South Australian Current Acts South Australian Current Acts93—Environment protection orders
(1) The Authority or
another administering agency may issue an environment protection order under
this Division—
(a) for
the purpose of securing compliance with—
(i)
the general environmental duty; or
(ii)
mandatory provisions of an environment protection policy;
or
(iii)
a condition of an environmental authorisation; or
(iv)
a condition of a beverage container approval; or
(v)
any other requirement imposed by or under this Act; or
(b) for
the purpose of giving effect to an environment protection policy.
(2) An environment
protection order—
(a) must
be in the form of a written notice served on the person to whom the notice is
issued;
(b)
must—
(i)
specify the person to whom it is issued (whether by name
or a description sufficient to identify the person);
(ii)
if the order is issued for the purpose of securing
compliance with the general environmental duty—state the purpose and
specify the environmental harm that it is directed towards preventing or
minimising;
(iii)
if the order is issued for the purpose of securing
compliance with mandatory provisions of an environment protection policy, a
condition or any other requirement imposed by or under this Act—state
the purpose and specify the mandatory provisions, condition or requirement;
(iv)
if the order is issued for the purpose of giving effect
to an environment protection policy—state the purpose and specify the
policy;
(c) may
impose any requirement reasonably required for the purpose for which the order
is issued including one or more of the following:
(i)
a requirement that the person discontinue, or not
commence, a specified activity indefinitely or for a specified period or until
further notice from the Authority or other administering agency;
(ii)
a requirement that the person not carry on a specified
activity except at specified times or subject to specified conditions;
(iii)
a requirement that the person take specified action
within a specified period or at specified times or in specified circumstances;
(iv)
a requirement that the person prepare, in accordance with
specified requirements and to the satisfaction of the Authority or other
administering agency, a plan of action to prevent, minimise or control
pollution or waste;
(v)
a requirement that the person comply with such a plan of
action to the satisfaction of the Authority or other administering agency;
(vi)
a requirement that the person undertake specified tests
or environmental monitoring;
(vii)
a requirement that the person furnish to the Authority or
other administering agency specified test, monitoring or compliance reports;
(viii)
a requirement that the person appoint or engage a person
with specified qualifications to prepare a plan or report or undertake tests
or monitoring required by the order;
(d) must
state that the person may, within 14 days, appeal to the Environment,
Resources and Development Court against the order.
(2aa) Despite any
other provisions of this section, an environment protection policy may make
provision as to the circumstances in which an environment protection order may
be issued or as to the requirements or contents of an order.
(2a) Where a proposed
environment protection order (except an emergency
environment protection order) or a proposed variation of an
environment protection order would require the undertaking of an activity for
which a permit would, but for section 106 of the
Landscape South Australia Act 2019 , be required under that Act,
the Authority or other administering agency must, before issuing or varying
the order, give notice of the proposal to the authority under the
Landscape South Australia Act 2019 to whom an application for a permit
for the activity would otherwise have to be made inviting the authority to
make written submission in relation to the proposal within a period specified
in the notice.
(2b) The period of the
notice referred to in subsection (2a) must be—
(a) in
the case of an order to confirm an emergency environment protection
order—at least 24 hours;
(b) in
all other cases—at least 14 days.
(3) An
authorised officer may, if of the opinion that urgent action is required for
the protection of the environment, issue an emergency environment
protection order imposing requirements of a kind referred to in
subsection (2)(c) as reasonably required for the protection of the
environment.
(4) An emergency
environment protection order may be issued orally, but, in that event, the
person to whom the order is issued must be advised forthwith of the person's
right to appeal to the Environment, Resources and Development Court against
the order.
(5) Where an emergency
environment protection order is issued to a person, the order will cease to
have effect on the expiration of 72 hours from the time of its issuing unless
confirmed by a written environment protection order issued by the Authority or
another administering agency and served on the person.
(6) The Authority,
another administering agency or an authorised officer may, if of the opinion
that it is reasonably necessary to do so in the circumstances, include in an
emergency or other environment protection order a requirement for an act or
omission that might otherwise constitute a contravention of this Act and, in
that event, a person incurs no liability to a penalty under this Act for
compliance with the requirement.
(7) Where an
environment protection order has been issued to a person by the Authority or
another administering agency, the Authority or other administering agency (as
the case may be) may, by written notice served on the person, vary or revoke
the order.
(8) A person to whom
an environment protection order is issued must comply with the order.
Maximum penalty:
(a) if
the order was issued for the purpose of securing compliance with a requirement
imposed by or under this Act and a penalty is fixed by this Act for
contravention of that requirement—that penalty;
(b) if
the order was issued in relation to a domestic activity for the purpose of
securing compliance with the general environmental duty—$500;
(c) if
the order was issued in relation to a domestic activity in circumstances
specified in an environment protection policy or for the purpose of giving
effect to an environment protection policy—$500;
(d) in
any other case—$4 000.
Expiation fee:
(a) if
the order was issued for the purpose of securing compliance with a requirement
imposed by or under this Act and an expiation fee is fixed by this Act for
contravention of that requirement—that expiation fee;
(b) if
the order was issued in relation to a domestic activity for the purpose of
securing compliance with the general environmental duty—$100;
(c) if
the order was issued in relation to a domestic activity in circumstances
specified in an environment protection policy or for the purpose of giving
effect to an environment protection policy—$100;
(d) in
any other case—$300.
(a) in
the case of an offence under subsection (8) of failing to comply with an
environment protection order imposing a requirement for the purpose of
securing compliance with a condition of an environmental
authorisation—the alleged offender has expiated the offence; and
(b) the
act or omission the subject of the requirement continues after that expiation,
a continuing default penalty is payable by the person for each day on which
the act or omission continues of an amount equal to one-fifth of the expiation
fee applying in respect of the offence.
(8ab) For the purposes
of the continuing default penalty under subsection (8aa), an obligation
to do something is to be regarded as continuing regardless of the fact that
any period within which, or time before which, the act is required to be done
has expired or passed.
(8ac) A continuing
default penalty under this section is recoverable by the Authority as a debt
due to the Authority.
(8a) It is not an
excuse for a person to refuse or fail to provide information in response to a
requirement imposed by an environment protection order on the ground that to
do so might tend to incriminate the person or make the person liable to a
penalty.
(8b) If compliance by
a prescribed person with a requirement to provide information imposed by an
environment protection order might tend to incriminate the person or make the
person liable to a penalty, then the information provided in compliance with
the requirement is not admissible in evidence against the person in
proceedings for an offence or for the imposition of a penalty (other than
proceedings in respect of the making of a false or misleading statement).
(9) A person must not
hinder or obstruct a person complying with an environment protection order.
Maximum penalty: $4 000.