Environment Protection Act 1993

This Act may be cited as the Environment Protection

Act 1993.

In this Act, unless the contrary intention appears—

activity includes the storage or possession of a pollutant;

administering agency—see

Division

1A of

Part

3;

air includes any layer of the atmosphere;

amenity value of an area includes any quality or condition of the area that conduces to its enjoyment;

appointed member, in relation to the Board, means a member appointed by the Governor;

appropriate person, in relation to the issuing of a site contamination assessment order or site remediation order, means the person who is the appropriate person under

Part 10A to be issued with the order;

approved recovered resource—see section 4A;

associate—see subsection (2);

authorised officer means a person appointed to be an authorised officer under

Division

1 of

Part

10;

the Authority means the Environment Protection

Authority established under

Division 1 of

Part

3;

background concentrations, in relation to chemical substances on a site or below its surface, means results obtained from carrying out assessments of the presence of the substances in the vicinity of the site in accordance with guidelines from time to time issued by the

Authority;

beverage container approval means an approval for the purposes of Division

2 of

Part 8;

Board means the Board of the Environment

Protection Authority established as the governing body of the Authority under

Division

1 of

Part

3;

business includes a business not carried on for profit or gain and any activity undertaken by government or a public authority;

cause site contamination—see section 103D;

chemical substance means any organic or inorganic substance, whether a solid, liquid or gas (or combination thereof), and includes waste;

Chief Executive of the Authority means a person who is, for the time being, taken to be the Chief Executive of the Authority in accordance with section 14A;

clean-up authorisation means a clean-up authorisation issued under

Division

4 of

Part 10;

clean-up order means a clean-up order issued under Division

4 of

Part

10;

climate change adaptation means any process of adjusting to the actual or expected effects of climate change;

climate change mitigation means measures or activities that relate to reducing the rate of climate change including (without limitation) by limiting, reducing or preventing greenhouse gas emissions;

coastal waters of the State means any part of the sea that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State Powers)

Act 1980 of the Commonwealth;

condition includes a limitation;

contravene includes fail to comply with;

council means a council within the meaning of the Local Government

Act 1999;

director of a body corporate includes a person occupying or acting in the position of a director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and includes any person in accordance with whose directions or instructions the directors or members of the governing body are accustomed to act;

disposal, of waste or other matter—see subsection (4);

document means a paper or record of any kind, including a disk, tape or other article from which information is capable of being reproduced (with or without the aid of another article or device);

domestic activity means an activity other than an activity undertaken in the course of a business;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

environment means land, air, water, organisms and ecosystems, and includes—

human-made or modified structures or areas; and

the amenity values of an area;

environmental authorisation means a works approval, licence or exemption;

environmental harm—see section 5;

environmental nuisance means—

any adverse effect on an amenity value of an area that—

is caused by pollution; and

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

any unsightly or offensive condition caused by pollution;

environment performance agreement means an environment performance agreement entered into under

Part

7;

environment protection order means an environment protection order issued under

Division

2 of

Part

10;

environment protection policy means an environment protection policy made under

Part

5;

the Environment, Resources and Development Court means the Court of that name established under the Environment,

Resources and Development Court Act 1993;

exemption means an exemption under

Part

6 from the application of a specified provision of this

Act;

the general environmental duty means the duty under Part

4;

greenhouse gas emissions has the same meaning as in the Climate Change and Greenhouse

Emissions Reduction Act 2007;

holding company has the same meaning as in the

Corporations

Act 2001 of the Commonwealth;

information discovery order means an information discovery order issued under

Division

3 of

Part

10;

injury includes illness;

land means, according to context—

land as a physical entity, including land covered with water;

or

any legal estate or interest in, or right in respect of, land;

liability for site contamination means—

liability to be issued with an order under

Part

10A in respect of the site contamination; or

liability to pay an amount ordered by the Court under

Part

11 in respect of the site contamination;

licence means a licence under

Part

6 to undertake a prescribed activity of environmental significance;

mandatory provisions of an environment protection policy—see

Part

5;

marine waters means the coastal waters of the

State or any part of the sea that is within the limits of the State, and includes any estuary or tidal waters;

material environmental harm —see section 5;

national environment protection measure means a national environment protection measure made under the prescribed national scheme laws;

noise includes vibration;

occupier, in relation to a place, includes a person with a right to occupy the place or a licensee or any holder of a right to use or carry on operations at the place, but does not include a mortgagee in possession unless the mortgagee assumes active management of the place;

officer, in relation to a body corporate, means—

a director of the body corporate; or

the chief executive officer of the body corporate; or

a receiver or manager of any property of the body corporate or a liquidator of the body corporate, and includes, in relation to a contravention or alleged contravention of this Act by the body corporate, an employee of the body corporate with management responsibilities in respect of the matters to which the contravention or alleged contravention related;

owner of land means—

if the land is unalienated from the Crown—the Crown;

or

if the land is alienated from the Crown by grant in fee simple—the owner (at law or in equity) of the estate in fee simple;

or

if the land is held from the Crown by lease or licence—the lessee or licensee; or

if the land is held from the Crown under an agreement to purchase—the person who has the right to purchase;

place includes any land, water, premises or structure;

pollutant means—

any solid, liquid or gas (or combination thereof) including waste, smoke, dust, fumes and odour; or

noise; or

heat; or

anything declared by regulation to be a pollutant for the purposes of this Act (following consultation by the Minister on the regulation with prescribed bodies in accordance with the regulations); or

anything declared by an environment protection policy to be a pollutant for the purposes of this Act, but does not include anything declared by regulation or by an environment protection policy not to be a pollutant for the purposes of this

Act;

pollute means—

discharge, emit, deposit, dispose of or disturb pollutants;

or

cause or fail to prevent the discharge, emission, depositing, disposal, disturbance or escape of pollutants, and pollution has a corresponding meaning;

pre-school means a place primarily used for the care or instruction of children of less than primary school age not resident at the site, and includes a nursery, kindergarten or child-care centre;

prescribed activity of environmental significance means an activity specified in

Schedule

1 as amended from time to time by regulation;

the prescribed national scheme laws means—

the prescribed law of the Commonwealth; and

the prescribed law of this State; and

the laws of other States or Territories of the Commonwealth corresponding to the prescribed law of this State, under which national environment protection measures may be made;

prescribed person means—

a natural person; or

a body corporate that is not the holder of an environmental authorisation under this Act; or

if the regulations specify a scheme under which the holder of an environmental authorisation may apply to the Authority to be accredited as an accredited licensee in respect of a particular prescribed activity of environmental significance—a body corporate that is an accredited licensee under such a scheme;

public authority includes a Minister, statutory authority or council;

related body corporate has the same meaning as in the Corporations Act

2001 of the Commonwealth;

remediate a site means treat, contain, remove or manage chemical substances on or below the surface of the site so as to—

eliminate or prevent actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land uses; and

eliminate or prevent, as far as reasonably practicable—

actual or potential harm to water that is not trivial;

and

any other actual or potential environmental harm that is not trivial, taking into account current or proposed land uses, and remediation has a corresponding meaning;

repealed environment law means an Act or provision repealed by this Act;

resource recovery, in relation to waste or other matter, means—

reusing the waste or matter; or

recycling the waste or matter; or

recovering energy or other resources from the waste or matter;

sell includes—

supply on a gratuitous basis for commercial promotional purposes;

and

offer or display for sale or such supply;

sensitive use means—

use for residential purposes; or

use for a pre-school; or

use for a primary school; or

use of a kind prescribed by regulation;

serious environmental harm—see section 5;

site means an area of land (whether or not in the same ownership or occupation);

site contamination—see section 5B;

site contamination assessment order means a site contamination assessment order under

Part

10A;

site contamination audit means a review carried out by a person that—

examines assessments or remediation carried out by another person in respect of known or suspected site contamination on or below the surface of a site; and

is for the purpose of determining any 1 or more of the following matters:

the nature and extent of any site contamination present or remaining on or below the surface of the site;

the suitability of the site for a sensitive use or another use or range of uses;

what remediation is or remains necessary for a specified use or range of uses;

site contamination auditor means a person accredited under Division

4 of

Part 10A as a site contamination auditor;

site contamination audit report, in relation to a site contamination audit, means a detailed written report that—

sets out the findings of the audit and complies with the guidelines from time to time issued by the Authority; and

includes a summary of the findings of the audit certified, in the prescribed form, by the site contamination auditor who personally carried out or directly supervised the audit;

site contamination audit statement, in relation to a site contamination audit, means a copy (that must comply with the regulations) of the summary of the findings of the audit certified, in the prescribed form, by the site contamination auditor who personally carried out or directly supervised the audit;

site contamination consultant means a person other than a site contamination auditor who, for fee or reward, assesses the existence or nature or extent of site contamination;

site remediation order means a site remediation order under Part

10A;

spouse—a person is the spouse of another if they are legally married;

treatment, of waste or other matter—see subsection (4);

unauthorised stockpiling, of waste or other matter—see subsection (5);

undertake an activity includes commence or proceed with an activity or cause, suffer or permit an activity to be commenced or to proceed;

vehicle includes—

any vessel or aircraft; and

a vehicle within the meaning of the Road Traffic Act 1961;

vessel includes a vessel within the meaning of the

Harbors and Navigation

Act 1993;

waste—see section 4;

waste management hierarchy—see section 4B;

waste transport business means a waste transport business (category A) or a waste transport business (category B), each within the meaning of Schedule

1Part

A clause 3;

water means—

water occurring naturally above or under the ground;

or

water introduced to an aquifer or other area under the ground;

or

an artificially created body of water or stream that is for public use or enjoyment;

water protection area—see section 61;

works approval means a works approval under

Part

6 to carry out works in respect of a building, structure, plant or equipment for use for a prescribed activity of environmental significance.

For the purposes of this Act, a person is an

associate of another if—

they are partners; or

one is a spouse, domestic partner, parent or child of another;

or

they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

one is a body corporate or other entity (whether inside or outside

Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

one is a body corporate or other entity (whether inside or outside

Australia) and the other is a person who has a legal or equitable interest in five per cent or more of the share capital of the body corporate or other entity; or

they are related bodies corporate; or

a relationship of a prescribed kind exists between them;

or

a chain of relationships can be traced between them under any one or more of the above paragraphs.

For the purposes of subsection (2), a beneficiary of a trust includes an object of a discretionary trust.

For the purposes of this Act, unless the contrary intention appears—

a reference to the disposal of waste or other matter includes a reference to stockpiling or abandoning the waste or matter; and

a reference to the treatment of waste or other matter includes a reference to the treatment of waste or other matter for resource recovery; and

a reference to the treatment of waste or other matter for resource recovery is a reference to the treatment of the waste or matter in some way—

to recover material from the waste or matter that may be reused or recycled; or

to recover energy or other resources from the waste or matter;

or

to prepare the waste for further treatment to recover material from the waste or matter that may be reused or recycled or to recover energy or other resources from the waste or matter, and includes, but is not limited to, sorting, shredding, crushing, compacting or packaging the waste or matter; and

a reference to waste or matter of a particular kind includes a reference to material that contains waste or matter of that kind to a significant extent.

For the purposes of this Act, unauthorised stockpiling of waste or other matter will be taken to have occurred if a maximum allowable stockpile limit imposed by or under this Act in relation to the waste or other matter has been exceeded.

For the purposes of this Act, waste means—

any discarded, dumped, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for purification or resource recovery by a separate operation from that which produced the matter;

or

any matter declared by regulation to be waste for the purposes of this Act (following consultation by the Minister on the regulation with prescribed bodies in accordance with the regulations); or

any matter declared by an environment protection policy to be waste for the purposes of this Act, whether or not of value.

However, waste does not include—

an approved recovered resource whilst it is being dealt with in accordance with the declaration of that resource—see section 4A; or

anything declared by regulation or an environment protection policy not to be waste for the purposes of this Act, even though the resource or the thing so declared might otherwise, but for the declaration, fall within the definition of waste in subsection (1).

The Authority may, by notice in the Gazette, declare that specified matter constitutes an approved recovered resource for the purposes of this Act and therefore does not, while it is being dealt with in accordance with the declaration, constitute waste for the purposes of this

Act.

Regulations may be made in relation to declarations under this section and may, without limiting the generality of subsection (1), provide for—

the manner and form of applications for declarations;

and

application fees relating to declarations; and

the criteria against which applications will be determined;

and

the provision of further information by applicants;

and

the imposition of conditions of declarations; and

the term and renewal of declarations; and

the grounds for refusing applications; and

the variation or revocation of declarations by further notice in the Gazette; and

the circumstances in which declarations may be varied or revoked.

In this Act, a reference to the waste management hierarchy is a reference to an order of priority for the management of waste in which—

avoidance of the production of waste; and

minimisation of the production of waste; and

reuse of waste; and

recycling of waste; and

recovery of energy and other resources from waste;

and

treatment of waste to reduce potentially degrading impacts;

and

disposal of waste in an environmentally sound manner, are pursued in order with, first, avoidance of the production of waste, and second, to the extent that avoidance is not reasonably practicable, minimisation of the production of waste, and third, to the extent that minimisation is not reasonably practicable, reuse of waste, and so on.

For the purposes of this Act, environmental harm is any harm, or potential harm, to the environment (of whatever degree or duration) and includes—

an environmental nuisance; and

anything declared by regulation to be environmental harm for the purposes of this Act (following consultation by the Minister on the regulation with prescribed bodies in accordance with the regulations); and

anything declared by an environment protection policy to be environmental harm for the purposes of this Act.

For the purposes of this Act, potential harm includes risk of harm and future harm.

For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm:

environmental harm is to be treated as material environmental harm if—

it consists of an environmental nuisance of a high impact or on a wide scale; or

it involves actual or potential harm to the health or safety of human beings that is not trivial, or other actual or potential environmental harm (not being merely an environmental nuisance) that is not trivial;

or

it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $5 000;

environmental harm is to be treated as serious environmental harm if—

it involves actual or potential harm to the health or safety of human beings that is of a high impact or on a wide scale, or other actual or potential environmental harm (not being merely an environmental nuisance) that is of a high impact or on a wide scale; or

it results in actual or potential loss or property damage of an amount, or amounts in aggregate, exceeding $50 000.

For the purposes of subsection (3), loss includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good resulting environmental damage.

For the purposes of this Act, environmental harm is caused by pollution—

whether the harm is a direct or indirect result of the pollution;

and

whether the harm results from the pollution alone or from the combined effects of the pollution and other factors.

For the purposes of this Act, site contamination exists at a site if—

chemical substances are present on or below the surface of the site in concentrations above the background concentrations (if any);

and

the chemical substances have, at least in part, come to be present there as a result of an activity at the site or elsewhere; and

the presence of the chemical substances in those concentrations has resulted in—

actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land uses;

or

actual or potential harm to water that is not trivial;

or

other actual or potential environmental harm that is not trivial, taking into account current or proposed land uses.

For the purposes of this Act, environmental harm is caused by the presence of chemical substances—

whether the harm is a direct or indirect result of the presence of the chemical substances; and

whether the harm results from the presence of the chemical substances alone or the combined effects of the presence of the chemical substances and other factors.

For the purposes of this Act, site contamination does not exist at a site if circumstances of a kind prescribed by regulation apply to the site.

For the purposes of this Act, the occupier or person in charge of a place or vehicle at or from which a pollutant escapes or is discharged, emitted, deposited or disposed of will be taken to have polluted the environment with the pollutant (but without affecting the liability of any other person in respect of the escape, discharge, emission, depositing or disposal of the pollutant).

If—

an activity is carried on—

in, at or from a vehicle; or

in connection with the use of a vehicle; and

the activity results in 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.

However, 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.

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 issuing authority specified in the notice, within the period specified in the notice, with a statutory declaration—

setting out the name and address of the person who the owner believes to have been the alleged principal offender; or

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).

If the vehicle is owned by 2 or more persons—

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

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.

Before proceedings are commenced against the owner of a vehicle for an offence against this section, the informant must send the owner a notice—

setting out particulars of the alleged principal offence;

and

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 informant, within 21 days of the date of the notice, with a statutory declaration setting out the matters referred to in subsection (3)(a) and

.

Subsection (5) does not apply to—

proceedings commenced where an owner has elected under the

Expiation of Offences Act 1996 to be prosecuted for the offence; or

proceedings commenced against an owner of a vehicle who has been named in a statutory declaration under this section as the alleged principal offender.

Subject to subsection (8), in proceedings against the owner of a vehicle for an offence against this section, it is a defence to prove—

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

that the owner provided the informant with a statutory declaration in accordance with an invitation under this section.

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.

If—

an expiation notice is given to a person named as the alleged principal offender in a statutory declaration under this section;

or

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.

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.

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.

In proceedings against the owner of a vehicle or the alleged principal offender for an offence against this Act, an allegation in the information 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.

For the purposes of this section, an activity consisting of the disposal of waste or other matter to the environment 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 waste or matter has been disposed of to the environment and the vehicle was seen arriving at the place of disposal before the disposal or leaving that place after the disposal.

This section does not apply in relation to the disposal of waste or other matter by a passenger of a taxi or a train, tram, bus, ferry, passenger ship, or other public transport vehicle, that was being used for a public purpose at the time.

In this section—

owner of a vehicle—

in the case of a vessel within the meaning of the

Harbors and Navigation

Act 1993, has the same meaning as in section 4(1) of that Act, and includes the operator of the vessel within the meaning of that

Act;

in the case of a vehicle within the meaning of the

Road Traffic

Act 1961, has the same meaning as in section 5(1) of that Act, and includes the operator of the vehicle within the meaning of that Act;

principal offence means—

an offence against section 34 (contravening a mandatory provision of an environment protection policy); or

an offence against—

Part

8Division 2; or

Part

9; or

an offence prescribed by regulation.

This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities.

No criminal liability attaches to the Crown itself (as distinct from its agents, instrumentalities, officers and employees) under this

Act.

Subject to this section, this Act is in addition to and does not limit or derogate from the provisions of any other

Act.

This Act does not apply to circumstances to which the

Environment Protection (Sea Dumping)

Act 1984 applies.

This Act is subject to—

the Electricity Corporations (Restructuring and

Disposal) Act 1999; and

the Pulp and Paper Mills Agreement

Act 1958; and

the Pulp and Paper Mill (Hundreds of Mayurra and

Hindmarsh) Act 1964; and

the Roxby Downs (Indenture Ratification)

Act 1982.

This Act does not apply in relation to—

petroleum exploration activity undertaken under the

Petroleum Act 2000 or the Petroleum (Submerged Lands)

Act 1982; or

wastes produced in the course of an activity (not being a prescribed activity of environmental significance) authorised by a lease or licence under the Mining Act 1971, the

Petroleum Act 2000 or the Roxby Downs (Indenture Ratification)

Act 1982 when produced and disposed of to land and contained within the area of the lease or licence; or

wastes produced in the course of an activity (not being a prescribed activity of environmental significance) authorised by a lease under the Mining Act 1971 when disposed of to land and contained within the area of a miscellaneous purposes licence under that Act adjacent to the area of the lease.

The provisions of this Act do not limit or derogate from any civil right or remedy and compliance with this Act does not necessarily indicate that a common law duty of care has been satisfied.