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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
National
Environment Protection Measures (Implementation) Bill
1998
No. ,
1998
(Environment and
Heritage)
A Bill for an Act to provide for
the implementation of national environment protection measures in respect of
certain activities carried on by or on behalf of the Commonwealth and
Commonwealth authorities, and for related purposes
ISBN: 0642
378320
Contents
A Bill for an Act to provide for the implementation of
national environment protection measures in respect of certain activities
carried on by or on behalf of the Commonwealth and Commonwealth authorities, and
for related purposes
The Parliament of Australia enacts:
This Act may be cited as the National Environment Protection Measures
(Implementation) Act 1998.
This Act commences on the day on which it receives the Royal
Assent.
The object of this Act is to make provision for the implementation of
national environment protection measures in respect of certain activities
carried on by or on behalf of the Commonwealth and Commonwealth
authorities.
The following is a simplified outline of the operation of this
Act:
State and Territory laws implementing national environment protection
measures (NEPMs) do not apply to the activities of the
Commonwealth or Commonwealth authorities, either of their own force or because
of the Commonwealth Places (Application of Laws) Act 1970 (see section
9).
Under this Act, the Environment Minister may (subject to considerations of
national interest or administrative efficiency):
• apply those State laws to the activities of
the Commonwealth or Commonwealth authorities in Commonwealth places (Part 2);
or
• apply those State or Territory laws to the
activities of the Commonwealth or Commonwealth authorities in other places (Part
3).
If NEPMs are not implemented in relation to the activities of the
Commonwealth or Commonwealth authorities under Part 2 or Part 3, they can be
implemented:
• by regulations (Part 4); or
• if there are no regulations under Part 4,
through environmental audits and environment management plans (Part
5).
The implementation of NEPMs in relation to the activities of the
Commonwealth or Commonwealth authorities may be restricted by the Environment
Minister in the national interest.
In this Act, unless the contrary intention appears:
activity means a physical activity that has a direct effect
on, or represents a substantial risk of damage to, an aspect of the environment
to which a NEPM applies but, to avoid doubt, does not include:
(a) the formulation of a policy; or
(b) the making of a decision by a Minister or by a person to whom a
Minister has, under an Act or an instrument made or having effect under an Act,
delegated the power to make the decision.
applied provision means:
(a) in relation to an applied State law—a provision of that applied
State law that applies as mentioned in section 12; or
(b) in relation to a law of a State or Territory—a provision of that
law that applies as mentioned in section 17.
applied State law means a provision of a law of a State that
applies in a Commonwealth place under the Commonwealth Places (Application of
Laws) Act 1970.
carrying on of an activity by the Commonwealth or a Commonwealth
authority has a meaning affected by section 7.
coastal waters:
(a) in relation to a State—means that part of the sea that is
included in the coastal waters of the State within the meaning of the Coastal
Waters (State Powers) Act 1980 and includes the airspace over, and the
sea-bed and subsoil beneath, that part of that sea; and
(b) in relation to the Northern Territory—means that part of the sea
that is included in the coastal waters of the Territory within the meaning of
the Coastal Waters (Northern Territory Powers) Act 1980 and includes the
airspace over, and the sea-bed and subsoil beneath, that part of that sea;
and
(c) in relation to an external Territory to which this Act
extends—means:
(i) the territorial sea adjacent to the external Territory; and
(ii) the sea on the landward side of the territorial sea adjacent to the
external Territory and not within the limits of the external Territory,
including the airspace over, and the sea-bed and subsoil beneath, that
sea.
Commonwealth authority means:
(a) a body, whether incorporated or not, that is established for a public
purpose by or under an Act; or
(b) a body, whether incorporated or not, that is established by the
Governor-General or by a Minister; or
(c) a body that is:
(i) an incorporated company over which the Commonwealth or a body referred
to in paragraph (a) or (b) is in a position to exercise control; or
(ii) a subsidiary (within the meaning of the Corporations Law) of an
incorporated company referred to in subparagraph (i).
Commonwealth place means a place (other than the seat of
government) with respect to which the Parliament, under section 52 of the
Constitution, has, subject to the Constitution, exclusive power to make laws for
the peace, order and good government of the Commonwealth.
continental shelf of Australia has the same meaning as in the
Seas and Submerged Lands Act 1973.
Department means a Department of State of the
Commonwealth.
engaging in conduct includes doing, or omitting to do,
anything.
enter, in relation to a vessel or aircraft, includes go on
board.
environment includes all aspects of the surroundings of human
beings, whether affecting them as individuals or in social groupings.
Environment Minister means the Minister who administers this
Act.
Environment Secretary means the Secretary to the Department
administered by the Environment Minister.
environmental impact statement includes an environment
effects statement, an impact assessment study in relation to the environment,
and a public environment document, and any similar statement or study.
exclusive economic zone means the exclusive economic zone,
within the meaning of the Seas and Submerged Lands Act 1973, adjacent to
the coast of Australia or the coast of an external Territory to which this Act
extends.
external Territory to which this Act extends means an
external Territory other than Norfolk Island.
implementation, in relation to a NEPM, includes, but is not
limited to:
(a) if the NEPM incorporates a national environment protection
standard—requiring and securing compliance with the standard, including
monitoring and reporting on observance of the standard; and
(b) if the NEPM incorporates a national environment protection
goal—encouraging attainment of the goal; and
(c) if the NEPM incorporates a national environment protection
guideline—ensuring that the guideline is taken into account; and
(d) if the NEPM incorporates a national environment protection
protocol—securing compliance with the protocol.
law, in relation to a State or Territory, means:
(a) a law in force in the State or Territory other than:
(i) a law made by a local governing authority (other than a local
governing authority that has entered into an arrangement with the Commonwealth
for the application of this Act to laws made by the authority); or
(ii) a law of the Commonwealth; and
(b) an instrument made or having effect under a law to which paragraph (a)
applies.
law, in relation to a local governing authority, has a
meaning affected by section 8.
make a decision includes:
(a) make, suspend, revoke or refuse to make an order, award or
determination; and
(b) give, suspend, revoke or refuse to give a certificate, direction,
approval, consent or permission; and
(c) issue, suspend, revoke or refuse to issue a licence, authority or
other instrument; and
(d) impose a condition or restriction; and
(e) make a declaration, demand or requirement; and
(f) retain, or refuse to deliver up, an article; and
(g) do or refuse to do anything else.
matter of national interest means:
(a) a matter concerning:
(i) Australia’s relations with another country or Australia’s
international obligations; or
(ii) national security; or
(iii) national defence; or
(iv) a national emergency; or
(b) a matter relating to:
(i) a telecommunications activity authorised by Division 2, 3 or 4 of Part
1 of Schedule 3 to the Telecommunications Act 1997; or
(ii) the management of aviation airspace or airports, including aircraft
emissions, aircraft noise and on-ground airport management, but not including
matters specified in subregulation 1.04(2) of the Airports (Environment
Protection) Regulations; or
(c) any other matter agreed between the Commonwealth, the States and the
Territories.
modification, in relation to a provision of an applied State
law referred to in subsection 12(3) or a provision of a law of a State or
Territory referred to in subsection 17(3) or 21(8) or (9), includes a
modification that involves:
(a) the omission of part of the provision; or
(b) the addition of a provision; or
(c) the omission of the provision or part of the provision and the
substitution of a different provision.
national environment protection goal means a goal
that:
(a) relates to desired environmental outcomes; and
(b) guides the formulation of strategies for the management of human
activities that may affect the environment.
national environment protection guideline means a guideline
that gives guidance on possible means for achieving desired environmental
outcomes.
national environment protection protocol means a protocol
that relates to the process to be followed in measuring environmental
characteristics to determine:
(a) whether a particular standard or goal is being met or achieved;
or
(b) the extent of the difference between the measured characteristic of
the environment and a particular standard or a particular goal.
national environment protection standard means a standard
that consists of quantifiable characteristics of the environment against which
environmental quality can be assessed.
NEPM means a national environment protection measure in force
under subsection 14(1) of the National Environment Protection Council
Act 1994.
premises includes any place (whether enclosed or built on or
not) including a place situated under ground or under water, and, in particular,
includes:
(a) a building, aircraft, vehicle or vessel; and
(b) any structure, whether fixed or moveable, and whether on land or the
bed of any waters or floating on any waters; and
(c) a part of premises (including a part of any premises of a kind
referred to in paragraph (a) or (b)).
relevant Minister, in relation to activities carried on by
the Commonwealth or a Commonwealth authority, means the Minister:
(a) who administers the Department that is responsible for the carrying on
of the activities; or
(b) who administers the enactment by or under which the Commonwealth
authority that is responsible for the carrying on of the activities is
established or who is otherwise administratively responsible for the
authority’s actions;
as the case requires.
responsible officer, in relation to a State or Territory,
means the chief executive officer of the Department of the Government of the
State or Territory that is responsible for matters relating to the
environment.
securing compliance with includes enforcing.
territorial sea means the territorial sea of Australia and
includes the airspace over, and the sea-bed and subsoil beneath, that
sea.
Territory (except in the expression external
Territory) means the Australian Capital Territory, the Northern
Territory or the Jervis Bay Territory.
This Act extends to the external Territories other than Norfolk
Island.
A reference in this Act to the carrying on of an activity by the
Commonwealth or a Commonwealth authority includes a reference to the engaging in
of any conduct by another person under a contract entered into by the person
with the Commonwealth or the authority in connection with the carrying on of
such an activity for or on behalf of the Commonwealth or the
authority.
To avoid doubt, no Act passed by the Legislative Assembly for the
Australian Capital Territory or the Legislative Assembly of the Northern
Territory is to be taken, for the purposes of this Act, to be a law made by a
local governing authority.
(1) A provision of a State law implementing a NEPM that applies in a
Commonwealth place in a State because of the operation of the Commonwealth
Places (Application of Laws) Act 1970 does not extend to activities carried
on in that place by or on behalf of the Commonwealth or a Commonwealth
authority, except to the extent that it so applies under this Act.
(2) A provision of a State law or a Territory law implementing a NEPM does
not extend to activities carried on by or on behalf of the Commonwealth or a
Commonwealth authority anywhere other than in a Commonwealth place in a State,
except to the extent that it so applies under this Act.
Act to bind Commonwealth
(1) This Act binds the Crown in right of the
Commonwealth.
No criminal liability of Crown
(2) Nothing in this Act renders the Crown in right of the Commonwealth
liable to be prosecuted for an offence.
State officer may report contraventions
(3) If the responsible officer of a State:
(a) considers that the Commonwealth, a Commonwealth authority, or an
officer or employee of the Commonwealth or of such an authority, may have
contravened an applied provision of an applied State law of the State, or an
applied provision of a law of the State; and
(b) has told the Secretary of the relevant Department or the chief
executive officer of the authority, as the case requires, of the circumstances;
and
(c) has formed the opinion that the Department or authority has not taken
appropriate action to deal with the matter and has told the Secretary of the
Department or the chief executive officer of the authority that the officer has
formed that opinion;
the officer may report the circumstances in writing to the Environment
Secretary.
Territory officer may report contraventions
(4) If the responsible officer of a Territory:
(a) considers that the Commonwealth, a Commonwealth authority, or an
officer or employee of the Commonwealth or of such an authority, may have
contravened an applied provision of a law of the Territory; and
(b) has told the Secretary of the relevant Department or the chief
executive officer of the authority, as the case requires, of the circumstances;
and
(c) has formed the opinion that the Department or authority has not taken
appropriate action to deal with the matter and has told the Secretary of the
Department or the chief executive officer of the authority that the officer has
formed that opinion;
the officer may report the circumstances in writing to the Environment
Secretary.
Duties of Environment Secretary
(5) If a report is made under subsection (3) or (4), the Environment
Secretary must:
(a) investigate the circumstances; and
(b) if he or she thinks it appropriate to do so:
(i) prepare draft recommendations for action to be taken by the relevant
Department or authority; and
(ii) give written notice to the Secretary of the Department or the chief
executive officer of the authority setting out the draft recommendations and
asking for comments within a reasonable period stated in the notice;
and
(c) give the Environment Minister a written report that:
(i) is accompanied by the report by the officer of the State or Territory;
and
(ii) sets out any comments of the Secretary of the relevant Department or
chief executive officer of the authority made within the period stated in the
notice; and
(iii) sets out any action that the Environment Secretary, after
considering the comments (if any), recommends should be taken by the Department
or authority.
Powers of Environment Minister
(6) When such a report is given to the Environment Minister, that Minister
may:
(a) if he or she administers the relevant Department, or administers the
enactment by or under which the authority is established or is otherwise
administratively responsible for the actions of the authority—take any
action that he or she thinks appropriate; or
(b) otherwise—make any recommendations that he or she thinks
appropriate to the Minister who administers the relevant Department, or who
administers the enactment by or under which the authority is established or is
otherwise administratively responsible for the actions of the
authority.
Ministers to give comments, and report on action, to Environment
Minister
(7) If a recommendation is made to a Minister under paragraph (6)(b), that
Minister is to give the Environment Minister:
(a) his or her comments on the recommendation; and
(b) a report as to the action (if any) that has been taken, in respect of
the matters to which the recommendation relates, since the Secretary of the
Department or the chief executive officer of the authority was told of the
relevant circumstances.
Exclusion of Part in certain circumstances
(1) This Part does not apply in relation to an applied State law providing
for the implementation of a NEPM that is relevant to the carrying on of a
particular activity by the Commonwealth or a Commonwealth authority if there is
in force a declaration by the Environment Minister stating:
(a) that an alternative Commonwealth regime for the implementation of the
NEPM in relation to that activity will achieve appropriate environmental
outcomes; and
(b) that the application of that alternative Commonwealth regime is more
appropriate than taking any action under this Part:
(i) because the activity involves a specified matter of national interest;
or
(ii) for reasons of administrative efficiency.
Environment Minister may make declarations
(2) The Environment Minister may, by writing, make declarations for the
purposes of subsection (1). A copy of a declaration is to be published in the
Gazette.
Application of provision of applied State law
(1) Subject to section 13, if:
(a) there is in force a declaration by the Environment Minister stating
that a particular provision of an applied State law that is applicable in a
Commonwealth place is necessary for the implementation of a NEPM; and
(b) there is in force a declaration by the Environment Minister stating
that it is desirable for the provision to apply to the carrying on of the
activity by the Commonwealth or by a particular Commonwealth authority in the
Commonwealth place;
the provision applies, in accordance with its terms, in relation to the
carrying on of an activity by the Commonwealth or by the authority in the
Commonwealth place.
Environment Minister may make declarations
(2) The Environment Minister may, by writing, make declarations for the
purposes of paragraphs (1)(a) and (b). A copy of a declaration is to be
published in the Gazette.
Regulations may modify application of provisions
(3) In order to ensure that a provision of an applied State law
that applies under subsection (1) in relation to the carrying on of an
activity by the Commonwealth or a Commonwealth authority can operate effectively
in relation to the carrying on of that activity by the Commonwealth or the
authority, the regulations may provide that the provision applies subject to
modifications set out in the regulations. If the regulations so provide, the
provision applies subject to those modifications.
Relevant State to be consulted
(4) The Environment Minister is to ensure that the appropriate officers of
the relevant State are consulted in the preparation of regulations to be made
for the purposes of subsection (3).
Qualification on application of applied State laws
(1) Section 12 does not have effect so as to:
(a) alter the purpose for which land may be used if the land had been used
for that purpose at any time before the commencement of this Act; or
(b) require a licence, permit or other authorisation (however described)
for the construction, alteration or demolition of a building or structure, or
for the installation, alteration or removal of any plant or equipment, except
where the requirement is made for the purpose of implementing a NEPM;
or
(c) apply a provision whose primary purpose is to regulate the making of
decisions about the use of land except to the extent that the provision requires
a licence, permit or other authorisation (however described) for the
construction, alteration or demolition of a building or structure, or for the
installation, alteration or removal of any plant or equipment, for the purpose
of implementing a NEPM; or
(d) require the preparation, before the carrying on or continuation of an
activity, of an environmental impact statement; or
(e) provide for the judicial or administrative review, under an applied
State law, of a decision; or
(f) require the payment of a fee or charge.
Discretion to pay fees or charges
(2) Paragraph (1)(f) does not affect the operation of
section 37.
Regulations may exclude the application of a provision of an applied
State law
(3) The regulations may declare that section 12 is not to apply to a
particular provision of an applied State law, either indefinitely or for a
particular period. If the regulations so declare, that section does not apply to
the provision, or to the provision for that period, as the case may
be.
Regulations may exclude applied State law from applying in relation to
an activity in all Commonwealth places or a particular Commonwealth
place
(4) The regulations may declare that section 12 is not to apply to
any provision, or to a particular provision, of an applied State law in relation
to the carrying on of a particular activity or particular activities by the
Commonwealth, or by a particular Commonwealth authority, either indefinitely or
for a particular period and either in all Commonwealth places, or in a
particular Commonwealth place or a particular part of a Commonwealth place, in
the State. If the regulations so declare, that section does not apply to the
declared extent.
Matters to be taken into account in making regulations
(5) Regulations may only be made for the purposes of subsection (3)
or (4) if the Environment Minister is satisfied that it is desirable to make the
regulations because of considerations relating to a matter of national
interest.
State authorities or officers may exercise functions and
powers
(1) If:
(a) a provision of an applied State law confers functions or powers
on:
(i) an authority of the State other than a local governing authority; or
(ii) an officer of the State other than an officer of a local governing
authority; and
(b) the provision is applied as mentioned in section 12;
then, subject to section 13, the authority or officer has
corresponding functions or powers under the applied provision.
How functions and powers are to be exercised
(2) In performing a function or exercising a power conferred by
subsection (1) in relation to an applied provision of an applied State law,
an authority or officer must act as nearly as practicable as the authority or
officer would act in performing the same function or exercising the same power
under the corresponding provision of the applied State law.
State
laws for investigation of offences to apply
(3) The laws of a State respecting the investigation of offences against
an applied State law apply so far as they are applicable to the investigation,
by an authority or officer of the State under subsection (1), of offences
against the applied law, and so apply to the exclusion of the laws of the
Commonwealth that would otherwise apply to the investigation of an offence
against a Commonwealth law.
Certain Commonwealth laws not affected
(4) To avoid doubt, subsection (3) does not affect the operation of any of
the following laws in relation to offences against an applied State
law:
(a) the Director of Public Prosecutions Act 1983;
(b) section 21B of the Crimes Act 1914;
(c) Part IB of the Crimes Act 1914;
(d) the Proceeds of Crime Act 1987.
If a provision of an applied State law is applied as mentioned in
section 12:
(a) any provisions of the applied State laws with respect to the
interpretation of the first-mentioned provision have effect for the purposes of
that provision as so applied; and
(b) the Acts Interpretation Act 1901 does not apply in relation to
the applied provision.
Exclusion of Part in certain circumstances
(1) This Part does not apply in relation to a State law or a Territory law
providing for the implementation of a NEPM that is relevant to the carrying on
of a particular activity by the Commonwealth or a Commonwealth authority if
there is in force a declaration by the Environment Minister stating:
(a) that an alternative Commonwealth regime for the implementation of the
NEPM in relation to that activity will achieve appropriate environmental
outcomes; and
(b) that the application of that alternative Commonwealth regime is more
appropriate than taking any action under this Part:
(i) because the activity involves a specified matter of national interest;
or
(ii) for reasons of administrative efficiency.
Environment
Minister may make declarations
(2) The Environment Minister may, by writing, make declarations for the
purposes of subsection (1). A copy of a declaration is to be published in the
Gazette.
Application of provision of State or Territory law
(1) Subject to section 18, if:
(a) there is in force a declaration by the Environment Minister stating
that a particular provision of a law of a State or Territory is necessary for
the implementation of a NEPM; and
(b) there is in force a declaration by the Environment Minister stating
that it is desirable for the provision to apply to the carrying on of an
activity by the Commonwealth or by a particular Commonwealth
authority;
the following paragraphs apply:
(c) the provision applies, in accordance with its terms, in relation to
the carrying on of the activity by the Commonwealth or the authority in the
State or Territory or in the coastal waters of the State or Territory;
(d) if the provision is in force in an external Territory to which this
Act extends—the provision applies, in accordance with its terms, in
relation to the carrying on of the activity by the Commonwealth or the authority
in the external Territory and the coastal waters of the external
Territory.
Environment Minister may make declarations
(2) The Environment Minister may, by writing, make declarations for the
purposes of paragraphs (1)(a) and (b). A copy of a declaration is to be
published in the Gazette.
Regulations may modify application of provisions
(3) In order to ensure that a provision of a law of a State or
Territory that applies under subsection (1) in relation to the carrying on
of an activity by the Commonwealth or a Commonwealth authority can operate
effectively in relation to the carrying on of that activity by the Commonwealth
or the authority, the regulations may provide that the provision applies subject
to modifications set out in the regulations. If the regulations so provide, the
provision applies subject to those modifications.
Relevant State or Territory to be consulted
(4) The Environment Minister is to ensure that the appropriate
officers of the relevant State or Territory are consulted in the preparation of
regulations to be made for the purposes of subsection (3).
Qualification on application of State or Territory laws
(1) Section 17 does not have effect so as to:
(a) alter the purpose for which land may be used if the land had been used
for that purpose at any time before the commencement of this Act; or
(b) require a licence, permit or other authorisation (however described)
for the construction, alteration or demolition of a building or structure, or
for the installation, alteration or removal of any plant or equipment, except
where the requirement is made for the purpose of implementing a NEPM;
or
(c) apply a provision whose primary purpose is to regulate the making of
decisions about the use of land except to the extent that the provision requires
a licence, permit or other authorisation (however described) for the
construction, alteration or demolition of a building or structure, or for the
installation, alteration or removal of any plant or equipment, for the purpose
of implementing a NEPM; or
(d) require the preparation, before the carrying on or continuation of an
activity, of an environmental impact statement; or
(e) confer any judicial power; or
(f) provide for the judicial or administrative review, under a law of a
State or Territory, of a decision; or
(g) impose a tax; or
(h) require the payment of a fee or charge.
Discretion to pay fees or charges
(2) Paragraph (1)(h) does not affect the operation of
section 37.
Regulations may exclude the application of a provision of a State or
Territory law
(3) The regulations may declare that section 17 is not to
apply to a particular provision of a law of a State or Territory, either
indefinitely or for a particular period. If the regulations so declare, that
section does not apply to the provision, or to the provision for that period, as
the case may be.
Regulations may exclude State or Territory law from applying in relation
to an activity in, or in a part of, the State or Territory
(4) The regulations may declare that section 17 is not to apply to
any provision, or to a particular provision, of a law of a State or Territory in
relation to the carrying on of a particular activity or particular activities by
the Commonwealth, or by a particular Commonwealth authority, either indefinitely
or for a particular period and either in, or in a particular part of, the State
or Territory. If the regulations so declare, that section does not apply to the
declared extent.
Matters to be taken into account in making regulations
(5) Regulations may only be made for the purposes of subsection (3)
or (4) if the Environment Minister is satisfied that it is desirable to make the
regulations because of considerations relating to a matter of national
interest.
State authorities or officers may exercise functions or
powers
(1) If:
(a) a provision of a law of a State or Territory confers functions or
powers on:
(i) an authority of the State or Territory other than a local governing
authority; or
(ii) an officer of the State or Territory other than an officer of a local
governing authority; and
(b) the provision is applied as mentioned in section 17;
then, subject to section 18, the authority or officer has
corresponding functions or powers under the applied provision.
How functions or powers are to be exercised
(2) In performing a function or exercising a power conferred by
subsection (1) in relation to an applied provision of a law of a State or
Territory, an authority or officer must act as nearly as practicable as the
authority or officer would act in performing the same function or exercising the
same power under the corresponding provision of the law of the State or
Territory.
State
or Territory laws for investigation of offences to apply
(3) The laws of a State or Territory respecting the investigation of
offences against an applied provision of a law of a State or Territory apply so
far as they are applicable to the investigation, by an authority or officer of
the State or Territory under subsection (1), of offences against the applied
provision, and so apply to the exclusion of the laws of the Commonwealth that
would otherwise apply to the investigation of an offence against a Commonwealth
law.
Commonwealth laws not affected
(4) To avoid doubt, subsection (3) does not affect the operation of any of
the following laws in relation to offences against an applied State or Territory
law:
(a) the Director of Public Prosecutions Act 1983;
(b) section 21B of the Crimes Act 1914;
(c) Part IB of the Crimes Act 1914;
(d) the Proceeds of Crime Act 1987.
If a provision of a law of a State or Territory is applied as
mentioned in section 17:
(a) any provisions of the laws of the State or Territory with respect to
the interpretation of the first-mentioned provision have effect for the purposes
of that provision as so applied; and
(b) the Acts Interpretation Act 1901 does not apply in relation to
the applied provision.
Circumstances to which Part applies
(1) This Part applies for the purposes of the implementation of a NEPM in
relation to an activity carried on by the Commonwealth or a Commonwealth
authority if the Environment Minister becomes satisfied that:
(a) the NEPM is relevant to the carrying on of the activity; and
(b) the activity is carried on in a place (the relevant
place) referred to in any of the following subparagraphs:
(i) a Commonwealth place in which, in the Environment Minister’s
opinion, the NEPM is not being implemented, or satisfactorily implemented, under
an applied State law of the State in which the Commonwealth place is
situated;
(ii) a State or Territory, or the coastal waters of a State or Territory,
in which, in the Environment Minister’s opinion, the NEPM is not being
implemented, or satisfactorily implemented, under a law of the State or
Territory;
(iii) a Commonwealth place in a State, where a provision of a law of the
State for the implementation of the NEPM that applies in the Commonwealth place
under the Commonwealth Places (Application of Laws) Act 1970 is not, and
is not to be, applied under Part 2 in relation to the carrying on of the
activity;
(iv) a State or Territory or the coastal waters of a State or Territory,
where a provision of a law of the State or Territory for the implementation of
the NEPM is not, and is not to be, applied under Part 3 in relation to the
carrying on of the activity;
(v) an external Territory to which this Act extends or its coastal
waters;
(vi) a part of the territorial sea of Australia that is not part of the
coastal waters of a State or Territory;
(vii) a part of the exclusive economic zone;
(viii) a part of any area of the continental shelf of Australia that is
beyond the limits of the exclusive economic zone; and
(c) the NEPM is not, and is not to be, implemented in relation to the
carrying on of the activity by another law of the Commonwealth in a way that the
Environment Minister is satisfied will achieve appropriate environmental
outcomes.
Part may be excluded by regulation
(2) This Part does not apply for the purposes of the implementation of a
NEPM in relation to an activity if the activity is excluded, under the
regulations, from the application of this Part for the purposes of the
implementation of the NEPM.
Period of exclusion
(3) Regulations made for the purposes of subsection (2) may exclude an
activity for the purposes of the application of a NEPM:
(a) indefinitely or for a particular period; and
(b) either wherever the activity is carried on or in a particular place
where the activity is carried on.
Exclusion only if required by matter of national interest
(4) Regulations may only be made for the purposes of subsection (2) if the
Environment Minister is satisfied that it is desirable to make the regulations
because of considerations relating to a matter of national interest.
Regulations may implement NEPM
(5) The regulations may make provision for or in relation to the
implementation of a NEPM in respect of the carrying on of an activity by the
Commonwealth or a Commonwealth authority, including provision for penalties for
offences against the regulations.
Maximum penalty for contravention of regulations
(6) The penalty for a contravention of the regulations must not exceed
(except in the circumstances mentioned in subsection (9)):
(a) if the contravention causes or is likely to cause, whether directly or
indirectly, harm to the environment (irrespective of the duration of the
harm):
(i) in respect of a contravention by an individual—2,000 penalty
units; or
(ii) in respect of a contravention by a corporation—10,000 penalty
units; or
(b) otherwise:
(i) in respect of a contravention by an individual—500 penalty
units; or
(ii) in respect of a contravention by a corporation—2,500 penalty
units.
When contravention is taken to harm the environment
(7) If harm to the environment is caused, or is likely to be caused, by a
combination of a contravention of the regulations and any other factor or
factors, the harm is taken for the purposes of paragraph (6)(a) to be caused, or
to be likely to be caused, as the case may be, by the contravention.
Regulations implementing NEPM may apply State or Territory
law
(8) The provision for the implementation of a NEPM that may be made under
subsection (5) in respect of an activity may include the application, with
or without modifications, of provisions of a law of any State or Territory as in
force at a particular time or as in force from time to time, even if the
activity is not carried on in that State or Territory.
Regulations applying State or Territory law may apply
penalties
(9) The provisions of a law of a State or Territory that may be applied by
regulations as mentioned in subsection (8) may include provisions of that law
imposing penalties for offences against the provisions so applied, but any
modifications of those provisions made by the regulations must not increase
those penalties.
In this Part:
environmental auditor has the meaning given by section
25.
Circumstances in which Part applies
(1) Subject to this section, Divisions 2 and 3 apply for the purposes of
the implementation of a NEPM in relation to an activity carried on by the
Commonwealth or a Commonwealth authority if the Environment Minister becomes
satisfied that:
(a) the NEPM is relevant to the carrying on of the activity; and
(b) the activity is carried on in a place (the relevant
place) referred to in any of the following subparagraphs:
(i) a Commonwealth place in which, in the Environment Minister’s
opinion, the NEPM is not being implemented, or satisfactorily implemented, under
an applied State law of the State in which the Commonwealth place is
situated;
(ii) a State or Territory, or the coastal waters of a State or Territory,
in which, in the Environment Minister’s opinion, the NEPM is not being
implemented, or satisfactorily implemented, under a law of the State or
Territory;
(iii) a Commonwealth place in a State, where a provision of a law of the
State for the implementation of the NEPM that applies in the Commonwealth place
under the Commonwealth Places (Application of Laws) Act 1970 is not, and
is not to be, applied under Part 2 in relation to the carrying on of the
activity;
(iv) a State or Territory or the coastal waters of a State or Territory,
where a provision of a law of the State or Territory for the implementation of
the NEPM is not, and is not to be, applied under Part 3 in relation to the
carrying on of the activity;
(v) an external Territory to which this Act extends or its coastal
waters;
(vi) a part of the territorial sea of Australia that is not part of the
coastal waters of a State or Territory;
(vii) a part of the exclusive economic zone;
(viii) a part of any area of the continental shelf of Australia that is
beyond the limits of the exclusive economic zone; and
(c) the NEPM is not, and is not to be, implemented in relation to the
carrying on of the activity:
(i) by regulations under Part 4; or
(ii) by another law of the Commonwealth in a way that the Environment
Minister is satisfied will achieve appropriate environmental outcomes.
Provisions of Part may be excluded by regulation
(2) Division 2 or 3, or a provision of Division 2 or 3, does not apply for
the purposes of the implementation of a NEPM in relation to an activity if the
activity is excluded, under the regulations, from the application of the
Division or provision, as the case may be, for the purposes of the
implementation of the NEPM.
Period of exclusion
(3) Regulations made for the purposes of subsection (2) may exclude an
activity for the purposes of the implementation of a NEPM:
(a) indefinitely or for a particular period; and
(b) either wherever the activity is carried on or in a particular place
where the activity is carried on.
Exclusion only if required by matter of national interest
(4) Regulations may only be made for the purposes of subsection (2) if the
Environment Minister is satisfied that it is desirable to make the regulations
because of considerations relating to a matter of national interest.
Notice of application of provisions to be given to relevant
Minister
(5) If all or any of the provisions of Divisions 2 and 3 apply for the
purposes of the implementation of a NEPM in relation to an activity carried on
by the Commonwealth or a Commonwealth authority, the Environment Minister must
notify the relevant Minister accordingly.
Provisions to apply when notice received by relevant
Minister
(6) If the relevant Minister is so notified, those provisions (other than
any provisions that afterwards cease to apply because of regulations made for
the purposes of subsection (2) after the notification) have effect for the
purposes of the implementation of the NEPM in relation to the
activity.
(1) The relevant Minister must arrange for an environmental audit
to be carried out for the purposes of the implementation of the NEPM with
respect to the carrying on by the Commonwealth or the Commonwealth authority of
the activities.
(2) The relevant Minister must ensure that the audit is begun
within 90 days after he or she is told by the Environment Minister that this
Division applies in relation to the activities for the purposes of the
implementation of the NEPM.
The person (the environmental auditor) appointed to carry
out the environmental audit must be a person who is not an officer of, or
employed in, the Department administered by the relevant Minister or is not
employed by the Commonwealth authority, as the case may be.
(1) The environmental audit for the purposes of the implementation of the
NEPM is to consist of:
(a) an evaluation of the nature of the environment that is or will be
affected by the activities; and
(b) an assessment of the risks to the environment resulting from the
activities; and
(c) an assessment of the existing capacity of the Commonwealth or the
Commonwealth authority to comply with the NEPM in carrying on the activities;
and
(d) an assessment of what the Commonwealth or the Commonwealth authority
will need to do in order so to comply.
(2) In carrying out the environmental audit, the environmental auditor
may, if:
(a) an environmental audit relating to the implementation of the NEPM was
completed within the preceding 2 years; and
(b) the environmental auditor is satisfied that the previous environmental
audit is still relevant;
have regard to the results of the previous audit.
(3) If:
(a) the environmental auditor is carrying out the environmental audit;
and
(b) in the course of carrying out the audit, the environmental auditor
conceals, or fails to take into account, any information or document;
and
(c) the information or document is relevant to the audit;
the environmental auditor is guilty of an offence punishable on conviction
by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in
section 4AA of that Act.
(1) After completing the environmental audit, the environmental
auditor must prepare, and give the relevant Minister and the Environment
Minister, a written report setting out:
(a) the auditor’s qualifications and experience; and
(b) the results of the audit.
(2) If:
(a) the environmental auditor includes a statement in the report;
and
(b) the statement is false or misleading in a material
particular;
the environmental auditor is guilty of an offence punishable on conviction
by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in
section 4AA of that Act.
A report of an environmental audit, and any information obtained
as a direct or indirect result of the making of the report, is not admissible in
evidence in any civil or criminal proceedings before a court:
(a) if the audit relates to activities carried on, or to be carried on, by
the Commonwealth—against the Commonwealth; or
(b) if the audit relates to activities carried on, or to be carried on, by
a Commonwealth authority—against the authority.
(1) As soon as practicable after receiving the report of the
environmental auditor, the relevant Minister must arrange for the Department or
the Commonwealth authority that is carrying on, or proposes to carry on,
activities relevant to the NEPM to cause an environment management plan to be
prepared with respect to the carrying on of the activities.
(2) The Secretary of that Department, or the chief executive officer of
that authority, as the case may be, must appoint an officer of that Department,
or a person employed by that authority, to be the environment manager for the
purposes of the environment management plan.
(1) An environment management plan in respect of activities
relevant to the NEPM must include the matters set out in subsection
(2).
(2) The matters referred to in subsection (1) are as
follows:
(a) the objectives of the plan;
(b) the activities to which the plan relates;
(c) how the NEPM is to be implemented and a timetable for
implementation;
(d) if the NEPM relates to ambient environmental quality, how the
activities will be carried on so as to give effect to the NEPM;
(e) appropriate performance indicators at designated intervals;
(f) appropriate provision for the participation of, and for consultation
with, the community in the development of the plan;
(g) provision for monitoring and reporting on the implementation of the
plan;
(h) provision for any necessary up-grading of the manner in which the
activities are, or are to be, carried out, and the equipment used, or to be
used, in the carrying out of the activities, for the purpose of meeting the
objectives of the plan;
(i) provision for action to be taken in a contingency or
emergency.
(1) The duties of the environment manager in relation to an
environment management plan are:
(a) to cause a preliminary plan to be prepared; and
(b) to give copies of the preliminary plan to the relevant Minister and
the Environment Minister; and
(c) if either of them gives the environment manager any comments on the
preliminary plan within a reasonable period—to take the comments into
account in the preparation of the final plan; and
(d) to cause a final plan to be prepared and to give copies of it to the
relevant Minister and the Environment Minister; and
(e) to ensure, to the maximum extent practicable, that the plan is not
contravened; and
(f) unless the regulations otherwise provide, to cause copies of the plan
to be made available for inspection, and for purchase at a reasonable price, by
members of the public.
(2) Regulations may only be made for the purposes of paragraph (1)(f)
if the Environment Minister is satisfied that it is desirable to make the
regulations because of considerations relating to a matter of national
interest.
(3) If:
(a) after a final environment management plan has been prepared, a further
NEPM comes into force; or
(b) a period of 3 years has elapsed since a final environment management
plan was prepared or last revised;
the following paragraphs have effect:
(c) it is the duty of the environment manager to cause the environment
management plan to be further revised;
(d) paragraphs (1)(b) to (f) apply to the plan as so revised in the same
way as they applied to the original plan.
(1) This section applies to activities carried on by the Commonwealth or a
Commonwealth authority in respect of which:
(a) a regulation made for the purposes of Part 4 applies; or
(b) an environment management plan prepared under Part 5
applies;
for the purpose of implementing a NEPM.
(2) The relevant Minister must do everything necessary to ensure that the
NEPM is adequately implemented in respect of the activities.
(3) If:
(a) the Environment Minister is not the relevant Minister; and
(b) the Environment Minister forms the opinion that the NEPM is not being
adequately implemented in respect of the activities;
the Environment Minister may request the relevant Minister to give the
Environment Minister a written report setting out:
(c) the reasons (including any mitigating circumstances) for the
inadequate implementation; and
(d) the action that the relevant Minister intends to take to ensure
adequate implementation; and
(e) the period that the relevant Minister thinks necessary for the taking
of the action.
(4) If, after such period following the making of the request as the
Environment Minister thinks reasonable, he or she is satisfied that the NEPM has
not been adequately implemented in respect of the activities, he or she may make
a written declaration to that effect.
(5) If the Environment Minister makes such a declaration, he or she is to
cause a copy of the declaration to be published in the
Gazette.
(1) Application may be made to the Administrative Appeals Tribunal
for review of any reviewable decision made under:
(a) an applied provision of an applied State law; or
(b) an applied provision of a law of a State or Territory; or
(c) a provision of a regulation made for the purposes of Part 4;
or
(d) Part 5.
(2) In subsection (1):
reviewable decision, in relation to an applied provision
referred to in paragraph (1)(a) or (b), a provision of a regulation
referred to in paragraph (1)(c) or a provision of Part 5, means:
(a) if the regulations provide that any decision made under the provision
is a reviewable decision—any decision made under the provision;
or
(b) if the regulations provide that a decision of a kind described in the
regulations that is made under the provision is a reviewable decision—any
decision of that kind made under the provision.
(3) This section has effect subject to the Administrative
Appeals Tribunal Act 1975.
(1) Jurisdiction is conferred on the Federal Court of Australia
with respect to all civil matters arising under:
(a) an applied provision of an applied State law; or
(b) an applied provision of a law of a State or Territory; or
(c) a regulation made for the purposes of Part 4; or
(d) Part 5.
(2) The jurisdiction of the Federal Court of Australia under subsection
(1) is, subject to the Constitution and the Jurisdiction of Courts
(Cross-vesting) Act 1987, exclusive of the jurisdiction of any other
court.
Information not to be disclosed
(1) If:
(a) a person (the first person) enters or searches premises;
and
(b) the entry or search is made under a power that the first person
has:
(i) because of the operation of section 12 or 17; or
(ii) because of regulations made under section 21; and
(c) the first person discloses any information, directly or indirectly, to
another person; and
(d) the information was acquired by the first person as a result of the
entry or search;
the first person is guilty of an offence punishable on conviction by
imprisonment for not more than 2 years.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in
section 4AA of that Act.
Exception
(2) Subsection (1) does not apply to a disclosure made in the
performance of duties under an applied provision of an applied State law, under
an applied provision of a law of a State or Territory or under regulations made
under section 21.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Court not to require production of document or disclosure of
information
(3) A person who enters or searches premises under a power that the
person has because of the operation of section 12 or 17 or
because of regulations made under section 21 cannot, except for the
purposes of an applied provision of an applied State law, an applied provision
of a law of a State or Territory or a provision of the regulations, be
required:
(a) to produce in court any document that has come into his or her
possession or under his or her control as a result of the entry or search;
or
(b) to disclose to a court any information acquired by the person as a
result of the entry or search.
Definitions
(4) In this section:
court includes a tribunal, authority or person having power
to require the production of documents or the answering of questions.
disclose, in relation to information, means give or
communicate in any way.
Declaration of exempt premises
(1) Subject to subsection (2), the regulations may declare
premises described in the regulations to be exempt premises for
the purposes of this section.
National interest to be criterion for exemption
(2) Regulations may only be made for the purposes of
subsection (1) in relation to premises if the Environment Minister is
satisfied that, because of a matter of national interest, it is desirable that
entry into, or search of, the premises under an applied provision of an applied
State law, an applied provision of a law of a State or Territory or a regulation
made under section 21 be prohibited or restricted.
Orders prohibiting entry into exempt premises
(3) The Environment Minister may, by order published in the
Gazette, prohibit or restrict, either absolutely or subject to conditions
stated in the order, people who have the power to enter or search
premises:
(a) because of the operation of section 12 or 17; or
(b) because of regulations made under section 21;
from entering or searching exempt premises referred to in the
order.
Order to be disallowable
(4) An order made under subsection (3) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Offence
(5) If:
(a) a person enters or searches premises; and
(b) the entry or search is made under a power that the person
has:
(i) because of the operation of section 12 or 17; or
(ii) because of regulations made under section 21; and
(c) the premises are exempt premises; and
(d) the entry or search contravenes:
(i) an order in force under subsection (3); or
(ii) a condition to which such an order is subject;
the person is guilty of an offence punishable on conviction by imprisonment
for not more than 2 years.
Note 1: Chapter 2 of the Criminal Code sets out the
general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914
allows a court that convicts an individual of an offence to impose a fine
instead of, or in addition to, a term of imprisonment. The maximum fine that a
court can impose on the individual is worked out by multiplying the maximum term
of imprisonment (in months) by 5, and then multiplying the resulting number by
the amount of a penalty unit. The amount of a penalty unit is stated in
section 4AA of that Act.
Fees or charges for carrying on activities in Commonwealth
places
(1) The Commonwealth or a Commonwealth authority may pay to a State, or to
a State authority, a fee or charge which, if paragraph 13(1)(f) had not
been enacted, would have been payable by the Commonwealth or the authority under
an applied provision of an applied State law in respect of an application for,
or a grant of, a licence, permit or other authorisation (however described)
relating to an activity carried on, or to be carried on, by the Commonwealth or
the authority in a Commonwealth place in the State.
Fees or charges for carrying on activities in States or
Territories
(2) The Commonwealth or a Commonwealth authority may pay to a State or
Territory, or to a State or Territory authority, a fee or charge which, if
paragraph 18(1)(h) had not been enacted, would have been payable by the
Commonwealth or the authority under an applied provision of a law of the State
or Territory in respect of an application for, or a grant of, a licence, permit
or other authorisation (however described) relating to an activity carried on,
or to be carried on, by the Commonwealth or the authority in the State or
Territory or in its coastal waters.
(1) The Environment Minister may make an arrangement with:
(a) an appropriate Minister of a State in relation to the exercise of a
power or the performance of a duty or function by, or by an officer of, the
State or an authority of the State under an applied provision of an applied
State law or under an applied provision of a law of the State; or
(b) an appropriate Minister of a Territory in relation to the exercise of
a power or the performance of a duty or function by, or by an officer of, the
Territory or an authority of the Territory under an applied provision of a law
of the Territory.
(2) If an arrangement is in force under subsection (1), the power, duty or
function may be, or is to be, as the case may be, exercised or performed by the
officer or authority accordingly.
(3) The Environment Minister may make an arrangement (including a
financial arrangement) with an appropriate Minister of a State or Territory with
respect to any matter necessary or convenient for the purpose of carrying out or
giving effect to this Act.
(4) Without limiting the generality of subsections (1), (2) and (3), an
arrangement may contain any supplementary or incidental provisions that the
Environment Minister and the Minister of the State or Territory think
necessary.
(5) The Environment Minister may arrange with a Minister of a State or
Territory with whom an arrangement is in force under this section for the
variation or revocation of the arrangement.
(1) If, in the year ending on 30 June 1998 or in a later year ending on 30
June, a Department or Commonwealth authority is responsible for the carrying on
of an activity to which a NEPM applies, the Minister:
(a) who administers the Department; or
(b) who administers the enactment by or under which the authority is
established or is otherwise administratively responsible for the actions of the
authority;
must prepare in respect of the year concerned, and give to the Environment
Minister within one month after the end of that year, a report, in the
prescribed form and containing the prescribed information, as to the
implementation of NEPMs by the Department or authority.
(2) The Environment Minister must, as soon as practicable after each 30
June, cause to be laid before each House of the Parliament a report as to the
implementation of NEPMs by the Commonwealth and Commonwealth authorities in the
year that ended on that 30 June.
(3) The first report under subsection (2) is to relate to the year
that ends on 30 June 1998.
Chapter 2 of the Criminal Code applies to all offences referred to
in subsection 21(5) and all offences against Parts 5 and 8.
The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.