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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Local Nuisance and Litter Control
Bill 2015
A BILL FOR
An Act to regulate local nuisance and littering; to make related amendments
to the
Local
Government Act 1999
, the
Motor
Vehicles Act 1959
and the
Summary
Offences Act 1953
; and for other purposes.
Contents
Part 2—Objects and application of
Act
6Territorial and extra-territorial application of
Act
Division 2—Administering
bodies
11Periodic reports by administering
bodies
Division 3—Authorised
officers
14Powers of authorised officers
15Limit of area of authorised officers appointed
by councils
16Provisions relating to
seizure
20Person must cease local nuisance if
asked
21Regulations for
purposes of Division
24Litterer must remove litter if
asked
29Notification to EPA of serious or material
environmental harm
Part 5—Nuisance
abatement notices and litter abatement notices
30Nuisance and litter
abatement notices
31Action on non-compliance
with notice
Part 6—Civil
remedies and penalties
34Minister or council may
recover civil penalty in respect of contravention
35Constitution of the Environment, Resources and
Development Court
37Service of notices or other
documents
41False or misleading information
44Offences and Environment, Resources and
Development Court
45Orders in respect of
contraventions
46Offences by bodies
corporate
48Recovery of
administrative and technical costs associated with contraventions
49Assessment of reasonable costs and
expenses
)
1Things that are not local
nuisance
Schedule 2—Related amendments and
transitional provisions
Part 2—Amendment of Local
Government Act 1999
3Amendment of section 236—Abandonment of
vehicles
5Amendment of section
254—Power to make orders
Part 3—Amendment of Motor Vehicles
Act 1959
6Amendment of section
139D—Confidentiality
Part 4—Amendment of Summary
Offences Act 1953
Part 5—Transitional
provisions
8Continuation of by-laws under section 240 of
the Local Government Act 1999 relating to bill-posting
9Continuation of orders made under section 254
of the Local Government Act 1999
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Local Nuisance and Litter Control
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, unless the contrary intention appears—
amenity value of an area includes any quality or condition of
the area that conduces to its enjoyment;
authorised officer means a person appointed to be an
authorised officer under
section 12
;
class A hazardous litter—see
section 22(5)
;
class B hazardous litter—see
section 22(5)
;
council means a council within the meaning of the
Local
Government Act 1999
;
environment protection policy has the same meaning as in the
Environment
Protection Act 1993
;
function includes a power or duty;
general litter—see
section 22(5)
;
LGA means the Local Government Association of South
Australia;
litter—see
section 22(5)
;
litter abatement notice—see
section 30
;
local nuisance—see
section 17
;
nuisance abatement notice—see
section 30
;
owner—
(a) in relation to a vessel, has the same meaning as in the
Harbors
and Navigation Act 1993
, and includes the operator of the vessel within the meaning of that
Act;
(b) in relation to a vehicle within the meaning of the
Road
Traffic Act 1961
, has the same meaning as in section 5(1) of the
Road
Traffic Act 1961
, and includes the operator of the vehicle within the meaning of that
Act;
premises means—
(a) any land, building (including residential premises) or place
(including a public place, or a movable building or structure); or
(b) a part of premises;
prescribed activity of environmental significance has the
same meaning as in the
Environment
Protection Act 1993
;
public place has the same meaning as in the
Road
Traffic Act 1961
;
relevant council, in relation to the commission (or alleged
commission) of an offence under this Act, means the council for the area in
which the commission (or alleged commission) of the offence occurred;
road has the same meaning as in the
Road
Traffic Act 1961
;
road-related area has the same meaning as in the
Road
Traffic Act 1961
;
vehicle includes—
(a) a vessel; and
(b) a vehicle within the meaning of the
Road
Traffic Act 1961
;
vessel has the same meaning as in the
Harbors
and Navigation Act 1993
.
Part 2—Objects
and application of Act
(1) The objects of the Act are—
(a) to protect individuals and communities from local nuisance;
and
(b) to prevent littering; and
(c) to improve the amenity value of local areas; and
(d) to promote the creation and maintenance of a clean and healthy
environment.
(2) The Minister, councils and other persons or bodies involved in the
administration of this Act must have regard to, and seek to further, the objects
of this Act.
(1) Except as
specifically provided by this Act, the provisions of this Act are in addition
to, and do not limit, the provisions of any other law of the State.
(2) Without limiting the generality of
subsection (1)
, this Act is not intended to be construed so as to prevent any person from
being prosecuted under any other enactment for an offence that is also
punishable by this Act, or from being liable under any other law of the State to
any penalty or punishment that is higher than a penalty or punishment provided
by this Act.
(3) Nothing in this Act affects or limits a right or remedy that exists
apart from this Act and compliance with this Act does not necessarily indicate
that a common law duty of care has been satisfied.
(4) Subject to
subsection (5)
, this Act does not apply in relation to an activity authorised by an
environmental authorisation within the meaning of the
Environment
Protection Act 1993
.
(5) This Act applies in
relation to the use of a road or road-related area by a vehicle for the purposes
of, or in connection with, the following prescribed activities of environmental
significance:
(a) a waste transport business (category A);
(b) a waste transport business (category B);
(c) dredging;
(d) earthworks drainage.
6—Territorial
and extra-territorial application of Act
(1) If—
(a) a person causes local nuisance within the State by an activity carried
on outside the State; and
(b) the activity would, if carried on within the State, constitute a
contravention of this Act,
the person is liable to a penalty in respect of the contravention as if the
activity were carried on by the person within the State.
(2) For the purposes of this section, a reference to carrying on an
activity includes a reference to a failure to act.
(1) Subject to this
Act, a council is the principal authority for dealing with local nuisance and
littering in its area.
(2) In connection with
subsection (1)
, the following functions are conferred on a council by this Act:
(a) to take action to manage local nuisance and littering within its
area;
(b) to cooperate with any other person or body involved in the
administration of this Act;
(c) to provide, or support the provision of, educational information
within its area to help detect, prevent and manage local nuisance and
littering;
(d) such other functions as are assigned to the council by this
Act.
(3) A council must, in performing its functions under this Act, have
regard to—
(a) the guidelines adopted or prescribed by regulation for managing
unreasonable complainant conduct; and
(b) any other guidelines adopted or prescribed by regulation to assist
councils in performing their functions.
A council must, in its annual report prepared pursuant to section 131 of
the
Local
Government Act 1999
in relation to a particular financial year, include details of the
performance by the council during that year of functions conferred on it under
this Act.
Division 2—Administering
bodies
(1) The Governor may make regulations declaring a body to be an
administering body for the purposes of the administration or enforcement of this
Act either generally or in specified locations or subject to specified
conditions.
(a) provide that this Act or specified provisions of this Act will apply
(subject to such conditions, modifications or requirements as may be prescribed
by the regulations) in order to confer functions or rights on—
(i) an administering body as if it were a council (including a relevant
council); or
(ii) officers or employees of the administering body as if they were
authorised officers of a council; and
(b) provide that any fines, penalties or forfeitures recovered in
proceedings commenced by an administering body before a court for an offence
against this Act must be paid to the administering body.
(3) The conferral under this section of a function on an administering
body or its officers or employees is not, unless the contrary intention is
specified in the regulations, to be taken to limit or affect the performance of
that function by the Minister, a council or an authorised officer.
(1) An administering body, may, by instrument executed by the
administering body, delegate a function conferred on the administering body
under this Division to—
(a) a committee of the administering body; or
(b) an officer or employee of the administering body; or
(c) an officer or employee of the administering body for the time being
occupying a particular office or position.
(2) A delegation under this section may be given subject to conditions
specified in the instrument of delegation.
(3) A delegation under this section is revocable at will and does not
prevent the administering body from acting in any matter.
11—Periodic
reports by administering bodies
(1) An administering
body must report to the Minister, at such intervals as the Minister requires, on
the performance by the body of functions conferred on the body under this
Division.
(2) The Minister must, within 6 sitting days after receiving a report
under
subsection (1)
, cause copies of the report to be laid before both Houses of
Parliament.
Division 3—Authorised
officers
(1) All police officers are authorised officers for the purposes of this
Act.
(2) The Minister may appoint persons to be authorised officers for the
purposes of this Act.
(3) A council may appoint—
(a) specified officers or employees of the council; or
(b) a specified class of officers or employees of the council,
to be authorised officers for the purposes of this Act.
(4) An appointment—
(a) may be made subject to conditions specified in the instrument of
appointment; and
(b) is, in the case of an appointment by a council or other appointment of
a prescribed class, subject to conditions prescribed by regulation.
(5) A person may hold an appointment as an authorised officer from more
than 1 council.
(6) The Minister or a council that has made an appointment under this
section may, at any time, revoke the appointment, or vary or revoke a condition
specified in the instrument of such an appointment or impose a further such
condition.
(1) An authorised officer is not required to be issued with an identity
card in the following circumstances:
(a) if the authorised officer is a police officer;
(b) if the authorised officer is appointed by a council and the Minister
has designated a card issued to such an authorised officer by the council as an
identity card for the purposes of this Act.
(2) In any other circumstances, an authorised officer appointed under this
Act must be issued with an identity card in a form approved by the
Minister—
(a) containing the person's name and a recent photograph of the person;
and
(b) stating that the person is an authorised officer for the purposes of
this Act; and
(c) specifying the name or office of the issuing authority.
(3) The identity card must be issued as soon as is reasonably practicable
after the appointment is made (but an authorised officer is not prevented from
exercising powers under this Act just because an identity card is yet to be
issued).
(4) An authorised officer must, at the request of a person in relation to
whom the officer intends to exercise any powers under this Act, produce for the
inspection of the person his or her identity card (unless the identity card is
yet to be issued).
14—Powers
of authorised officers
(1) An authorised
officer may, for any purpose connected with the administration or enforcement of
this Act or with the performance, exercise or discharge of a function under this
Act—
(a) at any reasonable time, enter or inspect any premises or vehicle;
and
(b) during the course of the inspection of any premises or
vehicle—
(i) ask questions of any person found in or on the premises or vehicle;
and
(ii) open a part of, or thing in or on, the premises or vehicle;
and
(iii) inspect any substance, material or thing found in or on the premises
or vehicle; and
(iv) take and remove samples of any substance, material or thing found in
or on the premises or vehicle; and
(v) require any person to produce any plans, specifications, books, papers
or documents; and
(vi) examine, copy and take extracts from any plans, specifications,
books, papers or documents; and
(vii) take photographs, films or video recordings; and
(viii) take measurements, make notes and carry out tests; and
(ix) remove, or seize and retain, any substance, material or thing that
has or may have been used in, or may constitute evidence of, a contravention of
this Act; and
(c) require a person who the authorised officer reasonably suspects has
committed, is committing or is about to commit, an offence against this Act, to
state the person's full name and usual place of residence and to produce
evidence of the person's identity; and
(d) require any person to answer any question that may be relevant to the
administration or enforcement of this Act; and
(e) give directions as to the stopping or movement of a vehicle;
and
(f) give any other directions reasonably required in connection with the
exercise of a power conferred by any of the paragraphs above or otherwise in
connection with the administration or enforcement of this Act.
(2) In the exercise of powers under this Act, an authorised officer may be
accompanied by such assistants as may be necessary or desirable in the
circumstances.
(3) An authorised
officer may only use reasonable force—
(a) to enter any premises or vehicle; or
(b) to open a part of, or thing in, the premises or vehicle,
on the authority of a warrant issued by a magistrate or a
justice.
(4) However—
(a) an application for a warrant under
subsection (3)
cannot be made to a justice who is a member, officer or employee of a
council; and
(b) a magistrate or justice must not issue a warrant under
subsection (3)
unless satisfied—
(i) that there are reasonable grounds to suspect that an offence against
this Act has been, is being, or is about to be, committed; or
(ii) that the warrant is reasonably required in the
circumstances.
(5) If an authorised officer is inspecting premises or a vehicle under
this section, the person in charge of the premises or vehicle must provide such
assistance as the authorised officer reasonably requires to facilitate the
inspection.
(6) A person who—
(a) hinders or obstructs an authorised officer, or a person assisting an
authorised officer, in the exercise of a power under this Act; or
(b) uses abusive, threatening or insulting language to an authorised
officer, or a person assisting an authorised officer, in the exercise of a power
under this Act; or
(c) refuses or fails to comply with a requirement or direction of an
authorised officer under this Act; or
(d) having been asked a question under this section, does not answer the
question to the best of his or her knowledge, information and belief;
or
(e) falsely represents, by words or conduct, that he or she is an
authorised officer or other person with powers under this Act,
is guilty of an offence.
Maximum penalty: $10 000.
(7) It is not an excuse for a person to refuse or fail to furnish
information under this section on the ground that to do so might tend to
incriminate the person or make the person liable to a penalty.
(8) However, if compliance with a requirement to furnish information might
tend to incriminate a person or make a person liable to a penalty,
then—
(a) in the case of a person who is required to produce, or provide a copy
of, a document or information—the fact of production, or provision of, the
document or the information (as distinct from the contents of the documents or
the information); or
(b) in any other case—any answer given in compliance with the
requirement,
is not admissible in evidence against the person for an offence or for the
imposition of a penalty (other than proceedings in respect of the provision of
information that is false or misleading).
(9) An authorised officer, or a person assisting an authorised officer,
who—
(a) addresses offensive language to any other person; or
(b) without lawful authority hinders or obstructs or uses or threatens to
use force in relation to any other person,
is guilty of an offence.
Maximum penalty: $10 000.
15—Limit
of area of authorised officers appointed by councils
An authorised officer appointed by a council may, subject to any conditions
of his or her appointment, exercise powers under this Act outside of the council
area in the following circumstances:
(a) subject to
paragraph (b)
, if the powers are to be exercised in another council area—to the
extent agreed to, in writing, by the other council;
(b) if the authorised
officer believes on reasonable grounds that an offence under this Act has been
committed within the council area that requires the exercise of powers outside
the council area (including within the area of another council or outside the
State).
16—Provisions
relating to seizure
(1) If a substance, material or thing has been seized under this Division,
the following provisions apply:
(a) the substance,
material or thing seized must be held pending proceedings for an offence against
this Act unless the Minister or relevant council (as the case may require), on
application, authorises its release to the person from whom it was seized, or to
any person who had legal title to it at the time of its seizure, subject to such
conditions as the Minister or council thinks fit;
(b) if—
(i) proceedings are not instituted for an offence against this Act in
relation to the substance, material or thing within the prescribed period after
its seizure; or
(ii) after proceedings have been so instituted and the defendant is not
found guilty or convicted of the offence,
the person from whom it was seized is entitled to recover the substance,
material or thing or, if it has been destroyed, compensation equal to the market
value of the substance, material or thing at the time of its seizure;
(c) an action for the payment of compensation may be brought in any court
of competent jurisdiction;
(d) the court by which
a person is convicted or found guilty of an offence against this Act in relation
to the substance, material or thing may, if the proceedings were instituted
within the prescribed period after its seizure, order—
(i) that the substance, material or thing be forfeited to the Minister or
relevant council; or
(ii) if the substance, material or thing has been released pursuant to
paragraph (a)
—that the person to whom it was released or the defendant pay to the
Minister or relevant council (as the case may require) an amount equal to its
market value at the time of its seizure as the court thinks fit;
(e) if a person is, under this section, entitled to recover any substance,
material or thing, but the person—
(i) fails to do so within 6 months after having been requested to do so by
the Minister or relevant council; or
(ii) cannot be located within 6 months after reasonable attempts by the
Minister or relevant council to do so,
the substance, material or thing is, by force of this section, forfeited to
the Minister or council;
(f) any substance, material or thing forfeited under this section must be
disposed of in such manner as the Minister or relevant council (as the case may
require) may direct;
(g) if the substance, material or thing is sold, the proceeds of the sale
must—
(i) if the sale was directed by the Minister—be paid into the
Consolidated Account; or
(ii) if the sale was directed by the relevant council—be paid to
that council.
(2) For the avoidance of doubt, this section does not apply in relation to
a substance, material or thing—
(a) removed or disposed of by or on behalf of the Minister or a council
under
section 31
(following non-compliance with the requirements of a nuisance abatement
notice or litter abatement notice); or
(b) removed or disposed of by a council under section 234 of the
Local
Government Act 1999
; or
(c) collected by a council under section 297 of the
Local
Government Act 1999
.
(3) In this section—
prescribed period means 6 months (or such longer period
as the Environment Resources and Development Court may, on application by the
Minister or relevant council, allow).
(1) For the purposes of
this Act, local nuisance is—
(a) any adverse effect
on an amenity value of an area that—
(A) noise, odour, smoke, fumes, aerosols or dust; or
(B) animals, whether dead or alive; or
(C) any other agent or
class of agent declared by
Schedule 1
; and
(ii) unreasonably interferes with or is likely to interfere unreasonably
with the enjoyment of the area by persons occupying a place within, or lawfully
resorting to, the area; or
(b) insanitary
conditions on premises that unreasonably interfere with or are likely to
interfere unreasonably with the enjoyment of premises occupied by persons in the
vicinity; or
(c) unsightly
conditions, of a kind declared by
Schedule 1
, on premises caused by human activity or a failure to act; or
(d) a contravention of,
or failure to comply with a provision of an environment protection policy, or of
any other Act or law, declared by
Schedule 1
; or
(e) anything declared
by
Schedule 1
to constitute local nuisance,
but does not include anything declared by
Schedule 1
not to constitute local nuisance.
Note—
Schedule 1 may be added to or amended by regulation—see
section 51(2)(a)
and
(b)
.
(2) For the purposes of
subsection (1)(b)
, conditions on premises will be taken to be insanitary if an authorised
officer reasonably believes that—
(a) the premises are so filthy or neglected that there is a risk of
infestation by rodents or other pests; or
(b) offensive material or odours are emitted from the premises.
(3) In this section—
animals includes insects.
(1) A person who carries on an activity intentionally or recklessly and
with the knowledge that local nuisance will result is guilty of an
offence.
Maximum penalty:
(a) in the case of a body corporate—$60 000;
(b) in the case of a natural person—$30 000.
(2) A person who
carries on an activity that results in local nuisance is guilty of an
offence.
Maximum penalty:
(a) in the case of a body corporate—$20 000;
(b) in the case of a natural person—$10 000.
Expiation fee: $500.
(3) For the purposes of this section—
(a) the occupier or person in charge of a place at or from which the
activity that results in local nuisance is carried on will be taken to have
carried on the activity (but without affecting the liability of any other person
in respect of the activity);
(b) a reference to carrying on an activity includes a reference to a
failure to act.
Note—
If the activity occurs in, at or from a vehicle or in connection with the
use of a vehicle, the owner of the vehicle is, under
section 26
, taken to have committed an offence.
19—Exemptions
from application of
section 18
(1) A person will
be exempt from the application of
section 18
in respect of a specified activity if the council for the area in which
the activity is to be carried on declares, by notice in writing, in accordance
with this section, that the person is so exempt.
Examples—
The following are examples of activities for which an exemption may be
declared:
(a) construction or demolition works;
(b) concerts or events;
(c) activities using amplified sound.
(2) An application for a declaration under this section must be made to a
council in the manner and form prescribed by regulation and must be accompanied
by—
(a) a site nuisance management plan containing the details prescribed by
regulation; and
(b) any other information in connection with the application that the
council may require; and
(c) a fee of an amount fixed by regulation.
(3) A council must not make a declaration under this section unless it is
satisfied that—
(a) there are exceptional circumstances that justify the making of the
declaration; and
(b) the applicant's nuisance management plan adequately sets out the
measures that the person will take to prevent, minimise or address any
anticipated adverse effects from the specified activity on the amenity value of
the area concerned.
(4) A declaration
may be unconditional or subject to conditions, including (but not limited to)
conditions relating to—
(a) the permitted times or periods of time for carrying on the activity;
or
(b) the manner of carrying on the activity.
(5) The council may, by further notice in writing, vary or revoke a
declaration under this section.
(6) A declaration under this section has effect from the date specified in
the declaration and remains in force according to its terms for a period not
exceeding 3 months specified in the declaration or until revoked by the
council.
(7) A council must publish a declaration made under this section, and any
variations of the declaration, on a website determined by the council.
20—Person
must cease local nuisance if asked
A person must, on request by an authorised officer, cease an activity, or
remove from premises owned or occupied by the person any substance, material or
thing that, in the opinion of the authorised officer, is causing local
nuisance.
Maximum penalty: $5 000.
Expiation fee: $210.
21—Regulations
for purposes of Division
Regulations may be made for the purposes of this Division and may, without
limitation—
(a) prohibit, restrict or regulate an activity, or the use or sale of a
substance, material or thing, or the use or installation of equipment or
infrastructure relevant to the prevention or management of local nuisance;
and
(b) prohibit, restrict or regulate the manufacture, possession, transport,
storage, use or disposal of a substance, material, equipment or thing that
causes local nuisance; and
(c) provide for the removal or destruction of a substance, material,
equipment or thing that causes local nuisance; and
(d) provide for compliance standards, and testing or monitoring standards,
procedures or techniques (including sensory techniques), to be applied or used
by authorised officers in detecting or identifying local nuisance; and
(e) provide for the taking, analysis or testing of samples relevant to
detecting, identifying or monitoring local nuisance including—
(i) the persons who may take, analyse or test those samples; and
(ii) the places where those samples may be analysed or tested;
and
(iii) the reporting of the results of the analysis or testing of those
samples.
(1) A person must
not dispose of litter onto any land or into any waters.
Maximum penalty:
(a) for an offence involving the disposal of any amount of class A
hazardous litter—
(i) in the case of a body corporate—$250 000;
(ii) in the case of a natural person—$120 000 or imprisonment
for 2 years;
(b) for an offence involving the disposal of 50 litres or more of class B
hazardous litter or general litter—
(i) in the case of a body corporate—$60 000;
(ii) in the case of a natural person—$30 000 or imprisonment
for 6 months;
(c) for an offence involving the disposal of up to 50 litres of class B
hazardous litter—$10 000;
(d) for an offence involving the disposal of up to 50 litres of general
litter—$5 000.
Expiation fee:
(a) for an offence involving the disposal of 50 litres or more of class B
hazardous litter or general litter—$1 000;
(b) for an offence involving the disposal of up to 50 litres of class B
hazardous litter—$500;
(c) for an offence involving the disposal of up to 50 litres of general
litter—$210.
(2) For the purposes of
subsection (1)
—
(a) if litter is discarded, deposited, blows or falls from premises or a
vehicle onto land or into waters, it is taken to have been disposed of onto the
land or into the waters; and
(b) a person will be taken to have disposed of litter onto land or into
waters if the person caused or allowed the litter to be disposed of onto the
land or into the waters; and
(c) the occupier or person in charge of a place from which litter is
discarded or deposited or blows or falls will be taken to have disposed of the
litter (but without affecting the liability of any other person in respect of
the disposal).
Note—
If the disposal of litter occurs from a vehicle or in connection with the
use of a vehicle, the owner of the vehicle is, under
section 26
, taken to have committed an offence.
(3) However,
subsection (1)
does not apply to the disposal of litter—
(a) in a council area—
(i) in a bin or other receptacle provided by the council for litter of
that kind; or
(ii) in some other manner approved or authorised by the council;
or
(b) at a depot, facility or works of a kind described in Schedule 1 Part A
clause 3 of the
Environment
Protection Act 1993
at which such material is received; or
(c) if the litter consists of a vehicle to which section 236 and 237 of
the
Local
Government Act 1999
applies; or
(d) in accordance with an approval, consent, licence, permit, exemption or
other authorisation or entitlement granted by a council or granted under any Act
or law of this State or the Commonwealth.
(4) In any proceedings where it is alleged that a person contravened
subsection (1)
, it will be a defence if it is proved that—
(a) the litter was disposed of on that person's property or on some other
person's property with that other person's consent; or
(b) the disposal was accidental and the person has, as soon as becoming
aware of the disposal, taken all reasonable steps to retrieve the
litter.
(5) In this section,
unless the contrary intention appears—
class A hazardous litter means domestic or commercial waste
comprised of—
(a) asbestos;
(b) material containing asbestos;
(c) any substance, material or thing of a kind prescribed by
regulation;
(d) a combination of litter referred to in a preceding paragraph of this
definition and any other litter;
class B hazardous litter means—
(a) when disposed of onto land or into waters—
(i) live cigarettes or cigarette butts;
(ii) used syringes;
(iii) waste glass (whether or not broken);
(iv) any substance, material or thing of a kind prescribed by
regulation;
(v) a combination of litter referred to in a preceding paragraph of this
definition and general litter;
(b) when disposed of into waters—any disused or decommissioned
vehicle, appliance or device or part of such a vehicle, appliance or device or
any other structure or thing that an authorised officer reasonably suspects is
being used, or is intended for use, in the waters as an artificial
reef;
general litter means any solid or liquid domestic or
commercial waste, and includes, without limitation—
(a) cigarettes or cigarette butts;
(b) chewing gum;
(c) food or food scraps;
(d) beverage containers;
(e) packaging;
(f) clothing, footwear or other personal accessories or personal
items;
(g) furniture;
(h) garden cuttings or clippings or other plant matter;
(i) garden landscaping material;
(j) dead or diseased animals;
(k) vehicles or vehicle parts;
(l) machinery or equipment used in farming or agriculture;
(m) demolition material (including, but not limited to, clay, concrete,
rock, sand, soil or other inert mineralogical matter);
(n) building or construction material or equipment;
(o) any material or thing used or generated in the course of carrying on a
prescribed activity of environmental significance;
(p) any substance, material or thing of a kind prescribed by
regulation,
but does not include hazardous litter;
hazardous litter means class A hazardous litter or class B
hazardous litter;
litter means general litter or hazardous litter;
surface waters means—
(a) marine waters within the meaning of the
Environment
Protection Act 1993
; and
(b) naturally occurring inland waters; and
(c) artificially created bodies of water or streams that are for public
use or enjoyment;
waste has the same meaning as in the
Environment
Protection Act 1993
;
waters means surface waters or underground waters.
(1) A person must
not post a bill on property without the consent of the owner or occupier of the
property.
Maximum penalty: $10 000.
Expiation fee: $315.
(2) If a bill is
posted on property in contravention of
subsection (1)
, a person who distributed or authorised the distribution of the bill for
posting is guilty of an offence.
Maximum penalty:
(a) in the case of a body corporate—$20 000;
(b) in the case of a natural person—$10 000.
(3) In any proceedings where it is alleged that a person contravened
subsection (2)
, it will be a defence if it is proved that the person did not foresee and
could not reasonably be expected to have foreseen the likelihood that such bills
would be posted without consent.
(4) If a person is convicted of an offence against
subsection (1)
or
(2)
, the court may order the offender to pay to the owner or occupier of the
relevant property such compensation for loss or damage caused to the property by
the commission of the offence as the court considers just.
(5) In this section—
bill includes a flyer, brochure or poster containing
promotional material, and includes anything declared by regulation to be a bill,
but does not include anything declared by regulation not to be a bill.
24—Litterer
must remove litter if asked
A person must, on request by an authorised officer, remove a bill posted on
property, or any other litter disposed of, by that person in contravention of
this Division and dispose of it as directed by the authorised officer.
Maximum penalty: $5 000.
Expiation fee: $210.
(1) A person who
reasonably suspects another person of having committed an offence against this
Division may notify the Minister or the relevant council of that suspicion by
forwarding a report (a citizen's notification) to the Minister or
the council in the form (which may be electronic), and containing the details
(which may include images), prescribed by regulation.
(2) In any proceedings, a citizen's notification constitutes evidence of
the matters contained in that notification.
26—Liability
of vehicle owners
(a) an activity is carried on—
(i) in, at or from a vehicle; or
(ii) in connection with the use of a vehicle; and
(b) the activity results in an offence against
section 18
,
22
or
23
(a principal offence),
the owner of the vehicle is guilty of an offence against this section and
is liable to the same penalty as is prescribed for the principal offence and the
expiation fee (if any) that is fixed for the principal offence also applies in
relation to the offence against this section.
(2) The owner of a vehicle and the person who committed the principal
offence (the alleged principal offender) are not both liable
through the operation of this section to be found guilty of, or to expiate, an
offence arising out of the same circumstances, and consequently a finding of
guilt in relation to, or expiation by, the owner exonerates the alleged
principal offender and conversely a finding of guilt in relation to, or
expiation by, the alleged principal offender exonerates the owner.
(3) An expiation
notice or expiation reminder notice given under the
Expiation
of Offences Act 1996
to the owner of a vehicle for an alleged offence against this section
involving the vehicle must be accompanied by a notice inviting the owner, if he
or she was not the alleged principal offender, to provide the council or officer
specified in the notice, within the period specified in the notice, with a
statutory declaration—
(a) setting out the
name and address of the person who the owner believes to have been the alleged
principal offender; or
(b) if he or she had
transferred ownership of the vehicle to another prior to the time of the alleged
principal offence and has complied with the
Motor
Vehicles Act 1959
or the
Harbors
and Navigation Act 1993
(as the case may require) in respect of the transfer—setting out
details of the transfer (including the name and address of the
transferee).
(4) If the vehicle is owned by 2 or more persons—
(a) a prosecution for an offence against this section may be brought
against 1 of the owners or against some or all of the owners jointly as
co-defendants; and
(b) if the case for the prosecution is proved and a defence is not
established, the defendant or each of the defendants who does not establish a
defence is liable to be found guilty of an offence against this
section.
(5) Before
proceedings are commenced against the owner of a vehicle for an offence against
this section, the complainant must send the owner a notice—
(a) setting out particulars of the alleged principal offence;
and
(b) inviting the owner, if he or she was not the alleged principal
offender or the owner of the vehicle at the time of the alleged principal
offence, to provide the complainant, within 21 days of the date of the notice,
with a statutory declaration setting out any matters referred to in
subsection (3)(a)
or
(b)
.
(6)
Subsection (5)
does not apply to—
(a) proceedings commenced where an owner has elected under the
Expiation
of Offences Act 1996
to be prosecuted for the offence; or
(b) proceedings commenced against an owner of a vehicle who has been named
in a statutory declaration under this section as the alleged principal
offender.
(7) Subject to
subsection (8)
, in proceedings against the owner of a vehicle for an offence against this
section, it is a defence to prove—
(a) that, in consequence of some unlawful act, the vehicle was not in the
possession or control of the owner at the time of commission of the alleged
principal offence; or
(b) that the owner
provided the complainant with a statutory declaration in accordance with an
invitation under this section.
(8) The defence in
subsection (7)(b)
does not apply if it is proved that the owner made the declaration knowing
it to be false in a material particular.
(9) If—
(a) an expiation notice is given to a person named as the alleged
principal offender in a statutory declaration under this section; or
(b) proceedings are commenced against such a person,
the notice or summons, as the case may be, must be accompanied by a notice
setting out particulars of the statutory declaration that named the person as
the alleged principal offender.
(10) The particulars of the statutory declaration provided to the alleged
principal offender must not include the address of the person who provided the
statutory declaration.
(11) In proceedings against a person named in a statutory declaration
under this section for the offence to which the declaration relates, it will be
presumed, in the absence of proof to the contrary, that the person was present
in or at the vehicle at the time at which the alleged principal offence was
committed.
(12) In proceedings against the owner of a vehicle or the alleged
principal offender for an offence under this Part, an allegation in the
complaint that a notice was given under this section on a specified day will be
accepted as proof, in the absence of proof to the contrary, of the facts
alleged.
(13) For the purposes of
subsection (1)
, an activity comprised of the disposal of a substance, material or thing
onto land or into waters that results in an offence against this Act will be
presumed, in the absence of proof to the contrary, to have been carried on in
connection with the use of a vehicle if the substance, material or thing has
been disposed of onto land or into waters and the vehicle was seen arriving at
that place before the disposal or leaving the place after the
disposal.
(14) This section does not apply in the case of a principal offence
against
section 22
if—
(a) the vehicle from which the litter was disposed of is—
(i) a taxi; or
(ii) a train, tram, bus, ferry, passenger ship, or other public transport
vehicle that was being used for a public purpose at the time; and
(b) the litter was disposed of by a passenger of the vehicle.
(1) In any
proceedings against a person for an offence under
section 18
or
22
, it is a defence to prove that the person took all reasonable precautions
and exercised all due diligence to prevent the commission of the
offence.
(2) Without limiting
subsection (1)
, in the case of an offence committed or allegedly committed by a person in
the course of undertaking a prescribed activity of environmental significance
(to the extent referred to in
section 5(5)
), it is not proved that the person took all reasonable precautions and
exercised all due diligence to prevent the commission of the offence unless it
is proved that the person—
(a) had taken reasonable steps to prevent or avoid the circumstances that
gave rise to the offence including by putting in place any systems or safeguards
that might reasonably be expected to be in place; and
(b) complied with the requirements of any notice under this Act that
related to preventing or managing the circumstances that gave rise to the
offence; and
(c) as soon as becoming aware of the circumstances that gave rise to the
offence—
(i) reported those circumstances to the Minister or the relevant council;
and
(ii) took all reasonable steps necessary to prevent or reduce those
circumstances.
(3) A person who would, but for the defence provided by this section, have
contravened
section 18
or
22
is, despite that defence, to be taken to have contravened that provision
for the purposes of—
(a) any proceedings under
section 33
in respect of the contravention; and
(b) the issuing or enforcement of a nuisance abatement notice or litter
abatement notice in respect of the contravention; and
(c) the making by a court of an order under
section 45
in proceedings for an offence in respect of the contravention.
(4) This section does not apply in relation to a person who is charged
with an offence under
section 46
.
If, in proceedings for an offence against this Part, the court is not
satisfied that the defendant is guilty of the offence charged but is satisfied
that the defendant is guilty of an offence against this Part that carries a
lower maximum penalty (determined according to relative maximum monetary
penalties), the court may find the defendant guilty of the latter
offence.
29—Notification
to EPA of serious or material environmental harm
If a council has reason to believe that an offence committed under
section 18
or
22
has, or may have, resulted in material environmental harm, or serious
environmental harm, within the meaning of the
Environment
Protection Act 1993
, the council must, as soon as practicable, notify the Environment
Protection Authority of that belief.
Part 5—Nuisance
abatement notices and litter abatement notices
30—Nuisance
and litter abatement notices
(1) The Minister or a relevant council may issue—
(a) a nuisance abatement notice for or in connection with securing
compliance with
Part 4
Division 1
; or
(b) a litter abatement notice for or in connection with securing
compliance with
Part 4
Division 2
.
(2) A notice under
this section—
(a) must be in the form of a written notice served on the person to whom
it is issued; and
(b) must specify the person to whom it is issued (by name or by a
description sufficient to identify the person); and
(c) must specify the purpose for which it is issued; and
(d) may direct 2 or more persons to do something specified in the notice
jointly; and
(e) may impose a
requirement that the person do 1 or more of the following:
(i) discontinue, or not commence, a specified activity indefinitely or for
a specified period or until further notice;
(ii) not carry on a specified activity except at specified times or
subject to specified conditions;
(iii) take specified samples or conduct specified tests, examinations,
monitoring or analyses at specified times or intervals or for a specified period
or until further notice;
(iv) furnish to the Minister or council specified results or reports
within a specified period;
(v) clean up litter that the Minister or council considers to have been
caused by a contravention of this Act;
(vi) make good any damage to property that the Minister or council
considers to have been caused by a contravention of this Act;
(vii) prepare, in accordance with specified requirements and to the
satisfaction of the Minister or council, a plan of action for the purposes of
securing compliance with any requirement of this Act or preventing any future
contravention of this Act;
(viii) take such other specified action in a specified way, and within a
specified period or at specified times or in specified circumstances;
and
(f) may, in addition, in the case of a litter abatement notice, impose a
requirement that the person prepare, in accordance with specified requirements
and to the satisfaction of the Minister or council, a plan of action for the
purposes of—
(i) preventing the escape of litter from business premises; or
(ii) keeping a specified area (not exceeding 100 metres) around business
premises free from litter; and
(g) may impose any other requirement prescribed by regulation;
and
(h) must state that the person may, within 14 days, appeal against
the notice to the Environment Resources and Development Court.
(3) A notice under this
section may be issued to a person by 2 or more councils jointly to prevent the
person contravening a provision of this Act in those council areas.
(4) A notice under this section that relates to an activity or conditions
on premises may be issued to—
(a) the owner or
occupier of the premises; or
(b) a person who
has the management or control of the premises; or
(c) trustee of a person referred to in
paragraph (a)
or
(b)
, or is managing the affairs of such a person on some other
basis.
(5) An authorised
officer may, if of the opinion that urgent action is required, issue an
emergency notice imposing a requirement of a kind referred to in
subsection (2)(e)
or
(3)
or as reasonably required in the circumstances.
(6) An emergency notice may be issued orally, but, in that event, the
person to whom the notice is issued must be advised forthwith of the person's
right to appeal against the notice to the Environment Resources and Development
Court.
(7) If an emergency notice is issued to a person by an authorised officer,
the notice will cease to have effect on the expiration of 3 business days from
the time of its issue unless confirmed by a notice issued by the Minister or
council and served on the person.
(8) The Minister or a council may, by written notice served on a person to
whom a notice under this section has been issued by the Minister or council,
vary or revoke the notice.
(9) A person to
whom a notice is issued under this section must not, without reasonable excuse,
fail to comply with the notice.
Maximum penalty:
(a) in the case of a body corporate—$60 000;
(b) in the case of a natural person—$30 000.
Expiation fee: $500.
(10) A person must not hinder or obstruct a person complying with a notice
under this section.
Maximum penalty: $25 000.
31—Action
on non-compliance with notice
(1) If the
requirements of a nuisance abatement notice or litter abatement notice issued by
the Minister or a council are not complied with, the Minister or council may
take any action required by the notice.
(2) Action to be taken
under
subsection (1)
may be taken on behalf of the Minister or council by an authorised officer
or another person authorised by the Minister or council for the
purpose.
(3) If a person other than an authorised officer is authorised to take
action under
subsection (2)
, the following provisions apply:
(a) the Minister or council must issue the person with an instrument of
authority;
(b) the person may exercise such powers of an authorised officer as are
reasonably required for the purpose of taking action under that
subsection;
(c) the provisions of this Act apply in relation to the exercise of such
powers by the person in the same way as in relation to an authorised
officer;
(d) the person must produce the instrument of authority for the inspection
of any person in relation to whom the person intends to exercise powers of an
authorised officer.
(4) A person taking action under this section may enter any relevant
premises or vehicle at any reasonable time.
(5) The reasonable costs and expenses incurred by the Minister or a
council in taking action under this section may be recovered by the Minister or
council as a debt from the person who failed to comply with the requirements of
the notice.
(6) If an amount is recoverable from a person under this section, the
Minister or council may, by notice in writing to the person, fix a period, being
not less than 28 days from the date of the notice, within which the amount
must be paid by the person, and, if the amount is not paid by the person within
that period, the person is liable to pay interest charged at the prescribed rate
per annum on the amount unpaid.
(7) In addition, if an amount recoverable under this section relates to
action taken in relation to any land owned by the person to whom the notice was
issued (including a building or other structure on such land), the amount will
be a charge on the land in favour of the Minister or council in accordance with
a scheme prescribed by the regulations (with a priority determined in accordance
with the regulations).
(1) A person who
has been issued with a nuisance abatement notice or litter abatement notice may
appeal to the Environment Resources and Development Court against the
notice.
(2) An appeal—
(a) must be instituted within 14 days after the notice is served on
the person (or such longer period as the Court allows); and
(b) must be made in a manner and form determined by the Court, setting out
the grounds of the appeal.
(3) An appeal must be referred in the first instance to a conference under
section 16 of the
Environment,
Resources and Development Court Act 1993
(and the provisions of that Act will then apply in relation to the
appeal).
(4) The Minister or a council is entitled to be a party to any proceedings
under this section.
Part 6—Civil
remedies and penalties
(1) Application may
be made to the Environment, Resources and Development Court for 1 or more of the
following orders:
(a) if a person has engaged, is engaging or is proposing to engage in
conduct in contravention of this Act—an order restraining the person from
engaging in the conduct and, if the Court considers it appropriate to do so,
requiring the person to take any specified action;
(b) if a person has refused or failed, is refusing or failing or is
proposing to refuse or fail to take any action required by this Act—an
order requiring the person to take that action;
(c) if a person has caused damage to property by a contravention of this
Act—an order requiring the person to take specified action to make good
the damage and, if appropriate, to take specified action to prevent or mitigate
further damage;
(d) if the Minister or a council has incurred costs or expenses in taking
action to prevent or mitigate damage caused by a contravention of this Act, or
to make good resulting damage—an order against the person who committed
the contravention for payment of the reasonable costs and expenses incurred in
taking that action;
(e) if a person has suffered injury or loss or damage to property as a
result of a contravention of this Act, or incurred costs and expenses in taking
action to prevent or mitigate such injury, loss or damage—an order against
the person who committed the contravention for payment of compensation for the
injury, loss or damage, or for payment of the reasonable costs and expenses
incurred in taking that action;
(f) if a person who has been issued with a nuisance abatement notice or
litter abatement notice has incurred costs and expenses in carrying out the
requirements of the order or reimbursing the Minister or a council for action
taken in pursuance of the order—an order for payment of the whole or a
portion of the costs and expenses, as the Court considers appropriate, against 1
or more other persons who were liable for the costs and expenses;
(g) if the Court considers it appropriate to do so, an order against a
person who has contravened this Act—
(i) if the application for the order was made by the Minister—for
payment for the credit of the Consolidated Account; or
(ii) if the application for the order was made by a relevant
council—for payment to the council,
of an amount in the nature of exemplary damages determined by the
Court.
(2) The power of the Court to make an order restraining a person from
engaging in conduct of a particular kind may be exercised—
(a) if the Court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the Court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the Court that, in the event that an order is not
made, it is likely that the person will engage in conduct of that
kind—whether or not the person has previously engaged in conduct of that
kind and whether or not there is an imminent danger of causing local nuisance,
littering or injury to persons or loss or damage to property if the
first-mentioned person engages in conduct of that kind.
(3) The power of the Court to make an order requiring a person to take
specified action may be exercised—
(a) if the Court is satisfied that the person has refused or failed to
take that action—whether or not it appears to the Court that the person
intends to refuse or fail again, or to continue to refuse or fail, to take that
action; or
(b) if it appears to the Court that, in the event that an order is not
made, it is likely that the person will refuse or fail to take that
action—whether or not the person has previously refused or failed to take
that action and whether or not there is an imminent danger of causing local
nuisance, littering or injury to persons or loss or damage to property if the
first-mentioned person refuses or fails to take that action.
(4) In assessing an amount to be ordered in the nature of exemplary
damages, the Court must have regard to—
(a) any detriment to the public interest resulting from the contravention;
and
(b) any financial saving or other benefit that the respondent stood to
gain by committing the contravention; and
(c) any other matter it considers relevant.
(5) The power to order payment of an amount in the nature of exemplary
damages may only be exercised by a Judge of the Court.
(6) An application
under this section may be made—
(a) by the Minister or a council; or
(b) by any person whose interests are affected by the subject matter of
the application; or
(c) by any other
person with the permission of the Court.
(7) Before the Court may grant permission for the purposes of
subsection (6)(c)
, the Court must be satisfied that—
(a) the proceedings on the application would not be an abuse of the
process of the Court; and
(b) there is a real or significant likelihood that the requirements for
the making of an order under
subsection (1)
on the application would be satisfied; and
(c) it is in the public interest that the proceedings should be
brought.
(8) If an application is made by a person other than the
Minister—
(a) the applicant must serve a copy of the application on the Minister
within 3 days after filing the application with the Court; and
(b) the Court must, on application by the Minister, join the Minister as a
party to the proceedings.
(9) If an application is made by a person other than the relevant
council—
(a) the applicant must serve a copy of the application on the relevant
council within 3 days after filing the application with the Court; and
(b) the Court must, on application by the council, join the council as a
party to the proceedings.
(10) An application under this section may be made in a representative
capacity (but, if so, the consent of all persons on whose behalf the application
is made must be obtained).
(11) An application may be made without notice to any person and, if the
Court is satisfied on the application that the respondent has a case to answer,
it may grant permission to the applicant to serve a summons requiring the
respondent to appear before the Court to show cause why an order should not be
made under this section.
(12) An application under this section must, in the first instance, be
referred to a conference under section 16 of the
Environment,
Resources and Development Court Act 1993
(and the provisions of that Act will then apply in relation to the
application).
(13) If, on an application under this section or before the determination
of the proceedings commenced by the application, the Court is satisfied that, in
order to preserve the rights or interests of parties to the proceedings or for
any other reason, it is desirable to make an interim order under this section,
the Court may make such an order.
(14) An interim order—
(a) may be made on an application without notice to any person;
and
(b) may be made whether or not the proceedings have been referred to a
conference; and
(c) will be made subject to such conditions as the Court thinks fit;
and
(d) will not operate after the proceedings in which it is made are finally
determined.
(15) If the Court makes an order requiring the respondent to take any
specified action to make good any damage to property or to prevent or mitigate
further damage, the provisions of
Part 5
relating to—
(a) the taking of action by the Minister or a council on non-compliance
with a nuisance abatement notice or litter abatement notice; and
(b) the recovery of costs and expenses by the Minister or a
council,
apply in relation to the Court's order in the same way as in relation to a
nuisance abatement notice or litter abatement notice issued by the Minister or a
council under that Part.
(16) The Court may, if it thinks fit, adjourn proceedings under this
section in order to permit the respondent to make an application for the grant
or variation of an environmental authorisation within the meaning of the
Environment
Protection Act 1993
that should have been but was not made, or to remedy any other
default.
(17) The Court may order an applicant in proceedings under this
section—
(a) to provide security for the payment of costs that may be awarded
against the applicant if the application is subsequently dismissed;
(b) to give an undertaking as to the payment of any amount that may be
awarded against the applicant under
subsection (18)
.
(18) If, on an
application under this section alleging a contravention of this Act, the Court
is satisfied—
(a) that the respondent has not contravened this Act; and
(b) that the respondent has suffered loss or damage as a result of the
actions of the applicant; and
(c) that in the circumstances it is appropriate to make an order under
this provision,
the Court may, on the application of the respondent (and in addition to any
order as to costs), require the applicant to pay to the respondent an amount,
determined by the Court, to compensate the respondent for the loss or damage
suffered by the respondent.
(19) The Court may, if it considers it appropriate to do so, either on its
own initiative or on the application of a party, vary or revoke an order
previously made under this section.
(20) Proceedings under this section based on a contravention of this Act
may be commenced at any time within 3 years after the date of the alleged
contravention or, with the authorisation of the Attorney-General, at any later
time.
(21) An apparently genuine document purporting to be under the hand of the
Attorney-General and to authorise the commencement of proceedings under this
section will be accepted in any legal proceedings, in the absence of proof to
the contrary, as proof of the authorisation.
(22) The Court may,
in any proceedings under this section, make such orders in relation to the costs
of the proceedings as it thinks just and reasonable.
(23) Without limiting the generality of
subsection (22)
, in determining whether to make any order in relation to costs the Court
may have regard to the following matters (so far as they are
relevant):
(a) whether the applicant is pursuing a personal interest only in bringing
the proceedings or is furthering a wider group interest or the public
interest;
(b) whether or not the proceedings raise significant issues relating to
the administration of this Act.
34—Minister
or council may recover civil penalty in respect of
contravention
(1) Subject to this section, if the Minister or a relevant council is
satisfied that a person has committed an offence by contravening a provision of
this Act, the Minister or council may, as an alternative to criminal
proceedings, recover, by negotiation or by application to the Environment,
Resources and Development Court an amount as a civil penalty in respect of the
contravention.
(2) The Minister or a relevant council may not recover an amount under
this section in respect of a contravention if the relevant offence requires
proof of intention or some other state of mind, and must, in respect of any
other contravention, determine whether to initiate proceedings for an offence or
take action under this section, having regard to the seriousness of the
contravention, the previous record of the offender and any other relevant
factors.
(3) The Minister or a relevant council may not make an application to the
Court under this section to recover an amount from a person as a civil penalty
in respect of a contravention—
(a) unless the Minister or council has served on the person a notice in
the prescribed form advising the person that the person may, by written notice
to the Minister or council, elect to be prosecuted for the contravention and the
person has been allowed not less than 21 days after service of the notice to
make such an election; or
(b) if the person serves written notice on the Minister or council, before
the making of such an application, that the person elects to be prosecuted for
the contravention.
(4) The maximum amount that the Minister or a relevant council may recover
by negotiation as a civil penalty in respect of a contravention is the sum of
the amount specified by this Act as the criminal penalty in relation to that
contravention and the amount of any economic benefit acquired by the person, or
accrued or accruing to the person, as a result of the contravention.
(5) If, on an application by the Minister or a council, the Environment,
Resources and Development Court is satisfied on the balance of probabilities
that a person has contravened a provision of this Act, the Court may order the
person to pay to the Minister or council an amount as a civil penalty (but not
exceeding the sum of the amount specified by this Act as the criminal penalty in
relation to that contravention and the amount of any economic benefit acquired
by the person, or accrued or accruing to the person, as a result of the
contravention).
(6) In determining the amount to be paid by a person as a civil penalty,
the Court must have regard to—
(a) the nature and extent of the contravention; and
(b) any injury to persons, loss or damage to property or detriment to the
public interest resulting from the contravention; and
(c) any financial saving or other benefit that the person stood to gain by
committing the contravention; and
(d) whether the person has previously been found, in proceedings under
this Act, to have engaged in any similar conduct; and
(e) any other matter it considers relevant.
(7) The jurisdiction conferred by this section is to be part of the civil
jurisdiction of the Court.
(8) If conduct of a person constitutes a contravention of 2 or more
provisions of this Act, an amount may be recovered from the person under this
section in relation to the contravention of 1 or more of those provisions
(provided that the person is not liable to pay more than 1 amount as a civil
penalty in respect of the same conduct).
(9) Proceedings for
an order under this section that a person pay an amount as a civil penalty in
relation to a contravention of this Act, or for enforcement of such an order,
are stayed if criminal proceedings are started or have already been started
against the person for an offence constituted by conduct that is substantially
the same as the conduct alleged to constitute the contravention.
(10) Proceedings referred to in
subsection (9)
may only be resumed if the criminal proceedings do not result in a formal
finding of guilt being made against the person.
(11) Evidence of
information given or evidence of the production of documents by a person is not
admissible in criminal proceedings against the person if—
(a) the person gave the evidence or produced the documents in the course
of negotiations or proceedings under this section for the recovery of an amount
as a civil penalty in relation to a contravention of this Act; and
(b) the conduct alleged to constitute the offence is substantially the
same as the conduct that was alleged to constitute the contravention.
(12) However,
subsection (11)
does not apply to criminal proceedings in respect of the making of a false
or misleading statement.
(13) Proceedings for an order under this section may be commenced at any
time within 3 years after the date of the alleged contravention or, with
the authorisation of the Attorney-General, at any later time within 10 years
after the date of the alleged contravention.
(14) An apparently genuine document purporting to be under the hand of the
Attorney-General and to authorise the commencement of proceedings for an order
under this section will be accepted in any legal proceedings, in the absence of
proof to the contrary, as proof of the authorisation.
(15) The Court may, in any proceedings under this section, make such
orders in relation to the costs of the proceedings as it thinks just and
reasonable.
35—Constitution
of the Environment, Resources and Development Court
The Environment, Resources and Development Court is, when exercising
jurisdiction under this Act, to be constituted in the same way as it is when
exercising jurisdiction under the
Environment
Protection Act 1993
.
(1) The Minister may delegate a function or power conferred on the
Minister under this Act—
(a) to a specified person or body; or
(b) to a person occupying or acting in a specified office or
position.
(2) A delegation—
(a) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(b) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(c) is revocable at will and does not prevent the delegator from acting
personally in a matter.
37—Service
of notices or other documents
(1) Subject to this
section, if this Act requires or authorises a notice or other document to be
served on, or given to, a person, the notice or document may—
(a) be served on, or given to, the person or an agent of the person;
or
(b) be left for the person at his or her place of residence or business
with someone apparently over the age of 16 years; or
(c) be sent by post to the person or an agent of the person at his or her
last known address; or
(d) if the notice or document is to be served on the owner of land, the
land is unoccupied, and the person seeking to serve the notice or document has
taken reasonable steps to effect service under the other paragraphs of this
subsection but has been unsuccessful—be served by fixing it to some
conspicuous part of the land; or
(e) if the notice or document is to be served on the occupier of
land—be sent by post to the occupier at the address of the land;
or
(f) be served on the person by fixing it to, or leaving it on, a vessel
that the person is apparently in charge of, or expected to board at some stage,
if the person giving or serving the notice or document has reasonable grounds to
believe that service in this manner will bring the notice or document to the
attention of the person to be served; or
(g) be sent to the person by fax or email to a fax number or email address
provided by the person (in which case the notice or document will be taken to
have been served or given at the time of transmission); or
(h) be served or given in some other manner prescribed by the
regulations.
(2) Without limiting
subsection (1)
, a notice or document to be served on or given to a company or registered
body within the meaning of the Corporations Act 2001 of the
Commonwealth may be served or given in accordance with that Act.
(3) Subject to the regulations, a notice or document required or
authorised to be given to an owner of land may, if it is to be served
personally, be served on the owner, 1 of any joint owners, or the agent of the
owner.
(1) No personal
liability attaches to—
(a) the Minister; or
(b) an authorised officer or any other person engaged in the
administration of this Act,
for an honest act or omission in the performance, exercise or discharge, or
purported performance, exercise or discharge, of a function under this
Act.
(2) Subject to
subsection (3)
, a liability that would, but for
subsection (1)
, lie against a person lies instead against the Crown.
(3) A liability
that would, but for
subsection (1)
, lie against an officer, employee, agent or contractor of a council lies
instead against the council.
A failure by the Minister or a council to perform a function under this
Act, does not give rise to any civil liability.
If a person is required by or under this Act to provide information to the
Minister or a council, the Minister or council may require that the information
be verified by statutory declaration and, in that event, the person will not be
taken to have provided the information as required unless it has been so
verified.
41—False
or misleading information
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of any
particular) in a report or any other information furnished, or record kept,
under this Act.
Maximum penalty:
(a) in the case of a body corporate—$50 000;
(b) in the case of a natural person—$20 000.
A person must not divulge any information relating to trade processes or
financial information obtained (whether by that person or some other person) in
the administration or enforcement of this Act except—
(a) as authorised by or under this Act; or
(b) with the consent of the person from whom the information was obtained
or to whom the information relates; or
(c) in connection with the administration or enforcement of this Act;
or
(d) for the purpose of any legal proceedings arising out of the
administration or enforcement of this Act.
Maximum penalty: $25 000.
(1) Proceedings for
an offence against this Act may only be commenced by—
(a) the Director of Public Prosecutions; or
(b) the Minister; or
(c) an authorised officer; or
(d) a relevant council; or
(e) the chief executive officer of a relevant council; or
(f) a police officer; or
(g) a person acting
on the written authority of the Minister.
(2) An apparently genuine document purporting to be under the hand of the
Minister and to authorise the commencement of proceedings under this Act must be
accepted in legal proceedings, in the absence of proof to the contrary, as proof
of an authorisation under
subsection (1)(g)
.
44—Offences
and Environment, Resources and Development Court
Offences constituted by this Act lie within the criminal jurisdiction of
the Environment, Resources and Development Court.
45—Orders
in respect of contraventions
(1) If, in proceedings under this Act, the court finds that the defendant
contravened this Act and the contravention has resulted in injury to a person or
loss or damage to property, the court may, in addition to any penalty it may
impose, do 1 or more of the following:
(a) order the person to take specified action to make good any damage and,
if appropriate, to take specified action to prevent or mitigate further
damage;
(b) order the person to take specified action to publicise the
contravention and its consequences and any other orders made against the
person;
(c) order the person to pay—
(i) to the Minister or a council that has incurred costs or expenses in
taking action to prevent or mitigate or make good any damage (including, in the
case of litter, taking action to remove or clean up, and lawfully dispose of the
litter); and
(ii) to any person who has suffered injury or loss or damage to property
as a result of the contravention, or incurred costs or expenses in taking action
to prevent or mitigate such injury, loss or damage (including, in the case of
litter, taking action to remove or clean up, and lawfully dispose of the
litter),
the reasonable costs and expenses so incurred, or compensation for the
injury, loss or damage so suffered, as the case may be, in such amount as is
determined by the court.
(2) If a person is
found by a court to have contravened this Act, the court may, in addition to any
penalty it may impose, order the person to pay to the Minister or a council an
amount not exceeding the court's estimation of the amount of the economic
benefit acquired by the person, or accrued or accruing to the person, as a
result of the contravention.
(3) For the purposes of
subsection (2)
, an economic benefit obtained by delaying or avoiding costs will be taken
to be an economic benefit acquired as a result of a contravention if the
contravention can be attributed (in whole or in part) to that delay or
avoidance.
(4) The court may, by an order under this section, fix a period for
compliance and impose any other requirements the court considers necessary or
expedient for enforcement of the order.
(5) An amount paid to the Minister in accordance with an order under
subsection (2)
must be paid into the Environment Protection Fund under the
Environment
Protection Act 1993
.
46—Offences
by bodies corporate
(1) If a body corporate is guilty of an offence against this Act, each
director of the body corporate is guilty of an offence and liable to the same
penalty as is prescribed for the principal offence unless the director proves
that he or she could not by the exercise of due diligence have prevented the
commission of the offence.
(2) If a body
corporate is guilty of an offence against this Act, each member of the governing
body of the body corporate is guilty of an offence and liable to the same
penalty as is prescribed for the principal offence when committed by a natural
person if the prosecution proves that—
(a) the member knew, or ought reasonably to have known, that there was a
significant risk that such an offence would be committed; and
(b) the member was in a position to influence the conduct of the body
corporate in relation to the commission of such an offence; and
(c) the member failed to exercise due diligence to prevent the commission
of the offence.
(1) If an offence against a provision of this Act is committed by a person
by reason of a continuing act or omission—
(a) the person is liable, in addition to the penalty otherwise applicable
to the offence, to a penalty for each day during which the act or omission
continues of not more than an amount equal to one fifth of the maximum
penalty prescribed for that offence; and
(b) if the act or omission continues after the person is convicted of the
offence, the person is guilty of a further offence against that provision and
liable, in addition to the penalty otherwise applicable to the further offence,
to a penalty for each day during which the act or omission continues after that
conviction of not more than an amount equal to one fifth of the maximum
penalty prescribed for that offence.
(2) For the purposes of this section, an obligation to do something is to
be regarded as continuing until the act is done notwithstanding that any period
within which, or time before which, the act is required to be done has expired
or passed.
48—Recovery
of administrative and technical costs associated with
contraventions
(1) If a person has contravened this Act and the Minister or a
council—
(a) has taken action to—
(i) investigate the contravention; or
(ii) issue a nuisance abatement notice or litter abatement notice in
respect of the contravention; or
(iii) ensure that the person has complied with requirements imposed in
relation to the contravention by a nuisance abatement notice or litter abatement
notice or by an order of a court under this Act; or
(b) has, in taking such action, incurred costs and expenses in taking
samples or in conducting tests, examinations, monitoring or analyses,
the Minister or council may, by notice in writing served on the person,
require the person to pay to the Minister or council the reasonable costs and
expenses incurred by the Minister or council in taking such action.
(2) Subject to
subsection (3)
, an amount payable to the Minister or council in accordance with a notice
under this section must be paid within the period specified in the
notice.
(3) On application
by a person who has been served a notice under this section, the Minister or
council that served the notice may, by notice in writing—
(a) extend the time for payment of an amount payable in accordance with
the notice; or
(b) waive payment of such an amount or reduce the amount
payable.
(4) A person who fails to pay an amount payable to the Minister or council
in accordance with this section is guilty of an offence.
Maximum penalty: $2 500.
Expiation fee: $500.
(5) If a notice is issued under this section in respect of a contravention
and—
(a) the contravention is the subject of an appeal; or
(b) the notice requires payment of an amount in respect of the issue of a
nuisance abatement notice or litter abatement notice in respect of the
contravention and the nuisance abatement notice or litter abatement notice is
the subject of an appeal,
the first-mentioned notice is suspended until the appeal has been
determined (but if the court, on appeal, finds that the contravention was
committed or that the nuisance abatement notice or litter abatement notice was
properly issued, as the case may be, the first-mentioned notice will have effect
as if the period for payment specified in the notice commenced on the day on
which the appeal was determined).
(6) If an amount payable to the Minister or council is not paid in
accordance with this section, the amount may be recovered as a debt by the
Minister or council.
49—Assessment
of reasonable costs and expenses
For the purposes of this Act, the reasonable costs and expenses that have
been or would be incurred by the Minister, a council or some other person or
body in taking any action are to be assessed by reference to the reasonable
costs and expenses that would have been or would be incurred in having the
action taken by independent contractors engaged for that purpose.
(1) In proceedings under this Act, where it is alleged that a person
caused local nuisance within the meaning of
section 17(1)(a)
, evidence by an authorised officer that he or she formed the opinion based
on his or her own senses that—
(a) the agent alleged to have caused the local nuisance when discharged or
emitted from a place occupied or a vehicle owned by the person travelled to a
place occupied by another person; and
(b) the level, nature or extent of the agent within the place occupied by
the other person was such as to constitute an unreasonable interference with the
person's enjoyment of the place,
constitutes proof, in the absence of proof to the contrary, of those
matters.
(2) In proceedings under this Act, a certificate of an authorised officer
certifying that, at a specified time—
(a) a specified place was a road, road-related area or other public place;
or
(b) a specified vehicle was stopped or parked in a specified place;
or
(c) a specified person was the owner or operator of a specified
vehicle,
constitutes proof, in the absence of proof to the contrary, of those
matters.
(3) In proceedings under this Act, a certificate of an authorised officer
certifying that—
(a) specified matter was class A hazardous litter, class B hazardous
litter or general litter; or
(b) a specified amount of litter was disposed of,
constitutes proof, in the absence of proof to the contrary, of those
matters.
(4) In proceedings under this Act, a certificate of the Minister, a
council or an authorised officer certifying as to a matter relating
to—
(a) the appointment or non-appointment of a person as an authorised
officer under this Act; or
(b) a delegation or authority under this Act; or
(c) a notice, requirement or direction of the Minister, a council or an
authorised officer under this Act; or
(d) any other decision of the Minister, a council or an authorised
officer; or
(e) the receipt or non-receipt by the Minister, a council or an authorised
officer of a notification, report or information given or required to be given
or furnished to the Minister, council or authorised officer under this
Act,
constitutes proof, in the absence of proof to the contrary, of the matters
so certified.
(5) In proceedings under this Act for the recovery of reasonable costs and
expenses incurred by the Minister, a council or some other person or body, a
certificate executed by the Minister or council detailing the costs and expenses
and the purpose for which they were incurred constitutes proof, in the absence
of proof to the contrary, of the matters so certified.
(6) In proceedings under this Act, an apparently genuine document
purporting to be an authorisation, notice, order, certificate or other document,
or a copy of an authorisation, notice, order, certificate or other document,
issued or executed by the Minister, a council or an authorised officer under
this Act or the
Environment
Protection Act 1993
will be accepted as such in the absence of proof to the
contrary.
(1) The Governor
may make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without
limiting the generality of
subsection (1)
, the regulations may—
(a) declare matters
under
Schedule 1
relating to local nuisance as contemplated by
section 17(1)
, by inserting a provision into the Schedule;
(b) amend
Schedule 1
by—
(i) substituting a provision in, or deleting a provision from, the
Schedule; or
(ii) inserting material into, substituting material in, or deleting
material from, a provision of the Schedule;
(c) require the keeping of records, statistics and other forms of
information by any person or body and the provision of reports based on that
information;
(d) fix fees to be paid in respect of any matter under this Act and
regulate the payment, recovery, waiver or reduction of such fees;
(e) exempt, either absolutely or subject to prescribed conditions or
limitations—
(i) persons or classes of persons;
(ii) areas of the State,
from this Act or specified provisions of this Act;
(f) impose fines, not exceeding $10 000, for breach of a
regulation;
(g) fix expiation fees, not exceeding $500, for alleged offences against
the regulations.
(3) The regulations may adopt, wholly or partially and with or without
modification—
(a) a code, standard or guidelines relating to matters in respect of which
regulations may be made under this Act; or
(b) an amendment to such a code, standard or guidelines.
(4) The regulations or a code, standard or guidelines adopted by the
regulations may—
(a) refer to or incorporate, wholly or partially and with or without
modification, a standard or other document prepared or published by a prescribed
body or person, either as in force at the time the regulations are made or as in
force from time to time; and
(b) be of general or limited application (including so as to apply only to
a specified part of the State); and
(c) make different provision according to the persons, things or
circumstances to which they are expressed to apply; and
(d) provide that any matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister, a council
or a prescribed person or body; and
(e) include evidentiary provisions to facilitate proof of breaches of the
regulations for the purposes of proceedings for offences; and
(f) contain provisions of a savings or transitional nature.
(5) If—
(a) a code, standard or guidelines are adopted by the regulations;
or
(b) the regulations, or a code, standard or guidelines adopted by the
regulations, refer to a standard or other document prepared or published by a
prescribed body,
then—
(c) a copy of the code, standard, guidelines or other document must be
kept available for inspection by members of the public, without charge and
during normal office hours, at an office or offices specified in the
regulations; and
(d) in any legal proceedings, evidence of the contents of the code,
standard, guidelines or other document may be given by production of a document
purporting to be certified by or on behalf of the Minister as a true copy of the
code, standard, guidelines or other document; and
(e) the code, standard, guidelines or other document has effect as if it
were a regulation made under this Act.
(6) The Governor
may, by regulation, make additional provisions of a saving or transitional
nature consequent on the enactment of this Act.
(7) A provision of
a regulation made under
subsection (6)
may, if the regulation so provides, take effect from the commencement of
this subsection or from a later day.
(8) To the extent to which a provision takes effect under
subsection (7)
from a day earlier than the day of the regulation's publication in the
Gazette, the provision does not operate to the disadvantage of a person
by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(9) Before a regulation is made under this Act, the Minister must consult
(in such manner as the Minister thinks fit) with the LGA and any councils or
other persons or bodies likely to be affected by the regulation.
Schedule 1—Meaning
of local nuisance (
section 17
)
1—Things
that are not local nuisance
The following are declared not to constitute local nuisance for the
purposes of
section 17(1)
:
(a) noise or other nuisance from blasting operations carried out as part
of a mining operation within the meaning of the
Mines
and Works Inspection Act 1920
;
(b) noise or other nuisance from any activity carried on in accordance
with a program for environment protection and rehabilitation that is in force
for mining operations under Part 10A of the
Mining
Act 1971
;
(c) noise or other nuisance from the keeping of animals in accordance with
a development authorisation within the meaning of the
Development
Act 1993
;
(d) noise or other nuisance from any other activity carried on in
accordance with an approval, consent, licence, permit, exemption or other
authorisation or entitlement granted under any other Act (other than this
Act);
(e) noise or other nuisance from fireworks displays;
(f) noise or other nuisance from sporting venues;
(g) noise or other nuisance from community events run by or on behalf of a
council (subject to any conditions imposed by the council);
(h) noise or other nuisance from public infrastructure works;
(i) noise or other nuisance from vehicles (other than vehicles operating
within, or entering or leaving, business premises);
(j) noise or other nuisance that may be the subject of proceedings
under—
(i) the
Community
Titles Act 1996
; or
(ii) the
Strata
Titles Act 1988
; or
(iii) the
Residential
Tenancies Act 1995
;
(k) an activity on, or noise emanating from, licensed premises within the
meaning of the
Liquor
Licensing Act 1997
in respect of which a complaint may be lodged with the Liquor Licensing
Commissioner under section 106 of that Act;
(l) behaviour in respect of which a complaint may be lodged with the
Liquor Licensing Commissioner under section 106 of the
Liquor
Licensing Act 1997
;
(m) noise principally consisting of unamplified music or voices, or both,
resulting from an activity at domestic premises;
(n) noise from activities carried on in the normal course of a school,
kindergarten, child care centre or place of worship;
(o) noise created by a dog barking or otherwise that may be the subject of
an offence under section 45A(5) of the
Dog
and Cat Management Act 1995
;
(p) aircraft or railway noise;
(q) noise caused by emergency vehicle sirens;
(r) noise outside of the human audible range.
Schedule 2—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Local Government
Act 1999
Section 235—delete the section
3—Amendment
of section 236—Abandonment of vehicles
Section 236—delete "or farm implement" wherever occurring
Section 240—delete the section
5—Amendment
of section 254—Power to make orders
Section 254(1), table, items 1 and 3—delete items 1 and 3
Part 3—Amendment of Motor Vehicles
Act 1959
6—Amendment
of section 139D—Confidentiality
Section 139D(1)(ea)—delete paragraph (ea) and substitute:
(ea) as may be required for the purposes of—
(i) Part 9 Division 3 of the
Criminal
Law (Sentencing) Act 1988
; or
(ii) Part 4 Division 3 of the
Local
Nuisance and Litter Control Act 2015
; or
Part 4—Amendment of Summary Offences
Act 1953
Section 48—delete the section
Part 5—Transitional
provisions
8—Continuation
of by-laws under section 240 of the Local
Government Act 1999 relating to bill-posting
If, immediately before the commencement of
clause 4
, a by-law was in force under section 240 of the
Local
Government Act 1999
—
(a) the by-law continues in force after that commencement; and
(b) section 240 of that Act continues in force after that commencement for
the purposes of the by-law,
until the by-law is revoked or expires (whichever occurs sooner).
9—Continuation
of orders made under section 254 of the Local
Government Act 1999
If, immediately before the commencement of
clause 5
, an order was in force under section 254 of the
Local
Government Act 1999
requiring a person to do or to refrain from doing a thing specified in
section 254(1), table, Column 1, item 1 or 3 of that Act, the order continues in
force after that commencement—
(a) until the requirements of the order are complied with; or
(b) for such longer period as may be necessary to enable the person or the
council to exercise any rights or powers under Chapter 12 Part 2 in relation to
the order.