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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Environment Protection (Commissioner for the Environment)
Amendment Bill 2007
A BILL FOR
An Act to amend the Environment Protection Act 1993.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Environment Protection
Act 1993
4 Amendment of section
3—Interpretation
5 Insertion of Part 3A
Part 3A—Commissioner for the
Environment
24A Commissioner for the
Environment
24B Acting
Commissioner
24C Staff
24D Consultants
24E Functions
24F Powers
24G Independence
24H Investigations
and inquiries
24I Reimbursement of
expenses
24J Delegation
24K Annual
report by Commissioner
24L Other
reports
24M Offences relating to obstruction
etc
24N Offences relating to the provision of
information
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Environment Protection (Commissioner for
the Environment) Amendment Act 2007.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Environment Protection
Act 1993
4—Amendment of
section 3—Interpretation
Section 3(1)—after the definition of coastal waters of the
State insert:
Commissioner means the Commissioner for the Environment
appointed under Part 3A (and includes a person acting in that office from
time to time);
After Part 3 insert:
Part 3A—Commissioner for the
Environment
24A—Commissioner for the
Environment
(1) There will be a Commissioner for the Environment.
(2) The Commissioner will be appointed by the Governor.
(3) The Commissioner will be appointed—
(a) for a term of 5 years; and
(b) on terms and conditions determined by the Governor.
(4) At the expiration of a term of office, the Commissioner will be
eligible for re-appointment.
(5) The Commissioner is not a Public Service employee.
(6) The Commissioner must inform the Minister in writing
of—
(a) any direct or indirect pecuniary interest that the Commissioner has or
acquires in any business, or in any body corporate carrying on a business, in
Australia or elsewhere; and
(b) any other direct or indirect interest that the Commissioner has or
acquires that conflicts, or may conflict, with the Commissioner's
duties.
(7) The Commissioner must not, without the consent of the Minister, engage
in any other remunerated employment.
(8) The Governor may remove the Commissioner from office on the
presentation of an address from both Houses of Parliament seeking the
Commissioner's removal.
(9) The Governor may suspend the Commissioner from office on the ground of
incompetence or misbehaviour and, in that event—
(a) a full statement of the reason for the suspension must be laid before
both Houses of Parliament within 3 sitting days of the suspension;
and
(b) if, at the expiration of 1 month from the date on which the statement
was laid before Parliament, an address from both Houses of Parliament seeking
the Commissioner's removal has not been presented to the Governor, the
Commissioner must be restored to office.
(10) The office of Commissioner becomes vacant if the
Commissioner—
(a) dies; or
(b) resigns by written notice given to the Minister; or
(c) completes a term of office and is not reappointed; or
(d) is removed from office by the Governor under subsection (8);
or
(e) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) becomes, in the opinion of the Governor, physically or mentally
incapable of carrying out satisfactorily the duties of office; or
(h) contravenes or fails to comply with subsection (6) or
(7).
(11) Except as provided by this section, the Commissioner may not be
removed or suspended from office, nor will the office of the Commissioner become
vacant.
24B—Acting Commissioner
(1) If the Commissioner is temporarily absent, or the Commissioner's
position is temporarily vacant, the Governor may assign a suitable person to act
in the Commissioner's position during the temporary absence or
vacancy.
(2) The terms and conditions on which a person is assigned to act in the
Commissioner's position will be determined by the Governor.
24C—Staff
(1) The Commissioner may appoint such staff as are necessary to perform
the Commissioner's functions under this Act.
(2) The terms and conditions of employment of a person appointed under
subsection (1) will be determined by the Governor and such a person will
not be a Public Service employee.
(3) The Commissioner may, by agreement with the Minister responsible for
an administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
24D—Consultants
The Commissioner may engage consultants on terms and conditions considered
appropriate by the Commissioner.
24E—Functions
(1) The Commissioner has the following functions:
(a) to investigate the effectiveness of environmental planning and
environmental management carried out by the Authority and other public
authorities and advise them on any remedial action the Commissioner considers
desirable;
(b) to—
(i) investigate any matter that, in the Commissioner's opinion, has
adversely affected the environment;; and
(ii) advise the appropriate public authority or any other person or body
the Commissioner considers appropriate of the preventative measures or remedial
action the Commissioner considers necessary; and
(iii) report the results of the investigation to the Minister;
(c) at the request of either House of Parliament or of a select committee
of the Parliament, to report on any Bill, petition or other matter before the
Parliament or the select committee the subject matter of which may have a
significant effect on the environment;
(d) on the Commissioner's own motion or at the request of the Minister, to
inquire into and report on any matter that has had or may have a substantial and
damaging effect on the environment;
(e) to undertake and encourage the collection and dissemination of
information relating to the environment;
(f) to encourage preventive measures and remedial actions for the
protection of the environment.
(2) In the performance of the Commissioner's functions, the Commissioner
must have regard to the principles of ecologically sustainable
development.
24F—Powers
The Commissioner may, for the purpose of performing its functions, exercise
any powers that are necessary or expedient for, or incidental to, the
performance of its functions.
24G—Independence
(1) In performing and exercising his or her functions and powers under
this Act, the Commissioner must act independently, impartially and in the public
interest.
(2) The Minister cannot control how the Commissioner is to exercise the
Commissioner's statutory functions and powers.
(3) This section does not derogate from any express power of the Minister
under this Act.
24H—Investigations and
inquiries
(1) An investigation or inquiry is to be conducted in such manner as the
Commissioner considers appropriate.
(2) If the Commissioner reasonably believes that a person is capable of
providing information or producing a document relevant to an investigation or
inquiry the Commissioner may, by notice in writing, require the person to do one
or more of the following:
(a) to provide that information to the Commissioner in writing signed by
that person or, in the case of a body corporate, by an officer of the body
corporate; or
(b) to produce that document to the Commissioner; or
(c) to attend before a person specified in the notice and answer questions
and or produce documents relevant to the investigation or inquiry.
(3) A notice under subsection (2) is to specify the period within
which, or the time, day and place at which, the person is required to provide
the information or document, or to attend.
(4) A notice under subsection (2) must provide a period of time for
compliance with a requirement under that subsection that has been determined by
the Commissioner to be reasonable in the circumstances.
(5) A person must comply with a requirement
undersubsection (2).
Maximum penalty: Division 5 fine.
(6) If a document is produced in accordance with a requirement under this
section, the Commissioner or other appropriate person may take possession of,
make copies of, or take extracts from, the document.
(7) The Commissioner, or a person who is to receive information under
subsection (2)(c), may administer an oath or affirmation to a person
required to attend before him or her under this section and may examine the
person on oath or affirmation.
(8) The Commissioner may require a person to verify by statutory
declaration—
(a) any information or document produced under this section; or
(b) a statement that the person has no relevant information or documents
or no further relevant information or documents.
(9) A person must comply with a requirement under
subsection (8).
Maximum penalty: Division 5 fine.
(10) A person is not obliged to answer a question or to provide or
produce, or provide a copy of, any information or document under this section if
to do so—
(a) would tend to incriminate the person of an offence; or
(b) the person would commit a breach of legal professional
privilege.
24I—Reimbursement of expenses
A person required to attend before the Commissioner or another person under
this Part is entitled to be paid the expenses and allowances that the
Commissioner may allow.
24J—Delegation
(1) The Commissioner may delegate a power or function vested in or
conferred on the Commissioner under this Part—
(a) to a particular person or body; or
(b) to the person for the time being occupying a particular office or
position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
(4) In any legal proceedings an apparently genuine certificate,
purportedly signed by the Commissioner, containing particulars of a delegation
under this section, will, in the absence of proof to the contrary, be accepted
as proof that the delegation was made in accordance with the
particulars.
24K—Annual report by
Commissioner
(1) The Commissioner must, on or before 30 September in every year,
forward a report to the Minister on the work of the Commissioner under this Part
during the financial year ending on the preceding 30 June.
(2) The Minister must, within 12 sitting days after receiving a report
under this section, have copies of the report laid before both Houses of
Parliament.
24L—Other reports
(1) The Commissioner may, at any time, prepare a report to the Minister on
any matter arising out of the exercise of the Commissioner's functions under
this Act.
(2) Subject to subsection (3), the Minister must, within 2 weeks
after receiving a report under this section, have copies of the report laid
before both Houses of Parliament.
(3) If the Minister cannot comply with subsection (2) because
Parliament is not sitting, the Minister must deliver copies of the report to the
President and the Speaker and the President and the Speaker must
then—
(a) immediately cause the report to be published; and
(b) lay the report before their respective Houses at the earliest
opportunity.
(4) A report will, when published under subsection (3)(a), be taken
for the purposes of any other Act or law to be a report of the Parliament
published under the authority of the Legislative Council and the House of
Assembly.
24M—Offences relating to obstruction
etc
A person must not, without reasonable excuse, obstruct, hinder, resist or
improperly influence, or attempt to obstruct, hinder, resist or improperly
influence, the Commissioner or any other person in the performance or exercise
of a function or power under this Part.
Maximum penalty: Division 4 fine.
24N—Offences relating to the provision of
information
A person must not—
(a) provide to the Commissioner or any other person who is performing or
exercising a function or power under this Act information that the person knows
is false or misleading in a material particular; or
(b) refuse or fail to include in information provided to a person who is
performing or exercising a function or power under this Act other information
without which the information provided is, to the knowledge of the person, false
or misleading in a material particular.
Maximum penalty: Division 4 fine.