Part 9.7Part 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 documents under section 27 of the Freedom of Information Act 1989.(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.