Part 8.2Part 8.2 Proceedings for offences
Division 1 Proceedings for offences generally
214 Proceedings for tier 1 offences
(1) Proceedings for an offence arising under Part 5.2 may be dealt with:(a) summarily before the Land and Environment Court in its summary jurisdiction, or(b) on indictment before the Supreme Court.(2) If any such proceedings are brought in the Land and Environment Court, the maximum period of imprisonment that the Court may impose for the offence is 2 years, despite any other provision of this Act.
215 Proceedings for other offences
(1) Proceedings for an offence arising under this Act or the regulations (other than under Part 5.2) may be dealt with:(a) summarily before the Local Court, or(b) summarily before the Land and Environment Court in its summary jurisdiction.(2) If any such proceedings are brought in the Local Court, the maximum monetary penalty that the Court may impose for the offence is 1,000 penalty units, despite any other provision of this Act.
216 Time within which summary proceedings may be commenced
(1) Proceedings for an offence under this Act or the regulations may be commenced:(a) in the case of a prescribed offence—within but not later than 3 years after the date on which the offence is alleged to have been committed, or(b) in any other case—within but not later than 12 months after that date.(2) Proceedings for an offence under this Act or the regulations may also be commenced:(a) in the case of a prescribed offence—within but not later than 3 years after the date on which evidence of the alleged offence first came to the attention of any relevant authorised officer, or(b) in any other case—within but not later than 12 months after that date.(3) If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the offence first came to the attention of any relevant authorised officer and need not contain particulars of the date on which the offence was committed. The date on which evidence first came to the attention of any relevant authorised officer is the date specified in the court attendance notice or application, unless the contrary is established.(4) This section applies only to proceedings that are to be dealt with summarily.(5) This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.(6) In this section:authorised officer means any person who is an authorised officer for the purposes of this Act, whether or not the person has the functions of an authorised officer in connection with the offence concerned.
evidence of an offence means evidence of any act or omission constituting the offence.
prescribed offence means:
(a) an offence arising under Part 5.2, or(b) an offence arising under Part 3.2, or(c) an offence arising under section 143 (Unlawful transporting of waste) or 144 (Permitting land to be used unlawfully as waste facility), or(c1) an offence under section 142A (Pollution of land) or 144AA (False or misleading information about waste), or(c2) an offence arising under the Environmentally Hazardous Chemicals Act 1985 to which this Chapter extends by virtue of section 213, or(d) an offence against this Act that is declared by the regulations to be a prescribed offence for the purposes of this section.relevant authorised officer means:
(a) in relation to proceedings for an offence instituted by or with the consent of the EPA or a member of the staff of the EPA—any authorised officer who is a member of the staff of the EPA, or(b) in relation to proceedings for an offence instituted by or with the consent of a local authority or an officer or employee of such an authority—any authorised officer who is an officer or employee of that authority, or(c) in relation to proceedings for an offence instituted by any other person—any authorised officer.
Division 2 Who may institute proceedings for offences
217 EPA or other appropriate regulatory authority may institute proceedings
(1) EPA
Proceedings for an offence against this Act or the regulations may be instituted by the EPA.(2) Other appropriate regulatory authority
Any such proceedings may also be instituted by the appropriate regulatory authority, if it is not the EPA, in connection with a matter for which it is the appropriate regulatory authority.
218 Other authorities who may also institute proceedings
(1) Local authority—offences other than excluded offences
A local authority may institute proceedings for any offence against this Act or the regulations (other than an excluded offence).(2) Water Supply Authority
A Water Supply Authority (within the meaning of the Water Management Act 2000) may institute proceedings for a water pollution offence (other than an excluded offence).(3) Marine authority
The marine authority may institute proceedings for a noise pollution offence referred to in subsection (6) (d) or (e).(4) Police officers
Police officers may institute proceedings for:(a) a noise pollution offence, or(b) a littering offence, or(c) an offence against the regulations relating to the operation of a motor vehicle (being an offence prescribed for the purposes of this subsection).(5) Applicant for noise abatement order
A person who was the applicant for a noise abatement order may institute proceedings for an offence against section 269 of contravening the order.(6) Excluded offences
For the purposes of this section, an offence is an excluded offence if it is an offence (other than a littering offence) committed in relation to:(a) scheduled activities, or(b) activities or work authorised or controlled by an environment protection licence, or(c) activities carried on by the State or a public authority, whether at premises occupied by the State or a public authority or otherwise, or(d) in the case of a noise pollution offence—a vessel in navigable waters, or(e) in the case of a noise pollution offence—premises used in connection with vessels and situated adjacent to, or partly or wholly over, navigable waters,or it is any other offence prescribed by the regulations as an excluded offence.(7) Other definitions
In this section:littering offence means an offence arising under Part 5.6A.
noise pollution offence means an offence arising under Part 5.5, 8.6 or any other provision prescribed for the purposes of this definition.
water pollution offence means an offence arising under Part 5.3 or any other provision prescribed for the purposes of this definition.
218A Agents may institute proceedings
Proceedings that may be instituted under section 217 or 218 may also be instituted on behalf of an appropriate regulatory authority or any other authority or person specified in those sections by an agent of the authority or person appointed for that purpose.
219 Other persons may institute proceedings with leave of Land and Environment Court
(1) Any person may institute proceedings in the Land and Environment Court for an offence against this Act or the regulations if the Court grants the person leave to bring the proceedings.(1A) An appropriate regulatory authority (other than the EPA) and any person or authority referred to in section 218 may institute proceedings in the Land and Environment Court for an offence against this Act or the regulations, if the Court grants the authority leave to bring the proceedings.(1B) Nothing in section 217 or 218 limits the operation of this section.(2) The Land and Environment Court is not to grant leave unless satisfied that:(a) the EPA has decided not to take any relevant action (as defined in subsection (3)) in respect of the act or omission constituting the alleged offence or has not made a decision on whether to take such action within 90 days after the person or authority requested the EPA to institute the proceedings, and(b) the EPA has been notified of the proceedings, and(c) the proceedings are not an abuse of the process of the Court, and(d) the particulars of the offence disclose, without any hearing of the evidence, a prima facie case of the commission of the offence.(3) Relevant action for the purposes of subsection (2) is not limited to the institution of criminal proceedings, but includes action under this Act to require the defendant to prevent, control, abate or mitigate any harm to the environment caused by the alleged offence or to prevent the continuance or recurrence of the alleged offence.
220 Officers and employees of authorities
(1) If an authority is authorised by this Division to institute proceedings for an offence, the proceedings may also be instituted by an officer or employee of the authority with the written consent of:(a) the authority, or(b) such member, officer or employee of the authority as may be authorised by the authority for the purposes of this Division.(2) In this section:employee of an authority includes a person whose services are used by the authority and who is, in respect of those services, subject to the direction and control of the authority.
221 Penalty notices and related proceedings
(1) This Division does not affect the power to issue a penalty notice under Division 3 or the taking of enforcement proceedings in relation to the penalty notice or in relation to the offence to which the penalty notice relates.(2) Enforcement proceedings include proceedings under Part 3 or 4 of the Fines Act 1996, including, in particular, proceedings taken under section 37 of that Act in respect of the offence to which the penalty notice relates, where the person concerned elects to have the matter dealt with by a court.(3) Proceedings referred to in subsection (2) in respect of the offence to which the penalty notice relates may be instituted:(a) by a person who is an enforcement officer within the meaning of section 226 in relation to the class of offence concerned, or(b) if such an enforcement officer is an officer or employee of a public authority—by the public authority, or by an officer or employee of the public authority under section 220.(4) In this section:employee of an authority includes a person whose services are used by the authority and who is, in respect of those services, subject to the direction and control of the authority.
Division 3 Penalty notices (tier 3 offences)
For the purposes of this Division, a penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations for the purposes of this Division, other than an offence arising under Part 5.2 (Tier 1 offences).
A penalty notice is a notice to the effect that, if the person served with the notice does not wish to have a specified penalty notice offence dealt with by a court, the person may pay the penalty prescribed under section 227 for the offence:(a) within the time specified in the notice (being 28 days from the date on which the notice was served), and(b) to the person specified in the notice.
224 Service of penalty notices
(1) An enforcement officer may serve a penalty notice on a person if it appears to the enforcement officer that the person has committed a penalty notice offence.(2) A penalty notice may be served personally or by post.(3) The regulations may authorise a penalty notice also to be served by leaving the notice on a vehicle or at other premises in respect of which the offence was committed.
225 Consequences of paying penalty in accordance with penalty notice
(1) If the penalty prescribed for an alleged offence is paid in accordance with this Division, no person is liable to any further proceedings for the alleged offence.(2) Payment in accordance with this Division is not to be regarded as an admission of liability for the purposes of, nor is it in any way to affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(1) In this Division, a reference to an enforcement officer, in relation to an offence, is a reference to a person belonging to a class of officers or employees prescribed by the regulations in relation to the offence.(2) A person who is an officer or employee of a public authority cannot be an enforcement officer in relation to an offence alleged to have been committed by the authority.(3) Only an officer or employee of the EPA can be an enforcement officer in relation to:(a) an offence (other than a littering offence) alleged to have been committed in relation to activities or work authorised or controlled by an environment protection licence, or(b) an offence (other than a littering offence) alleged to have been committed in relation to activities carried on by the State or a public authority.(4) In this section, littering offence means an offence arising under Part 5.6A.
(1) The regulations may prescribe the penalty payable under a penalty notice in respect of a penalty notice offence.(2) Any such penalty may not exceed the maximum penalty that may be imposed by a court on a conviction for the offence.(3) The regulations may prescribe different penalties for the same penalty notice offence.
228 Withdrawal of penalty notice
(1) An enforcement officer belonging to the same class of officers as the enforcement officer by whom a penalty notice has been served:(a) may withdraw the notice within 28 days after the date on which the notice was served, and(b) must withdraw the notice immediately if directed to do so by the EPA.(2) The following provisions have effect in relation to an alleged offence if a penalty notice for the alleged offence is withdrawn in accordance with this section:(a) The amount that was payable under the notice ceases to be payable.(b) Any amount that has been paid under the notice is repayable to the person by whom it was paid.(c) Further proceedings in respect of the alleged offence may be taken against any person (including the person on whom the notice was served) as if the notice had never been served.
229 Effect on other provisions
This Division does not limit the operation of this or any other Act in relation to proceedings that may be taken in relation to offences.
(1) This Division applies where:(a) proceedings have been commenced against a person for an offence against this Act or the regulations and, as a result of those proceedings, the person may be required to pay an amount referred to in section 246, or(b) proceedings have been commenced against a person under section 247.(2) In this Division:the defendant means the person referred to in subsection (1) (a) or (b).
231 Nature of restraining order
A restraining order is an order of a court directing that any property of the defendant is not to be disposed of, or otherwise dealt with, by the defendant or by any other person, except in such manner and in such circumstances (if any) as are specified in the order.
232 Application for restraining order
(1) The person bringing the proceedings (as referred to in section 230) may apply for a restraining order in relation to property of the defendant.(2) An application under this section may be made:(a) in the case of proceedings taken before the Local Court—to the Land and Environment Court, and(b) in the case of other proceedings—to the court before which the proceedings are brought.(3) On an application under this section:(a) the court may, if it thinks fit, require the person making the application to give notice of the application to a person who the court has reason to believe has an interest in the property or part of the property, and(b) a person to whom the court requires notice to be given under paragraph (a) is entitled to appear and to adduce evidence at the hearing of the application.
233 Making of restraining order
On an application under section 232, the court may make a restraining order in relation to the defendant’s property, if it is satisfied (on the information contained in or accompanying the application) that:(a) the defendant has committed the relevant offence, and(b) amounts are or are likely to be payable under section 246 or 247, and(c) it is appropriate to make an order under this section in the circumstances of the case.
The court may refuse to make a restraining order if the person making the application refuses or fails to give to the court such undertakings as the court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making or operation of the order.
(1) A court that makes a restraining order may make any ancillary orders that the court considers appropriate.(2) Without limiting the generality of subsection (1), ancillary orders may include any one or more of the following:(a) an order for the examination on oath of:(i) the defendant, or(ii) another person,before the court, or an officer of the court prescribed by rules of court, concerning the affairs of the defendant, including the nature and location of any property of the defendant,(b) an order varying the restraining order in respect of the property to which it relates,(c) an order varying any conditions to which the restraining order was subject.(3) An ancillary order may be made on application:(a) by the applicant for the restraining order, or(b) by the defendant, or(c) with the leave of the court, by any other person.(4) Ancillary orders may be made when or at any time after the restraining order is made. An ancillary order referred to in subsection (2) (a) may be made in advance of the restraining order.
236 Charge on property subject to restraining orders
(1) Creation of charge
If:(a) a court has made a restraining order in respect of particular property or all of the property of the defendant, and(b) the court orders the payment of an amount referred to in section 246 or 247,there is created by force of this section, on the making of the order referred to in paragraph (b), a charge on all the property to which the restraining order applies to secure the payment to a public authority or person of the amount referred to in section 246 or 247.(2) When charge ceases to have effect
Such a charge ceases to have effect in respect of the property:(a) on payment by the defendant to the public authority or person of the amount concerned, or(b) on the sale or other disposition of the property with the consent of the court, or(c) on the sale of the property to a purchaser in good faith for value who, at the time of the sale, has no notice of the charge,whichever first occurs.(3) Charge is subject to existing charges and encumbrances
Such a charge is subject to every charge or encumbrance to which the property was subject immediately before the order referred to in subsection (1) (b) was made and, in the case of land under the provisions of the Real Property Act 1900, is subject to every mortgage, lease or other interest recorded in the Register kept under that Act.(4) Charge not affected by change of ownership
Such a charge is not affected by any change of ownership of the property, except as provided by subsection (2).(5) Registration of charge is notice
If:(a) such a charge is created on property of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, property of that kind, and(b) the charge is so registered,a person who purchases or otherwise acquires the property after the registration of the charge is, for the purposes of subsection (2), taken to have notice of the charge.(6) Charge on RP land not effective until registered
If such a charge relates to land under the provisions of the Real Property Act 1900, the charge has no effect until it is registered under that Act.
237 Registration of restraining orders
(1) If a restraining order applies to property of a particular kind and the provisions of any law of the State provide for the registration of title to, or charges over, property of that kind, the authority responsible for administering the provisions is required, on application by any person, to record the particulars of the order in the register kept under those provisions.(2) If the particulars of a restraining order are so recorded, a person who afterwards deals with the property is, for the purposes of section 236 (2), taken to have notice of the charge created by this Act on the making of the order.(3) If a restraining order applies to land under the provisions of the Real Property Act 1900, a caveat may be lodged under that Act in relation to the order.
237A Recovery of costs of registering charge on land
(1) A person (including a public authority) who registers a charge on land to which a restraining order applies under section 236 may, by notice in writing, require the defendant to pay all or any of the reasonable costs and expenses incurred by the person in respect of the lodgment and registration of the charge (including the costs of discharging the charge).(2) The person may recover from the defendant any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.
237B Recovery of costs of lodging caveat
(1) A person (including a public authority) who lodges a caveat in respect of land to which a restraining order applies under section 237 may, by notice in writing, require the defendant to pay all or any of the reasonable costs and expenses incurred by the person in respect of the lodgment and registration of the caveat (including the costs of withdrawal of the caveat).(2) The person may recover from the defendant any unpaid amounts specified in the notice as a debt in a court of competent jurisdiction.
238 Contravention of restraining orders
(1) Offence
A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, property that is subject to the order is guilty of an offence.Maximum penalty: A fine equivalent to the value of the property (as determined by the court) or imprisonment for 2 years, or both.
(2) Application for order setting aside disposition of or dealing with property
If:(a) a restraining order is made against property, and(b) the property is disposed of, or otherwise dealt with, in contravention of the restraining order, and(c) the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith,the person who applied for the restraining order may apply to the court that made the restraining order for an order that the disposition or dealing with the property be set aside.(3) Order setting aside disposition or dealing
If an application is made under subsection (2), the court may make an order:(a) setting aside the disposition or dealing as from the day on which the disposition or dealing took place or as from the day of the order under this subsection, and(b) (if appropriate) declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order.
239 Court may revoke restraining order
(1) The court that made a restraining order may revoke the order, on application made to it by the person in relation to whose property it was made.(2) The court may refuse to revoke the order if the person does not:(a) give security satisfactory to the court for the payment of any amount referred to in section 246 or 247 that may be imposed on or ordered to be paid by the person under this Act in respect of the person’s conviction for the offence, or(b) give undertakings satisfactory to the court concerning the person’s property.(3) Subsection (2) does not limit the discretion of the court to revoke or refuse to revoke a restraining order.
240 Time when restraining order ceases to be in force
If, after a restraining order was made in reliance on the charging of a person with an offence against this Act or the regulations:(a) the charge is withdrawn and the person is not charged with a related offence by the time of the withdrawal—the restraining order ceases to be in force when the charge is withdrawn, or(b) the person is acquitted of the charge and the person is not charged with a related offence by the time of the acquittal—the restraining order ceases to be in force when the acquittal occurs.
241 Matters to be considered in imposing penalty
(1) In imposing a penalty for an offence against this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):(a) the extent of the harm caused or likely to be caused to the environment by the commission of the offence,(b) the practical measures that may be taken to prevent, control, abate or mitigate that harm,(c) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,(d) the extent to which the person who committed the offence had control over the causes that gave rise to the offence,(e) whether, in committing the offence, the person was complying with orders from an employer or supervising employee.(2) The court may take into consideration other matters that it considers relevant.
Division 6 Continuing offences
(1) A person who is guilty of an offence because the person contravenes a requirement made by or under this Act or the regulations (whether the requirement is imposed by a notice or otherwise) to do or cease to do something (whether or not within a specified period or before a particular time):(a) continues, until the requirement is complied with and despite the fact that any specified period has expired or time has passed, to be liable to comply with the requirement, and(b) is guilty of a continuing offence for each day the contravention continues.(2) This section does not apply to an offence if the relevant provision of this Act or the regulations does not provide for a penalty for a continuing offence.(3) This section does not apply to the extent that a requirement of a notice is revoked.