284 Exemptions by EPA in emergencies and other situations
(1) Exemptions
The EPA may exempt any person or class of persons from any specified provision or provisions of this Act or the regulations, in the circumstances referred to in subsection (2).(2) Situations where exemptions may be granted
An exemption may be granted in:(a) an emergency (including, for example, fires, floods and fuel shortages), or(b) circumstances where:(i) the EPA is satisfied that it is not practicable to comply with the relevant provision or provisions, by implementing operational changes to plant or practices, and(ii) the EPA is satisfied that non-compliance with the provision or provisions will not have any significant adverse effect on public health, property or the environment, and(iii) the Board of the EPA approves the granting of the exemption.(3) Applications
If the regulations prescribe the manner in which an exemption is to be applied for, the exemption must be applied for in that manner.(4) Publication and commencement
An exemption:(a) is effected by order made by the EPA and published in the Gazette, and(b) takes effect from the date the order is published in the Gazette or a later date specified in the order, and(c) has effect for the period specified in the order.(5) Emergency exemption
In the case of an exemption granted in an emergency, the order may take effect when it is made or on a later date specified in the order. The order is to be published in the Gazette as soon as practicable after it is made.(6) Conditions
An exemption may be unconditional or may be subject to conditions specified in the order.(7) Revocation, variation or renewal
An exemption may be revoked, varied or renewed by a further order made and published in accordance with this section.(8) Term
An exemption may not be granted or renewed so as to have effect for a total period exceeding 5 years. A further exemption granted within 5 years after the expiry of an earlier exemption (being a further exemption that is the same in substance as the earlier exemption) is to be treated as a renewed exemption for the purposes of this subsection.(9) Reasons for exemption
If an exemption is granted, any person may make a written request to the EPA for the reasons for the exemption and the EPA is to provide a written statement of the reasons to the person. The regulations may make provision with respect to any such statement of reasons, including:(a) the time within which a request for reasons must be made or within which the statement of reasons must be provided, and(b) the matters to be set out in a statement of reasons, and(c) the cases in which a statement of reasons is not required to be provided.
285 Exemption for fire brigades and other emergency services
(1) A person is not guilty of an offence against this Act or the regulations for any act or omission if it was done or omitted in good faith as a member of a fire brigade, a rural fire brigade, the State Emergency Service or other accredited rescue unit.(2) This section has effect despite anything in this Act.(3) In this section:accredited rescue unit has the same meaning as it has in the State Emergency and Rescue Management Act 1989.
rural fire brigade has the same meaning as it has in the Rural Fires Act 1997.
(1) The regulations may exempt, or provide for the exemption of:(a) any person or class of persons, or(b) any premises or class of premises, or(c) any area or class of areas, or(d) any activity or class of activities, or(e) any other matter or thing or class of matters or things,from any specified provision or provisions of this Act or the regulations, in such circumstances (if any) and subject to such conditions (if any) as may be specified or referred to in the regulations.(2) The power to make regulations under this section is not limited by section 284.
287 Appeals regarding licence applications and licences
(1) Any person:(a) who makes a licence application and who is aggrieved by any decision of the appropriate regulatory authority with respect to the application, or(b) who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence,may, within 21 days (or such other period as is prescribed instead by the regulations) after being given notice of the decision of that authority, appeal to the Land and Environment Court against the decision.(1A) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.(2) An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence.Note. The Dictionary defines licence application to mean an application for the issue, transfer or variation of a licence or for approval of the surrender of a licence.(3) For the purposes of this section, a licence application is taken to have been refused:(a) in the case of an application for a variation of a licence about which the appropriate regulatory authority is required to invite and consider public submissions under section 58 (6), if the application is not granted within 90 days after it is duly made, or(b) in the case of an application for a licence relating to controlled development, if the application is not granted within 60 days after it is duly made or within 30 days after development consent is granted for the controlled development, whichever is the later, or(c) in any other case, if the application is not granted within 60 days after it is duly made.(4) The period commencing when an applicant is duly required under this Act to provide additional information within a specified period for the purposes of determining a licence application and ending when that information is provided or the specified period ends (whichever occurs first) is not to be taken into account in determining whether a licence application is taken to have been refused.(5) Nothing in this section prevents the determination of a licence application under this Act after the end of a period referred to in subsection (3).(6) There is no appeal under this section against a condition that is imposed on a licence, or varied or revoked, by the regulations.Note. Section 93B of the Environmental Planning and Assessment Act 1979 provides that, in the case of integrated development under that Act involving a licence application, the Court is under the same obligation as the appropriate regulatory authority with respect to the issue of the licence in accordance with the previous general terms of any approval by that authority.
288 Appeals regarding notices under section 86 relating to work at premises
(1) A person given a notice under section 86 may, within 21 days (or such other period as is prescribed instead by the regulations) after being given the notice, appeal to the Land and Environment Court against the notice.(2) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against.
289 Appeals against prevention notices
(1) A person served with a prevention notice may, within 21 days (or such other period as is prescribed instead by the regulations) after being served with the notice, appeal to the Land and Environment Court against the notice.(1A) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice appealed against.(2) There is no appeal against a decision of an appropriate regulatory authority to extend the time for complying with a prevention notice.(3) For the purposes of this section, a prevention notice is a notice under Part 4.3, and includes a notice that varies such a prevention notice.
(1) Any person:(a) given a noise control notice, or(b) against whom a noise abatement order is made,may appeal to the Land and Environment Court against the notice or order within 21 days (or such other period as is prescribed instead by the regulations) after service of the notice or the making of the order.(1A) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice or order appealed against.(2) Parts 2, 3 and 5 of the Crimes (Local Courts Appeal and Review) Act 2001 (as applied by section 70 of the Local Court Act 2007) do not apply to a noise abatement order.
291 Appeals regarding decisions under the regulations
The regulations may make provision for or with respect to the making of appeals to the Land and Environment Court or the Local Court against a decision made under the regulations.
(1) A court to which an appeal is made under this Act may hear and determine the appeal.(2) The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.
293 Schemes for economic measures
(1) The EPA may develop and implement schemes involving economic measures as a means of achieving cost-effective environmental regulation or environment protection.(2) The EPA may approve of the development and implementation of such a scheme by other regulatory authorities.(3) Without limiting the above, such a scheme may involve measures that provide an economic incentive for avoiding or minimising harm to the environment when carrying out an activity.(4) An example of such a scheme is a tradeable emission scheme, as referred to in Part 9.3A, or a green offset scheme, as referred to in Part 9.3B.(5), (6) (Repealed)
293A Alteration, suspension or termination of a scheme
(1) The EPA may alter, suspend or terminate a scheme referred to in section 293 or any part of such a scheme.(2) Before taking any such action, the EPA must:(a) cause notice of its intention to do so to be published in the Gazette and in a newspaper circulating throughout the State or in the locality in which the scheme operates, and(b) in that notice, invite the public to make submissions on the proposed alteration, suspension or termination, and(c) allow a period of not less than 21 days for the receipt of those submissions.(3) The EPA must take into account any submission received within that period in deciding whether to proceed with the alteration, suspension or termination.(4) The EPA may alter the scheme or part of the scheme without complying with subsections (2) and (3) if it considers that:(a) the alteration is not significant, or(b) the alteration is necessary because of an emergency.(5) The EPA may suspend the scheme or part of the scheme without complying with subsections (2) and (3) if it considers that:(a) the suspension is required urgently in order to protect the environment, public health, property, or the integrity of the scheme, or(b) the suspension is necessary because of an emergency.(6) The EPA may terminate the scheme or part of the scheme without complying with subsections (2) and (3) if it considers that the termination is necessary because of an emergency.
(1) The Crown does not incur any liability (including liability for compensation) for any loss (including a loss in entitlements or in the value of entitlements) incurred as a consequence of any of the following:(a) the implementation, alteration, suspension or termination of a scheme referred to in section 293 or of any part of such a scheme,(b) the alteration, suspension, cancellation or forfeiture of any rights or entitlements under such a scheme.(2) In this section:compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
294A Exercise of functions by Minister and EPA
In exercising their functions under this Part and Parts 9.3A and 9.3B, the Minister and the EPA are to have regard to the objects of this Act, particularly section 3 (d).
The regulations may make provision for or with respect to any of the following:(a) the development or implementation of schemes involving economic measures,(b) the alteration, suspension or termination of such a scheme or of any part of such a scheme.Note. More specific regulation-making powers for tradeable emission schemes and green offsets are set out in Parts 9.3A and 9.3B, respectively.
Part 9.3A Tradeable emission schemes
In this Part:participant in a tradeable emission scheme means:
(a) a person who holds a tradeable emission permit or credit created under the scheme, or(b) a person who holds a licence that authorises the person to carry out any activity that is regulated under the scheme or a licence of a kind prescribed by the regulations as being a licence to which the scheme applies (whether or not the person holds a tradeable emission permit or credit).tradeable emission scheme means a scheme referred to in section 295B.
295B Tradeable emission schemes
(1) A tradeable emission scheme may include any or all of the following elements:(a) the creation of a market for entitlements to emit a particular pollutant or pollutants,(b) monitoring and reporting levels of pollution and emission of pollutants,(c) the creation of tradeable emission permits or credits,(d) the initial sale or allocation and further sale or allocation of tradeable emission permits or credits,(e) provision for the holding of tradeable emission permits or credits by members of the public,(f) the rights and duties of participants in the scheme,(g) the trading of tradeable emission permits or credits or of any entitlement conferred by them (including restrictions on trading and any other dealings),(h) safeguards against anti-competitive behaviour by participants in the scheme,(i) the alteration, suspension, cancellation or forfeiture of tradeable emission permits or credits, or other rights or entitlements under the scheme.(2) A tradeable emission scheme must include:(a) a limit on total emissions of the pollutant or pollutants to which the scheme applies, or(b) a scheme to offset pollution, or(c) a program for the surrender of tradeable emission permits or credits over time, or(d) a combination of any or all of the elements referred to in paragraphs (a)–(c).(3) A tradeable emission scheme may include elements other than those mentioned in this section.
295C Regulations relating to tradeable emission schemes
(1) The regulations may make provision for or with respect to tradeable emission schemes, including provision for or with respect to any of the elements referred to in section 295B.(2) A tradeable emission scheme regulation is not repealed by the operation of Part 3 of the Subordinate Legislation Act 1989.(3) A tradeable emission scheme regulation may be periodically reviewed by the Minister, in accordance with a timetable set out in the regulation. Any such review must include a review of the operation of the elements of the scheme referred to in section 295B (2).(4) The Minister is to ensure that the public is given an opportunity to make submissions with respect to the review, and that any submissions with respect to the review that are received within the period allowed for the receipt of submissions are appropriately considered.(5) In order to give the public an opportunity to make submissions with respect to the review, the Minister must:(a) cause notice of the review to be published in the Gazette and in a newspaper circulating throughout the State or in the locality in which the scheme operates, and(b) in that notice, invite the public to make submissions with respect to the review, and(c) allow a period of not less than 21 days for the receipt of those submissions.(6) For the purposes of this section, a tradeable emission scheme regulation is a regulation that contains only the following provisions:(a) provisions that relate to a tradeable emission scheme (including any ancillary, consequential, savings or transitional provisions), and(b) provisions that deal with the citation and commencement of the regulation, or other provisions of a machinery nature.(7) This section does not limit the generality of section 295.
(1) The regulations may, for the purpose of giving effect to a tradeable emission scheme, impose conditions on licences.(2) Conditions of a licence that are imposed by the regulations for the purposes of this Part cannot be substituted, omitted, amended or revoked by a regulatory authority.(3) (Repealed)(4) This section does not prevent conditions with respect to a tradeable emission scheme from being attached to a licence by an appropriate regulatory authority in the manner provided for by Chapter 3.
295E Imposition of penalties for contravention of scheme
(1) If the EPA is satisfied that a participant in a tradeable emission scheme has caused a pollutant to be emitted in contravention of the scheme on one or more occasions, the EPA may, subject to the regulations, require the participant to pay a penalty to the EPA.(2) The penalty is to be the amount prescribed by, or calculated in accordance with, the regulations.(3) Without limiting subsection (2), the regulations may provide for the penalty to be calculated on the basis of the following (or a combination of the following):(a) the quantity of pollutant emitted by the participant in contravention of the scheme, as estimated by the EPA,(b) the amount of monetary, financial or other economic benefits obtained by the participant as a result of contravening the scheme, as estimated by the EPA.(4) The EPA is required to give written notice to a participant of:(a) any penalty the participant is required to pay under this section, and(b) the time within which the penalty is to be paid.(5) If the participant fails to pay the penalty, within the time specified by the EPA in the notice, the EPA may:(a) cancel, suspend, or order the forfeiture of, any tradeable emission permits or credits held by the participant, in accordance with the regulations, or(b) take any other action against the person (such as suspending the person from participating in the scheme) that is authorised by the regulations.(6) This section does not prevent proceedings being taken against a participant for an offence against this Act or the regulations arising as a result of a contravention of a tradeable emission scheme.(7) The EPA may take any other action authorised by the regulations (as referred to in section 295F) in addition to or instead of imposing a penalty under this section.
295F Other action that may be taken by EPA
(1) The regulations may authorise the EPA, or a person exercising functions under a tradeable emission scheme on behalf of the EPA, to do any or all of the following, in the circumstances set out in the regulations:(a) cancel or suspend tradeable emission permits or credits, or any entitlement that they confer,(b) order the forfeiture of tradeable emission permits or credits to the EPA,(c) cancel or suspend a person’s right to participate in the scheme, or impose conditions or other restrictions on any such right.(2) Without limiting subsection (1), the regulations may authorise such action to be taken:(a) for one or more contraventions of the scheme, or(b) for a failure to pay any penalty, contribution or other amount payable in connection with the scheme.
295G Participation in scheme by EPA
The EPA may participate in a tradeable emission scheme, including by holding and trading in tradeable emission permits and credits.
(1) The regulations may require participants in a tradeable emission scheme to pay to the EPA a contribution towards the following:(a) the costs of management and administration of the scheme (including payment for services provided by any person or body exercising functions under the scheme),(b) the costs of ensuring compliance with the scheme,(c) any other costs relating to the scheme.(2) The amount of the contribution (or the manner in which it is to be calculated) and other matters concerning its payment are to be set out in the regulations.(3) The contribution is recoverable by the EPA as a debt in a court of competent jurisdiction.(4) The regulations may authorise the payment of the contribution by instalments. If an instalment is not paid by the due date, the balance then becomes due and payable (together with any interest or other penalty for late payment prescribed by the regulations).(5) The regulations may:(a) require a person to continue to make a contribution referred to in this section in respect of a tradeable emission permit or credit that has been forfeited until the permit or credit is sold or re-allocated, and(b) exempt any person or class of persons from payment of a contribution referred to in this section.(6) The EPA is not required to pay a contribution referred to in this section.
295I Tradeable Emission Schemes Fund
(1) There is to be established in the Special Deposits Account an account called the Tradeable Emission Schemes Fund.(2) Money in the Fund is under the control of the EPA and can be expended by the EPA only for the purposes authorised by this section.(3) There is to be paid into the Fund:(a) all contributions paid by participants in a tradeable emission scheme under a regulation referred to in section 295H (Cost recovery), and(a1) the proceeds of any auction or other sale of permits or credits, or any entitlement conferred by them, under a tradeable emission scheme, and(b) the proceeds of investment of money in the Fund, and(c) any gift or bequest of money for the purposes of the Fund, and(d) any other money appropriated by Parliament for the purposes of the Fund or required by law to be paid into the Fund.(4) There may be paid out of the Fund:(a) the costs of management and administration of tradeable emission schemes (including payment for services provided by any person or body exercising functions under the scheme), and(b) the costs of ensuring compliance with tradeable emission schemes, and(c) such other costs relating to tradeable emission schemes as the EPA directs to be paid out of the Fund.(4A) There may be paid out of the Fund to the Consolidated Fund any amount in the Fund that, in the opinion of the EPA, is in excess of the amounts required to meet the costs referred to in subsection (4).(5) A separate account is to be established in the Fund for each tradeable emission scheme.(6) If more than one account in the Fund is established under this Part, money in the accounts may be invested as a common pool. The proceeds of investments are to be distributed rateably among the accounts that contributed money to the common pool according to the amount contributed.
295J Exercise of scheme functions by other persons and bodies
(1) The EPA may enter into agreements and other arrangements with a person or body in respect of the exercise of the functions of the EPA under a tradeable emission scheme by the person or body on behalf of the EPA.(2) The regulations may provide for the constitution of committees (as incorporated or unincorporated bodies):(a) to provide advice on tradeable emission schemes, and(b) to exercise any other functions conferred on them by the EPA or by the regulations in connection with tradeable emission schemes.(3) A matter or thing done or omitted to be done by such a committee, a member of the committee or a person acting under the direction of the committee does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act or the regulations, subject a member or a person so acting personally to any action, liability, claim or demand.
295K Liability for operation of scheme
(1) The Crown does not incur any liability (including liability for compensation) in respect of anything done or omitted to be done in good faith by the EPA, or by a person exercising functions under a tradeable emission scheme on behalf of the EPA, in connection with the operation of a tradeable emission scheme.(2) Without limiting subsection (1), that subsection applies to anything done or omitted to be done in connection with the operation of any register or other system by which tradeable emission permits or credits, or other entitlements, are traded under a tradeable emission scheme.(3) This section does not limit the generality of section 294.(4) In this section:compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
295L Application of Duties Act 1997
A tradeable emission permit or credit, or any other entitlement, created under a tradeable emission scheme is not dutiable property for the purposes of the Duties Act 1997.
In this Part:licensed activity means an activity authorised or controlled by a licence.
participant in a green offset scheme means:
(a) a person who holds a green offset credit created under the scheme, or(b) a person who holds a licence that is subject to a condition that requires or authorises the person to participate in or contribute to the scheme, or a licence of a prescribed kind, or(c) a person (other than the holder of a licence) who arranges, implements or manages the scheme.participant in green offset works means:
(a) a person who holds a licence that is subject to a condition that requires or authorises the person to implement or arrange the works, or(b) a person (other than the holder of a licence) who implements or manages the works.
(1) A condition of a licence may be imposed in relation to a green offset scheme or work even though:(a) the scheme or work does not relate to the licensed premises, or(b) the scheme or work does not relate to harm arising from the activity authorised or controlled by the licence,so long as the harm arises from the same kind of licensed activities and relates to the same types of pollutants or impacts that arise from the activity authorised or controlled by the licence.(2) The appropriate regulatory authority may not impose any such condition on a licence unless it is satisfied of the following:(a) that the pollutants or impacts of the activity may not be otherwise prevented, controlled, abated or mitigated in a cost effective way by other measures under the licence,(b) that the proposed green offset scheme or work is likely to result in at least the same or a more beneficial effect on the environment than the use of such other measures,(c) that the effects and benefits of the proposed green offset scheme or work may be reliably estimated or ascertained by the authority,(d) that the effects of the proposed green offset scheme or work are likely to occur wholly or partly in an area affected by the pollutants or impacts that arise from the activity,(e) that the effects and benefits of the proposed green offset scheme or work are likely to last at least until the relevant impact of the activity is offset.(3) The regulations may, for the purpose of giving effect to a green offset scheme or works, impose conditions on licences.(4) Conditions of a licence that are imposed by the regulations for the purposes of this Part cannot be substituted, omitted, amended or revoked by a regulatory authority.(5) This section does not prevent a condition from being attached to a licence by an appropriate regulatory authority in the manner provided by Chapter 3.Note. Under section 69, conditions may be imposed on licences implementing or otherwise relating to green offset schemes and green offset works.
(1) A green offset scheme is a scheme established for any or all of the following purposes:(a) to carry out a specified program for the restoration or enhancement of the environment that is related to a licensed activity,(b) to prevent, control, abate, mitigate or otherwise offset any harm to the environment arising (wholly or partly) from any licensed activity,(c) to make good any environmental damage arising (wholly or partly) from a licensed activity.(2) A green offset scheme may include any or all of the following elements:(a) contractual agreements or other arrangements between the person who arranges or implements or manages a green offset scheme and other participants in the scheme,(b) the creation of a market for entitlements to participate in a green offset scheme,(c) the creation of green offset credits,(d) the initial sale or allocation and further sale or allocation of green offset credits,(e) provision for the holding of green offset credits by participants,(f) the payment of contributions to the scheme for works under the scheme,(g) the implementation of works by participants in the scheme,(h) the payment of administrative costs relating to the scheme,(i) the rights and duties of participants in the scheme,(j) the trading of green offset credits or of any entitlements conferred by them (including restrictions on trading and any other dealings),(k) safeguards against anti-competitive behaviour by participants in the scheme,(l) the alteration, suspension, cancellation or forfeiture of green offset credits, or other rights or entitlements under the scheme,(m) provision for a register of green offset credits and participants and for the circumstances in which register information may be disclosed.(3) A green offset scheme may include elements other than those mentioned in this section.(4) A green offset scheme may, subject to any applicable licence conditions:(a) be arranged or implemented or managed by the holder of a licence or another person, and(b) involve both participants who are licence holders and who are not licence holders.
(1) Green offset works are works established by or on behalf of the holder of a licence for any or all of the following purposes:(a) to prevent, control, abate, mitigate or otherwise offset any harm to the environment arising (wholly or partly) from any licensed activity,(b) to make good any environmental damage arising (wholly or partly) from a licensed activity.(2) Green offset works may include any or all of the following elements:(a) contractual agreements or other arrangements between the holder of a licence and a person who implements or manages the works,(b) the implementation or arrangement of works by participants,(c) the payment of administrative costs relating to the works,(d) the rights and duties of participants in the works.(3) Green offset works may form part of a green offset scheme.(4) Green offset works may include elements other than those mentioned in this section.(5) Green offset works may, subject to any applicable licence conditions, be implemented or managed by the holder of a licence or another person.
295Q Regulations relating to green offsets
(1) The regulations may make provision for or with respect to green offset schemes or works, including provision for or with respect to the following matters:(a) any of the elements referred to in section 295O or 295P,(b) requirements for agreements or other arrangements relating to green offset schemes or works,(c) criteria for activities that may be covered by a green offset scheme or works,(d) inspection of premises at which a green offset scheme or works are carried out,(e) the functions of a manager of a green offset scheme or works and accountability requirements for managers.(2) The regulations must make provision for or with respect to the following matters:(a) if appropriate criteria and methodologies are available, the criteria and methodologies for determining whether green offset schemes or works meet required outcomes specified in licence conditions,(b) evaluation, on a periodic basis, of green offset schemes or works and publication of such evaluations.(3) A green offset regulation is not repealed by the operation of Part 3 of the Subordinate Legislation Act 1989.(4) A green offset regulation may be periodically reviewed by the Minister, in accordance with a timetable set out in the regulation. Any such review must include a review of the operation of the elements referred to in section 295O or 295P.(5) The Minister is to ensure that the public is given an opportunity to make submissions with respect to the review, and that any submissions with respect to the review that are received within the period allowed for the receipt of submissions are appropriately considered.(6) In order to give the public an opportunity to make submissions with respect to the review, the Minister must:(a) cause notice of the review to be published in the Gazette and in a newspaper circulating throughout the State or in the locality in which any relevant green offset scheme operates or relevant green offset works are located, and(b) in that notice, invite the public to make submissions with respect to the review, and(c) allow a period of not less than 21 days for the receipt of those submissions.(7) For the purposes of this section, a green offset regulation is a regulation that contains only the following provisions:(a) provisions that relate to green offset schemes or works (including any ancillary, consequential, savings or transitional provisions),(b) provisions that deal with the citation and commencement of the regulation, or other provisions of a machinery nature.(8) This section does not limit the generality of section 295.
295R Action that may be taken by EPA in relation to green offset schemes or works
(1) The regulations may authorise the EPA, or a person exercising functions under a green offset scheme on behalf of the EPA, to do any or all of the following, in the circumstances set out in the regulations:(a) cancel or suspend green offset credits, or any entitlement that they confer,(b) order the forfeiture of green offset credits to the EPA,(c) cancel or suspend a person’s right to participate in a green offset scheme, or impose conditions or other restrictions on the right.(2) The EPA may appoint a person to manage a green offset scheme or works on behalf of the EPA.(3) The EPA may manage or participate in a green offset scheme, including by holding, creating and trading in green offset credits, and may manage or participate in green offset works.
(1) The regulations may require participants in a green offset scheme to pay to the EPA a contribution towards the following:(a) the costs of management and administration of the scheme (including payment for services provided by any person or body exercising functions under the scheme),(b) the costs of ensuring compliance with the scheme,(c) any other costs relating to the scheme.(2) The regulations may require participants in green offset works to pay to the EPA a contribution towards the following:(a) the costs of management and administration of the works (including payment for services provided by any person or body providing or managing the works),(b) the costs of ensuring compliance with the works,(c) any other costs relating to the works.(3) The regulations may:(a) require a person to continue to make a contribution referred to in this section in respect of a green offset credit that has been forfeited until the credit is sold or re-allocated, and(b) exempt any person or class of persons from payment of a contribution referred to in this section.(4) The EPA is not required to pay a contribution referred to in this section.(5) This section does not apply to contributions for works under green offset schemes.
(1) A contribution payable under this Part is recoverable by the EPA as a debt in a court of competent jurisdiction.(2) The regulations may provide for matters concerning the payment of a contribution payable under this Part.(3) The regulations may authorise the payment of a contribution payable under this Part by instalments. If an instalment is not paid by the due date, the balance then becomes due and payable (together with any interest or other penalty for late payment prescribed by the regulations).
(1) There is to be established in the Special Deposits Account an account called the Green Offsets Fund.(2) Money in the Fund is under the control of the EPA and can be expended by the EPA only for the purposes authorised by this section.(3) There is to be paid into the Fund:(a) all contributions for green offset schemes paid by the holders of licences, and(b) all contributions paid by participants in a green offset scheme or works under a regulation referred to in section 295S, and(c) the proceeds of any auction or other sale of credits, or any entitlement conferred by them, under a green offset scheme, and(d) the proceeds of investment of money in the Fund, and(e) any gift or bequest of money for the purposes of the Fund, and(f) any other money appropriated by Parliament for the purposes of the Fund or required by law to be paid into the Fund.(4) There may be paid out of the Fund:(a) the costs of green offset schemes, including management and administration of schemes and payment for works under the scheme and services provided by any person or body exercising functions under the scheme, and(b) the costs of green offset works, including management of works and payment for services by any person or body providing or managing the works, and(c) the costs of ensuring compliance with green offset schemes or the provision of green offset works, and(d) such other costs relating to green offset schemes or works as the EPA directs to be paid out of the Fund.(5) There may be paid out of the Fund to the Consolidated Fund any amount in the Fund that, in the opinion of the EPA, is in excess of the amounts required to meet the costs referred to in subsection (4).(6) A separate account is to be established in the Fund for each green offset scheme.(7) If more than one account in the Fund is established under this Part, money in the accounts may be invested as a common pool. The proceeds of investments are to be distributed rateably among the accounts that contributed money to the common pool according to the amount contributed.(8) This section does not apply to or in respect of contributions, proceeds, money or costs payable in respect of a green offset scheme implemented or managed by a public authority and approved for the purposes of this subsection by the EPA.(9) The EPA may not approve a green offset scheme for the purposes of subsection (8) unless it is satisfied that appropriate provision is made for managing and auditing the funds of the scheme.
295V Exercise of scheme functions by other persons and bodies
(1) The EPA may enter into agreements and other arrangements with a person or body in respect of the exercise of the functions of the EPA under a green offset scheme or in relation to green offset works by the person or body on behalf of the EPA.(2) The regulations may provide for the constitution of committees (as incorporated or unincorporated bodies):(a) to provide advice on green offset schemes, and(b) to exercise any other functions conferred on them by the EPA or by the regulations in connection with green offset schemes or works.(3) A matter or thing done or omitted to be done by such a committee, a member of the committee or a person acting under the direction of the committee does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act or the regulations, subject a member or a person so acting personally to any action, liability, claim or demand.
295W Liability for operation of scheme
(1) The Crown does not incur any liability (including liability for compensation) in respect of anything done or omitted to be done in good faith by the EPA, or by a person exercising functions on behalf of the EPA, in connection with the operation of a green offset scheme or works.(2) Without limiting subsection (1), that subsection applies to anything done or omitted to be done in connection with the operation of any register or other system by which green offset credits, or other entitlements, are traded under a green offset scheme.(3) This section does not limit the generality of section 294.(4) In this section:compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes any officer, employee or agent of the Crown.
295X Application of Duties Act 1997
A green offset credit, or any other entitlement, created under a green offset scheme is not dutiable property for the purposes of the Duties Act 1997.
Part 9.3C Environmental monitoring
295Y Environmental monitoring programs
(1) The EPA may, on its own initiative, and must, at the direction of the Minister, investigate the need for a program (referred to in this Part as an environmental monitoring program) to monitor the impact on the environment and human health of activities or works authorised or controlled by licences, including pollution resulting from those activities or works.(2) If, after completing an investigation, the EPA is satisfied that an environmental monitoring program is required, it may develop and implement such a program.(3) If a proposed environmental monitoring program relates to licensed activities or works within the portfolio responsibility of the Minister for Primary Industries or the Minister for Transport, the Minister is to consult with that Minister about the development and implementation of the proposed program.(4) The EPA may enter into an arrangement with a person or body in respect of the exercise, by the person or body on behalf of the EPA, of the EPA’s functions in relation to an environmental monitoring program.(5) The regulations may make provision for or with respect to environmental monitoring programs, including the requirements for the EPA to review and report on any such program.(6) The EPA is to obtain, and take into consideration, advice from one or more independent persons or bodies with relevant technical and health expertise as to the cost effectiveness of any environmental monitoring program.
295Z Environmental monitoring levies
(1) The regulations may require a specified licence holder, or a specified class of licence holders, to pay to the EPA a contribution towards the costs of environmental monitoring programs (referred to in this Part as an environmental monitoring levy).(2) The amount of the environmental monitoring levy (or the manner in which it is to be calculated) and other matters concerning its payment, including interest payable for late payment, are to be set out in the regulations.(3) An environmental monitoring levy is recoverable by the EPA as a debt in a court of competent jurisdiction.(4) For the purposes of this Part, the costs of environmental monitoring programs include:(a) the costs of investigating the need for, and the development, implementation, operation and administration of, environmental monitoring programs (including any costs incurred by the EPA before the commencement of this Part), and(b) payments by the EPA for services provided by a person or body exercising functions in relation to environmental monitoring programs on behalf of the EPA.
295ZA Environmental Monitoring Fund
(1) There is to be established in the Special Deposits Account an account called the Environmental Monitoring Fund (the Fund).(2) Money in the Fund is under the control of the EPA and can be expended by the EPA only for the purposes authorised by this section.(3) The following are to be paid into the Fund:(a) any environmental monitoring levy paid by a licence holder,(b) money advanced by the Treasurer for payment into the Fund,(c) the proceeds of investment of money in the Fund,(d) any gift or bequest of money for the purposes of the Fund,(e) any other money appropriated by Parliament for the purposes of the Fund or required by law to be paid into the Fund.(4) The following are to be paid out of the Fund:(a) the costs of environmental monitoring programs,(b) such other costs relating to environmental monitoring programs as the EPA directs to be paid out of the Fund,(c) the refund, in accordance with the regulations, of an environmental monitoring levy paid by a licence holder.(5) A separate account is to be established in the Fund for each environmental monitoring program.(6) The money in the Fund may be invested:(a) in the manner authorised by the Public Authorities (Financial Arrangements) Act 1987, or(b) if that Act does not confer power on the EPA to invest the money, in any other manner approved by the Treasurer.
Part 9.3D Pollution incidents—analysis of risk
In this Part:relevant person, in relation to a pollution incident, means:
(a) the occupier of the premises at or from which the EPA reasonably suspects that the pollution incident occurred or is occurring, or(b) the person who is reasonably suspected by the EPA of having caused the pollution incident.
295ZC Conduct of health risk analysis
(1) If the EPA reasonably suspects that a pollution incident has occurred or is occurring, the EPA may request that the Chief Health Officer of the Ministry of Health undertake an analysis of the risk created by that incident to the health of any person or group of persons.(2) The Chief Health Officer may undertake such an analysis.(3) If such an analysis is undertaken, the Director-General of the Ministry of Health may, by notice in writing, require any or all of the relevant persons in relation to the pollution incident to pay any or all of the reasonable costs and expenses incurred by the Chief Health Officer in connection with that analysis.(4) The Chief Health Officer may make use of the staff or facilities of the Ministry of Health, or engage agents or consultants, for the purposes of carrying out an analysis under this section.
295ZD Conduct of environmental risk analysis
(1) If the EPA reasonably suspects that a pollution incident has occurred or is occurring, the EPA may undertake an analysis of:(a) the nature and extent of the pollution incident, including actual or likely harm to the environment, and(b) the actual or likely pollution resulting from the pollution incident.(2) If the EPA undertakes such an analysis, the EPA may, by notice in writing, require any or all of the relevant persons in relation to the pollution incident to pay any or all of the reasonable costs and expenses incurred by the EPA in connection with that analysis.(3) The EPA may engage agents or consultants for the purposes of carrying out an analysis under this section.
295ZE Recovery of costs of analysis
(1) If the Director-General of the Ministry of Health or the EPA issues a notice requiring payment under this Part, the Director-General or the EPA, as the case requires, may recover any unpaid amount specified in the notice as a debt in a court of competent jurisdiction.(2) The reasonable costs and expenses incurred by the Chief Health Officer of the Ministry of Health or the EPA in connection with an analysis are not recoverable if the person to whom a notice has been issued under this Part establishes to the satisfaction of the court that the nature and extent of the analysis conducted by the Chief Health Officer or the EPA was not reasonably necessary to respond to the potential public health or environmental concerns arising out of the pollution incident or was not otherwise in the public interest.
295ZF Recovery from responsible persons
If the person given a notice requiring payment under this Part complies with the notice but was not the person who caused the pollution incident, the amount of the payment may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who caused the pollution incident.
A notice may be given, and action may be taken, under this Part:(a) whether or not the EPA is the appropriate regulatory authority with respect to the pollution incident, and(b) whether or not a clean-up notice has been given under Part 4.2 with respect to the pollution incident.
(1) The purpose of this Part is to provide (by way of conditions of environment protection licences) financial assurances to secure or guarantee funding for or towards the carrying out of works or programs (such as remediation work or pollution reduction programs) required by or under a licence.(2) A financial assurance is not to operate as a mere penalty for a contravention of this Act, the regulations or the conditions of a licence.
297 Definition of “conditions” of licence
In this Part, a reference to the conditions of an environment protection licence includes a reference to the conditions of the suspension, revocation or surrender of such a licence.
298 Requiring financial assurances
(1) Condition for financial assurance
The conditions of an environment protection licence may require the holder or former holder of the licence to provide a financial assurance. The appropriate regulatory authority may require any such financial assurance to be provided before it issues, suspends or revokes the licence or before it approves of its surrender.(2) Form of financial assurance
A financial assurance may be in one or more of the following forms:(a) a bank guarantee,(b) a bond,(c) another form of security that the appropriate regulatory authority considers appropriate and specifies in the condition.(3) Provision for use of financial assurance
A condition of a licence may provide for the procedures under which the financial assurance may be called on or used.
299 Restriction on requiring financial assurance
The appropriate regulatory authority cannot impose a condition on a licence requiring a financial assurance to be provided unless it is satisfied that the condition is justified having regard to:(a) the degree of risk of environmental harm associated with the activities under the licence, or(b) the remediation work that may be required because of activities under the licence, or(c) the environmental record of the holder or former holder of the licence or proposed holder of the licence, or(d) any other matters prescribed by the regulations.
300 Amount of financial assurances
(1) Determination of amount
The amount of a financial assurance is to be as determined by the appropriate regulatory authority.(2) Limit on amount
However, the appropriate regulatory authority must not require financial assurances of an amount that exceeds the total cost of carrying out the relevant work or program. That total cost is the amount that, in that authority’s opinion, represents a reasonable estimate of the total likely costs and expenses that may be incurred in carrying out the work or program required by or under this Act for which the financial assurance is required, including the likely costs and expenses of that authority in directing and supervising the carrying out of the work or program.(3) Costs of assessment
The appropriate regulatory authority may require the holder or former holder of a licence who is required to give a financial assurance to provide to the authority an independent assessment of the cost of the relevant work or program for which the assurance is required.
301 Guidelines about financial assurances
The regulations may make provision for or with respect to guidelines to be observed in relation to the content of conditions of licences requiring financial assurances and in relation to the calculation of the amount of financial assurances required.
302 Carrying out of work or program when licensee fails to do so
(1) The appropriate regulatory authority may carry out, or direct or supervise the carrying out by another person of, any work or program covered by any financial assurance required by the conditions of an environment protection licence if the holder or former holder of the licence fails, in the opinion of that authority, to carry out that work or program in accordance with the conditions of the licence.(2) The appropriate regulatory authority may do so by the use of contractors, consultants or otherwise.(3) The appropriate regulatory authority may enter, or authorise any other person to enter, the premises concerned to carry out the work or program.
303 Claim on or realising of financial assurance
(1) The appropriate regulatory authority may recover or fund the reasonable costs or expenses of that authority or other person in carrying out any such work or program (including the likely costs and expenses of that authority in directing and supervising the carrying out of the work or program) by making a claim on or realising the financial assurance or part of it.(2) Before making the claim on or realising the financial assurance or part of it, the appropriate regulatory authority must give to the holder or former holder of the licence a written notice under this section.(3) The notice must:(a) state details of the work or program carried out or proposed to be carried out, and(b) state the amount of the financial assurance to be claimed or realised, and(c) invite the person to make representations to the appropriate regulatory authority to 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 person) within which representations may be made.(4) The representations must be made in writing.(5) After the end of the period stated in the notice, the appropriate regulatory authority must consider any representations properly made by the person.(6) If the appropriate regulatory authority decides to make a claim on or realise the financial assurance or part of it, the appropriate regulatory authority must immediately give written notice to the holder or former holder of the licence of its decision and the reasons for the decision.(7) The appropriate regulatory authority must return any excess amounts to the holder or former holder of the licence or that person’s successors.(8) If the amount of financial assurance claimed or realised by the appropriate regulatory authority is not sufficient to cover all the costs and expenses concerned, that authority may recover the excess from the holder or former holder of the licence as a debt in any court of competent jurisdiction.
304 Lapsing of financial assurance
The requirement to provide financial assurance lapses and no longer binds the holder or former holder of the licence if the appropriate regulatory authority is satisfied that the work or program for which the financial assurance was required has been satisfactorily carried out and has given the holder or former holder of the licence written notice of the lapsing of the financial assurance.
305 Liability of appropriate regulatory authority, State and others
(1) Anything done by or at the direction, or under the supervision, of the appropriate regulatory authority under section 302 (1) is taken to have been done by the holder or former holder of the licence.(2) The State, the Minister, the appropriate regulatory authority, the members of the Board of the EPA, any members of the staff of the appropriate regulatory authority and any persons engaged by or otherwise acting with the authority of the appropriate regulatory authority (or any of them):(a) are not liable for anything done or omitted to be done in good faith in connection with a condition of a licence to which this Part applies or in carrying out or giving effect to this Part, and(b) without affecting the generality of the above, are taken, for the purposes of sections 169–169B, not to be concerned in the management of a corporation when doing or omitting to do anything in connection with such a condition or when carrying out or giving effect to this Part.
306 Financial assurance not to affect other action
A financial assurance may be called on and used, despite and without affecting:(a) any liability of the holder or former holder of the licence to any penalty for an offence for a contravention to which the assurance relates, and(b) any other action that might be taken or is required to be taken in relation to any contravention or other circumstances to which the assurance relates.
307 Disputes regarding call on or use of financial assurance
The Land and Environment Court has jurisdiction to determine disputes about calling on or using a financial assurance.
(1) Each regulatory authority is required to keep a public register in accordance with this section.(2) The regulatory authority must record in the register such of the following matters as are applicable to the regulatory authority:(a) details of each licence application made to that authority,(b) details of each decision of that authority made in respect of any such licence application,(c) details of each licence issued by that authority,(d) details of each variation of the conditions of any such licence,(d1) details of each mandatory environmental audit under Part 6.2 undertaken in relation to a licence issued by that authority,(d2) details of each pollution study required by a condition of a licence issued by that authority,(d3) details of each pollution reduction program required by a condition of a licence issued by that authority,(e) details of each decision of that authority to suspend, revoke or approve the surrender of any such licence (including details of any conditions to which it is subject),(f) details of each certificate supplied in accordance with a condition of any such licence certifying compliance with the conditions of the licence,(g) the date of completion of each review of any such licence by that authority under section 78,(h) details of each environment protection notice or noise control notice issued by that authority,(i) in the case of the EPA—details of any exemption granted under Part 9.1,(j) details of convictions in prosecutions under this Act instituted by that authority,(j1) details of each penalty notice issued by that authority,(k) the results of civil proceedings before the Land and Environment Court under this Act by or against that authority,(l) a summary of the conclusions of any audit report in connection with a mandatory environmental audit under Part 6.2 that is supplied to that authority,(m) details of such other matters as are prescribed by the regulations (relating to licences or other matters under or relevant to this Act).(3) The register may be kept in any form determined by the appropriate regulatory authority. Different parts of the register may be kept in different forms.(4) The regulations may authorise the removal from the register of any matter concerning licence applications that were not granted, licences or notices that are no longer in force or exemptions granted by the EPA under Part 9.1, being exemptions that are no longer in force.(5) For the purposes of this section, details of a matter means:(a) particulars of the matter, or(b) a copy of the matter, or(c) any electronic or other reproduction of the matter.
309 Public availability of register
(1) A copy of the public register is to be available for public inspection at the principal office of the regulatory authority and at such other places as that authority thinks fit.(2) A copy of any part of the register may be obtained by members of the public from the regulatory authority.(3) The regulations may prescribe any or all of the following:(a) the means by which the register can be inspected,(b) the hours when the register can be inspected and when copies can be obtained,(c) fees for the inspection of the register,(d) fees for copies of parts of the register.(4) The register can be inspected or copies can be obtained during ordinary office hours, and on payment of fees determined by the regulatory authority, in the absence of regulations prescribing these matters.
(1) Subject-matter of inquiries
An inquiry may be conducted by the EPA under this Part into any matter relating to the protection of the environment.(2) EPA may institute inquiry
The EPA may determine that such an inquiry be conducted.(3) Minister may require inquiry
The Minister may require that such an inquiry be conducted.(4) Matters to be examined
The EPA may determine the matters to be examined in the course of an inquiry under this Part, including an inquiry that the Minister has required to be conducted.(5) Other powers not affected
Nothing in this section limits the power of the EPA to conduct an inquiry into any matter even though it has appointed another body or person to do so.
311 Person or body conducting inquiries
(1) Constitution of inquiry
The EPA may appoint any of the following to conduct an inquiry under this Part:(a) a committee established under the Protection of the Environment Administration Act 1991,(b) one or more members of the Board of the EPA or of any such committee,(c) any other body, or any other person or persons, the EPA considers appropriate to conduct the inquiry.(2) Appointment of persons to assist inquiry
The EPA may appoint one or more persons to assist the inquiry.(3) Chairperson
The EPA may, where two or more persons are appointed to conduct the inquiry, appoint one of those persons to preside at any meeting of those persons for the purposes of the inquiry.(4) Remuneration
A person appointed by the EPA to conduct or assist the inquiry may be paid such remuneration and allowances (if any) as the Minister determines in respect of the person.
(1) General procedure
The procedure to be followed at an inquiry under this Part is to be determined by the body or person conducting it, subject to this Act and the regulations.(2) Notice to provide information or produce documents
The body or person conducting the inquiry may, by notice in writing given to any person, require the person within such reasonable time as may be specified in the notice:(a) to furnish to that body or person such information, and(b) to produce to that body or person such documents in the person’s possession or under the person’s control,as may be required for the purposes of the inquiry and as may be specified in the notice, whether generally or otherwise.(3) Notice to give evidence and produce documents
The body or person conducting the inquiry may, by notice in writing given to any person, require the person:(a) to attend at a specified time and place before that body or person and thereafter from time to time as required by that body or person, and(b) to give evidence concerning any matter the subject of the inquiry, and(c) to produce all such documents in the person’s possession or under the person’s control as may be required for the purposes of the inquiry and as may be specified in the notice, whether generally or otherwise.(4) Mode of evidence
The body or person conducting the inquiry may require any such evidence to be given in writing or orally.(5) Evidence may be given on oath
The body or person conducting the inquiry may, subject to section 13 of the Oaths Act 1900, require any such evidence to be given on oath, and for that purpose the person presiding may administer an oath.(6) Written statement
The body or person conducting the inquiry may permit a person to give evidence by sending to the body or person a written statement, verified in such manner as the body or person allows.(7) Offence of not complying with notice
A person who neglects or refuses to comply with the requirements of a notice given to the person under this section is guilty of an offence.Maximum penalty: 100 penalty units.
(8) Offence of false information or evidence
A person who:(a) furnishes any information pursuant to subsection (2) knowing that it is false or misleading in a material particular, or(b) gives any evidence pursuant to subsection (3) knowing that it is false or misleading in a material particular,is guilty of an offence.Maximum penalty: 100 penalty units.
(9) Expenses
The regulations may prescribe expenses to be allowed to persons attending or giving evidence under this section.(10) Nature of evidence
The body or person conducting the inquiry is not bound by the rules of evidence, and may be informed in such manner as the body or person thinks fit.(11) Public interest immunity
Nothing in this Part affects any law relating to public interest immunity.(12) Self-incrimination
Nothing in this Part affects any law relating to immunity of an individual from self-incrimination.
313 Public nature of inquiries
(1) An inquiry under this Part is to be held in public.(2) Before the inquiry starts, the body or person conducting it is required to give notice, by advertisement in the Gazette and in such newspapers as the body or person thinks appropriate, of the intention to hold the inquiry, of its subject and of the time and place at which it is to start.(3) However, if the body or person conducting the inquiry is satisfied that it is desirable to do so in the public interest because of the confidential nature of any evidence or matter or for any other reason, the body or person may do either or both of the following:(a) direct that the inquiry or any part of it take place in private and give directions as to the persons who may be present, or(b) give directions prohibiting or restricting the publication of evidence given at the inquiry or of matters contained in documents provided for the inquiry.(4) A person who publishes any evidence or matter in contravention of any such direction of the body or person conducting the inquiry is guilty of an offence unless:(a) the publication of the evidence was made with the consent of the person who gave the evidence or the publication of the matter was made with the consent of the person who provided the document, or(b) the evidence or matter has already been lawfully published, or(c) the person became aware of the evidence or matter otherwise than by reason, directly or indirectly, of the giving of the evidence at the inquiry or the provision of the document at the inquiry, or(d) the person had any other lawful excuse to do so.Maximum penalty: 200 penalty units.
(5) If evidence is given by written statement, the body or person conducting the inquiry is to make available to the public in such manner as the body or person thinks fit the contents of the statement. This does not apply to matter the publication of which, in the opinion of the body or person, would be contrary to the public interest because of its confidential nature or for any other reason.
(1) Report
The body or person conducting an inquiry under this Part is to prepare a report to the EPA of its findings and recommendations. The report is to be provided to the Minister by the EPA if the Minister directed that the inquiry be conducted.(2) Report to be made public
The body or person conducting the inquiry is to make the report public, except so far as it contains evidence or matters protected from public disclosure under section 313 (3) (b) and (4).
Part 9.7 Other miscellaneous provisions
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
316 Resolution of disputes between EPA and public authorities
(1) If a dispute arises between the EPA and a public authority with respect to a decision of the EPA against which an appeal lies under Part 9.2, the EPA or the public authority may refer the dispute to the Premier for settlement in accordance with this section.(2) On the referral of a dispute to the Premier, the Premier may (but need not) appoint a person to hold an inquiry and make a report to the Premier with respect to the dispute.(3) The Premier may decline to deal with the dispute.(4) The Premier may make such orders with respect to the dispute as the Premier thinks fit.(5) Any such order may include the payment of any costs or expenses of or incidental to the holding of an inquiry under this section.(6) The EPA or public authority to which any such order is given must comply with the order.(7) An order by the Premier under this section is final and is taken to be the decision of the EPA.(8) If a dispute is referred to the Premier under this section, the public authority does not have a right of appeal to a court under this Act in respect of the dispute, unless the Premier declines to deal with the dispute.
317 Appointment of persons to exercise certain functions
(1) This section applies to a public body, being:(a) a local council, a county council or other local authority, or(b) any other public body that:(i) is constituted by or under an Act, and(ii) is not subject to the control or direction of a Minister.This section does not apply to a State owned corporation.
(2) If, in the opinion of the Governor, the environment is harmed or is likely to be harmed because of:(a) the failure or refusal of a public body to exercise a statutory function, or(b) the manner in which the body exercises such a function,the Governor may, by proclamation, appoint another person to exercise such functions of the body as are specified in the proclamation.(3) The person so appointed is taken, during the period of the appointment, to have the functions specified in the person’s appointment and to have those functions to the exclusion of the body that would, but for the appointment, have those functions.(4) A proclamation under subsection (2), unless sooner revoked, ceases to have effect on the expiration of 21 sitting days of the Legislative Assembly after it is made.(5) The Governor may, by proclamation, revoke or amend the terms of an appointment under this section at any time before the proclamation ceases to have effect.(6) The regulations may make provision for or with respect to the functions of a person in connection with the person’s appointment and, in particular, for or with respect to:(a) the remuneration of the person, and(b) the incurring of expenditure by the person, and(c) requiring other persons to render all necessary assistance to the person in the exercise of a function specified in the person’s instrument of appointment.
318 Exercise of local authority’s licensing functions by EPA
(1) In this section:licensing function means a function of a local regulatory authority under this Act relating to a licence, including the function of determining whether to issue, transfer, amend, suspend or revoke a licence.
local regulatory authority means a regulatory authority other than the EPA.
(2) The Minister may, if the Minister considers that it is expedient in the public interest to do so, direct a local regulatory authority in writing to refer to the EPA a specified licensing function in respect of a particular matter that the Minister considers is of State or regional significance.(3) The Minister may give a direction under this section whether or not the local regulatory authority intends to exercise the licensing function in respect of the matter.(4) The local regulatory authority must, as soon as practicable after receiving a direction under this section:(a) refer to the EPA any application, report or other document or information in the possession of the authority that relates to the matter (including any document or information specified by the Minister in the direction), and(b) notify the applicant or licensee concerned in the matter of the Minister’s direction.(5) Whenever the Minister gives a direction under this section, the local regulatory authority ceases to have the licensing function in respect of the matter, unless the Minister refers the licensing function (or any aspect of that function) back to the authority.(6) The EPA may, after the Minister has given a direction under this section, exercise in the place of the local regulatory authority the licensing function in respect of the matter.(7) For the purpose of the EPA exercising a licensing function in respect of a matter:(a) a reference to the local regulatory authority in any document is taken to be a reference to the EPA, and(b) anything done by the local regulatory authority in the matter before the direction was given may be adopted by the EPA.(8) The determination of the EPA in the exercise of the licensing function is taken to have been done by the local regulatory authority.(9) The local regulatory authority is to give effect to the decision made by the EPA pursuant to a direction under this section. However, the decision does not limit the future exercise of a licensing function by the local regulatory authority in respect of the matter.
(1) A person is guilty of an offence if the person discloses any information relating to any industrial, agricultural or commercial secrets or working processes obtained in connection with the administration or execution of this Act or the regulations, unless the disclosure:(a) is made with the consent of:(i) the person from whom the information was obtained, or(ii) if the information relates to premises—the occupier of the premises, or(iii) if the information relates to an activity—the person carrying on or proposing to carry on the activity, or(b) is made in connection with the administration or execution of this Act or the regulations, or(c) is made with the prior permission of the Minister, or(d) is ordered by a court, or by any other body or person authorised by law to examine witnesses, in the course of, and for the purpose of, the hearing or determination by that court, body or person of any matter, or(e) is made by a member of the staff of the EPA or other regulatory authority to an officer or authority engaged in administering or executing a law of this State, the Commonwealth or of another State or Territory relating to the protection of the environment, or(f) is made by a member of the staff of the EPA or other regulatory authority to any person and its disclosure to that person is reasonably related to the prevention or amelioration of harm to the public, to any person or property or to the environment, or(g) is made under subsection (3), or(h) is made with other lawful excuse.Maximum penalty: 200 penalty units.
(2) The Minister is not to grant the permission referred to in subsection (1) (c) unless satisfied that to do so would be in the public interest.(2A) A person cannot be required:(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control because of, or in the course of, the exercise of the person’s functions under this Act or the Protection of the Environment Administration Act 1991, or(b) to disclose to any court any information obtained in the exercise of the person’s functions under this Act,if the EPA certifies in writing that it is not in the public interest that the document or thing be produced or the information be disclosed.(3) The EPA or other regulatory authority may disclose the following information by publishing it in such manner as it considers appropriate:(a) particulars required, or formerly required, to be kept on the register under Part 9.5,(b) the particulars of any notice given under any prescribed provision of the environment protection legislation,(c) particulars of persons charged with or convicted of offences under the environment protection legislation,(d) particulars of a kind prescribed by the regulations for the purposes of this subsection.(4) Subsection (3) does not authorise the EPA or other regulatory authority to disclose any information about industrial, agricultural or commercial secrets or working processes obtained from any premises except with the consent of the occupier of the premises.(5) Subsection (3) does not limit the information required to be recorded in a public register under Part 9.5.(6) A reference in this section to the administration or execution of this Act or the regulations includes a reference to the administration or execution of the Waste Avoidance and Resource Recovery Act 2001 or of any other environment protection legislation prescribed by the regulations.
319A Continuing effect of notices and conditions
(1) A notice given, or a condition of a licence imposed, under this Act or the regulations that specifies a time by which, or period within which, the notice or condition must be complied with continues to have effect until the notice or condition is complied with even though the time has passed or the period has expired.(2) A notice that does not specify a time by which, or period within which, the notice must be complied with continues to have effect until the notice is complied with.(3) This section does not apply to the extent that any requirement under a notice or a condition of a licence is revoked.(4) Nothing in this section affects the powers of a regulatory authority with respect to the enforcement of a notice or a condition of a licence.
320 Disclosure of monitoring data
(1) In this section, monitoring data means information supplied to the appropriate regulatory authority by the holder of a licence in relation to the monitoring of the following aspects of the activity or work authorised or controlled by the licence:(a) discharges from premises,(b) relevant ambient conditions prevailing on or outside premises,(c) any other thing prescribed by the regulations.(2) The EPA or other regulatory authority may disclose monitoring data by publishing it in such manner as it considers appropriate.(3) The appropriate regulatory authority is to provide a person with access to any monitoring data specified by the person in a written request to the authority. Access is to be provided in the same form that access is required to be provided to information under section 72 of the Government Information (Public Access) Act 2009.(4) Any such access to monitoring data may be refused if:(a) the monitoring data is recorded in a public register under Part 9.5, or(b) if the work involved in dealing with the request for access would, if carried out, substantially and unreasonably divert the authority’s resources away from their use by the authority in the exercise of its functions, or(c) if the monitoring data is contained in a document that is usually available for purchase.(5) Subsection (4) (b) does not permit an authority to refuse access to monitoring data without first endeavouring to assist the person to amend the request to enable access to be given.
320A False representations as to EPA approval, use or recommendation and licences
(1) A person is guilty of an offence if the person, knowing it to be false or misleading, represents that any goods or services are approved, provided, recommended or used by the EPA or represents that the person holds a licence that permits certain activities.Maximum penalty:
(a) in the case of a corporation—200 penalty units, or(b) in the case of an individual—100 penalty units.(2) In this section:represent includes cause or permit a representation to be made.
(1) For the purposes of this Act, any notice or other document may be issued or given to a person, or may be served on a person:(a) by delivering it personally to the person, or(b) by delivering it to the place of residence or business of the person and by leaving it there for the person with some other person, or(c) by posting it duly stamped and addressed to the person at the place last shown in the records of the appropriate regulatory authority as the person’s place of residence or business, or(d) by posting it duly stamped and addressed to the person at the place indicated by the person as an address to which correspondence may be posted (including for example a post office box), or(e) by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person, or(f) by leaving it addressed to the person at a document exchange or other place (in accordance with usual arrangements for the exchange or other place) indicated by the person as an exchange or place through which correspondence may be forwarded to the person.(2) This section does not affect any other mode of issuing, giving or serving a notice or other document under any other law.
322 Effect of this Act on other rights, remedies and proceedings
(1) This Act does not limit or affect any right, remedy or proceeding under any other Act or law.(2) No proceedings taken under this Act interfere with or lessen any right or remedy under any other Act or law, but no person is, by virtue of this subsection, liable to be punished twice for the same offence.(3) A reference in this section to a right includes, for example, a right to restrict or prevent, or obtain damages in respect of, pollution.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to the matters set out in Schedule 2.(3) The regulations may create offences punishable by a penalty not exceeding:(a) 200 penalty units in the case of an individual, or(b) 400 penalty units in the case of a corporation.(4) The regulations may adopt any document (including for example a code of practice) as in force from time to time.(5) Nothing in this section limits or restricts the conditions that may be attached to a licence, but any such condition that is inconsistent with a regulation has no force or effect.(5A) Despite subsection (5), a condition of a licence may be inconsistent with a requirement of the same kind in a regulation, but only to the extent that the condition imposes a more stringent requirement than the regulation.(6) Section 12 of the Food Act 2003 does not apply to regulations or other instruments made under this Act.(7) Without limiting the power to make regulations, the regulations may contain provisions of a savings or transitional nature consequent on the making of a regulation for the purposes of section 6 (3).
The Acts specified in Schedule 3 are repealed.
326 Savings, transitional and other provisions
Schedule 5 has effect.
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.