1)(f) against the
decision to make the declaration can no longer
25 be lodged; and
(b) no appeal was so lodged or any appeal so
lodged was dismissed.
45B. Implementation conditions apply to revised
proposals
30 If a proposal is revised after implementation conditions
have been agreed or decided, each of those
page 20
Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 18
implementation conditions continues to apply in
relation to the revised proposal subject to --
(a) it being changed under section 46; or
(b) revised conditions or procedures being agreed
5 or decided under section 45 in relation to the
revised proposal after the revised proposal has
been referred to the Authority and assessed.
45C. Changes to proposals after assessment
(1) After a statement has been issued under section 45(5)
10 in relation to a proposal, the Minister may approve of
the proponent changing the proposal without a revised
proposal being referred to the Authority under this Part.
(2) The Minister must not give approval under
subsection (1) if the Minister considers the change or
15 changes to the proposal might have a significant
detrimental effect on the environment in addition to, or
different from, the effect of the original proposal.
".
18. Section 46 replaced by sections 46 to 46C
20 Section 46 is repealed and the following sections are inserted
instead --
"
46. Amendment of implementation conditions by
inquiry
25 (1) If the Minister considers that the implementation
conditions relating to a proposal, or any of them,
should be changed (whether because of changes to the
proposal authorised under section 45C or for any other
reason), the Minister may request the Authority to
30 inquire into and report on the matter within such period
as is specified in the request.
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Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 18
(2) The Authority is to record any request made under
subsection (1) in the public record kept under
section 39.
(3) The Authority is to carry out an inquiry in accordance
5 with a request made under subsection (1).
(4) Without limiting subsection (1), if a proposal is
declared under section 39B to be a derived proposal,
the Authority may inquire into whether or not the
implementation conditions relating to the proposal, or
10 any of them, should be changed.
(5) For the purposes of an inquiry under subsection (3) or
(4) the Authority has all the powers conferred on it by
Division 1 in relation to a proposal.
(6) On completing an inquiry under subsection (3) or (4),
15 the Authority is to prepare and give to the Minister a
report that includes --
(a) a recommendation on whether or not the
implementation conditions to which the inquiry
relates, or any of them, should be changed; and
20 (b) any other recommendations that it thinks
appropriate.
(7) As soon as the Minister is reasonably able to do so
after receiving copies of a report under subsection (6),
the Minister is to simultaneously cause that report to be
25 published, and copies of that report to be given, as if
that report were a report referred to in section 44(3).
(8) After causing a report to be published under
subsection (7), the Minister is to deal with the question
of whether or not the implementation conditions to
30 which the report relates, or any of them, should be
changed as if that question were the question of to what
conditions and procedures, if any, the implementation
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Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 18
of a proposal should be subjected, and section 45
applies to the first-mentioned question accordingly.
(9) A statement under section 45(5) as applied by
subsection (8) may change any of the implementation
5 conditions to which the report under subsection (6)
relates.
(10) A reference in this Division to a statement under
section 45(5) includes a reference to a statement under
section 45(5) as applied by subsection (8).
10 46A. Interim conditions and procedures
(1) Having made a request under section 46(1) the
Minister may, subject to subsection (3) and with the
consent of the proponent, issue interim conditions and
procedures to have effect instead of the implementation
15 conditions until a statement is published under
section 45(5) as applied by section 46(8).
(2) The Minister is to cause notice of interim conditions
and procedures issued under subsection (1) --
(a) to be given in writing to --
20 (i) the Authority;
(ii) each decision-making authority that was
notified of the original implementation
agreement or decision under
section 45(5)(a)(ii); and
25 (iii) the proponent of the proposal;
and
(b) to be published.
(3) The Minister is not to issue interim conditions and
procedures under subsection (1) if the Minister
30 considers that implementation of the proposal under
those interim conditions and procedures might have a
significant detrimental effect on the environment in
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Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 18
addition to, or different from, the effect the proposal
might have if implemented under the implementation
conditions.
46B. Amendment of implementation conditions by
5 assessment
(1) Section 46 does not prevent any of the implementation
conditions relating to a proposal from being inquired
into or reported on by the Authority when it is
assessing a revised or further proposal.
10 (2) Despite anything in section 46, if the Minister and any
decision-making authority that was consulted under
this Act in relation to the implementation conditions
agree that a proposed change to the implementation
conditions is a major change, that decision-making
15 authority is to refer the proposed change to the
Authority under section 38(5) as a new proposal.
46C. Minor changes to implementation conditions
(1) The Minister may change the implementation
conditions without making a request under
20 section 46(1) if the Minister considers that the change
is of a minor nature and is necessary or desirable in
order to --
(a) standardise the implementation conditions
applying to different proposals;
25 (b) correct in the implementation conditions --
(i) a clerical mistake or unintentional error
or omission;
(ii) a figure that has been miscalculated; or
(iii) a misdescription of any person, thing or
30 property;
or
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Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 19
(c) make an administrative change to the format of
the implementation conditions that does not
alter the obligations of the proponent.
(2) The Minister is to cause notice of changes made under
5 subsection (1) --
(a) to be given in writing to --
(i) the Authority;
(ii) each decision-making authority that was
consulted under this Act in relation to
10 the implementation conditions; and
(iii) the proponent of the proposal;
and
(b) to be published.
".
15 19. Section 47 replaced
Section 47 is repealed and the following section is inserted
instead --
"
47. Duties of proponents after service of statement
20 or notification
(1) If a statement has been served under section 45(5) and
the proponent does not ensure that any implementation
of the proposal to which the statement relates is carried
out in accordance with the implementation conditions,
25 the proponent commits an offence.
(2) If a statement has been served under section 45(5)(a),
the proponent is to give the CEO such reports and
information about --
(a) the implementation of the proposal to which the
30 statement relates; and
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Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 20
(b) compliance with the implementation
conditions,
as are required by written notice given to the proponent
by the CEO.
5 (3) If, without reasonable excuse, the proponent refuses or
fails to comply with a requirement made under
subsection (2), the proponent commits an offence.
(4) If a notification has been given under section 45(8) and
the proponent does anything to implement the proposal
10 to which the notification relates, the proponent
commits an offence.
".
20. Section 48 amended
(1) Section 48(1) and (2) are repealed and the following subsections
15 are inserted instead --
"
(1) The CEO may monitor the implementation of a
proposal, or cause it to be monitored, for the purpose of
determining whether the implementation conditions
20 relating to the proposal are being complied with.
(1a) If the CEO finds that any of the implementation
conditions is not being complied with, the CEO --
(a) may exercise any power in respect of the
non-compliance that is exercisable by the CEO
25 under a written law; and
(b) in any event, is to report the non-compliance to
the Minister.
(2) If implementation conditions relating to a proposal
subject the implementation of the proposal to
30 requirements made by a decision-making authority, the
decision-making authority may monitor that
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Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 21
implementation, or cause it to be monitored, for the
purpose of determining whether the implementation
conditions of that kind are being complied with.
(2a) If the decision-making authority finds that any of the
5 implementation conditions of that kind is not being
complied with, the decision-making authority --
(a) may exercise any power in respect of the
non-compliance that is exercisable by it under a
written law or otherwise; and
10 (b) in any event, is to report the non-compliance to
the Minister.
".
(2) Section 48(3) is amended as follows:
(a) by deleting paragraph (a);
15 (b) in paragraph (b) by deleting "(2)(d)" and inserting
instead --
" (1a)(b) or (2a)(b) ";
(c) in paragraph (c) by deleting "subsection (2)" and
inserting instead --
20 " this section ".
21. Section 48F amended
Section 48F(3) is amended as follows:
(a) in paragraph (a) by deleting "(2)(b)" and inserting
instead --
25 " (3a)(d) ";
(b) in paragraph (b) by deleting "(2)(b)" and inserting
instead --
" (2)(e) ".
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Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 22
22. Section 89 amended
Section 89(1)(f)(ii) is amended by deleting "section 45 or 48F "
and inserting instead --
" Part IV ".
5 23. Section 100 amended
(1) Section 100(1), (2) and (3) are repealed and the following
subsections are inserted instead --
"
(1) Any decision-making authority, responsible authority,
10 proponent or other person that disagrees with --
(a) a recorded decision of the Authority that a
proposal is not to be assessed;
(b) the recorded level of assessment of a proposal;
(c) the content of any instructions set out in a
15 public record under section 48B(1);
(d) the content of, or any recommendation in, the
report prepared under section 44 in respect of a
proposal;
(e) the content of, or any recommendation in, the
20 report prepared under section 48D in respect of
a scheme; or
(f) a recorded declaration under section 39B,
may lodge with the Minister an appeal in writing
setting out the grounds of the appeal.
25 (1a) In subsection (1) --
"recorded" means set out in a public record under
section 39(1).
(2) Any proponent that disagrees with a decision of the
Authority to refuse a request made under
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Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 23
section 39B(1) in relation to a proposal may lodge with
the Minister an appeal in writing setting out the
grounds of the appeal.
(3) Any proponent that disagrees with any conditions or
5 procedures agreed under section 45(1) (or under
section 45(1) as applied by section 46(8)) may lodge
with the Minister an appeal in writing setting out the
grounds of that appeal.
(3a) An appeal may be lodged --
10 (a) under subsection (1)(a), (b), (c) or (f), within
14 days of the making available of the public
record;
(b) under subsection (1)(d), within 14 days of the
publication of the report under section 44(3)(a);
15 (c) under subsection (1)(e), within 14 days of the
publication of the report under
section 48D(3)(a);
(d) under subsection (2), within 14 days after the
person is notified of the refusal; or
20 (e) under subsection (3), within 14 days after the
publication of the statement under section 45(5)
(or under section 45(5) as applied by
section 46(8)) of the statement setting out the
agreement.
25 ".
(2) Section 100(4)(a) is amended by deleting "section 48(4)(a) or
(b)" and inserting instead --
" section 48(4)(b) ".
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Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 24
24. Section 101 amended
(1) Section 101(1) is amended by deleting "Subject to
subsections (2a), (2b), (2c), (2d) and (2e), when an appeal is
lodged under section 100" and inserting instead --
5 "
When an appeal is lodged under section 100(1), (2) or
(4)
".
(2) Section 101(1)(b), (c) and (d) are deleted and the following
10 paragraphs are inserted instead --
"
(b) in the case of an appeal referred to in
section 100(1)(a) or (b), remit the proposal to
the Authority for the making of a decision, or
15 fresh decision, as to whether or not the proposal
is to be assessed, or as to the level of
assessment, or both;
(c) in the case of an appeal referred to in
section 100(1)(a), (b) or (f), remit the proposal
20 to the Authority for assessment, further
assessment or reassessment, as the case
requires, and for that purpose make a direction
under section 43;
(d) in the case of an appeal referred to in
25 section 100(1)(d) --
(i) remit the proposal to the Authority for
assessment, further assessment or
reassessment, as the case requires, and
for that purpose make a direction under
30 section 43; or
(ii) vary the Authority's recommendations
by changing the implementation
conditions;
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Environmental Protection Amendment Bill 2002
Assessment and implementation of proposals Part 2
s. 24
(da) in the case of an appeal referred to in
section 100(1)(c), deal with that appeal under
subsections (2a) to (2c);
(db) in the case of an appeal referred to in
5 section 100(1)(e), deal with that appeal under
subsections (2d) and (2e);
(dc) in the case of an appeal referred to in
section 100(1)(f) or (2), remit the proposal to
the Authority for the making of a fresh decision
10 as to the request made under section 39B(1);
".
(3) After section 101(1) the following subsection is inserted --
"
(1a) When an appeal is lodged under section 100(3),
15 sections 106, 109 and 110 apply to and in relation to
the appeal as if the appeal were an appeal from a
decision of the Minister.
".
(4) Section 101(2) is amended by inserting after "(1)(b)" --
20 " , (c), (d) or (dc) ".
(5) Section 101(2d) is amended by deleting "(2)(b)" and inserting
instead --
" (1)(e) ".
(6) Section 101(3)(a) is amended by deleting "100(1) does not
25 affect the relevant decision referred to in section 100(1)(a)" and
inserting instead --
"
100(1)(a), (b) or (c) or (2) does not affect the
relevant decision
30 ".
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Environmental Protection Amendment Bill 2002
Part 2 Assessment and implementation of proposals
s. 25
(7) Section 101(3)(b) is amended by deleting "(2)" and inserting
instead --
" (1)(d) or (e) ".
(8) Section 101(3)(c) is amended by inserting after
5 "implementation" --
" , or continued implementation, ".
(9) Section 101(3)(d) is deleted.
25. Schedule 1 amended
(1) Schedule 1 Part 1 Divisions 1 and 2 are each amended in item 2
10 column 2 by inserting after "(1)" --
" or (4) ".
(2) Schedule 1 Part 2 Division 1 is amended by redesignating
item 1 as item "1B" and inserting before that item the following
item --
15 "
1 41A(1) $62 500 $12 500
".
(3) Schedule 1 Part 2 Division 2 is amended by redesignating
item 1 as item "1B" and inserting before that item the following
item --
20 "
1 41A(1) $125 000 $25 000
".
26. Schedule 2 amended
After Schedule 2 item 35 the following item is inserted --
"
25 35A. Requiring things to be done or information to be provided
under this Act in a prescribed manner or prescribed form.
".
page 32
Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Amendments to Environmental Protection Act 1986 Division 1
s. 27
Part 3 -- Environmental regulation
Division 1 -- Amendments to Environmental Protection
Act 1986
27. Long title amended
5 The long title is amended by deleting "environmental pollution"
and inserting instead --
" pollution and environmental harm ".
28. Section 3 amended
(1) Section 3(1) is amended by deleting the definition of "pollution"
10 and inserting the following definition instead --
" "pollution" has the meaning given by section 3A; ".
(2) Section 3(1) is amended by inserting in the appropriate
alphabetical positions the following definitions --
"
15 "ecosystem health condition" means a condition of
the ecosystem which is --
(a) relevant to the maintenance of ecological
structure, ecological function or ecological
process and which requires protection from the
20 effects of emissions or of activities referred to
in paragraph (a) or (b) of the definition of
"environmental harm" in section 3A(2); or
(b) identified and declared under section 35(2)
to be an ecosystem health condition to be
25 protected under an approved policy;
"emission" means --
(a) discharge of waste;
(b) emission of noise, odour or electromagnetic
radiation; or
30 (c) transmission of electromagnetic radiation;
page 33
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 28
"environmental harm" has the meaning given by
section 3A;
"environmental protection notice" has the meaning
given by section 65;
5 "environmental value" means --
(a) a beneficial use; or
(b) an ecosystem health condition;
"material environmental harm" has the meaning
given by section 3A;
10 "native vegetation" means indigenous aquatic or
terrestrial vegetation, and includes dead vegetation
unless that dead vegetation is of a class declared
by regulation to be excluded from this definition
but does not include vegetation in a plantation;
15 "plantation" means one or more groups of trees,
shrubs or plants intentionally sown, planted or
propagated with a view to commercial
exploitation;
"prevention notice" has the meaning given by
20 section 73A(1);
"serious environmental harm" has the meaning given
by section 3A;
".
(3) Section 3(1) is amended by deleting the definition of "pollution
25 abatement notice".
(4) Section 3(1) is amended in the definition of "beneficial use" by
deleting "discharges of wastes or of emissions of noise, odour or
electromagnetic radiation" and inserting instead --
"
30 emissions or of activities referred to in paragraph (a) or
(b) of the definition of "environmental harm" in
section 3A(2)
".
page 34
Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Amendments to Environmental Protection Act 1986 Division 1
s. 29
(5) Section 3(1) is amended in the definition of "industrial plant" by
deleting "discharging waste or emitting noise, odour or
electromagnetic radiation" and inserting instead --
" an emission ".
5 (6) Section 3(1) is amended in the definition of "trade" by deleting
"the discharge of waste or the emission of noise, odour or
electromagnetic radiation" and inserting instead --
" an emission ".
29. Section 3A inserted
10 After section 3 the following section is inserted --
"
3A. Pollution and environmental harm
(1) In this Act --
"pollution" means direct or indirect alteration of the
15 environment --
(a) to its detriment or degradation;
(b) to the detriment of an environmental value;
or
(c) of a prescribed kind,
20 that involves an emission.
(2) In this Act --
"environmental harm" means direct or indirect --
(a) harm to the environment involving removal
or destruction of, or damage to --
25 (i) native vegetation; or
(ii) the habitat of native vegetation or
indigenous aquatic or terrestrial
animals;
page 35
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 29
(b) alteration of the environment to its detriment
or degradation or potential detriment or
degradation;
(c) alteration of the environment to the
5 detriment or potential detriment of an
environmental value; or
(d) alteration of the environment of a prescribed
kind;
"material environmental harm" means
10 environmental harm that --
(a) is neither trivial nor negligible; or
(b) results in actual or potential loss, property
damage or damage costs of an amount, or
amounts in aggregate, exceeding the
15 threshold amount;
"serious environmental harm" means environmental
harm that --
(a) is irreversible, of a high impact or on a wide
scale;
20 (b) is significant or in an area of high
conservation value or special significance; or
(c) results in actual or potential loss, property
damage or damage costs of an amount, or
amounts in aggregate, exceeding 5 times the
25 threshold amount.
(3) For the purposes of subsection (2) --
"damage costs" means the reasonable costs and
expenses that are or would be incurred in taking all
reasonable and practicable measures to prevent,
30 control or abate the environmental harm and to
make good resulting environmental damage;
page 36
Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Amendments to Environmental Protection Act 1986 Division 1
s. 30
"threshold amount" means $20 000, or if a greater
amount is prescribed by regulation, that amount.
".
30. Section 15 amended
5 Section 15(b) is amended by inserting after "pollution" --
" and environmental harm ".
31. Section 16 amended
(1) Section 16(b), (c) and (d) are amended by inserting after
"pollution" in each place where it occurs --
10 " and environmental harm ".
(2) Section 16(n) is amended by deleting "or pollution" and
inserting instead --
" , pollution and environmental harm ".
32. Section 26 amended
15 Section 26(b) and (d)(ii) are amended by inserting after
"pollution" in each place where it occurs --
" or environmental harm ".
33. Section 35 amended
(1) Section 35(1) is amended as follows:
20 (a) in paragraph (a)(ii) by inserting after "pollution of " --
" , and environmental harm to, ";
(b) in paragraph (b) by deleting "the discharge of waste, the
emission of noise, odour or electromagnetic radiation"
and inserting instead --
25 " an emission ".
page 37
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 34
(2) Section 35(2) is amended as follows:
(a) in paragraph (c) by deleting "beneficial uses" and
inserting instead --
" environmental values ";
5 (b) in paragraph (f)(iv) by inserting after "pollution" --
" or environmental harm ";
(c) in paragraph (f)(vi) by deleting "beneficial uses" and
inserting instead --
" environmental values ".
10 34. Section 48 amended
Section 48(4)(b) and (d) are each amended by inserting after
"pollution" in both places where it occurs --
" or environmental harm ".
35. Heading to Part V replaced
15 The heading to Part V is repealed and the following headings
are inserted instead --
"
Part V -- Environmental regulation
Division 1 -- Pollution and environmental
20 harm offences
".
36. Section 49 amended
Section 49(1) is amended in the definition of "unreasonable
emission" by inserting after "emission" --
25 " or transmission ".
page 38
Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Amendments to Environmental Protection Act 1986 Division 1
s. 37
37. Sections 50A, 50B, 50C and 50D inserted
After section 50 the following sections are inserted --
"
50A. Causing serious environmental harm
5 (1) A person who, intentionally or with criminal
negligence --
(a) causes serious environmental harm; or
(b) allows serious environmental harm to be
caused,
10 commits an offence.
(2) A person who --
(a) causes serious environmental harm; or
(b) allows serious environmental harm to be
caused,
15 commits an offence.
(3) A person charged with committing an offence against
subsection (1) may be convicted of an offence against
subsection (2) which is established by the evidence.
50B. Causing material environmental harm
20 (1) A person who intentionally or with criminal
negligence --
(a) causes material environmental harm; or
(b) allows material environmental harm to be
caused,
25 commits an offence.
(2) A person who --
(a) causes material environmental harm; or
page 39
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 37
(b) allows material environmental harm to be
caused,
commits an offence.
(3) A person charged with committing an offence against
5 subsection (1) may be convicted of an offence against
subsection (2) which is established by the evidence.
50C. Court may find defendant guilty of alternative
offences if charged with causing serious
environmental harm
10 A person charged with committing an offence against
section 50A may be convicted of an offence against
section 50B(1) or (2) or 51C which is established by
the evidence.
50D. Regulations may require authorisation for conduct
15 that might cause pollution or environmental harm
(1) In this section --
"authorisation" means a licence, permit, approval or
exemption granted, issued or given under the
regulations;
20 "conduct affecting the environment" means --
(a) causing or allowing anything to be
discharged, emitted or transmitted;
(b) causing or allowing the nature or volume of
anything discharged, emitted or transmitted
25 to be changed;
(c) conduct, or an operation or activity, that is a
potential cause of pollution or environmental
harm; or
(d) causing or allowing conduct, or an operation
30 or activity, that is a potential cause of
pollution or environmental harm.
page 40
Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Amendments to Environmental Protection Act 1986 Division 1
s. 38
(2) If the regulations require an authorisation to be held for
conduct affecting the environment, a person who
contravenes the regulations by --
(a) engaging in that conduct without there being an
5 authorisation in force in relation to it; or
(b) engaging in that conduct in contravention of a
condition to which an authorisation is subject,
commits an offence.
(3) Subsection (2) does not apply if a penalty for that
10 contravention of the regulations is provided in the
regulations.
".
38. Section 51 amended
Section 51 is amended as follows:
15 (a) in paragraph (a) by deleting "the discharge of waste or
the emission of noise, odour or electromagnetic
radiation" and inserting instead --
" an emission ";
(b) in paragraph (b) by deleting "the discharge of waste and
20 the emission of noise, odour or electromagnetic
radiation" and inserting instead --
" emissions ".
39. Part V Division 3 heading inserted
Before section 52 the following Division heading is inserted --
25 "
Division 3 -- Prescribed premises, works
approvals and licences
".
page 41
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 40
40. Section 53 amended
(1) Section 53(1) is amended as follows:
(a) by deleting "or increase the discharge of waste or the
emission of noise, odour or electromagnetic radiation, or
5 alter the nature of the waste discharged or noise, odour
or electromagnetic radiation emitted" and inserting
instead --
"
an emission, or alter the nature or volume of the waste,
10 noise, odour or electromagnetic radiation emitted
";
(b) in paragraph (b)(ii) by inserting after ", the emission"
the following --
" or transmission ";
15 (c) in paragraph (f)(iii) by deleting "a pollution abatement
notice" and inserting instead --
" an environmental protection notice ".
(2) Section 53(2) is amended as follows:
(a) in paragraph (a) by deleting ", alter or increase the
20 discharge of waste or the emission of noise, odour or
electromagnetic radiation" and inserting instead --
"
an emission, or alter the nature or volume of the
waste, noise, odour or electromagnetic radiation
25 emitted,
";
(b) in paragraph (c)(iii) by deleting "a pollution abatement
notice" and inserting instead --
" an environmental protection notice ".
page 42
Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Amendments to Environmental Protection Act 1986 Division 1
s. 41
41. Section 56 amended
Section 56 is amended as follows:
(a) in paragraph (a) by deleting "the discharge of waste or
the emission of noise, odour or electromagnetic
5 radiation" and inserting instead --
" an emission ";
(b) in paragraph (b) by deleting "the waste discharged or
noise, odour or electromagnetic radiation emitted" and
inserting instead --
10 "
the waste, noise, odour or electromagnetic
radiation emitted
".
42. Section 60 amended
15 Section 60(2) is amended by deleting "discharge of waste or
emission of noise, odour or electromagnetic radiation" and
inserting instead --
" emission ".
43. Section 63A inserted
20 After section 63 the following section is inserted --
"
63A. Particulars of works approvals and licences to be
recorded
(1) The CEO is to keep a record of such particulars of --
25 (a) works approvals and licences;
(b) applications for works approvals and licences;
(c) applications for renewal of works approvals
and licences; and
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Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 44
(d) transfers of works approvals and licences,
as are prescribed.
(2) The CEO is to publish from time to time in a
prescribed manner prescribed particulars of the record.
5 ".
44. Part V Division 4 heading and section 64A inserted
After section 64 the following Division heading and section are
inserted --
"
10 Division 4 -- Notices, orders and directions
64A. Record of notices
(1) The CEO is to keep a record of such particulars of
notices given under this Division as are prescribed.
(2) The CEO is to publish from time to time in a
15 prescribed manner prescribed particulars of the record.
".
45. Section 65 amended and transitional
(1) Section 65(1) and (2) are repealed and the following subsections
are inserted instead --
20 "
(1) If the CEO suspects on reasonable grounds that --
(a) there is, or is likely to be, an emission from any
premises, and the emission --
(i) does not comply with or would not if it
25 were emitted comply with a standard
required by or under an approved policy
or a prescribed standard; or
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Amendments to Environmental Protection Act 1986 Division 1
s. 45
(ii) has caused or is likely to cause
pollution;
(b) a person is doing, or is likely to do, an act in
contravention of section 50A or 50B on any
5 premises; or
(c) an activity on premises does not comply with a
standard required by or under an approved
policy or a prescribed standard,
the CEO may cause to be given to the owner or the
10 occupier, or both the owner and the occupier, of the
premises a notice ("an environmental protection
notice") in respect of the premises.
(1a) An environmental protection notice may require a
person bound by it to do any one or more of the
15 following --
(a) investigate the extent and nature of --
(i) the emission and its consequences;
(ii) the pollution and its consequences; or
(iii) the environmental harm and its
20 consequences;
(b) prepare and implement a plan for the
prevention, control or abatement of --
(i) the emission;
(ii) the pollution; or
25 (iii) the environmental harm;
(c) take such measures as the CEO considers
necessary to --
(i) prevent, control or abate the emission;
(ii) prevent, control or abate the pollution;
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Division 1 Amendments to Environmental Protection Act 1986
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(iii) prevent, control or abate the
environmental harm; or
(iv) comply with the standard;
(d) ensure that the amount of waste, noise, odour or
5 electromagnetic radiation emitted from the
premises, or the concentration of that waste,
noise, odour or electromagnetic radiation when
measured at a point specified in the
environmental protection notice, does not
10 exceed the limit specified in the notice;
(e) monitor the effectiveness of actions taken under
paragraph (a), (b), (c) or (d);
(f) report to the CEO on any action taken under
paragraph (a), (b), (c), (d) or (e) and its
15 outcome.
(1b) An environmental protection notice may require a
person bound by it to do the matters referred to in
subsection (1a) in accordance with an approval,
direction or requirement of a type specified in the
20 notice by a person specified in the notice.
(2) An environmental protection notice --
(a) is to specify --
(i) the name and address of the person on
whom it is served;
25 (ii) the reason for which it is served;
(iii) a description of the relevant premises
and the location of the premises
sufficient to identify both;
(iv) the period within which the
30 investigation is to be completed, the
plan is to be prepared and the measures
are to be taken; and
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(v) the frequency of information to be
reported to the CEO;
and
(b) is to describe --
5 (i) the form of the investigation to be
undertaken;
(ii) the form of the plan to be prepared and
implemented;
(iii) the measures to be taken;
10 (iv) the form of the monitoring to be
undertaken; and
(v) the content and form of information to
be reported to the CEO.
".
15 (2) Section 65(3) is amended as follows:
(a) by deleting "A pollution abatement notice" and inserting
instead --
" An environmental protection notice ";
(b) in paragraph (a) by deleting "on whom it is served" and
20 inserting instead --
" to whom it is given ".
(3) Section 65(5) is amended by deleting "the pollution abatement
notice" and inserting instead --
" the notice ".
25 (4) A pollution abatement notice served before the coming into
operation of this section is taken to be an environmental
protection notice within the meaning of the Environmental
Protection Act 1986 as amended by this Act.
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Division 1 Amendments to Environmental Protection Act 1986
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46. Various references to "pollution abatement notice"
amended
(1) In each place listed in the Table to this section "the pollution
abatement notice" is deleted and the following is inserted
5 instead --
" the environmental protection notice ".
Table
s. 65(3)(b) s. 67 (3 times)
s. 65(4) (3 times) s. 68
s. 65(4a)(b) s. 69(1)(c)
s. 65(8) s. 69(2)(a)
s. 66(2)
(2) In each place listed in the Table to this section "a pollution
abatement notice" is deleted and the following is inserted
10 instead --
" an environmental protection notice ".
Table
s. 65(4) s. 66(2)
s. 65(4a)(a) s. 66(3)
s. 65(5) s. 67
s. 66(1) (in the second and s. 68
third places where it s. 69(1)(a)
occurs) s. 72(1)(b)
47. Section 66 amended
(1) Section 66(1) is amended as follows:
15 (a) by deleting "a pollution abatement notice is served" and
inserting instead --
" an environmental protection notice is given ";
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Amendments to Environmental Protection Act 1986 Division 1
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(b) by deleting "the pollution abatement notice" and
inserting instead --
" the notice ".
(2) Section 66(2) is amended by deleting "that pollution abatement
5 notice" and inserting instead --
" that notice ".
(3) Section 66(4) is amended by deleting "pollution abatement
notice" and inserting instead --
" environmental protection notice ".
10 48. Section 69 amended
Section 69(1)(a) is amended by deleting "the pollution
abatement notice" and inserting instead --
" the notice ".
49. Section 71 amended
15 Section 71(1)(a) is amended by inserting after "pollution" --
"
, material environmental harm or serious
environmental harm
".
20 50. Section 72 amended
Section 72(1) is amended as follows:
(a) by inserting after "cause pollution" --
"
, material environmental harm or serious environmental
25 harm
";
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Division 1 Amendments to Environmental Protection Act 1986
s. 51
(b) by deleting "notify the Chief Executive Officer" and
inserting instead --
"
give the CEO oral or electronic notification followed
5 by written notification
".
51. Section 73 amended and transitional
(1) Section 73(1) is repealed and the following subsections are
inserted instead --
10 "
(1) If an inspector or authorised person reasonably
suspects that --
(a) any waste has been or is being discharged from
any premises otherwise than in accordance with
15 a works approval, licence or requirement
contained in a closure notice or an
environmental protection notice;
(b) a condition of pollution is likely to arise or has
arisen; or
20 (c) a person has done, is doing, or is likely to do,
an act in contravention of section 50A or 50B,
the inspector or authorised person may, with the
approval of the CEO, take the action referred to in
subsection (1a).
25 (1a) The inspector or authorised person may, with such
assistance as the inspector or authorised person
considers appropriate --
(a) remove, disperse, destroy, dispose of or
otherwise deal with the waste which has been
30 or is being discharged;
(b) prevent the condition of pollution from arising
or control or abate that condition if it arises; or
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Amendments to Environmental Protection Act 1986 Division 1
s. 51
(c) prevent the act referred to in subsection (1)(c)
or control or abate the environmental harm if it
arises,
as the case requires.
5 ".
(2) Section 73(2) is repealed.
(3) Section 73(3) is amended as follows:
(a) by deleting "subsection (1)(b) or the Chief Executive
Officer has reimbursed any cost under subsection (2)"
10 and inserting instead --
" subsection (1) ";
(b) by deleting paragraph (b) and inserting the following
paragraph instead --
"
15 (b) caused or allowed to be caused --
(i) the discharge referred to in
paragraph (a);
(ii) the likelihood of the relevant condition
referred to in subsection (1)(b) arising
20 or the arising of that condition; or
(iii) the likelihood of the relevant act
referred to in subsection (1)(c)
occurring or the occurrence of that act,
".
25 (4) Section 73(4) is repealed and the following subsections are
inserted instead --
"
(4) If --
(a) any waste has been or is being discharged from
30 any premises otherwise than in accordance with
a works approval, licence or requirement
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Environmental Protection Amendment Bill 2002
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Division 1 Amendments to Environmental Protection Act 1986
s. 51
contained in a closure notice or an
environmental protection notice;
(b) a condition of pollution is likely to arise or has
arisen; or
5 (c) a person has done, is doing, or is likely to do,
an act in contravention of section 50A or 50B,
the CEO may cause --
(d) the waste to be removed, dispersed, destroyed,
disposed of or otherwise dealt with;
10 (e) the condition of pollution to be prevented from
arising or, if that condition arises, that condition
to be controlled or abated; or
(f) the act to be prevented from occurring or, if the
environmental harm arises, that environmental
15 harm to be controlled or abated.
(4a) The CEO may recover the cost of the removal,
dispersal, destruction, disposal or other dealing, or of
the prevention, control or abatement, as the case
requires, referred to in subsection (4) from the person
20 who --
(a) was the occupier of the premises at the time of
the discharge referred to in subsection (4)(a); or
(b) caused or allowed to be caused --
(i) that discharge;
25 (ii) the likelihood of the relevant condition
referred to in subsection (4)(b) arising
or the arising of that condition; or
(iii) the likelihood of the relevant act
referred to in subsection (4)(c)
30 occurring or the occurrence of that act,
by action in a court of competent jurisdiction as a debt
due to the Crown.
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Amendments to Environmental Protection Act 1986 Division 1
s. 52
(4b) Any cost recovered under subsection (4a) is to be paid
into the Consolidated Fund.
".
(5) Section 73(5), (6) and (7) are repealed.
5 (6) A direction given under section 73 before the coming into
operation of this section is taken to be a prevention notice
within the meaning of the Environmental Protection Act 1986 as
amended by this Act.
52. Sections 73A and 73B inserted
10 After section 73 the following sections are inserted --
"
73A. Prevention notices
(1) If an inspector or authorised person reasonably
suspects that --
15 (a) any waste has been or is being discharged from
any premises otherwise than in accordance with
a works approval, licence or requirement
contained in a closure notice or an
environmental protection notice;
20 (b) a condition of pollution is likely to arise or has
arisen; or
(c) a person has done, is doing, or is likely to do,
an act in contravention of section 50A or 50B,
the inspector or authorised person may, with the
25 approval of the CEO, give a notice ("a prevention
notice") to such person as the inspector or authorised
person considers appropriate.
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Division 1 Amendments to Environmental Protection Act 1986
s. 52
(2) A prevention notice may require the person to whom
the notice is given --
(a) to remove, disperse, destroy, dispose of or
otherwise deal with the waste which has been
5 or is being discharged;
(b) to prevent the condition of pollution from
arising or control or abate that condition if it
arises; or
(c) to prevent the act referred to in
10 subsection (1)(c) or control or abate the
environmental harm if it arises,
as the case requires and is to describe the action the
inspector or authorised person considers appropriate to
achieve that result.
15 (3) When a person has complied with any requirements
contained in a prevention notice given to the person
under subsection (1), the CEO is to, if the person was
not --
(a) the occupier of the premises from which the
20 relevant waste was discharged at the time of
that discharge; or
(b) the person who caused or allowed to be
caused --
(i) the discharge referred to in paragraph (a);
25 (ii) the likelihood of the relevant condition
referred to in subsection (1)(b) arising
or the arising of that condition; or
(iii) the likelihood of the relevant act
referred to in subsection (1)(c)
30 occurring or the occurrence of that act,
as the case requires, reimburse the person any cost
incurred by the person in complying with those
requirements.
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Amendments to Environmental Protection Act 1986 Division 1
s. 52
(4) When the CEO has reimbursed any cost under
subsection (3), the CEO may recover that cost from the
person who --
(a) was the occupier of the premises from which
5 the relevant waste was discharged at the time of
that discharge; or
(b) caused or allowed to be caused --
(i) the discharge referred to in
paragraph (a);
10 (ii) the likelihood of the relevant condition
referred to in subsection (1)(b) arising
or the arising of that condition; or
(iii) the likelihood of the relevant act
referred to in subsection (1)(c)
15 occurring or the occurrence of that act,
as the case requires, by action in a court of competent
jurisdiction as a debt due to the Crown.
(5) Any cost recovered under subsection (4) is to be paid
into the Consolidated Fund.
20 (6) A person who intentionally or with criminal negligence
does not comply with a requirement contained in a
prevention notice given to that person, without
reasonable excuse for that contravention, commits an
offence.
25 (7) A person who does not comply with a requirement
contained in a prevention notice given to that person,
without reasonable excuse for that contravention,
commits an offence.
(8) A person charged with committing an offence against
30 subsection (6) may be convicted of an offence against
subsection (7) which is established by the evidence.
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Division 1 Amendments to Environmental Protection Act 1986
s. 53
73B. Damages for breach of notice
(1) In this section --
"notice" means --
(a) an environmental protection notice;
5 (b) a vegetation conservation notice; or
(c) a prevention notice.
(2) If --
(a) a person bound by a notice fails to comply with
it;
10 (b) damage is caused to property not owned or
occupied by the person; and
(c) that damage would not have been caused if the
notice had been complied with,
then, by reason of the person's failure to comply, the
15 owner or occupier of the damaged property has a right
of action in tort against the person in respect of the
damage.
".
53. Part V Division 5 heading inserted
20 Before section 74 the following Division heading is inserted --
" Division 5 -- Miscellaneous ".
54. Section 74 amended
(1) Section 74(1) is amended as follows:
(a) by deleting "the discharge of waste or the emission of
25 noise, odour or electromagnetic radiation" and inserting
instead --
" an emission or an act causing environmental harm ";
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Amendments to Environmental Protection Act 1986 Division 1
s. 55
(b) in paragraphs (a) and (b) by deleting "discharge or
emission" in each place where it occurs and inserting
instead --
" emission or act ".
5 (2) Section 74(3) is repealed.
55. Sections 74A and 74B inserted
After section 74 the following sections are inserted --
"
74A. Defences to proceedings for pollution or
10 environmental harm: authority of this Act
It is a defence to proceedings under this Part for
causing pollution, in respect of an emission, or for
causing serious environmental harm or material
environmental harm, if the person charged with that
15 offence proves that the pollution, emission or
environmental harm occurred --
(a) in the implementation of a proposal in
accordance with an implementation agreement
or decision;
20 (b) in accordance with --
(i) a prescribed standard;
(ii) a clearing permit;
(iii) a works approval;
(iv) a licence;
25 (v) a requirement contained in a closure
notice, an environmental protection
notice, a vegetation conservation notice
or a prevention notice;
(vi) an approved policy;
30 (vii) a declaration under section 6;
page 57
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Division 1 Amendments to Environmental Protection Act 1986
s. 55
(viii) an exemption under section 75; or
(ix) a licence, permit, approval or exemption
granted, issued or given under the
regulations;
5 or
(c) in the exercise of any power conferred under
this Act.
74B. Other defences to environmental harm offences
(1) It is a defence to proceedings under this Part for
10 causing serious environmental harm or material
environmental harm if the person charged with that
offence proves that the environmental harm was, or
resulted from, an authorised act which did not
contravene any other written law.
15 (2) For the purposes of subsection (1) an act was
authorised if it was --
(a) done in accordance with an authorisation,
approval, requirement or exemption given in
the exercise of a power under another written
20 law;
(b) done in the exercise by a public authority, or a
member, officer or employee of a public
authority, of a function conferred under another
written law;
25 (c) done as an agricultural practice within the
meaning of the Agricultural Practices
(Disputes) Act 1995 in respect of which an
order has been made under section 12 of that
Act and --
30 (i) in accordance with the order as to the
carrying out or management of that
agricultural practice; or
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Amendments to Environmental Protection Act 1986 Division 1
s. 56
(ii) in the carrying out or management of a
normal farm practice, as specified in the
order;
(d) done --
5 (i) as an agricultural practice within the
meaning of the Agricultural Practices
(Disputes) Act 1995; or
(ii) in the management or harvesting of a
plantation,
10 and in compliance with a code of practice relating
to an act of that kind issued under section 122A
or made or approved under any other written law;
(e) without limiting section 74A and paragraphs (a)
to (d) of this subsection, clearing of a kind set
15 out in Schedule 6; or
(f) an act of a kind prescribed for the purposes of
section 51C that was not done in an
environmentally sensitive area within the
meaning of section 51A.
20 ".
56. Section 75 amended
Section 75(1) is amended by deleting "waste is being or is about
to be discharged, or noise, odour or electromagnetic radiation is
being or is about to be emitted," and inserting instead --
25 " there is, or is about to be, an emission ".
57. Section 89 amended
(1) Section 89(1) is amended as follows:
(a) by deleting paragraphs (b), (c) and (ca) and the "or"
following paragraph (c) and inserting the following
30 paragraphs instead --
"
(b) at any time, premises at or from which the
inspector has reasonable grounds to believe that
page 59
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Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 57
an offence against this Act has been, is being or
is likely to be committed; or
(c) at any reasonable time, any other premises,
";
5 (b) in paragraph (f)(ii) by inserting before "works" --
" clearing permit, ";
(c) in paragraph (f)(ii) by deleting "a pollution abatement
notice, direction given under section 73(1)(a)" and
inserting instead --
10 "
a closure notice, environmental
protection notice, vegetation
conservation notice, prevention notice
".
15 (2) Section 89(2) is repealed and the following subsection is
inserted instead --
"
(2) Despite subsection (1), an inspector is not entitled to
enter a private dwelling-house or on land used in
20 connection with a private dwelling-house unless the
inspector --
(a) reasonably believes that waste is being, or has
recently been, discharged from that house or
land into the environment;
25 (b) finds that unreasonable noise is being, or
believes that unreasonable noise has recently
been, emitted from the house or land into the
environment; or
(c) reasonably believes that the house or land has
30 been adversely affected by an emission.
".
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Amendments to Environmental Protection Act 1986 Division 1
s. 58
58. Section 90 amended
Section 90(1) is amended as follows:
(a) by deleting paragraph (a) and inserting the following
paragraph instead --
5 "
(a) the occupier of any premises from which there
has been, is, or is likely to be, an emission to
produce to the inspector --
(i) any books or other sources of
10 information relating to that emission or
to any manufacturing, industrial or trade
processes carried on at those premises;
or
(ii) any data from any monitoring
15 equipment or monitoring programme in
respect of that emission;
";
(b) by deleting paragraph (b)(i) and the "or" following and
inserting the following subparagraph instead --
20 " (i) any emission; or ".
59. Section 92 amended
Section 92(1)(a) is deleted and the following paragraph is
inserted instead --
"
25 (a) on or from which there has been, is, or is likely
to be, an emission;
".
60. Section 92B amended
Section 92B(1) is amended by inserting after "pollution" --
30 " or environmental harm ".
page 61
Environmental Protection Amendment Bill 2002
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Division 1 Amendments to Environmental Protection Act 1986
s. 61
61. Section 95 amended
Section 95(1)(b) is amended by deleting "discharged or ".
62. Section 96 amended
Section 96(1)(b) is amended as follows:
5 (a) by deleting "the discharge of waste or the emission of
noise, odour or electromagnetic radiation" and inserting
instead --
" any emission ";
(b) in subparagraphs (i) and (ii) by deleting "discharge or "
10 in both places where it occurs.
63. Section 103 amended
Section 103(1) is repealed and the following subsection is
inserted instead --
"
15 (1) Subject to section 105, a person who is aggrieved by --
(a) a requirement contained in a closure notice,
environmental protection notice, vegetation
conservation notice or prevention notice given
to that person; or
20 (b) an amendment contained in a notice given to
that person under section 65(4) or under
section 65(4) as applied by section 68A(10) or
70(8),
may within 21 days of being given that notice lodge
25 with the Minister an appeal in writing setting out the
grounds of that appeal.
".
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Environmental Protection Amendment Bill 2002
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Amendments to Environmental Protection Act 1986 Division 1
s. 64
64. Section 111 amended
Section 111 is amended by inserting after "pollution" --
" or environmental harm ".
65. Section 122A inserted
5 After section 122 the following section is inserted --
"
122A. Codes of practice
(1) The CEO, on the recommendation of the Authority,
may issue codes of practice in relation to activities that
10 involve an emission or environmental harm.
(2) The CEO must not issue a code of practice unless the
code of practice was developed by the CEO after
consultation with and, by written notice, seeking
submissions from --
15 (a) the Authority;
(b) such State authorities as the CEO considers
appropriate;
(c) such industry groups as the CEO considers
appropriate; and
20 (d) such environmental and other groups as the
CEO considers appropriate.
(3) The CEO may seek submissions from the public on a
proposed code of practice.
(4) A code of practice issued under this section is
25 subsidiary legislation within the meaning of the
Interpretation Act 1984.
".
page 63
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 1 Amendments to Environmental Protection Act 1986
s. 66
66. Schedule 1 amended
(1) After Schedule 1 Part 1 Division 1 item 8 the following items
are inserted --
"
8A 50A(1) $500 000 or $100 000
5 years
imprisonment
or both
8B 50A(2) $250 000 or $50 000
3 years
imprisonment
or both
8C 50B(1) $250 000 or $50 000
3 years
imprisonment
or both
5 ".
(2) Schedule 1 Part 1 Division 1 item 12 is amended by deleting
"73(5)" and inserting instead --
" 73A(6) ".
(3) After Schedule 1 Part 1 Division 2 item 8 the following items
10 are inserted --
"
8A 50A(1) $1 000 000 $200 000
8B 50A(2) $500 000 $100 000
8C 50B(1) $500 000 $100 000
".
(4) Schedule 1 Part 1 Division 2 item 12 is amended by deleting
"73(5)" and inserting instead --
15 " 73A(6) ".
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Environmental Protection Amendment Bill 2002
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Amendments to Environmental Protection Act 1986 Division 1
s. 67
(5) Before Schedule 1 Part 2 Division 1 item 2 the following items
are inserted --
"
1C 50B(2) $125 000 $25 000
1D 50D $50 000 $10 000
".
5 (6) Schedule 1 Part 2 Division 1 item 10 is amended by deleting
"75(2)" and inserting instead --
" 73A(7) ".
(7) Schedule 1 Part 2 Division 1 item 11 is amended by deleting
"73(6)" and inserting instead --
10 " 75(2) ".
(8) Before Schedule 1 Part 2 Division 2 item 2 the following items
are inserted --
"
1C 50B(2) $250 000 $50 000
1D 50D $100 000 $20 000
".
15 (9) Schedule 1 Part 2 Division 2 item 10 is amended by deleting
"73(6)" and inserting instead --
" 73A(7) ".
67. Schedule 2 amended
(1) Schedule 2 item 4 is amended by deleting "the discharge of
20 waste or emission of noise, odour or electromagnetic radiation"
and inserting instead --
" an emission ".
page 65
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 2 Consequential amendments to other Acts
s. 68
(2) Schedule 2 item 7 is amended by deleting "the discharge of
waste or the emission of noise, odour or electromagnetic
radiation" and inserting instead --
" an emission ".
5 (3) Schedule 2 item 10 is amended by deleting "the discharge of
any waste or the emission of any noise, odour or
electromagnetic radiation" and inserting instead --
" an emission ".
(4) Schedule 2 items 14, 15, 30 and 31 are each amended by
10 inserting after "emission" --
" or transmission ".
(5) Schedule 2 items 16, 19, 20 (twice) and 28 are each amended by
inserting after "pollution" --
" or environmental harm ".
15 Division 2 -- Consequential amendments to other Acts
68. Consequential amendments
(1) Section 53(5)(b) of the Armadale Redevelopment Act 2001* is
amended by inserting after "pollution" --
" or environmental harm ".
20 [* Act No. 25 of 2001.]
(2) Section 47A(5)(b) of the East Perth Redevelopment Act 1991*
is amended by inserting after "pollution" --
" or environmental harm ".
[* Reprinted as at 27 August 1999.]
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Environmental Protection Amendment Bill 2002
Environmental regulation Part 3
Consequential amendments to other Acts Division 2
s. 68
(3) Section 32(5)(b) of the Hope Valley-Wattleup Redevelopment
Act 2000* is amended by inserting after "pollution" --
" or environmental harm ".
[* Act No. 77 of 2000.]
5 (4) Section 33(2)(c) of the Litter Act 1979* is amended by deleting
"the pollution of the environment within the meaning of the
Environmental Protection Act 1971" and inserting instead --
"
pollution or environmental harm within the
10 meaning of the Environmental Protection
Act 1986
".
[* Reprinted as at 4 January 1999.
For subsequent amendments see 2001 Index to Legislation of
15 Western Australia, Table 1, p. 212.]
(5) Section 43B(5)(b) of the Metropolitan Region Town Planning
Scheme Act 1959* is amended by inserting after "pollution" --
" or environmental harm ".
[* Reprinted as at 7 September 2001.
20 For subsequent amendments see 2001 Index to Legislation
of Western Australia, Table 1, p. 236 and Act No. 25 of 2001.]
(6) Section 55(5)(b) of the Midland Redevelopment Act 1999* is
amended by inserting after "pollution" --
" or environmental harm ".
25 [* Act No. 38 of 1999.]
(7) Section 54A(5)(b) of the Subiaco Redevelopment Act 1994* is
amended by inserting after "pollution" --
" or environmental harm ".
[* Reprinted as at 25 February 2000.]
page 67
Environmental Protection Amendment Bill 2002
Part 3 Environmental regulation
Division 2 Consequential amendments to other Acts
s. 68
(8) Section 7(1)(c) of the Swan River Trust Act 1988* is amended
by inserting after "pollution" --
" and environmental harm ".
[* Reprinted as at 1 December 2000.]
5 (9) Section 10A(4)(b) of the Town Planning and Development
Act 1928* is amended by inserting after "pollution" --
" or environmental harm ".
[* Reprinted as at 3 November 2000.
For subsequent amendments see 2001 Index to Legislation of
10 Western Australia, Table 1, p. 382 and Act No. 25 of 2001.]
(10) Section 37L(5)(b) of the Western Australian Planning
Commission Act 1985* is amended by inserting after
"pollution" --
" or environmental harm ".
15 [* Reprinted as at 16 March 2001.
For subsequent amendments see Act No. 7 of 2002.]
page 68
Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 69
Part 4 -- Licensing and works approvals
69. Section 3 amended
(1) Section 3(1) is amended as follows:
(a) by inserting in the appropriate alphabetical position the
5 following definition --
"
"closure notice" has the meaning given by
section 68A;
";
10 (b) in the definitions of "licence" and "works approval" by
inserting after "Part V" --
" Division 3 ".
(2) After section 3(2) the following subsection is inserted --
"
15 (2aa) A reference in this Act to the discharge, emission or
transmission of anything (whether accompanied by the
expression "into the environment" or not) --
(a) is a reference to discharge, emission or
transmission onto or into land, water, the
20 atmosphere or living things; and
(b) in relation to discharge, emission or
transmission from premises, includes a
reference to discharge, emission or
transmission onto or into land, water, the
25 atmosphere or living things on, in, under, above
or part of the premises.
".
70. Section 52 amended
Section 52 is amended by inserting after "become" --
30 " , or to become capable of being, ".
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 71
71. Section 53 amended
(1) Section 53(1)(f)(iii) is amended by inserting after "in" --
" a closure notice or ".
(2) Section 53(2)(c)(iii) is amended by inserting after "in" --
5 " a closure notice or ".
72. Section 54 amended
(1) Section 54(1)(b) is amended by inserting after "prescribed" --
" by or determined under the regulations ".
(2) After section 54(2) the following subsection is inserted --
10 "
(2a) As well as seeking comments under subsection (2)(b)
the CEO is to advertise the application in the
prescribed manner, inviting any person who wishes to
comment on it to do so within such period as is
15 specified in the advertisement.
".
(3) Section 54(3) is amended by deleting "subsection (4)" and
inserting instead --
" subsections (4) and (5) ".
20 (4) Section 54(3) is amended by inserting after "(2)(b)" --
" or (2a) ".
(5) After section 54(3) the following subsection is inserted --
"
(3a) The CEO is to give the applicant written notice of the
25 refusal to grant a works approval.
".
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 73
(6) Section 54(4)(b) is deleted and the following paragraph is
inserted instead --
"
(b) contrary to, or otherwise than in accordance
5 with, an implementation agreement or decision.
".
(7) After section 54(4) the following subsection is inserted --
"
(5) If a decision-making authority makes a decision that
10 has the effect of preventing the implementation of a
proposal to which an application for a works approval
made under subsection (1) is related, the CEO does not
have to perform any duty imposed under subsection (3)
while that decision has effect.
15 ".
73. Section 55 amended
Section 55(1) is amended by inserting after "the works
approval" --
" , or a suspension of the works approval, ".
20 74. Section 56 amended
(1) Section 56 is amended by inserting before "Subject" the
subsection designation "(1)".
(2) At the end of section 56 the following subsection is inserted --
"
25 (2) Subsection (1) does not apply if the emission is caused,
increased or altered --
(a) as a result of anything done in accordance with
a works approval; and
(b) while the works approval is in force.
30 ".
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 75
75. Section 57 amended
(1) Section 57(1)(b) is amended by inserting after "prescribed" --
" by or determined under the regulations ".
(2) Section 57(2)(a)(ii)(A) is amended by inserting after
5 "subject" --
"
(to the extent to which that
completion and those conditions
are relevant to that application)
10 ".
(3) After section 57(2) the following subsection is inserted --
"
(2a) As well as seeking comments under subsection (2)(b)
the CEO is to advertise the application in the
15 prescribed manner, inviting any person who wishes to
comment on it to do so within such period as is
specified in the advertisement.
".
(4) Section 57(3) is amended by inserting after "(2)(b)" --
20 " or (2a) ".
(5) After section 57(3) the following subsection is inserted --
"
(3a) The CEO is to give the applicant written notice of the
refusal to grant a licence.
25 ".
(6) Section 57(4)(b) is deleted and the following paragraph is
inserted instead --
"
(b) contrary to, or otherwise than in accordance
30 with, an implementation agreement or decision.
".
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 76
(7) After section 57(4) the following subsection is inserted --
"
(4a) If a decision-making authority makes a decision that
has the effect of preventing the implementation of a
5 proposal to which an application for a licence made
under subsection (1) is related, the CEO does not have
to perform any duty imposed under subsection (3)
while that decision has effect.
".
10 76. Section 58 amended
Section 58(1) is repealed and the following subsection is
inserted instead --
"
(1) A holder of a licence who contravenes a condition to
15 which the licence is subject commits an offence.
".
77. Section 59 replaced by sections 59, 59A and 59B
Section 59 is repealed and the following sections are inserted
instead --
20 "
59. Amendment of works approval or licence
(1) The CEO may amend a works approval or licence
by --
(a) removing or varying any condition to which the
25 works approval or licence is subject;
(b) subjecting the works approval or licence to a
new condition;
(c) redescribing the boundaries or area of the
premises to which the works approval or
30 licence applies;
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 77
(d) redescribing the purpose for which the premises
to which the works approval or licence applies
are used;
(e) correcting in the works approval or licence --
5 (i) a clerical mistake or unintentional error
or omission;
(ii) a figure which has been miscalculated;
or
(iii) the misdescription of any person, thing
10 or property;
(f) making an administrative change to the format
of the works approval or licence which does not
alter the obligations of the occupier of the
premises to which the works approval or
15 licence relates;
(g) adding a discharge point or emission point;
(h) deleting any discharge point or emission point
which is no longer in use;
(i) amending the works approval or licence in
20 conformity with an approved policy or
prescribed standard or with an exemption
conferred under this Act;
(j) amending the works approval or licence to give
effect to a decision of the Minister under this
25 Act (whether on an appeal or otherwise); or
(k) extending the duration of the works approval or
licence.
(2) A works approval or licence may be amended on
application by the holder of the works approval or
30 licence or on the initiative of the CEO.
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Environmental Protection Amendment Bill 2002
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s. 77
59A. Revocation or suspension of works approval or
licence
(1) The CEO may revoke or suspend a works approval or
licence.
5 (2) The grounds for revocation or suspension of a works
approval or licence are that --
(a) the CEO is satisfied that there has been a
breach of any of the conditions --
(i) to which the works approval or licence
10 is subject; or
(ii) to which a works approval granted to
the licensee was at the time of that
breach subject;
(b) the premises to which the licence relates are
15 exempted by the regulations from requiring a
licence;
(c) information contained in or supporting the
application was false or misleading in a
material respect;
20 (d) the current business address of the holder of the
works approval or licence is unknown; or
(e) the holder of the works approval or licence has
applied to the CEO to surrender the works
approval or licence.
25 59B. Manner of amendment, revocation or suspension
(1) An application for an amendment to a works approval
or licence or to surrender a works approval or licence
is to --
(a) be made in the manner and form approved by
30 the CEO;
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 77
(b) be accompanied by the fee prescribed by or
determined under the regulations; and
(c) be supported by any plans, specifications and
other documents and information required by
5 the CEO and include a summary of that
supporting documentation and information.
(2) Before amending, revoking or suspending a works
approval or licence the CEO is to give the holder of the
works approval or licence a written notice under this
10 section.
(3) The notice is to --
(a) state details of the proposed action;
(b) invite the holder to make representations to the
CEO to show why the action should not be
15 taken; and
(c) state the period (at least 21 days after the notice
is given to the holder) within which
representations may be made.
(4) The representations must be made in writing.
20 (5) Subject to subsection (7), the CEO may take the
proposed action --
(a) at any time after the holder of the works
approval or licence gives the CEO written
notice that the holder does not intend to make
25 any representations or any further
representations; or
(b) if such notice is not given, after the end of the
period stated in the notice within which
representations may be made.
30 (6) The CEO is to consider any representations properly
made by the holder of the works approval or licence.
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 78
(7) If the proposed amendment, revocation or suspension
is related to a proposal which has been referred to the
Authority under section 38, the CEO is not to so
amend, revoke or suspend --
5 (a) while any decision-making authority is
precluded by section 41 from making any
decision which could have the effect of causing
or allowing that proposal to be implemented;
or
10 (b) contrary to, or otherwise than in accordance
with, an implementation agreement or decision.
(8) If a decision-making authority makes a decision that
has the effect of preventing the implementation of a
proposal to which an amendment proposed under this
15 section is related, the CEO does not have to make a
decision on the amendment while the decision-making
authority's decision has effect.
(9) The CEO is to give the holder of the works approval or
licence written notice of any amendment, revocation or
20 suspension of the works approval or licence.
(10) Without limiting subsection (9), notice of an
amendment can be given in the form of a revised works
approval or licence document.
".
25 78. Section 60 amended
Section 60(3) is repealed and the following subsection is
inserted instead --
"
(3) Despite anything in this section --
30 (a) if the CEO is satisfied that, as a result of
environmental circumstances having changed,
the environment or an environmental value of
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 79
the area concerned requires a higher level of
protection than would be provided by the
standards required by or under any approved
policy or by prescribed standards, the CEO may
5 grant or amend a works approval or licence so
as to make the works approval or licence
subject to conditions which specify standards
that are more stringent than those required by
or under the approved policy or by prescribed
10 standards;
(b) if the CEO is satisfied that, as a result of the
approval under section 31(d) of a new approved
policy or as a result of an approved policy as
amended being confirmed under section 37, any
15 condition to which an existing works approval
or licence is subject is inconsistent with that
approved policy, the CEO may amend that
works approval or licence to make it consistent
with that approved policy.
20 ".
79. Sections 61 and 62 replaced by sections 61, 62 and 62A
Sections 61 and 62 are repealed and the following sections are
inserted instead --
"
25 61. Duty of persons becoming occupiers of prescribed
premises
(1) This section applies when a person becomes the
occupier (the "new occupier") of any prescribed
premises (the "premises").
30 (2) In this section, the day on which the new occupier
becomes the occupier of the premises is referred to as
the "relevant day".
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 79
(3) If a works approval or licence (the "existing
authorisation") is in force in respect of the premises
on the relevant day, the new occupier must comply
with the conditions to which the existing authorisation
5 is subject and must, within 30 days after the relevant
day, apply --
(a) under section 64 for the transfer of the existing
authorisation to the new occupier; or
(b) under section 54 or 57 for a works approval or
10 licence.
(4) If subsection (3) is not complied with, the new
occupier commits an offence.
(5) If the new occupier complies with subsection (3) in
respect of the premises, the new occupier is to be
15 regarded as having been the holder of the existing
authorisation --
(a) during the period before applying for the
transfer of the existing authorisation or for a
works approval or licence, as the case may be;
20 and
(b) while that application is pending.
(6) This subsection applies if a works approval or licence
is not in force in respect of the premises on the relevant
day but, within 30 days after the relevant day, the new
25 occupier applies under section 54 or 57 for a works
approval or licence in respect of the premises.
(7) If subsection (6) applies, the new occupier does not
commit any offence under section 53 or 56 in respect
of the emission of a pollutant from the premises
30 without a works approval or licence while the
application under section 54 or 57 is pending.
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 79
62. Works approval and licence conditions
(1) A works approval or licence may be granted subject to
such conditions as the CEO considers to be necessary
or convenient for the purposes of this Act relating to
5 the prevention, control, abatement or mitigation of
pollution or environmental harm.
(2) Section 62A sets out some kinds of conditions that may
be attached to a works approval or licence and further
kinds of conditions may be prescribed, but nothing in
10 that section or the regulations prevents other conditions
from being attached.
(3) Subject to section 60 a condition is not to be
inconsistent with an approved policy or a prescribed
standard.
15 62A. Some kinds of conditions
(1) The following list sets out things that the occupier of
premises to which a works approval or licence relates
can be required to do (at the expense of the occupier)
under conditions attached to the works approval or
20 licence --
(a) design, construct or operate any facilities or
plant in accordance with specified criteria;
(b) install or operate any equipment for preventing,
controlling, abating or monitoring pollution or
25 environmental harm in accordance with
specified criteria;
(c) take specified measures for the purpose of
minimising the likelihood of pollution or
environmental harm;
30 (d) meet specified criteria or comply with specified
limits as to the characteristics, volume and
effects of, emissions;
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 79
(e) meet specified ambient concentration limits in
specified premises or places;
(f) comply with requirements set by management
plans or other specified programmes;
5 (g) monitor operations;
(h) conduct analysis of monitoring data;
(i) provide information on the nature and quantity
of wastes and on materials leading to the
generation of those wastes;
10 (j) dispose of waste in a specified manner;
(k) if practicable --
(i) reuse waste wholly or in part; or
(ii) make waste available for reuse by
another person;
15 (l) investigate options for measures for preventing,
controlling or abating pollution or
environmental harm;
(m) conduct environmental risk assessment studies;
(n) provide reports on monitoring data, and
20 analysis of it, to the CEO;
(o) provide reports on audits and studies of
specified kinds to the CEO;
(p) provide audit compliance reports to the CEO;
(q) prepare, implement and adhere to
25 environmental management systems, waste
management systems, safety management
systems, environmental management plans and
environmental improvement plans;
(r) have something required to be done under a
30 condition done by --
(i) a person of a class approved by the
CEO; or
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 79
(ii) a laboratory registered by the National
Association of Testing Authorities;
(s) do something required to be done under a
condition --
5 (i) within a specified period or before a
specified date; or
(ii) in a specified form or manner.
(2) An occupier of premises who, being required under a
condition attached to a works approval or licence to
10 provide a report on monitoring data, or analysis of it, to
the CEO --
(a) fails to do so within the specified period or
before the specified date; or
(b) fails to do so in the specified form or manner,
15 commits an offence.
(3) Without limiting subsection (1) paragraph (g), a
condition referred to in that paragraph can require an
occupier of premises to carry out a specified
monitoring programme for the purpose of supplying
20 the CEO with information relating --
(a) to the characteristics and volume of any waste
held or stored on those premises; or
(b) to the characteristics, volume and effects of any
pollutant being or to be emitted,
25 from those premises into the environment, and to the
characteristics of the environment.
(4) In this section --
"specified" means specified by the CEO in the works
approval or licence concerned.
30 ".
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 80
80. Section 64 amended
Section 64(1)(b) is amended by deleting "prescribed fee" and
inserting instead --
" fee prescribed by or determined under the regulations ".
5 81. Section 68A inserted
After section 68 the following section is inserted --
"
68A. Closure notices
(1) In this section --
10 "authorisation" means a declaration under section 6, a
clearing permit, a works approval, a licence, an
exemption under section 75 or a licence, permit,
approval or exemption under the regulations;
"relevant premises", in relation to an authorisation,
15 means premises --
(a) in respect of which the authorisation was
issued; or
(b) at which conduct is being or has been
engaged in under the authorisation;
20 "specified" means specified by the CEO in the closure
notice concerned.
(2) If the CEO considers on reasonable grounds that, as a
result of anything that has been done or has happened
at relevant premises before the expiry or revocation of
25 an authorisation, ongoing investigation, monitoring or
management is or will be required at the premises
following that expiry or revocation, the CEO may
cause a notice (a "closure notice") to be given in
respect of the premises.
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 81
(3) If the authorisation is still in force, the closure notice is
to be given to the person who holds the authorisation.
(4) If the authorisation is not still in force, the closure
notice is to be given to the person who held the
5 authorisation or to the occupier or owner of the
relevant premises.
(5) If a person who is the owner of the relevant premises is
not given the closure notice under subsection (3) or (4),
a copy of the notice must be given to that person.
10 (6) If a person who is the occupier of the relevant premises
is not given the closure notice under subsection (3) or
(4), a copy of the notice may be given to that person.
(7) A closure notice may require any person bound by it to
do any one or more of the following in relation to the
15 relevant premises --
(a) take specified investigation and monitoring
action;
(b) prepare a management plan;
(c) take specified management action;
20 (d) report on specified matters in a specified form
at specified times;
(e) arrange for an audit of the premises to be
carried out by a person nominated or approved
by the CEO and report to the CEO on the
25 findings of the audit as to whether or not the
action required by the notice has been taken.
(8) A closure notice is to specify --
(a) the name and address of the person to whom it
is given;
30 (b) the reason for which it is given;
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Environmental Protection Amendment Bill 2002
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s. 81
(c) a description of the relevant premises and the
location of the premises sufficient to identify
both;
(d) the things referred to in subsection (7) that are
5 required to be done; and
(e) the period (if any) within which the things are
to be done.
(9) A closure notice --
(a) while it subsists, binds each person to whom it
10 is given; and
(b) while it remains registered under section 66 (as
applied by subsection (10)), binds each
successive owner or occupier of the land to
which it relates.
15 (10) Section 65(4) to (7) and sections 66, 67 and 68 apply in
relation to closure notices as if references in those
enactments to an environmental protection notice were
references to a closure notice.
(11) If action required by a closure notice to be taken has
20 not been taken, the CEO may --
(a) cause that action to be taken; and
(b) recover the cost of the taking of that action
from any person bound by the notice by action
in a court of competent jurisdiction as a debt
25 due to the Crown.
(12) Any cost recovered under subsection (11)(b) is to be
paid into the Consolidated Fund.
".
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 82
82. Section 102 amended
Section 102(2) is amended by deleting "revocation, suspension
or amendment of a licence under section 59(1)" and inserting
instead --
5 "
amendment of the works approval or licence under
section 59(1), or the revocation or suspension of the
works approval or licence under section 59A(1),
".
10 83. Section 105 amended
Section 105(b) is amended by deleting "section 59(1)(b)(iii),
(iv), (v) or (vi)" and inserting instead --
" section 59(1)(e), (f), (h), (i) or (j) ".
84. Section 109 amended
15 Section 109(2) is amended by deleting "(b)(i) or (ii)" and
inserting instead --
" (a) or (b) ".
85. Schedule 1 amended
(1) After Schedule 1 Part 2 Division 1 item 5 the following item is
20 inserted --
"
5A 55(1a) $62 500 $12 500
".
(2) After Schedule 1 Part 2 Division 1 item 7 the following item is
inserted --
25 "
7A 58(1a) $62 500 $12 500
".
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Environmental Protection Amendment Bill 2002
Licensing and works approvals Part 4
s. 86
(3) After Schedule 1 Part 2 Division 2 item 5 the following item is
inserted --
"
5A 55(1a) $125 000 $25 000
".
5 (4) After Schedule 1 Part 2 Division 2 item 7 the following item is
inserted --
"
7A 58(1a) $125 000 $25 000
".
(5) Schedule 1 Part 2 Divisions 1 and 2 are each amended in
10 item 8 column 2 by deleting "(1)" and inserting instead --
" (4) ".
(6) Schedule 1 Part 2 Division 3 item 3 column 2 is amended by
deleting "62" and inserting instead --
" 62A ".
15 86. Schedule 2 amended
(1) Schedule 2 item 2 is deleted and the following items are inserted
instead --
"
2. The fees to apply under this Act, including, without limiting
20 sections 43, 45 and 45A of the Interpretation Act 1984, the
following --
(a) the time at which, or the periods for or during
which, fees are to be paid;
(b) the structure of fees;
25 (c) the basis on which a fee is to be calculated;
(d) interest on unpaid fees;
(e) penalties for late payment or underpayment of fees;
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Environmental Protection Amendment Bill 2002
Part 4 Licensing and works approvals
s. 86
(f) recovery of fees;
(g) refunding of fees.
2A. Without limiting item 2, in the case of a works approval or
licence under Part V or a licence, permit, approval or
5 exemption under the regulations (an "authorisation") --
(a) prescribing fees that are payable before or when the
authorisation is granted, issued or given and fees
that are payable at prescribed intervals or in
prescribed circumstances during the currency of the
10 authorisation;
(b) providing for the authorisation to cease to have
effect if a fee is not paid in accordance with the
regulations.
".
15 (2) Schedule 2 item 17 is deleted and the following item is inserted
instead --
"
17. Prohibiting or regulating any conduct, operation or activity
that is capable of causing pollution or environmental harm.
20 ".
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Environmental Protection Amendment Bill 2002
Financial assurances Part 5
s. 87
Part 5 -- Financial assurances
87. Part VA inserted
After section 86 the following Part is inserted --
"
5 Part VA -- Financial assurances
86A. Interpretation
In this Part --
"authorisation" means a declaration under section 6, a
clearing permit, a works approval, a licence, an
10 exemption under section 75 or a licence, permit,
approval or exemption under the regulations;
"financial assurance requirement" means a
requirement to provide a financial assurance
imposed --
15 (a) as an implementation condition;
(b) as a condition of an authorisation; or
(c) under section 86B(2);
"responsible person" means --
(a) in relation to a proposal, the proponent;
20 (b) in relation to an authorisation, the holder of
the authorisation or, in the case of a
declaration or exemption, a person required
to comply with a condition of the exemption;
(c) in relation to a closure notice, the person
25 bound by the notice;
(d) in relation to an environmental protection
notice, the person bound by the notice;
(e) in relation to a vegetation conservation
notice, the person bound by the notice; or
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Environmental Protection Amendment Bill 2002
Part 5 Financial assurances
s. 87
(f) in relation to a prevention notice, the person
to whom the notice is given.
86B. Financial assurance requirement
(1) Implementation conditions or conditions of an
5 authorisation may require the responsible person to
provide a financial assurance of a kind specified in the
conditions within the time specified in the conditions.
(2) The CEO may by written notice require --
(a) a person bound by a closure notice;
10 (b) a person bound by an environmental protection
notice;
(c) a person bound by a vegetation conservation
notice; or
(d) a person to whom a prevention notice is given,
15 to provide a financial assurance of a kind specified in
the notice within a time specified in the notice.
(3) A person who fails to comply with a requirement under
subsection (2) commits an offence.
(4) A financial assurance may be required to be given in
20 one or more of the following forms --
(a) a bank guarantee;
(b) a bond;
(c) an insurance policy;
(d) another form of security that the CEO specifies.
25 (5) The CEO may require a financial assurance to be
provided before an authorisation is declared, granted,
amended or suspended.
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Environmental Protection Amendment Bill 2002
Financial assurances Part 5
s. 87
(6) A financial assurance requirement may provide for the
procedures under which the financial assurance may be
called on or used.
(7) If a financial assurance is provided as a condition of an
5 authorisation, the CEO may, before the authorisation
ceases to have effect, require the responsible person to
continue to provide the financial assurance under
subsection (2).
86C. Considerations when Minister consents to or
10 imposes a financial assurance requirement
(1) A financial assurance requirement is not to be imposed
under section 86B(1) or (2), or continued under
section 86B(7), by the CEO unless the Minister has
consented to the imposition or continuation.
15 (2) In determining whether to --
(a) seek the consent of the Minister to the
imposition of a financial assurance requirement
under section 86B(1), the CEO; and
(b) consent to the imposition, the Minister,
20 is to have regard to --
(c) the degree of risk of pollution or environmental
harm associated with the implementation of the
authorisation;
(d) the likelihood of action being required to deal
25 with waste or prevent, control or abate
pollution or environmental harm arising from
acts associated with the implementation of the
authorisation;
(e) the environmental record of the responsible
30 person or proposed responsible person;
(f) other financial assurances required to be held
by the responsible person or proposed
page 91
Environmental Protection Amendment Bill 2002
Part 5 Financial assurances
s. 87
responsible person under this Act and other
written laws; and
(g) any other matters prescribed.
(3) In determining whether to --
5 (a) seek the consent of the Minister to the
imposition of a financial assurance requirement
under section 86B(2) or continuation under
section 86B(7), the CEO; and
(b) consent to the imposition or continuation, the
10 Minister,
is to have regard to --
(c) the extent of action required under the closure
notice, environmental protection notice or
prevention notice;
15 (d) the environmental record of the responsible
person;
(e) other financial assurances required to be held
by the responsible person under this Act and
other written laws; and
20 (f) any other matters prescribed.
(4) In determining whether to impose a financial
assurance requirement as an implementation condition,
the Minister is to have regard to the matters set out in
subsection (2)(c) to (g) as if the proposal were an
25 authorisation.
86D. Amount of financial assurance
The amount of the financial assurance --
(a) is to be specified in the financial assurance
requirement; and
30 (b) is not to exceed an amount that, in the opinion
of the CEO, represents a reasonable estimate of
page 92
Environmental Protection Amendment Bill 2002
Financial assurances Part 5
s. 87
the total likely costs and expenses that may be
incurred in taking action in that case or in
reimbursing a person for any action taken.
86E. Claim on or realising of financial assurance
5 (1) This section applies if --
(a) the Minister incurs costs in taking action under
section 48(4) or 69(2);
(b) an authorised person or inspector incurs costs in
taking action under section 73(1);
10 (c) the CEO incurs costs in taking action under
section 68A(11)(a) or 73(4); or
(d) the CEO reimburses costs under
section 73A(3),
and the person from whom those costs are or would be
15 recoverable under this Act is a person who has
provided a financial assurance.
(2) The Minister or the CEO may recover the reasonable
costs of taking the action, or the costs reimbursed, by
making a claim on or realising the financial assurance
20 or part of it.
(3) Before making the claim on or realising the financial
assurance or part of it, the Minister or the CEO is to
make all reasonable endeavours to give the responsible
person a written notice under this section.
25 (4) The notice is to --
(a) state details of the action taken;
(b) state the amount of the financial assurance to be
claimed or realised;
(c) invite the responsible person to make
30 representations to the Minister or the CEO to
page 93
Environmental Protection Amendment Bill 2002
Part 5 Financial assurances
s. 87
show why the financial assurance should not be
claimed or realised as proposed; and
(d) state the period (at least 30 days after the notice
is given to the responsible person) within which
5 representations may be made.
(5) The representations must be made in writing.
(6) After the end of the period stated in the notice, the
Minister or the CEO is to consider any representations
properly made by the responsible person.
10 (7) If the Minister or the CEO decides to make a claim on
or realise the financial assurance or part of it, the
Minister or the CEO is to immediately make
reasonable endeavours to give written notice to the
responsible person of the decision and the reasons for
15 the decision.
(8) Any costs recovered under this section are to be paid
into the Consolidated Fund.
86F. Lapsing of financial assurance
(1) The requirement to provide financial assurance lapses
20 and no longer binds the responsible person if the CEO
is satisfied that the reason for which the financial
assurance was required no longer exists and has given
the responsible person written notice of the lapsing of
the financial assurance requirement.
25 (2) If a responsible person makes a written request to the
CEO for advice as to whether the reason for which a
financial assurance provided by that person was
required still exists, the CEO is to provide that advice.
page 94
Environmental Protection Amendment Bill 2002
Financial assurances Part 5
s. 87
86G. Financial assurance not to affect other action
(1) Subject to subsections (3) and (4), a financial assurance
may be called on and used, despite and without
affecting --
5 (a) any liability of the responsible person to any
penalty for an offence for a contravention to
which the financial assurance relates; and
(b) any other action that might be taken or is
required to be taken in relation to any
10 contravention or other circumstances to which
the financial assurance relates.
(2) If the amount of financial assurance claimed or realised
does not cover all the costs concerned, the Minister or
CEO may recover the excess from the responsible
15 person under section 48(5), 68A(11)(b), 69(3), 73(4a)
or 73A(4), as the case requires.
(3) The Minister is not entitled --
(a) to recover costs under section 48(5) or 69(3) if
a financial assurance has been called on and
20 used in respect of those costs (except to the
extent that the financial assurance does not
cover all the costs); or
(b) to call on or use a financial assurance in respect
of costs which have been recovered under
25 section 48(5) or 69(3).
(4) The CEO is not entitled --
(a) to recover costs under section 68A(11)(b),
73(4a) or 73A(4) if a financial assurance has
been called on and used in respect of those
30 costs (except to the extent that the financial
assurance does not cover all the costs); or
page 95
Environmental Protection Amendment Bill 2002
Part 5 Financial assurances
s. 88
(b) to call on or use a financial assurance in respect
of costs which have been recovered under
section 68A(11)(b), 73(4a) or 73A(4).
".
5 88. Schedule 1 amended
(1) After Schedule 1 Part 2 Division 1 item 11 the following item is
inserted --
"
11A 86B(3) $62 500 $12 500
".
10 (2) After Schedule 1 Part 2 Division 2 item 11 the following item is
inserted --
"
11A 86B(3) $125 000 $25 000
".
89. Schedule 2 amended
15 After Schedule 2 item 33A the following item is inserted --
"
33B. Making provision for or with respect to guidelines to be
observed in relation to the content of financial assurance
requirements.
20 ".
page 96
Environmental Protection Amendment Bill 2002
Environmental protection policies Part 6
s. 90
Part 6 -- Environmental protection policies
90. Section 5 amended
Section 5(1) is amended as follows:
(a) by inserting after "a provision of this Act" --
5 " or of an approved policy ";
(b) by inserting after "the provision of this Act" --
" or the approved policy, as the case requires, ".
91. Section 26 amended
(1) Section 26 is amended by inserting before "The Authority" the
10 subsection designation "(1)".
(2) At the end of section 26 the following subsection is inserted --
"
(2) If the draft policy does not identify an area of the State
to which it applies, consultation shall be carried out
15 under subsection (1) as if the draft policy applied to the
whole of the State.
".
92. Section 28 amended
(1) Section 28 is amended by inserting before "After" the
20 subsection designation "(1)".
(2) At the end of section 28 the following subsection is inserted --
"
(2) The Authority shall include reasons for any revision
of the draft policy in the report referred to in
25 subsection (1)(c)(ii).
".
page 97
Environmental Protection Amendment Bill 2002
Part 6 Environmental protection policies
s. 93
93. Section 30 replaced
Section 30 is repealed and the following section is inserted
instead --
"
5 30. Consultation by Minister
(1) Subject to subsection (3), after considering a copy of a
draft policy, and the report on the draft policy,
submitted to the Minister under section 28 or 32(1)(b),
the Minister shall make reasonable endeavours to
10 consult such public authorities and persons as appear to
the Minister to be likely to be affected by the draft
policy submitted.
(2) Subsection (1) applies whether or not the Minister
appoints a committee of inquiry under section 29 in
15 respect of the draft policy submitted.
(3) Subsection (1) applies unless the Minister is of the
opinion that --
(a) the draft policy submitted is substantially the
same as the draft policy in respect of which
20 notice was published under section 26(d); and
(b) the Authority has consulted such public
authorities and persons as appear to the
Minister to be likely to be affected by that draft
policy.
25 ".
94. Section 35 amended
(1) Section 35(2) is amended as follows:
(a) in paragraph (a) by deleting "the boundaries of the area,
and";
30 (b) by deleting "or" after paragraph (f)(v);
page 98
Environmental Protection Amendment Bill 2002
Environmental protection policies Part 6
s. 95
(c) in paragraph (f)(vi) by deleting "protected," and
inserting instead --
"
protected; or
5 (vii) procedures to evaluate the effectiveness
of the programme,
";
(d) in paragraph (f) by deleting "(v) and (vi)" and inserting
instead --
10 " (v), (vi) and (vii) ".
(2) After section 35(2) the following subsection is inserted --
"
(3) An approved policy may provide that it applies to --
(a) an area of the State identified in the policy;
15 (b) an area of the State identified in the policy or
by regulation;
(c) the whole of the State;
(d) the whole of the State other than an area
identified in the policy;
20 (e) the whole of the State other than an area
identified by regulation; or
(f) the whole of the State other than an area
identified in the policy or by regulation.
".
25 95. Section 36 amended
After section 36(2) the following subsection is inserted --
"
(3) The review of an approved policy does not change the
force and effect of the approved policy.
30 ".
page 99
Environmental Protection Amendment Bill 2002
Part 6 Environmental protection policies
s. 96
96. Schedule 2 amended
(1) Schedule 2 item 25 is amended by inserting after "Prescribing
standards" --
" and criteria ".
5 (2) After Schedule 2 item 25 the following items are inserted --
"
25A. Identifying an area of the State to which an approved policy
applies, or does not apply.
25B. Supplementing an approved policy by providing for any
10 matter referred to in section 35(2).
25C. Prescribing methods for measuring, predicting or evaluating
the effectiveness of an approved policy in achieving and
maintaining the environmental quality objectives specified
in the policy.
15 25D. Prescribing procedures for consultation with respect to the
making of regulations in relation to a matter referred to in
item 24, 25, 25A, 25B or 25C.
".
97. Approved policies amended and savings provisions
20 (1) Clause 14 of the Environmental Protection (Swan Coastal Plain
Lakes) Policy 1992* is repealed and the following clause is
inserted instead --
"
14. Penalties
25 A person who contravenes clause 10, 11, 12(1) or 13(1)
commits a Tier 2 offence.
Penalty:
(a) for an individual -- $62 500 and, in the case of a
continuing offence, a daily penalty of $12 500; and
page 100
Environmental Protection Amendment Bill 2002
Environmental protection policies Part 6
s. 97
(b) for a body corporate -- $125 000 and, in the case of
a continuing offence, a daily penalty of $25 000.
".
[* Published in Gazette 18 December 1992 p. 6099-102.]
5 (2) Clause 16 of the Environmental Protection (Gnangara Mound
Crown Land) Policy 1992* is repealed and the following clause
is inserted instead --
"
16. Penalties
10 A person who contravenes clause 11, 12, 13, 14 or 15
commits a Tier 2 offence.
Penalty:
(a) for an individual -- $62 500 and, in the case of a
continuing offence, a daily penalty of $12 500; and
15 (b) for a body corporate -- $125 000 and, in the case of
a continuing offence, a daily penalty of $25 000.
".
[* Published in Gazette 24 December 1992 p. 6287-93.]
(3) Clause 35 of the Environmental Protection (South West
20 Agricultural Zone Wetlands) Policy 1998* is repealed and the
following clause is inserted instead --
"
35. Penalties
A person who contravenes clause 29, 30, 31, 32(1), 33(1) or
25 34 commits a Tier 2 offence.
Penalty:
(a) for an individual -- $62 500 and, in the case of a
continuing offence, a daily penalty of $12 500; and
(b) for a body corporate -- $125 000 and, in the case of
30 a continuing offence, a daily penalty of $25 000.
".
[* Published in Gazette 28 October 1998 p. 5975-89.]
page 101
Environmental Protection Amendment Bill 2002
Part 6 Environmental protection policies
s. 97
(4) The amendments to approved policies effected by this section
have effect as though the provisions were enacted as part of the
Environmental Protection Act 1986 on and from the day on
which this section comes into operation.
5 (5) Nothing in this section affects the operation of the
Environmental Protection Act 1986 with respect to amendments
to the approved policies as amended by this section and
revocation of approval of the approved policies as amended by
this section.
page 102
Environmental Protection Amendment Bill 2002
Appeals Part 7
s. 98
Part 7 -- Appeals
98. Section 3 amended
Section 3(1) is amended by inserting in the appropriate
alphabetical position the following definition --
5 "
"Appeals Convenor" means the Appeals Convenor
appointed under section 107A;
".
99. Section 102 amended
10 (1) Section 102(1) is amended by inserting after "within
21 days of " --
" being notified of ".
(2) Section 102(2) is amended by inserting after "within
21 days of " --
15 " being notified of ".
(3) Section 102(3) and (4) are repealed and the following
subsections are inserted instead --
"
(3) A person who --
20 (a) not being an applicant referred to in
subsection (1), disagrees with a refusal or
specification referred to in that subsection; or
(b) not being a holder referred to in subsection (2),
disagrees with an amendment, revocation or
25 suspension referred to in that subsection,
may within the period within which the applicant or
holder can lodge an appeal about that refusal,
specification, revocation, suspension or amendment
lodge with the Minister an appeal in writing setting out
30 the grounds of that appeal.
page 103
Environmental Protection Amendment Bill 2002
Part 7 Appeals
s. 100
(4) Pending the determination of the relevant appeal
lodged under subsection (1), (2) or (3) in respect of a
refusal, specification, revocation or suspension, the
decision against which that appeal is lodged continues
5 to have effect.
(5) Pending the determination of the relevant appeal
lodged under subsection (2) in respect of an
amendment, the amendment shall be deemed not to
have been made.
10 (6) Pending the determination of the relevant appeal
lodged under subsection (3) in respect of an
amendment, the amendment continues to have effect.
".
100. Section 106 replaced
15 Section 106 is repealed and the following section is inserted
instead --
"
106. Preliminary action in respect of appeals
(1) When an appeal is lodged under this Part, the Appeals
20 Convenor --
(a) if the appeal is lodged under section 100, shall
request the Authority to report to the Minister
on the appeal;
(b) if the appeal is lodged under section 101A, 102,
25 103 or 104, shall request the CEO to report to
the Minister on the appeal;
(c) may consult the appellant and any other
appropriate person to determine whether or not
the point at issue in the appeal can be resolved;
30 and
page 104
Environmental Protection Amendment Bill 2002
Appeals Part 7
s. 101
(d) if the decision appealed against is not a
decision of the Minister, shall consider and
report to the Minister on the appeal.
(2) When an appeal is lodged under this Part, the
5 Minister --
(a) may, in any case; or
(b) shall, if the decision appealed against is a
decision of the Minister,
appoint an appeals committee to consider and report to
10 the Minister on the appeal.
(3) Subsection (2) does not apply to an appeal referred to
in section 101(2a) or (2d).
(4) If --
(a) an appeal is lodged under section 100 by a
15 person other than a decision-making authority;
and
(b) the decision-making authority has made
submissions to the Minister in respect of the
proposal to which the appeal relates,
20 the Appeals Convenor shall have regard to those
submissions when reporting on, and otherwise dealing
with, the appeal.
".
101. Section 107 amended
25 Section 107(1) is repealed and the following subsection is
inserted instead --
"
(1) On receiving a request under section 106(1), the
Authority or CEO, as the case requires, shall report on
30 the relevant appeal to the Minister.
".
page 105
Environmental Protection Amendment Bill 2002
Part 7 Appeals
s. 102
102. Sections 107A, 107B, 107C and 107D inserted
After section 107 the following sections are inserted --
"
107A. Appeals Convenor
5 (1) The Governor may appoint a person as Appeals
Convenor.
(2) The office of Appeals Convenor is not an office in the
Public Service and is not to be included in the Senior
Executive Service provided for by the Public Sector
10 Management Act 1994.
(3) Schedule 7 has effect with respect to the tenure, salary
and conditions of service of the Appeals Convenor.
(4) If --
(a) the Appeals Convenor is unable to act by
15 reason of illness, absence or other cause; or
(b) there is a vacancy in the office of Appeals
Convenor,
the Minister may appoint a person to act temporarily in
the place of the Appeals Convenor, and while so acting
20 according to the tenor of the appointment that person
has all of the functions, powers and immunities of the
Appeals Convenor.
(5) No act or omission of a person acting in place of the
Appeals Convenor under subsection (4) is to be
25 questioned on the ground that the occasion for the
appointment or acting had not arisen or had ceased.
107B. Functions and powers of Appeals Convenor
(1) Section 109 applies to and in relation to the Appeals
Convenor as if the Appeals Convenor were an appeals
30 committee and a report of the Appeals Convenor made
page 106
Environmental Protection Amendment Bill 2002
Appeals Part 7
s. 102
under section 106 has effect as if it were a report of an
appeals committee.
(2) In addition to any other function conferred on the
Appeals Convenor by this Act, the Appeals Convenor
5 may --
(a) advise the Minister generally on matters
concerning appeals under this Act; and
(b) perform such other functions as are conferred
on the Appeals Convenor by any other written
10 law.
(3) There are to be appointed under Part 3 of the Public
Sector Management Act 1994 such officers as are
necessary to assist the Appeals Convenor to perform
his or her functions.
15 107C. Appeals panel
(1) The Appeals Convenor may convene an appeals panel
whenever the Appeals Convenor considers it is
necessary or desirable to do so for the purpose of
advising the Appeals Convenor on matters arising in an
20 appeal.
(2) An appeals panel shall consist of one or more persons
who, because of professional or other qualifications or
experience, is or are in the opinion of the Appeals
Convenor qualified to give advice on matters arising in
25 an appeal.
(3) A member of an appeals panel shall be paid
remuneration and allowances as if the member were a
member of an appeals committee.
page 107
Environmental Protection Amendment Bill 2002
Part 7 Appeals
s. 103
107D. Administrative procedures for appeals
(1) The Appeals Convenor may, with the approval of the
Minister --
(a) draw up administrative procedures as to --
5 (i) the conduct of appeals; and
(ii) the appointment, composition and duties
of an appeals panel;
(b) amend or revoke administrative procedures
drawn up under this section; and
10 (c) publish in the Gazette administrative
procedures drawn up under this section and any
amendment or revocation of those
administrative procedures.
(2) If there is an inconsistency between administrative
15 procedures drawn up under this section and this Act or
regulations made under Schedule 2 item 35, this Act or
those regulations prevail to the extent of that
inconsistency.
".
20 103. Section 109 amended
Section 109(1) is amended by deleting paragraph (a) and "and"
after it and inserting the following paragraphs instead --
"
(a) shall consult --
25 (i) the CEO in the case of an appeal against
a decision of the CEO;
(ii) the Authority in the case of an appeal
against a decision of the Minister or the
Authority; and
30 (iii) the appellant;
page 108
Environmental Protection Amendment Bill 2002
Appeals Part 7
s. 104
(aa) may consult such other persons as it considers
necessary; and
".
104. Schedule 7 inserted
5 After Schedule 4 the following Schedule is inserted in the
appropriate numerical position --
"
Schedule 7 -- Appeals Convenor
[s. 107A]
10 1. Term of office
Subject to clause 3, the Appeals Convenor holds office for a
term, not exceeding 5 years, fixed by the instrument of
appointment, and is eligible for reappointment.
2. Salary and entitlements
15 (1) The Appeals Convenor --
(a) is to be paid salary and allowances at a rate per year
determined by the Minister on the recommendation
of the Minister for Public Sector Management; and
(b) has the same annual leave, sick leave and long
20 service leave entitlements as a permanent officer of
the Public Service.
(2) Subclause (1)(a) has effect subject to the Salaries and
Allowances Act 1975 if that Act applies to the Appeals
Convenor.
25 3. Resignation and removal from office
(1) The Appeals Convenor may resign office by written notice
delivered to the Governor.
page 109
Environmental Protection Amendment Bill 2002
Part 7 Appeals
s. 104
(2) The Governor may remove the Appeals Convenor from
office --
(a) for --
(i) misbehaviour or incompetence; or
5 (ii) mental or physical incapacity, other than
temporary illness, impairing the
performance of the Appeals Convenor's
functions;
or
10 (b) if the Appeals Convenor becomes a bankrupt or
applies to take the benefit of any law for the relief
of bankrupt or insolvent debtors, compounds with
his or her creditors or makes an assignment of
salary for their benefit.
15 (3) In subclause (2)(a) --
"misbehaviour" includes behaving in a manner that renders
the Appeals Convenor unfit to hold office even if the
conduct does not relate to any function of the office of
Appeals Convenor.
20 4. Appointment of public service officer
(1) A person who held office in the Public Service ("previous
office") immediately before being appointed as Appeals
Convenor --
(a) retains existing and accruing superannuation and
25 leave entitlements as if service as the Appeals
Convenor were a continuation of service in the
previous office; and
(b) if he or she ceases to hold office as the Appeals
Convenor on the completion of a periodical
30 appointment, is entitled to be appointed to an office
in the Public Service not lower in classification and
salary than the previous office (as long as he or she
is at that time eligible to hold such an office in the
Public Service).
page 110
Environmental Protection Amendment Bill 2002
Appeals Part 7
s. 104
(2) A person appointed to an office in the Public Service under
subclause (1)(b) retains existing and accruing
superannuation and leave entitlements as if service in the
Public Service were a continuation of service as the Appeals
5 Convenor.
5. Other conditions of service
The Governor may, on the recommendation of the Minister
for Public Sector Management, determine any other terms
and conditions of service to apply to the Appeals Convenor.
10 ".
page 111
Environmental Protection Amendment Bill 2002
Part 8 Bilateral Agreements
s. 105
Part 8 -- Bilateral Agreements
105. Section 3 amended
Section 3(1) is amended by inserting in the appropriate
alphabetical position the following definition --
5 "
"bilateral agreement" means an agreement referred to
in section 45(2) of the Environment Protection and
Biodiversity Conservation Act 1999 of the
Commonwealth to which the State is a party;
10 ".
106. Section 16 amended
After section 16(a) the following paragraph is inserted --
"
(aa) to facilitate the implementation of bilateral
15 agreements;
".
107. Section 17 amended
After section 17(3) the following subsection is inserted --
"
20 (4) Without limiting the generality of this section, for the
purposes of its function under section 16(aa) the
Authority may, in relation to the assessment of a
proposal to which a bilateral agreement applies --
(a) have regard to requirements made by the
25 bilateral agreement when deciding the level of
assessment to be used;
(b) prepare guidelines and publish material as
required under the bilateral agreement;
(c) require the proponent to do anything necessary
30 to give effect to the bilateral agreement; and
page 112
Environmental Protection Amendment Bill 2002
Bilateral Agreements Part 8
s. 108
(d) make its report in a manner that satisfies the
requirements of the bilateral agreement.
".
108. Section 120 amended
5 After section 120(b) the following paragraph is inserted --
" (ba) under a bilateral agreement; ".
page 113
Environmental Protection Amendment Bill 2002
Part 9 Clearing permits
Division 1 Amendments to Environmental Protection Act 1986
s. 109
Part 9 -- Clearing permits
Division 1 -- Amendments to Environmental Protection
Act 1986
109. Section 3 amended
5 (1) Section 3(1) is amended by inserting in the appropriate
alphabetical positions the following definitions --
"
"clearing" has the meaning given by section 51A;
"clearing permit" means a clearing permit granted
10 and in force under Part V Division 2;
"vegetation conservation notice" means a vegetation
conservation notice given under section 70;
".
(2) Section 3(4) is amended as follows:
15 (a) by deleting "a works" and inserting instead --
" a clearing permit, works ";
(b) by deleting "the works" in both places where it occurs
and inserting instead --
" the clearing permit, works ".
20 110. Part V Division 2 inserted and transitional provisions
(1) Before section 52 the following Division is inserted --
"
Division 2 -- Clearing of native vegetation
51A. Definitions
25 In this Division --
"area permit" has the meaning given by
section 51E(7);
page 114
Environmental Protection Amendment Bill 2002
Clearing permits Part 9
Amendments to Environmental Protection Act 1986 Division 1
s. 110
"clearing" means --
(a) the killing or destruction of;
(b) the removal of;
(c) the severing or ringbarking of trunks or
5 stems of; or
(d) the doing of any other substantial damage to,
some or all of the native vegetation in an area, and
includes the draining or flooding of land, the
burning of vegetation, the grazing of stock, or any
10 other act or activity, that causes --
(e) the killing or destruction of;
(f) the severing of trunks or stems of; or
(g) any other substantial damage to,
some or all of the native vegetation in an area;
15 "clearing principles" means the principles for clearing
native vegetation set out in Schedule 5;
"environmentally sensitive area" means an area that
is the subject of a declaration that is in force under
section 51B;
20 "purpose permit" has the meaning given by
section 51E(8);
"native vegetation" has the meaning given by
section 3(1) but does not include vegetation that
was intentionally sown, planted or propagated
25 unless --
(a) that vegetation was sown, planted or
propagated as required under this Act or
another written law; or
(b) that vegetation is of a class declared by
30 regulation to be included in this definition;
page 115
Environmental Protection Amendment Bill 2002
Part 9 Clearing permits
Division 1 Amendments to Environmental Protection Act 1986
s. 110
"occupier" of land means a person who is in
occupation or control of the land, or who is
entitled to be in occupation or control of the land;
"owner" of land means --
5 (a) in relation to land alienated from the Crown,
the holder (at law or in equity) of an estate in
fee simple in the land;
(b) in relation to land that the Crown has
lawfully agreed to alienate, the person who is
10 entitled to the benefit of the agreement;
(c) in relation to land held under a lease lawfully
granted by the Crown, the lessee; and
(d) in relation to any other land, the public
authority that has the care, control or
15 management of the land or, if there is no
such public authority, the Crown.
51B. Declaration of environmentally sensitive areas
(1) The Minister may, by notice, declare --
(a) an area of the State specified in the notice; or
20 (b) an area of the State of a class specified in the
notice,
to be an environmentally sensitive area for the
purposes of this Division.
(2) A notice under this section is subsidiary legislation for
25 the purposes of the Interpretation Act 1984.
(3) Subsections (1), (2), (3), (5), (6) and (8)(a) of
section 42 of the Interpretation Act 1984 apply to a
notice under this section as if it were regulations within
the meaning of that section.
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(4) Before a notice is published under this section the
Minister shall --
(a) seek comments on it from the Authority and
from any public authority or person which or
5 who has, in the opinion of the Minister, an
interest in its subject matter; and
(b) take into account any comments received from
the Authority or such a public authority or
person.
10 51C. Unauthorised clearing of native vegetation
A person who causes or allows clearing commits an
offence unless the clearing --
(a) is done in accordance with a clearing permit;
(b) is of a kind set out in Schedule 6; or
15 (c) is of a kind prescribed for the purposes of this
section and is not done in an environmentally
sensitive area.
51D. Particular provisions in relation to soil and land
conservation
20 (1) In this section --
"agreement to reserve" means an agreement to
reserve as referred to in section 30B(2) of the
SLC Act;
"Commissioner" means the person for the time being
25 holding or acting in the office of the
Commissioner of Soil and Land Conservation
under the SLC Act;
"conservation covenant" means a conservation
covenant as referred to in section 30B(2) of the
30 SLC Act;
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"SLC Act" means the Soil and Land Conservation
Act 1945;
"soil conservation notice" has the same meaning as it
has in Part V of the SLC Act.
5 (2) Section 51C(a) does not apply to the clearing of
vegetation on land the subject of an agreement to
reserve unless --
(a) the clearing permit was granted; or
(b) the clearing is done,
10 with the written approval of the Commissioner.
(3) Section 51C(a) does not apply to the clearing of
vegetation --
(a) on land the subject of a conservation covenant;
or
15 (b) in contravention of a soil conservation notice.
51E. Applications for clearing permits
(1) An application for a clearing permit shall --
(a) be made in the form and in the manner
approved by the CEO;
20 (b) indicate whether it relates to --
(i) the clearing of a particular area
specified in the application; or
(ii) the clearing of different areas from time
to time for a purpose specified in the
25 application;
(c) be accompanied by the fee prescribed by or
determined under the regulations; and
(d) be supported by any management plans, maps,
and other documents and information required
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by the CEO and include a summary of that
supporting documentation and information.
(2) An application for a clearing permit can only be
made --
5 (a) if it relates to clearing referred to in
subsection (1)(b)(i) --
(i) by the owner of the land on which the
clearing is proposed to be done or a
person acting on the owner's behalf; or
10 (ii) by a person who satisfies the CEO that
the person is likely to become the owner
of the land on which the clearing is
proposed to be done;
or
15 (b) if it relates to clearing referred to in
subsection (1)(b)(ii), by the person by or on
whose behalf the clearing is to be done.
(3) If an application made under subsection (1) does not
comply with subsections (1) and (2), the CEO shall
20 decline to deal with the application and advise the
applicant accordingly.
(4) If the application complies with subsections (1) and
(2), the CEO shall --
(a) advise the applicant that the application has
25 been received;
(b) invite any public authority or person which or
who has, in the opinion of the CEO, a direct
interest in the subject matter of the application,
to comment on it within such period as the
30 CEO specifies; and
(c) advertise the application in the prescribed
manner, inviting any person who wishes to
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comment on it to do so within such period as is
specified in the advertisement.
(5) The CEO shall, after having taken into account any
comments received within the specified period from
5 any public authority or person from which or whom
comments were invited under subsection (4)(b) or (c)
and subject to sections 51O and 51P --
(a) grant a clearing permit subject to such of the
conditions referred to in section 51H as the
10 CEO specifies in the permit; or
(b) refuse to grant a clearing permit.
(6) The CEO is to give the applicant written notice of the
refusal to grant a clearing permit.
(7) If a clearing permit relates to clearing referred to in
15 subsection (1)(b)(i), it --
(a) may be granted under subsection (5) for all or
some of the clearing applied for;
(b) is to describe the boundaries of the area that
may be cleared; and
20 (c) is referred to for the purposes of this Division
as an "area permit".
(8) If a clearing permit relates to clearing referred to in
subsection (1)(b)(ii), it --
(a) is to describe the purpose for which the clearing
25 may be done;
(b) is to describe the principles and criteria that are
to be applied, and the strategies and procedures
that are to be followed, in relation to the
clearing; and
30 (c) is referred to for the purposes of this Division
as a "purpose permit".
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(9) In the case of an application made under
subsection (2)(a)(ii), the CEO may, under
subsection (5)(a), give the applicant a written
undertaking that if the person becomes the owner of the
5 land on which the clearing is proposed to be done, the
CEO will, subject to subsection (10), grant a clearing
permit to the applicant subject to such of the conditions
referred to in section 51H as the CEO specifies in the
undertaking.
10 (10) A clearing permit cannot be granted pursuant to an
undertaking mentioned in subsection (9) unless --
(a) the applicant becomes the owner of the land on
or before such day as is specified in the
undertaking; and
15 (b) the CEO has been notified in writing that the
applicant has become the owner of the land.
(11) A reference in subsection (5)(b), (6) or (7)(a) or in
section 51P(2) or 101A to granting or refusing to grant
a clearing permit includes a reference to giving or
20 refusing to give an undertaking mentioned in
subsection (9).
(12) A reference in section 101A to the specification of a
condition in a clearing permit includes a reference to
the specification of a condition in an undertaking
25 mentioned in subsection (9).
51F. Other decisions to take precedence
(1) If an application for a clearing permit made under
section 51E(1) is related to a proposal which has been
referred to the Authority under section 38, the CEO
30 shall not perform any duty imposed on the CEO by
section 51E(5) --
(a) while any decision-making authority is
precluded by section 41 from making any
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decision which could have the effect of causing
or allowing that proposal to be implemented; or
(b) contrary to, or otherwise than in accordance
with, an implementation agreement or decision.
5 (2) If a decision-making authority makes a decision that
has the effect of preventing the implementation of a
proposal to which an application for a clearing permit
made under section 51E(1) is related, the CEO does not
have to perform any duty imposed under
10 section 51E(5) while that decision has effect.
51G. Duration of clearing permits
Subject to this Act, a clearing permit continues in
force --
(a) if it is an area permit, for 2 years; or
15 (b) if it is a purpose permit, for 5 years,
from the date on which it is granted unless another
period is specified in the permit.
51H. Clearing permit conditions
(1) A clearing permit may be granted subject to such
20 conditions as the CEO considers to be necessary or
convenient for the purposes of preventing, controlling,
abating or mitigating environmental harm or offsetting
the loss of the cleared vegetation.
(2) Section 51I sets out some kinds of conditions that may
25 be attached to a clearing permit and further kinds of
conditions may be prescribed, but nothing in that
section or the regulations prevents other conditions
from being attached.
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(3) The CEO is not to attach --
(a) a condition that would, in the CEO's opinion,
be seriously at variance with the clearing
principles except to the extent necessary to give
5 effect to a decision made under section 51O(3);
or
(b) subject to section 51P, a condition that would
be inconsistent with an approved policy.
51I. Some kinds of conditions
10 (1) A condition may specify activities that are authorised,
or not authorised, by the clearing permit.
(2) The following list sets out things that the holder of a
clearing permit can be required to do (at the expense of
the holder) under conditions attached to the clearing
15 permit --
(a) take specified measures for the purpose of --
(i) preventing, or minimising the likelihood
of, environmental harm; or
(ii) controlling or abating environmental
20 harm either generally or in accordance
with specified criteria;
(b) establish and maintain vegetation on land other
than land cleared under the permit in order to
offset the loss of the cleared vegetation, or
25 make monetary contributions to a fund
maintained for the purpose of establishing or
maintaining vegetation;
(c) give a conservation covenant or agreement to
reserve under section 30B of the Soil and Land
30 Conservation Act 1945, or some other form of
binding undertaking to establish and maintain
vegetation, in relation to land other than land
cleared under the permit;
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(d) monitor operations (including abatement
operations) and environmental harm, conduct
analysis of monitoring data, and provide reports
on monitoring data, and analysis of it, to the
5 CEO;
(e) investigate options for measures for preventing,
controlling or abating environmental harm;
(f) conduct environmental risk assessment studies;
(g) provide reports on audits and studies, including
10 audit compliance reports, to the CEO;
(h) prepare, implement and adhere to
environmental management systems,
environmental management plans and
environmental improvement plans;
15 (i) have something required to be done under a
condition done by a person of a class approved
by the CEO;
(j) do something required to be done under a
condition --
20 (i) within a specified period or before a
specified date; or
(ii) in a specified form or manner.
(3) Without limiting subsection (2) paragraph (d), a
condition referred to in that paragraph can require the
25 holder of a clearing permit to carry out a specified
monitoring programme for the purpose of supplying
the CEO with information relating to the nature and
extent of any impacts or potential impacts the activities
under the permit may have on the environment or any
30 environmental value.
(4) In this section --
"establish" includes conserve;
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"specified" means specified by the CEO in the
clearing permit concerned.
51J. Contravention of clearing permit conditions
(1) The holder of a clearing permit who contravenes a
5 condition to which the permit is subject commits an
offence.
(2) If a clearing permit is subject to a condition referred to
in section 51I(2)(c), a reference in this Division to a
contravention of a condition includes a reference to a
10 contravention of the covenant, agreement or
undertaking given by the permit holder.
51K. Amendment of a clearing permit
(1) The CEO may amend a clearing permit by --
(a) removing or varying any condition to which the
15 clearing permit is subject;
(b) subjecting the clearing permit to a new
condition;
(c) in the case of an area permit, redescribing the
boundaries of the area that may be cleared
20 under the permit or of land to which a condition
referred to in section 51I(2)(b) or (c) applies;
(d) in the case of a purpose permit, redescribing
any of the principles or criteria that are to be
applied, or the strategies or procedures that are
25 to be followed, in relation to the clearing;
(e) correcting in the clearing permit --
(i) a clerical mistake or unintentional error
or omission;
(ii) a figure which has been miscalculated;
30 or
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(iii) the misdescription of any person, thing,
area, property or activity;
(f) making an administrative change to the format
of the clearing permit which does not alter the
5 obligations of the permit holder;
(g) amending the clearing permit in conformity
with an approved policy or with an exemption
conferred under this Act;
(h) amending the clearing permit to give effect to a
10 decision of the Minister under this Act (whether
on an appeal or otherwise); or
(i) extending the duration of the clearing permit.
(2) A clearing permit may be amended on application by
the holder of the permit or on the initiative of the CEO.
15 51L. Revocation or suspension of clearing permit
(1) The CEO may revoke or suspend a clearing permit.
(2) The grounds for revocation or suspension of a clearing
permit are that --
(a) the CEO is satisfied that there has been a
20 breach of any of the conditions to which the
clearing permit is subject;
(b) where a person has become the holder of the
clearing permit by operation of section 51N, the
CEO is satisfied that the person is unwilling or
25 unable to comply with the conditions to which
the permit is subject;
(c) information contained in or supporting the
application was false or misleading in a
material respect; or
30 (d) the holder of the clearing permit has applied to
the CEO to surrender the permit.
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51M. Manner of amendment, revocation or suspension
(1) An application for an amendment to a clearing permit
or to surrender a clearing permit is to --
(a) be made in the manner and form approved by
5 the CEO;
(b) be accompanied by the fee prescribed by or
determined under the regulations; and
(c) be supported by any management plans, maps,
and other documents and information required
10 by the CEO and include a summary of that
supporting documentation and information.
(2) Before amending, revoking or suspending a clearing
permit the CEO is to give the holder of the permit a
written notice under this section.
15 (3) The notice is to --
(a) state details of the proposed action;
(b) invite the holder to make representations to the
CEO to show why the action should not be
taken; and
20 (c) state the period (at least 28 days after the notice
is given to the holder) within which
representations may be made.
(4) The representations must be made in writing.
(5) Subject to subsection (8), the CEO may take the
25 proposed action --
(a) at any time after the holder of the clearing
permit gives the CEO written notice that the
holder does not intend to make any
representations or any further representations;
30 or
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(b) if such notice is not given, after the end of the
period stated in the notice within which
representations may be made.
(6) The CEO is to consider any representations properly
5 made by the holder of the clearing permit.
(7) If the proposed action is --
(a) the revocation or suspension of the clearing
permit; or
(b) an amendment of the clearing permit reducing
10 or restricting the extent or method of clearing
that may be done,
the permit, by force of this subsection, ceases to have
effect until --
(c) notice of any amendment, revocation or
15 suspension of the permit is given under
subsection (10); or
(d) after considering any representations properly
made by the holder of the permit, the CEO
gives the holder written notice that the action
20 will not be taken.
(8) If the proposed action is related to a proposal which
has been referred to the Authority under section 38, the
CEO is not to so amend, revoke or suspend --
(a) while any decision-making authority is
25 precluded by section 41 from making any
decision which could have the effect of causing
or allowing that proposal to be implemented; or
(b) contrary to, or otherwise than in accordance
with, an implementation agreement or decision.
30 (9) If a decision-making authority makes a decision that
has the effect of preventing the implementation of a
proposal to which an amendment proposed under this
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section is related, the CEO does not have to make a
decision on the amendment while the decision-making
authority's decision has effect.
(10) The CEO is to give the holder of the clearing permit
5 written notice of any amendment, revocation or
suspension of the permit.
(11) Without limiting subsection (10), notice of an
amendment can be given in the form of a revised
clearing permit.
10 51N. Continuation of area permit on change of
ownership
(1) If an area permit is held by the owner of the land to
which the permit relates and the interest by reason of
which that person is the owner (the "interest") is or is
15 to be transferred, or passes or is to pass, to another
person (the "new owner"), the new owner may, in the
form and in the manner approved by the CEO, notify
the CEO --
(a) that the transfer or passing of the interest has
20 occurred or is to occur; and
(b) that the new owner wishes to become the
holder of the permit.
(2) If notification is given to the CEO under subsection (1)
then --
25 (a) on the transfer or passing of the interest; or
(b) on the receipt of the notification by the CEO,
whichever is later, the new owner becomes the holder
of the area permit by operation of this section on the
conditions to which the permit is subject.
30 (3) If when the interest is transferred or passes the CEO
has not received notification under subsection (1), the
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area permit has no further effect unless and until such
notification is received.
51O. Principles and instruments to be considered when
making decisions as to clearing permits
5 (1) In this section --
"clearing matter" means --
(a) an application for a clearing permit; or
(b) an amendment of a clearing permit;
"decision" means a decision about a clearing matter;
10 "planning instrument" means --
(a) a scheme or a strategy, policy or plan made
or adopted under a scheme;
(b) a statement of planning policy approved
under section 5AA of the Town Planning
15 and Development Act 1928; or
(c) a local planning strategy made under the
Town Planning and Development Act 1928.
(2) In considering a clearing matter the CEO shall have
regard to the clearing principles so far as they are
20 relevant to the matter under consideration.
(3) The CEO may make a decision that is seriously at
variance with the clearing principles if, and only if, in
the CEO's opinion there is a good reason for doing so.
That reason must be recorded and published under
25 section 51Q.
(4) In considering a clearing matter the CEO shall have
regard to any planning instrument, or other matter, that
the CEO considers relevant.
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51P. Relationship between clearing permits and
approved policies
(1) In considering --
(a) an application for a clearing permit; or
5 (b) an amendment of a clearing permit,
the CEO shall ensure that the clearing permit, or its
amendment, is consistent with any approved policy.
(2) The CEO shall not amend or shall refuse to grant a
clearing permit if the CEO considers that the associated
10 effect on the environment would be inconsistent with
any approved policy.
(3) Despite anything in this section --
(a) if the CEO is satisfied that, as a result of
environmental circumstances having changed,
15 the environment or an environmental value of
the area concerned requires a higher level of
protection than would be provided by the
standards required by or under any approved
policy, the CEO may grant or amend a clearing
20 permit so as to make the permit subject to
conditions which specify standards that are
more stringent than those required by or under
the approved policy;
(b) if the CEO is satisfied that, as a result of the
25 approval under section 31(d) of a new approved
policy or as a result of an approved policy as
amended being confirmed under section 37, any
condition to which an existing clearing permit
is subject is inconsistent with that approved
30 policy, the CEO may amend that permit to
make it consistent with that approved policy.
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51Q. Particulars of clearing permits to be recorded
(1) The CEO is to keep a record of such particulars of --
(a) applications for clearing permits;
(b) clearing permits and undertakings mentioned in
5 section 51E(9); and
(c) notifications received under section 51N(1),
as are prescribed.
(2) The CEO is to publish from time to time in a
prescribed manner prescribed particulars of the record.
10 51R. Evidentiary matters
(1) In proceedings under this Division a document
purporting to be --
(a) a true copy of an aerial photograph marked so
as to identify, and show the boundaries of, land
15 according to official survey; and
(b) signed and certified by the Surveyor General as
being a true copy of a photograph taken under
the authority of the Surveyor General on the
date specified in the certificate and as correctly
20 identifying, and showing the boundaries of, the
land according to official survey,
is, without proof of the signature of the Surveyor
General, admissible as evidence of the matters so
certified and of the condition, on the date so specified,
25 of the vegetation on the land so identified.
(2) A document shall not be admitted pursuant to
subsection (1) as evidence that the land has been
cleared contrary to this Division unless the court is
satisfied that the Minister, the CEO or a person acting
30 with the authority of the Minister or of the CEO has
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entered upon and inspected the land for the purposes of
ascertaining whether the land has been so cleared.
(3) Where, in a prosecution for an offence under this
Division involving clearing, it is proved that clearing
5 has taken place on land --
(a) the person who was the occupier of the land at
the time of the clearing is to be regarded as
having caused the clearing in the absence of
evidence to the contrary; and
10 (b) the person who was the owner of the land at the
time of the clearing is to be regarded as having
allowed the clearing in the absence of proof to
the contrary.
(4) Subsection (3) does not affect the liability of any other
15 person for the offence concerned.
(5) In a prosecution for an offence under this Division, an
averment in the complaint to the effect that vegetation
is or was native vegetation is to be regarded as having
been proved in the absence of proof to the contrary.
20 (6) For the purposes of this Division, if --
(a) land is shared by a corporation and a subsidiary
or subsidiaries of the corporation;
(b) the corporation or a subsidiary referred to in
paragraph (a) is the holder of a clearing permit
25 in respect of an area situated on the land; and
(c) a condition to which the clearing permit is
subject is contravened,
the permit holder is to be regarded as having caused the
contravention unless the contrary is proved.
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(7) In subsection (6) --
"corporation" has the meaning given by the
Corporations Act 2001 of the Commonwealth;
"subsidiary" has the meaning given by the
5 Corporations Act 2001 of the Commonwealth.
51S. Clearing injunctions
(1) In this section --
"contravention" includes the continuation of a
contravention;
10 "court" means the Supreme Court;
"improper conduct" means an act or omission
constituting a contravention of, or involvement in
a contravention of, section 51C or 51J;
"involvement in a contravention" means --
15 (a) aiding, abetting, counselling, or procuring
the contravention;
(b) inducing the contravention, whether by
threats or promises or otherwise;
(c) being in any way, directly or indirectly,
20 knowingly concerned in, or party to, the
contravention;
(d) conspiring with others to effect the
contravention; or
(e) attempting to do anything constituting
25 involvement in a contravention under
paragraph (a), (b), (c) or (d).
(2) Without limiting any other power the court may have
to grant injunctive relief, it is declared that the court
may grant an injunction to prevent a person from
30 engaging in improper conduct (a "clearing
injunction").
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(3) The CEO may apply for a clearing injunction.
(4) A clearing injunction may be granted if the court is
satisfied that it would be appropriate to grant the
injunction --
5 (a) whether or not it is proved that the person
intends to engage, or to engage again, or to
continue to engage, in improper conduct of
the kind sought to be prevented by the
injunction; and
10 (b) whether or not the person has previously
engaged in improper conduct of that kind.
(5) An interim clearing injunction may be granted before
final determination of an application for a clearing
injunction.
15 (6) The court is not to require, as a condition of granting
an interim clearing injunction, that an undertaking be
given as to damages or costs.
(7) The taking of proceedings against any person for an
offence under this Act is not affected by --
20 (a) the making of an application for a clearing
injunction;
(b) the grant or refusal of a clearing injunction or
an interim clearing injunction; or
(c) the rescission, variation, or expiry of a clearing
25 injunction or an interim clearing injunction.
51T. Other requirements not affected
(1) Despite section 5, the operation of any other enactment
under which a permit, permission, licence, approval or
other authorisation is required in relation to the
30 clearing of vegetation is not affected by --
(a) this Division; or
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(b) the grant of a clearing permit under this
Division,
and this Division has effect in addition to that
enactment.
5 (2) In subsections (3) and (4) --
"commencement day" means the day on which
section 110 comes into operation;
"EP Act" means the Environmental Protection
Act 1986 as amended by this Act.
10 (3) Despite section 51B of the EP Act, the Governor may
make regulations declaring --
(a) an area of the State specified in the notice; or
(b) an area of the State of a class specified in the
notice,
15 to be an environmentally sensitive area for the
purposes of Part V Division 2 of the EP Act.
(4) Regulations under subsection (3) --
(a) cannot be made after the expiration of the
period of 3 months after the commencement
20 day; and
(b) expire on the expiration of the period of
9 months after the commencement day.
".
111. Section 70 replaced and transitional provisions
25 (1) Section 70 is repealed and the following section is inserted
instead --
"
70. Vegetation conservation notices
(1) In this section --
30 "specified" means specified by the CEO in the
vegetation conservation notice concerned;
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"unlawful clearing" means anything constituting a
contravention of section 51C or 51J.
(2) If the CEO suspects on reasonable grounds --
(a) that unlawful clearing is likely to take place on
5 any land; or
(b) that unlawful clearing is taking place or has
taken place on any land,
the CEO may cause a notice (a "vegetation
conservation notice") to be given requiring a person
10 bound by it to ensure that no unlawful clearing, or no
further unlawful clearing, takes place on the land.
(3) A vegetation conservation notice may be given to one
or more of the following --
(a) the owner of the land;
15 (b) the occupier of the land;
(c) a person other than the owner or occupier of the
land, if the CEO considers that it is practicable
for that person to comply with and give effect
to the vegetation conservation notice.
20 (4) A vegetation conservation notice --
(a) is to specify --
(i) the name and address of the person to
whom it is given; and
(ii) the reason for which it is given;
25 and
(b) in the case of a vegetation conservation notice
given under subsection (2)(b), may require any
person bound by it to take such specified
measures as the CEO considers necessary for
30 one or more of the following purposes --
(i) to repair any damage caused by the
clearing;
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Division 1 Amendments to Environmental Protection Act 1986
s. 111
(ii) to re-establish and maintain vegetation
on any area affected by the clearing to a
condition as near as possible to the
condition of the vegetation before the
5 clearing occurred;
(iii) to prevent the erosion, drift or
movement of sand, soil, dust or water;
(iv) to ensure that specified land, or a
specified watercourse or wetland
10 (within the meaning of the Rights in
Water and Irrigation Act 1914) will not
be damaged or detrimentally affected, or
further damaged or detrimentally
affected, by the clearing,
15 within or for the duration of a specified period.
(5) Before a vegetation conservation notice containing a
requirement under subsection (4)(b) is given to a
person the CEO shall, by written notice given to the
person, invite the person to make submissions to the
20 CEO within such period as is specified in that notice on
any matter relevant to the determination of whether or
not the person should have to take the specified
measures.
(6) The CEO shall consider any such submissions that are
25 received from the person within the specified period.
(7) A vegetation conservation notice --
(a) while it subsists, binds each person to whom it
is given; and
(b) if it is, and while it remains, registered under
30 section 66 (as applied by subsection (9)), binds
each successive owner or occupier of the land
to which it relates.
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Amendments to Environmental Protection Act 1986 Division 1
s. 111
(8) Subsections (4) to (7) of section 65 apply in relation to
vegetation conservation notices as if references in those
subsections to an environmental protection notice were
references to a vegetation conservation notice.
5 (9) If the person, or at least one of the persons, to whom a
vegetation conservation notice is given is the owner or
occupier of the land, sections 66, 67 and 68 apply in
relation to the vegetation conservation notice as if
references in those sections to an environmental
10 protection notice were references to a vegetation
conservation notice.
(10) If action required by a vegetation conservation notice
to be taken has not been taken, the CEO may --
(a) cause that action to be taken; and
15 (b) recover the cost of the taking of that action
from any person bound by the notice by action
in a court of competent jurisdiction as a debt
due to the Crown.
(11) Any cost recovered under subsection (10)(b) is to be
20 paid into the Consolidated Fund.
".
(2) In subsections (3) to (5) --
"CEO" has the same meaning as it has in the EP Act;
"EP Act" means the Environmental Protection Act 1986 as
25 amended by this Act;
"transitional period" means the period beginning on
26 June 2002 and ending on the day before the day on
which this section comes into operation;
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Division 1 Amendments to Environmental Protection Act 1986
s. 111
"unlawful clearing" means anything within the meaning of
"clearing" in Part V Division 2 of the EP Act that --
(a) constituted, at the time when the thing was done, a
contravention of --
5 (i) section 28 or 35 of the Soil and Land
Conservation Act 1945;
(ii) the Soil and Land Conservation (Clearing
Control) Regulations 1991 or regulation 4 or
5 of the Soil and Land Conservation
10 Regulations 1992;
(iii) section 109, 110, 111 or 267(2)(c) or (f) of the
Land Administration Act 1997; or
(iv) section 12B of the Country Areas Water
Supply Act 1947;
15 or
(b) would have constituted a contravention of section
41A of the EP Act if that section had been inserted
into the EP Act before the thing was done,
but does not include clearing of a kind set out in Schedule 6
20 to the EP Act.
(3) If the CEO suspects on reasonable grounds that unlawful
clearing has taken place on any land during the transitional
period, the CEO may cause a notice to be given under this
subsection in respect of the land.
25 (4) Section 70(3) to (11) and 74A of the EP Act apply in relation to
a notice given under subsection (3) as if it were a vegetation
conservation notice given under section 70(2)(b) of the EP Act
and as if the reference to an offence in section 70(6) were a
reference to an offence under an enactment mentioned in the
30 definition of "unlawful clearing" in subsection (2).
(5) Section 74A, Part VA and sections 89 and 103 of the EP Act
apply in relation to a notice given under subsection (3) as if it
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Amendments to Environmental Protection Act 1986 Division 1
s. 112
were a vegetation conservation notice given under
section 70(2)(b) of the EP Act.
112. Section 101A inserted
After section 101 the following section is inserted --
5 "
101A. Lodging of appeals in respect of clearing permits
(1) Subject to section 105, an applicant for --
(a) a clearing permit who is aggrieved by the
refusal of the CEO --
10 (i) to grant the permit under
section 51E(5); or
(ii) to grant the permit under section 51E(5)
for all of the clearing applied for;
or
15 (b) a clearing permit who is aggrieved by the
specification by the CEO of any condition in the
permit under section 51E(5) or 51N(2),
may within 28 days of being notified of that refusal or
specification, as the case requires, lodge with the
20 Minister an appeal in writing setting out the grounds of
that appeal.
(2) Subject to section 105, the holder of a clearing permit
who is aggrieved by the amendment of the permit
under section 51K(1), or the revocation or suspension
25 of the permit under section 51L(1), may within 28 days
of being notified of that amendment, revocation or
suspension lodge with the Minister an appeal in writing
setting out the grounds of that appeal.
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Division 1 Amendments to Environmental Protection Act 1986
s. 112
(3) A person who --
(a) not being an applicant referred to in
subsection (1), disagrees with a refusal or
specification referred to in that subsection; or
5 (b) not being a holder referred to in subsection (2),
disagrees with an amendment, revocation or
suspension referred to in that subsection,
may within the period within which the applicant or
holder can lodge an appeal about that refusal,
10 specification, revocation, suspension or amendment
lodge with the Minister an appeal in writing setting out
the grounds of that appeal.
(4) A person who disagrees with a decision of the CEO to
grant a clearing permit under section 51E(5) may
15 within 21 days of that grant lodge with the Minister an
appeal in writing setting out the grounds of that appeal.
(5) Subsections (1)(a)(ii) and (b), (3)(a) and (4) do not
apply in relation to the grant of a permit pursuant to an
undertaking mentioned in section 51E(9).
20 (6) Pending the determination of the relevant appeal
lodged under subsection (1), (2) or (3) in respect of a
refusal, specification, revocation or suspension, the
decision against which that appeal is lodged continues
to have effect.
25 (7) Pending the determination of the relevant appeal
lodged under subsection (2) in respect of an
amendment, the amendment shall be deemed not to
have been made unless it reduces or restricts the extent
or method of clearing that may be done, in which case
30 it continues to have effect.
(8) Pending the determination of the relevant appeal
lodged under subsection (3) in respect of an
amendment, the amendment continues to have effect.
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Amendments to Environmental Protection Act 1986 Division 1
s. 113
(9) Pending the determination of the relevant appeal
lodged under subsection (4), the clearing permit shall
be deemed not to have been granted.
".
5 113. Section 105 amended
Section 105 is amended as follows:
(a) in paragraph (a) by inserting before "102" --
" 101A, ";
(b) after paragraph (a) by deleting "or" and inserting --
10 "
(aa) under section 101A(2) in respect of the
amendment of a clearing permit by correcting it
under section 51K(1)(e), (f), (g) or (h); or
".
15 114. Section 109 amended
After section 109(1) the following subsection is inserted --
"
(1a) In relation to an appeal lodged under section 101A(2)
in respect of the amendment of a clearing permit under
20 section 51K(1)(a) or (b), an appeals committee shall
not consider, or make recommendations in respect of, a
matter which is not directly related to or consequential
to that amendment.
".
25 115. Schedule 1 amended
(1) Before Schedule 1 Part 1 Division 1 item 9 the following item is
inserted --
"
8D 51C $250 000 $50 000
".
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Environmental Protection Amendment Bill 2002
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Division 1 Amendments to Environmental Protection Act 1986
s. 116
(2) Before Schedule 1 Part 1 Division 2 item 9 the following item is
inserted --
"
8D 51C $500 000 $100 000
".
5 (3) Before Schedule 1 Part 2 Division 1 item 2 the following item is
inserted --
"
1E 51J(1) $62 500 $12 500
".
(4) Before Schedule 1 Part 2 Division 2 item 2 the following item is
10 inserted --
"
1E 51J(1) $125 000 $25 000
".
116. Schedules 5 and 6 inserted
After Schedule 4 the following Schedules are inserted --
15 "
Schedule 5 -- Principles for clearing
native vegetation
[s. 51A]
1. Principles
20 Native vegetation should not be cleared if --
(a) it comprises a high level of biological diversity;
(b) it comprises the whole or a part of, or is necessary
for the maintenance of, a significant habitat for
fauna indigenous to Western Australia;
25 (c) it includes, or is necessary for the continued
existence of, rare flora;
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Amendments to Environmental Protection Act 1986 Division 1
s. 116
(d) it comprises the whole or a part of, or is necessary
for the maintenance of, a threatened ecological
community;
(e) it is significant as a remnant of native vegetation in
5 an area that has been extensively cleared;
(f) it is growing in, or in association with, an
environment associated with a watercourse or
wetland;
(g) the clearing of the vegetation is likely to cause
10 appreciable land degradation;
(h) the clearing of the vegetation is likely to have an
impact on the environmental values of any adjacent
or nearby conservation area;
(i) the clearing of the vegetation is likely to cause
15 deterioration in the quality of surface or
underground water; or
(j) the clearing of the vegetation is likely to cause, or
exacerbate, the incidence or intensity of flooding.
2. Definitions
20 In this Schedule --
"conservation area" means a conservation park, national
park, nature reserve, marine nature reserve, marine
park or marine management area within the meaning of
the Conservation and Land Management Act 1984 or
25 any other land or waters reserved, protected or
managed for the purpose of, or purposes including,
nature conservation;
"rare flora" has the same meaning as it has in section 23F
of the Wildlife Conservation Act 1950;
30 "threatened ecological community" means an ecological
community listed, designated or declared under a
written law or a law of the Commonwealth as
threatened, endangered or vulnerable;
"watercourse" has the same meaning as it has in the Rights
35 in Water and Irrigation Act 1914;
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Division 1 Amendments to Environmental Protection Act 1986
s. 116
"wetland" means an area of seasonally, intermittently or
permanently waterlogged or inundated land, whether
natural or otherwise, and includes a lake, swamp,
marsh, spring, dampland, tidal flat or estuary.
5 Schedule 6 -- Clearing for which a clearing permit
is not required
[s. 51C]
1. Clearing that is done in order to give effect to a requirement
to clear under a written law.
10 2. Clearing that is done --
(a) in the implementation of a proposal in accordance
with an implementation agreement or decision;
(b) in the case of a proposal that --
(i) was made under an assessed scheme; and
15 (ii) because of section 48I(2), was not referred
to the Authority,
in the implementation of the proposal in accordance
with a subdivision approval, a development
approval or a planning approval given by the
20 responsible authority;
(c) in accordance with --
(i) a prescribed standard;
(ii) a works approval;
(iii) a licence;
25 (iv) a requirement contained in a closure notice,
an environmental protection notice or a
prevention notice;
(v) an approved policy;
(vi) a declaration under section 6;
30 (vii) an exemption under section 75; or
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Environmental Protection Amendment Bill 2002
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Amendments to Environmental Protection Act 1986 Division 1
s. 116
(viii) a licence, permit, approval or exemption
granted, issued or given under the
regulations;
or
5 (d) in the exercise of any power conferred under this
Act.
3. Clearing by the Department, within the meaning of the
Conservation and Land Management Act 1984, in the
performance of its function under section 33(1)(a) of that
10 Act of managing land, but, in the case of land referred to in
section 33(1)(a)(i), only if the management is carried out in
accordance with section 33(3).
4. Clearing authorised under a licence --
(a) referred to in paragraph (a); or
15 (b) granted under paragraph (b),
of section 3(1) of the Sandalwood Act 1929.
5. Clearing consisting of the taking of flora --
(a) as authorised under a licence under section 23C of
the Wildlife Conservation Act 1950; or
20 (b) as consented to under section 23F of the Wildlife
Conservation Act 1950 by the Minister
administering that Act.
6. Clearing consisting of the taking of flora by a person
authorised --
25 (a) by subsection (1)(a); or
(b) under subsection (1)(b),
of section 23D of the Wildlife Conservation Act 1950 for the
purposes of sale under a licence issued under that section.
7. Clearing under the Forest Products Act 2000, of vegetation
30 maintained, or established and maintained, under
section 10(1)(g) of that Act.
8. Clearing under a production contract or road contract
entered into and having effect under the Forest Products
Act 2000.
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Environmental Protection Amendment Bill 2002
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Division 1 Amendments to Environmental Protection Act 1986
s. 116
9. Clearing in accordance with a subdivision approval given by
the responsible authority under the Town Planning and
Development Act 1928, including --
(a) clearing for the purposes of any development that is
5 deemed by section 20D of that Act to have been
approved by the responsible authority; and
(b) clearing in any building envelope described in the
approved plan or diagram.
10. Clearing that is done --
10 (a) as permitted under section 17(5);
(b) in accordance with a permit obtained under
section 18;
(c) in accordance with permission granted under
section 21(2);
15 (d) under section 22(2), 23, 26A, 39(1)(d) or 44(1)(c);
or
(e) as authorised by a proclamation under section 26,
of the Bush Fires Act 1954.
11. Clearing that is done under section 34(a), (c) or (h) of the
20 Fire Brigades Act 1942.
12. Clearing that is done for fire prevention or control purposes
or other fire management works on Crown land, within the
meaning of the Land Administration Act 1997, by the Fire
and Emergency Services Authority of Western Australia
25 established under the Fire and Emergency Services
Authority of Western Australia Act 1998.
13. Clearing caused by the grazing of stock on land under a
pastoral lease within the meaning of the Land
Administration Act 1997 as long as that grazing is not in
30 breach of --
(a) that Act;
(b) the pastoral lease; or
(c) any relevant condition set or determination made by
the Pastoral Board under Part 7 of that Act.
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Clearing permits Part 9
Consequential repeal and amendment of Soil and Land Division 2
Conservation Regulations
s. 117
14. Clearing of aquatic vegetation that occurs under the
authority of a licence or permit within the meaning of the
Fish Resources Management Act 1994.
".
5 Division 2 -- Consequential repeal and amendment of Soil and
Land Conservation Regulations
117. Soil and Land Conservation (Clearing Control)
Regulations 1991 repealed
The Soil and Land Conservation (Clearing Control)
10 Regulations 1991 are repealed.
118. Soil and Land Conservation Regulations 1992 amended
(1) The amendments in this section are to the Soil and Land
Conservation Regulations 1992*.
[* Published in Gazette 17 June 1992.
15 For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 4, p. 316.]
(2) Regulation 2 is amended by deleting the definition of "to clear".
(3) Regulation 4 is repealed.
(4) Schedule 2 Form 1 is deleted.
20 (5) Schedule 3 is deleted.
119. Transitional provisions
(1) In this section --
"Authority" has the same meaning as it has in the EP Act;
"commencement day" means the day on which section 110
25 comes into operation;
"EP Act" means the Environmental Protection Act 1986 as
amended by this Act;
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Environmental Protection Amendment Bill 2002
Part 9 Clearing permits
Division 2 Consequential repeal and amendment of Soil and Land
Conservation Regulations
s. 120
"regulation 4 notice" means a notice of intention under
regulation 4 of the Soil and Land Conservation
Regulations 1992.
(2) This subsection applies to clearing if --
5 (a) a regulation 4 notice relating to the clearing was given
not less than 90 days before the commencement day;
(b) the clearing was or is commenced not more than 2 years
after the giving of the notice and is completed not more
than 2 years after the commencement day;
10 (c) the clearing was not referred to the Authority as a
proposal under Part IV of the EP Act, or was so referred
and not accepted by the Authority; and
(d) a soil conservation notice, within the meaning of
section 31 of the Soil and Land Conservation Act 1945,
15 has not been served in respect of the clearing.
(3) For the purposes of sections 51C and 74B of the EP Act,
clearing to which subsection (2) applies is to be regarded as
being clearing of a kind set out in Schedule 6 to the EP Act.
(4) Subject to subsection (5), a regulation 4 notice given less than
20 90 days before the commencement day is to be regarded as
being an application for a clearing permit made in accordance
with section 51E(1) and (2) of the EP Act.
(5) Subsection (4) does not apply to a regulation 4 notice unless the
fee prescribed under the EP Act for the purposes of this
25 subsection is paid.
120. Wildlife Conservation Act 1950 sections 16 and 23D amended
(1) The amendments in this section are to the Wildlife Conservation
Act 1950.
[* Reprinted as at 20 November 1998.
30 For subsequent amendments see Act No. 6 of 2002.]
page 150
Environmental Protection Amendment Bill 2002
Clearing permits Part 9
Consequential repeal and amendment of Soil and Land Division 2
Conservation Regulations
s. 120
(2) After section 16(1) the following subsection is inserted --
"
(1a) In the case of fauna other than fauna in respect of
which a declaration under section 14(2)(ba) is in
5 operation, subsection (1) does not apply to the taking
of fauna incidental to clearing referred to in
section 51C(a), (b) or (c) of the Environmental
Protection Act 1986.
".
10 (3) Section 23D(5) is amended by deleting "subsection (6)" and
inserting instead --
" subsections (6) and (7) ".
(4) After section 23D(6) the following subsections are inserted --
"
15 (7) In considering an application under subsection (3) the
Minister shall have regard to the principles set out in
Schedule 5 to the Environmental Protection Act 1986
and shall not issue a licence if the taking of the
protected flora to which the licence would relate would
20 be seriously at variance with those principles.
(8) Subsection (7) does not apply if the taking of the
protected flora to which the licence would relate is
authorised by a clearing permit granted and in force
under Part V Division 2 of the Environmental
25 Protection Act 1986.
".
page 151
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 121
Part 10 -- Miscellaneous
121. Section 3 amended
(1) Section 3(1) is amended as set out in Schedule 1.
(2) Section 3(2a) is amended as follows:
5 (a) in paragraph (a) by deleting "activity" and inserting
instead --
" an activity ";
(b) in paragraph (b) by deleting "strata plan," and inserting
instead --
10 " a strata plan, ".
122. Section 4A inserted
After section 4 the following section is inserted --
"
4A. Object and principles of Act
15 The object of this Act is to protect the environment of
the State, having regard to the following principles --
Table
1. The precautionary principle
Where there are threats of serious or irreversible
damage, lack of full scientific certainty should not be
used as a reason for postponing measures to prevent
environmental degradation.
In the application of the precautionary principle,
decisions should be guided by --
(a) careful evaluation to avoid, where practicable,
serious or irreversible damage to the
environment; and
(b) an assessment of the risk-weighted
consequences of various options.
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Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 122
2. The principle of intergenerational equity
The present generation should ensure that the health,
diversity and productivity of the environment is
maintained or enhanced for the benefit of future
generations.
3. The principle of the conservation of biological
diversity and ecological integrity
Conservation of biological diversity and ecological
integrity should be a fundamental consideration.
4. Principles relating to improved valuation, pricing
and incentive mechanisms
(1) Environmental factors should be included in the
valuation of assets and services.
(2) The polluter pays principle -- those who
generate pollution and waste should bear the
cost of containment, avoidance or abatement.
(3) The users of goods and services should pay
prices based on the full life cycle costs of
providing goods and services, including the use
of natural resources and assets and the ultimate
disposal of any wastes.
(4) Environmental goals, having been established,
should be pursued in the most cost effective
way, by establishing incentive structures,
including market mechanisms, which enable
those best placed to maximise benefits and/or
minimise costs to develop their own solutions
and responses to environmental problems.
5. The principle of waste minimisation
All reasonable and practicable measures should be
taken to minimise the generation of waste and its
discharge into the environment.
".
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Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 123
123. Section 5 amended
(1) Section 5(1) is amended by deleting "(1) Subject to
subsection (2), whenever" and inserting instead --
" Whenever ".
5 (2) Section 5(2) and (3) are repealed.
124. Section 12 amended
(1) Section 12(2) is repealed.
(2) Section 12(3) is amended by deleting "that interest exists." and
inserting instead --
10 " the Authority member has that interest. ".
(3) Section 12(4) is amended by deleting "and the Authority
member may take part in the consideration or discussion of the
matter, but shall not vote thereon".
(4) After section 12(4) the following subsection is inserted --
15 "
(5) If an Authority member discloses an interest in a matter
under subsection (1) or is determined under
subsection (3) to have an interest in a matter, the
Authority member shall not --
20 (a) take part, as an Authority member, in the
consideration or discussion of the matter; or
(b) vote on the matter.
".
page 154
Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 125
125. Section 16 amended
After section 16(d) the following paragraph is inserted --
"
(da) to advise the Minister on the making or
5 amendment of regulations when requested by
the Minister to do so or on its own initiative;
".
126. Section 23 repealed
Section 23 is repealed.
10 127. Section 81A amended
(1) Section 81A(2) is amended by deleting "Any equipment" and
inserting instead --
" Subject to subsection (2a), any equipment ".
(2) After section 81A(2) the following subsections are inserted --
15 "
(2a) The CEO may require the person who appears or has
been determined to be entitled to possession of
equipment seized under subsection (1) to pay to the
CEO the reasonable costs of seizing and storing the
20 equipment, and the equipment is not required to be
delivered under subsection (2) until those costs have
been paid.
(2b) A person is not to be required to pay costs under
subsection (2a) if that person shows to the satisfaction
25 of the CEO that he or she did not use or cause or allow
to be used the equipment in the way that caused the
equipment to emit the unreasonable noise that resulted
in the seizure of the equipment.
page 155
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 128
(2c) If a person refuses to pay, or fails to pay within such
reasonable time as is specified by the CEO, the
reasonable cost of seizing and storing the equipment,
the equipment may be disposed of in accordance with
5 the regulations.
".
128. Section 99 amended
Section 99(1) is amended as follows:
(a) in paragraph (a) by inserting after "premises" --
10 " or a vehicle ";
(b) in paragraph (c) by inserting after "premises" --
" or vehicle ".
129. Section 99A amended
Section 99A(1)(b) is deleted.
15 130. Section 99J amended
Section 99J(1) is amended by inserting after "An inspector" --
"
or, in the case of an alleged infringement notice offence
in respect of which a prosecution may be instituted by a
20 police officer without the consent of the CEO, a police
officer
".
131. Section 99K amended
Section 99K(3) is amended by deleting "a Tier 3 offence" and
25 inserting instead --
" an infringement notice offence ".
page 156
Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 132
132. Section 111A inserted and Schedule 1 amended
(1) After section 111 the following section is inserted --
"
111A. Victimisation
5 (1) A person who for a reason described in
subsection (2) --
(a) prejudices, or threatens to prejudice, the safety
or career of another person;
(b) intimidates or harasses, or threatens to
10 intimidate or harass, another person; or
(c) takes, or threatens to take, detrimental action
against another person,
commits an offence.
(2) The reasons referred to in subsection (1) are that the
15 other person or a member of the other person's
family --
(a) has furnished, is furnishing, or will or may in
the future furnish, information or assistance --
(i) in the course of, or for the purpose of,
20 an inspection or investigation under this
Act; or
(ii) to the CEO for a purpose relating to the
administration of this Act;
or
25 (b) has made, or will or may in the future make, an
appropriate disclosure of information that tends
to show that another person is, has been, or
proposes to be involved in an offence under this
Act.
page 157
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 133
(3) In subsection (1) --
"detrimental action" includes action causing,
comprising or involving --
(a) damage or loss;
5 (b) adverse discrimination, disadvantage, or
adverse treatment in relation to a person's
career, profession, employment, trade or
business; or
(c) a reprisal.
10 (4) For the purposes of this section, a reference to an
appropriate disclosure of information is a reference to a
disclosure of information if, and only if, the disclosure
is made in good faith and with an honest and
reasonable belief that the information is of sufficient
15 significance to justify its disclosure so that its truth
may be investigated.
".
(2) After Schedule 1 Part 2 Division 1 item 14 the following item is
inserted --
20 "
15 111A(1) $62 500 $12 500
".
(3) After Schedule 1 Part 2 Division 2 item 14 the following item is
inserted --
"
15 111A(1) $125 000 $25 000
25 ".
133. Section 114 amended
(1) Section 114(1) is amended by deleting "acting with the consent
of the Minister".
page 158
Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 134
(2) Section 114(1a) is amended as follows:
(a) by deleting "subsection (3)" and inserting instead --
" subsections (3) and (4) ";
(b) by deleting "acting with the consent of the Minister".
5 (3) Section 114(2) is repealed.
(4) Section 114(3) is amended by inserting after "police officer" --
" , or the chief executive officer of a local government, ".
(5) After section 114(3) the following subsection is inserted --
"
10 (4) If the CEO has delegated a power under section 65(1)
to a local government or the chief executive officer or
an employee of a local government, a prosecution for
an offence under section 65(5) in respect of a failure to
comply with a requirement contained in an
15 environmental protection notice caused to be served
under section 65(1) by that local government, chief
executive officer or employee may be instituted by the
chief executive officer of the local government.
".
20 134. Section 114A inserted
After section 114 the following section is inserted --
"
114A. Limitation periods
(1) Despite section 51 of the Justices Act 1902, a
25 complaint of a Tier 1 offence may be made at any time.
(2) Despite section 51 of the Justices Act 1902, a
complaint of any other offence under this Act may be
made within 24 months of the time when the matter of
complaint arose.
page 159
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 135
(3) Despite section 51 of the Justices Act 1902 and
subsection (2), if a complaint of an offence to which
subsection (2) applies specifies the day on which
evidence of the alleged offence first came to the
5 attention of a person authorised to institute the
prosecution under section 114 the complaint --
(a) may be made within 24 months after that day;
and
(b) need not contain particulars of the day on
10 which the offence is alleged to have been
committed.
(4) The day on which evidence first came to the attention
of a person authorised to institute a prosecution under
section 114 is the day specified in the complaint, unless
15 the contrary is shown.
".
135. Section 118 replaced
Section 118 is repealed and the following section is inserted
instead --
20 "
118. Liability of body corporate and of directors and
managers of body corporate
(1) If a body corporate commits an offence under this Act
or the regulations, each person who is a director or who
25 is concerned in the management of the body corporate
is taken to have also committed the same offence
unless the person proves that --
(a) the person did not know, and could not
reasonably be expected to have known, that the
30 offence was being committed;
page 160
Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 135
(b) the person --
(i) was not in a position to influence the
conduct of the body corporate in
relation to the commission of the
5 offence; or
(ii) being in such a position, used all due
diligence and reasonable precautions to
prevent the commission of the offence;
or
10 (c) the body corporate would not have been found
guilty of the offence by reason of being able to
establish a defence available to it under this
Act.
(2) Under this section a person may be proceeded against
15 and convicted of an offence whether or not the body
corporate has been proceeded against or convicted in
respect of the commission of the offence.
(3) Nothing in this section prejudices or affects any
liability imposed on a body corporate for an offence
20 committed by the body corporate against this Act or the
regulations.
(4) Without limiting any other law or practice regarding
the admissibility of evidence, evidence that an officer,
employee or agent of a body corporate (while acting in
25 his or her capacity as such) had, at any particular time,
a particular state of mind, is evidence that the body
corporate had that state of mind.
".
page 161
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 136
136. Section 121 replaced
Section 121 is repealed and the following section is inserted
instead --
"
5 121. Protection from liability
(1) An action in tort does not lie against a person for
anything that the person has done, in good faith, in the
performance or purported performance of a function
under this Act.
10 (2) The protection given by subsection (1) applies even
though the thing done as described in that subsection
may have been capable of being done whether or not
this Act had been enacted.
(3) This section does not relieve the Crown of any liability
15 that it might have for another person having done
anything as described in that subsection.
(4) In this section, a reference to the doing of anything
includes a reference to the omission to do anything.
".
20 137. Section 123 amended
Section 123(1) is amended by deleting ", on the
recommendation of the Authority,".
138. Schedule 2 amended
(1) Schedule 2 item 3 is amended by inserting after
25 "measurements" --
" and analysis of substances and things ".
page 162
Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 139
(2) Schedule 2 item 5 is amended as follows:
(a) in paragraph (b) by inserting after "results, of " --
" analysis referred to in item 3 or ";
(b) in paragraph (c) by inserting after "measurements" --
5 " , analysis ";
(c) in paragraph (d) --
(i) by inserting after "such tests" --
" or analysis ";
(ii) by inserting after "measurements" --
10 " , analysis ".
(3) After Schedule 2 item 30A the following items are inserted --
"
30B. Specifying the minimum and maximum permissible
concentrations or amounts of constituents of any matter that
15 may be present in any substance or thing.
30C. Prohibiting or regulating the manufacture, sale, distribution
for sale, use or operation of any prescribed substance or
thing or any substance or thing of a prescribed class or
description.
20 ".
(4) Schedule 2 item 36 is amended by deleting "and inspection" and
inserting instead --
" , inspection and production ".
139. Schedule 3 amended
25 Schedule 3 item 20 is amended as follows:
(a) by deleting "In any" and inserting instead --
" (1) Subject to subitem (2), in any ";
page 163
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 140
(b) by inserting the following subitem --
"
(2) The Minister, by notice published in the Gazette, may
determine that a reference in any written law, agreement,
5 deed or other instrument referred to in subitem (1) to "the
Department of Conservation and Environment" or "the
Department" shall be construed as a reference to the
Department of the Public Service of the State through which
this Act is administered, and the determination shall have
10 effect accordingly.
".
140. References to "Chief Executive Officer"
(1) Section 3(1) is amended as follows:
(a) by deleting the definition of "Chief Executive Officer";
15 (b) by inserting in the appropriate alphabetical position the
following definition --
"
"CEO" means the chief executive officer of the
Department;
20 ".
(2) In each place listed in the Table to this section "Chief Executive
Officer" is deleted and the following is inserted instead --
" CEO ".
Table
s. 11(3) (twice) s. 99(3) and (4) (twice)
s. 20(1) (twice), (3) and (4) s. 99A(1)(a) and (c), (2) (twice)
and (4) (twice)
s. 22(1) and (2) s. 99B(3)
s. 54(1)(a) and (c), (2) (twice), s. 99C
(3) (twice), (4)
s. 57(1)(a) and (c), (2) (3 times), (3) s. 99D(1) (twice)
(4 times) and (4)
page 164
Environmental Protection Amendment Bill 2002
Miscellaneous Part 10
s. 140
s. 60(1) and (2) s. 99E(3)
s. 64(1)(a) and (c) and (2) (twice) s. 99F(1) (twice)
s. 65(4) (twice), (6) and (7) s. 99I(1)
s. 66(1) and (3) (twice) s. 99R(2)
s. 67(a) s. 99V(3)
s. 68 s. 99X(5)
s. 71(1), (2) and (4) s. 99Y(1) (twice)
s. 72(3) s. 99ZA(4) and (5)
s. 73(3) (in the second place where it s. 99ZB(3)
occurs)
s. 74(1)(b), (1a)(b) and (2) s. 102(1)(a), (b) and (c)
s. 75(1), (3), (4) and (5) s. 105(a)
s. 87(1) and (2) (twice) s. 110(1)
s. 88(1), (2), (3) (twice) and (6) s. 110C(a)
s. 92B(1) (twice), (3) and (4) (twice) s. 110L(2)(a)
s. 92C(1), (2) (3 times) and (5) s. 112
s. 92D(1) s. 114(1), (1a) (twice), (1b)(a),
(1c), (3)
s. 92E(1) and (2) s. 123(3)(a)
s. 92H(1), (2) and (3) (twice) Schedule 3, clause 14(b)
s. 94(1) Schedule 3, clause 20(g)
s. 95(1) (twice) Schedule 4, clause 1(a) and
(b) (twice)
s. 96(1) (3 times) and (2) (twice) Schedule 4, clause 14
s. 97(1)
page 165
Environmental Protection Amendment Bill 2002
Part 10 Miscellaneous
s. 141
141. Environmental Protection (Landfill) Levy Act 1998 amended
Section 3(1) of the Environmental Protection (Landfill) Levy
Act 1998* is amended by deleting the definition of "licensed
premises" and inserting the following definition instead --
5 "
"licensed premises" means premises in respect of
which the occupier is required to hold a licence
under Part V of the principal Act and which are
used for the purpose of disposing of waste to
10 landfill, whether or not a licence is in force;
".
[* Act No. 11 of 1998.]
142. Control of Vehicles (Off-road Areas) Act 1978 amended
Section 18(7)(b) of the Control of Vehicles (Off-road Areas)
15 Act 1978* is amended by deleting "the Department of
Conservation and Environment and any other" and inserting
instead --
"
the CEO within the meaning of the
20 Environmental Protection Act 1986 and any
".
[* Reprinted as at 5 March 1999.
For subsequent amendments see 2001 Index to Legislation of
Western Australia, Table 1, p. 75 and Act No. 7 of 2002.]
page 166
Environmental Protection Amendment Bill 2002
Minor amendments to section 3(1) Schedule 1
Schedule 1 -- Minor amendments to section 3(1)
[s. 121(1)]
Definition Amendment
analysis Delete "means test" and insert instead --
" means a test ".
analyst Delete "means analyst" and insert instead --
" means an analyst ".
applicant Delete "means person" and insert instead --
" means the person ".
appeals committee Delete "means appeals" and insert instead --
" means an appeals ".
approved policy Delete "means draft" and insert instead --
" means a draft ".
assessed scheme
paragraph (a) Delete "means scheme" and insert instead --
" means a scheme ".
paragraph (b) Delete "includes scheme" and insert instead --
" includes a scheme ".
paragraph (c) Delete "include scheme" and insert instead --
" include a scheme ".
Authority Delete "means Environmental" and insert
instead --
" means the Environmental ".
Authority member Delete "means person" and insert instead --
" means a person ".
Delete "includes Chairman" and insert instead --
" includes the Chairman ".
page 167
Environmental Protection Amendment Bill 2002
Schedule 1 Minor amendments to section 3(1)
authorised person Delete "means person" and insert instead --
" means a person ".
Delete "includes Chief Executive Officer" and
insert instead --
" includes the CEO ".
beneficial use Delete "means use" and insert instead --
" means a use ".
committee of inquiry Delete "means committee" and insert instead --
" means a committee ".
condition Delete "includes restriction" and insert instead --
" includes a restriction ".
decision-making Delete "means public" and insert instead --
authority " means a public ".
Department Delete "means department" and insert instead --
" means the department ".
draft policy Delete "means draft" and insert instead --
" means a draft ".
driver
paragraph (b) Delete "means pilot" and insert instead --
" means the pilot ".
paragraph (c) Delete "means master" and insert instead --
" means the master ".
equipment Delete "means apparatus" and insert instead --
" means any apparatus ".
final approval
paragraph (a) Delete "means approval" and insert instead --
" means an approval ".
paragraph (aa) Delete "means approval" and insert instead --
" means an approval ".
paragraph (ab) Delete "means approval" and insert instead --
" means an approval ".
page 168
Environmental Protection Amendment Bill 2002
Minor amendments to section 3(1) Schedule 1
paragraph (ac) Delete "means approval" and insert instead --
" means an approval ".
paragraph (b) Delete "means approval" and insert instead --
" means an approval ".
paragraph (c) Delete "means approval" and insert instead --
" means an approval ".
paragraph (d) Delete "means approval" and insert instead --
" means an approval ".
paragraph (e) Delete "means approval" and insert instead --
" means an approval ".
paragraph (f) Delete "means approval" and insert instead --
" means an approval ".
fuel burning equipment Delete "or open" and insert instead --
" or an open ".
inspector Delete "means person" and insert instead --
" means a person ".
Delete "includes Chief Executive Officer" and
insert instead --
" includes the CEO ".
licence Delete "means licence" and insert instead --
" means a licence ".
licensee Delete "means holder" and insert instead --
" means the holder ".
occupier
paragraph (a) Delete "means person" and insert instead --
" means a person ".
paragraph (b) Delete "part, person" and insert instead --
" part, a person ".
period of public review
paragraph (a) Delete "means period" and insert instead --
" means the period ".
page 169
Environmental Protection Amendment Bill 2002
Schedule 1 Minor amendments to section 3(1)
paragraph (aa) Delete "means period" and insert instead --
" means the period ".
paragraph (ab) Delete "means period" and insert instead --
" means the period ".
paragraph (ac) Delete "means period" and insert instead --
" means the period ".
paragraph (b) Delete "means period" and insert instead --
" means the period ".
paragraph (c) Delete "means period" and insert instead --
" means the period ".
paragraph (d) Delete "means period" and insert instead --
" means the period ".
paragraph (e) Delete "means period" and insert instead --
" means the period ".
paragraph (f) Delete "means period" and insert instead --
" means the period ".
proponent Delete "means person" and insert instead --
" means the person ".
Delete "or public" and insert instead --
" or the public ".
proposal Delete "means project" and insert instead --
" means a project ".
proposal under an Delete "means application" and insert instead --
assessed scheme " means an application ".
public authority Delete "means Minister" and insert instead --
" means a Minister ".
public place Delete "means place" and insert instead --
" means a place ".
responsible authority
paragraph (a)(i) Delete "means East" and insert instead --
" means the East ".
page 170
Environmental Protection Amendment Bill 2002
Minor amendments to section 3(1) Schedule 1
paragraph (a)(ia) Delete "means Midland" and insert instead --
" means the Midland ".
paragraph (a)(ic) Delete "means Armadale" and insert instead --
" means the Armadale ".
paragraph (a)(ii) Delete "means Subiaco" and insert instead --
" means the Subiaco ".
paragraph (a)(iii) Delete "means Western" and insert instead --
" means the Western ".
paragraph (a)(iv) Delete "means Western" and insert instead --
" means the Western ".
paragraph (a)(v) Delete "means local authority within the meaning
of the Town Planning and Development Act 1928"
and insert instead --
" means the local government ".
paragraph (a)(vi) Delete "means Western" and insert instead --
" means the Western ".
paragraph (b)(i) Delete "means Western" and insert instead --
" means the Western ".
paragraph (b)(ii) Delete "means local authority (as defined by the
Town Planning and Development Act 1928)" and
insert instead --
" means the local government ".
responsible Minister Delete "means Minister" and insert instead --
" means the Minister ".
scheme Delete the definition and insert instead --
"
"scheme" means --
(a) a redevelopment scheme
within the meaning of the
East Perth Redevelopment
Act 1991, or an amendment
to such a redevelopment
scheme;
page 171
Environmental Protection Amendment Bill 2002
Schedule 1 Minor amendments to section 3(1)
(b) a redevelopment scheme
within the meaning of the
Midland Redevelopment
Act 1999, or an amendment
to such a redevelopment
scheme;
(c) a master plan within the
meaning of the Hope
Valley-Wattleup
Redevelopment Act 2000, or
an amendment to such a
master plan;
(d) a redevelopment scheme
within the meaning of the
Armadale Redevelopment
Act 2001, or an amendment
to such a redevelopment
scheme;
(e) a redevelopment scheme
within the meaning of the
Subiaco Redevelopment
Act 1994, or an amendment
to such a redevelopment
scheme;
(f) an amendment to the
Metropolitan Region
Scheme;
(g) a regional planning scheme,
or an amendment to a
regional planning scheme;
(h) a town planning scheme, or
an amendment to a town
planning scheme; or
page 172
Environmental Protection Amendment Bill 2002
Minor amendments to section 3(1) Schedule 1
(i) a statement of planning policy
to which section 5AA(8) of
the Town Planning and
Development Act 1928
applies, or an amendment to
such a statement;
".
the repealed Act Delete the definition.
Insert in the appropriate alphabetical position the
following definition --
"
"repealed Act" means the
Environmental Protection
Act 1971;
".
the regulations Delete the definition.
Insert in the appropriate alphabetical position the
following definition --
"
"regulations" means the regulations
under section 123(1);
".
the Western Australian Delete the definition.
Planning Commission
Insert in the appropriate alphabetical position the
following definition --
"
"Western Australian Planning
Commission" means the Western
Australian Planning Commission
established by section 4 of the
Western Australian Planning
Commission Act 1985;
".
page 173
Environmental Protection Amendment Bill 2002
Schedule 1 Minor amendments to section 3(1)
trade Delete "means trade" and insert instead --
" means a trade ".
Delete "includes activity" and insert instead --
" includes an activity ".
vehicle Delete "includes self-propelled" and insert
instead --
" includes a self-propelled ".
works approval Delete "means works approval" and insert
instead --
" means a works approval ".
page 174
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