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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Environment Legislation Amendment Bill
2022
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140 3
Schedule 2 Amendment of Land and Environment Court Act 1979 No 204 13
Schedule 3 Amendment of Pesticides Act 1999 No 80 14
Schedule 4 Amendment of Protection of the Environment Administration Act
1991 No 60 19
Schedule 5 Amendment of Protection of the Environment Operations Act 1997
No 156 26
Schedule 6 Amendment of Protection of the Environment Operations (General)
Regulation 2021 43
Schedule 7 Amendment of Radiation Control Act 1990 No 13 44
Schedule 8 Amendment of the Radiation Control Regulation 2013 47
Schedule 9 Amendment of Waste Avoidance and Resource Recovery Act 2001
No 58 49
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2022
New South Wales
Environment Legislation Amendment Bill
2022
Act No , 2022
An Act to amend environment protection legislation for particular purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Environment Legislation Amendment Bill 2022 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Environment Legislation Amendment Act 2022.
2 Commencement
This Act commences on the date of assent to this Act.
Page 2
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
Schedule 1 Amendment of Contaminated Land Management
Act 1997 No 140
[1] Section 4 Definitions
Omit the definitions of approved use and Chairperson of the EPA from section 4(1).
[2] Section 4(1)
Insert in alphabetical order--
approved use of land means--
(a) a use to which the subject land may be put without planning approval, or
(b) a use to which the subject land may be put under an existing planning
approval and for which no further planning approval is required.
Board of the EPA means the Board within the meaning of the Protection of
the Environment Administration Act 1991.
CEO of the EPA means the Chief Executive Officer within the meaning of the
Protection of the Environment Administration Act 1991.
Chairperson of the EPA Board means the Chairperson within the meaning of
the Protection of the Environment Administration Act 1991.
monetary benefits means monetary, financial or economic benefits.
planning approval means--
(a) development consent under the Environmental Planning and
Assessment Act 1979, Part 4, or
(b) an approval under the Environmental Planning and Assessment Act
1979, Division 5.2, or
(c) an approval under the Environmental Planning and Assessment Act
1979, Part 3A when that Part was in force or continued in operation.
related body corporate has the same meaning the Corporations Act 2001 of
the Commonwealth.
relevant order, restriction or covenant--see section 42A(1).
[3] Section 6 Responsibility for contamination of land
Omit "an approval under Part 3A, or for development consent under Part 4, of the
Environmental Planning and Assessment Act 1979" from section 6(4).
Insert instead "planning approval".
[4] Section 10 Preliminary investigation orders
Omit the penalty from section 10(5). Insert instead--
Maximum penalty--
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
[5] Section 14 Management orders
Omit "$66,000" from section 14(6), penalty, paragraph (a). Insert instead "$120,000".
[6] Section 14(6), penalty, paragraph (b)
Omit "$33,000". Insert instead "$60,000".
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
[7] Section 28 Ongoing maintenance orders
Omit the penalty from section 28(4). Insert instead--
Maximum penalty--
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
[8] Part 3, Division 6A, heading
Omit "management orders".
Insert instead "relevant orders, restrictions and covenants".
[9] Section 42A Application of Division
Omit section 42A(1). Insert instead--
(1) This Division applies in relation to requirements under the following (each a
relevant order, restriction or covenant) to provide financial assurance to
secure or guarantee funding for or towards the carrying out of actions required
under the relevant orders, restrictions or covenants--
(a) management orders,
(b) ongoing maintenance orders,
(c) restrictions or public positive covenants imposed under section 29.
[10] Section 42B Restriction on requiring financial assurance
Insert after section 42B(c)--
(c1) the financial capacity of the person, or
[11] Section 42C Form of financial assurance
Omit "management order" wherever occurring in section 42C(1)(c) and (2).
Insert instead "relevant order, restriction or covenant".
[12] Section 42D Amount of financial assurance
Omit section 42D(2). Insert instead--
(2) However, the EPA must not require a financial assurance of an amount that
exceeds the total cost of carrying out the action.
(2A) For the purposes of subsection (2), the total cost is the amount that, in the
EPA's opinion, represents a reasonable estimate of the total likely costs and
expenses that may be incurred in carrying out the action, including the likely
costs and expenses of the EPA in directing and supervising the carrying out of
the action.
[13] Section 42E
Omit the section. Insert instead--
42E Guidelines about financial assurances
The regulations may provide for guidelines to be observed in relation to--
(a) the content of requirements for financial assurances under relevant
orders, restrictions or covenants, and
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
(b) the calculation of the amount of financial assurances required.
[14] Section 42F Carrying out of action when assurer fails to do so
Omit section 42F(1). Insert instead--
(1) If a person to whom a relevant order, restriction or covenant is directed fails,
in the opinion of the EPA, to carry out an action covered by a financial
assurance required under a relevant order, restriction or covenant in
accordance with the relevant order, restriction or covenant, the EPA may--
(a) carry out the action, or
(b) direct or supervise the carrying out of the action by another person.
[15] Section 42I Liability of EPA, State and others
Insert "the CEO of the EPA," after "Board of the EPA," in section 42I(2).
[16] Section 45 Obstruction of persons
Omit the penalty from section 45(1). Insert instead--
Maximum penalty--
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
[17] Section 46
Omit the section. Insert instead--
46 EPA may give clean-up and prevention notices
(1) This section applies in relation to the following land--
(a) significantly contaminated land,
(b) land in relation to which the EPA has been given notice under section
60.
(2) The EPA may give a notice or direction in accordance with the Protection of
the Environment Operations Act 1997, Part 4.2 or 4.3 in relation to the land--
(a) as if the EPA were the appropriate regulatory authority within the
meaning of that Act, and
(b) despite any order or approved voluntary management proposal relating
to the land.
(3) The notice or direction is taken to have been given under the Protection of the
Environment Operations Act 1997.
[18] Section 48 Statutory site audits
Omit the penalty from section 48(1). Insert instead--
Maximum penalty--$250,000 and, for a continuing offence, a further penalty
of $60,000 for each day the offence continues.
[19] Section 48(2)
Omit the penalty. Insert instead--
Maximum penalty--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues.
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
[20] Section 57 Holding out
Omit the penalty from section 57(1). Insert instead--
Maximum penalty--$250,000 and, for a continuing offence, a further penalty
of $60,000 for each day the offence continues.
[21] Section 57(1A)
Omit the penalty. Insert instead--
Maximum penalty--$250,000 and, for a continuing offence, a further penalty
of $60,000 for each day the offence continues.
[22] Section 57(2)
Omit the penalty. Insert instead--
Maximum penalty--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues.
[23] Section 60 Duty to report contamination
Omit the penalty from section 60(1). Insert instead--
Maximum penalty--
(a) for a corporation--$2,000,000 and, for a continuing offence, a further
penalty of $240,000 for each day the offence continues, or
(b) for an individual--$500,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues.
[24] Section 60(2)
Omit the penalty. Insert instead--
Maximum penalty--
(a) for a corporation--$2,000,000 and, for a continuing offence, a further
penalty of $240,000 for each day the offence continues, or
(b) for an individual--$500,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues.
[25] Section 69 Proof of certain matters not required
Omit "Chairperson of the EPA" from section 69(a).
Insert instead "Chairperson of the EPA Board, the CEO of the EPA,".
[26] Section 71 Certificate evidence of certain matters
Omit "Chairperson" from section 71(1), wherever occurring. Insert instead "CEO".
[27] Section 72 Evidence of analysts
Omit section 72(3). Insert instead--
(3) A certificate of an analyst that a container containing a sample was received at
a specified laboratory and that the container was sealed by an authorised
officer or another person is admissible in proceedings under this Act as
evidence--
(a) of the facts stated in the certificate, and
(b) that the sample was the same sample as the sample obtained by the
authorised officer or other person, and
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
(c) that the sample had not been tampered with since the time the container
was sealed by the authorised officer or other person.
[28] Sections 95AAA-95AAF
Insert before section 95A--
95AA Operation of Division
(1) This Division applies where a court finds an offence against this Act or the
regulations proved.
(2) Without limiting the generality of subsection (1), a court finds an offence
proved if--
(a) the court convicts the offender of the offence, or
(b) the court makes an order under the Crimes (Sentencing Procedure) Act
1999, section 10 against the offender in relation to the offence.
(3) In this Part--
the court means the court that finds the offence proved.
the offender means the person who is found to have committed the offence.
95AB Orders generally
(1) One or more orders may be made under this Division against the offender.
(2) Orders may be made under this Division in addition to any penalty that may
be imposed, or other action that may be taken, in relation to the offence.
(3) Orders may be made under this Division regardless of whether a penalty is
imposed, or other action is taken, in relation to the offence.
95AC Orders for restoration and prevention
The court may order the offender to take steps specified in the order, within a
time specified or a further time that the court on application may allow--
(a) to investigate, manage or remediate any contamination caused by the
commission of the offence, or
(b) to address the risk of harm from the contamination, or
(c) to prevent the continuance or recurrence of the offence.
95AD Orders for costs, expenses and compensation at time offence proved
(1) This section applies if the court is satisfied that--
(a) a public authority has incurred costs and expenses in connection with--
(i) investigating, managing or remediating any contamination
caused by the commission of an offence, or
(ii) addressing the risk of harm from the contamination, or
(b) a person, including a public authority, has--
(i) by reason of the commission of an offence, suffered loss of or
damage to property, or
(i) incurred costs and expenses in preventing or mitigating, or in
attempting to prevent or mitigate, the loss or damage.
(2) The court may order the offender to pay to the public authority or person an
amount, fixed by the order, representing--
(a) compensation for the loss or damage suffered, or
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
(b) the costs and expenses incurred.
(3) An order made by the Land and Environment Court under subsection (2) is
enforceable as if it were an order made by the Land and Environment Court in
Class 4 proceedings under the Land and Environment Court Act 1979.
(4) The Local Court may not make an order under subsection (2) for the payment
of an amount that exceeds the amount for which an order may be made by the
Local Court when exercising jurisdiction under the Civil Procedure Act 2005.
(5) An order made by the Local Court is enforceable as if it were an order made
by the Local Court when exercising jurisdiction under the Civil Procedure Act
2005.
95AE Recovery of costs, expenses and compensation after offence proved
(1) This section applies if, after the court finds the offence proved--
(a) a public authority has incurred costs and expenses in connection with--
(i) investigating, managing or remediating any contamination
caused by the commission of an offence, or
(ii) addressing the risk of harm from the contamination, or
(b) a person, including a public authority, has--
(i) by reason of the commission of an offence, suffered loss of or
damage to property, or
(ii) incurred costs and expenses in preventing or mitigating, or in
attempting to prevent or mitigate, the loss or damage.
(2) The person or public authority may recover from the offender the costs and
expenses incurred or the amount of the loss or damage in the Land and
Environment Court.
(3) The amount of any costs and expenses, but not the amount of any loss or
damage, may be recovered as a debt.
95AF Orders regarding costs and expenses of investigation
(1) If the court is satisfied that the EPA has reasonably incurred costs and
expenses during the investigation of an offence, the court may order the
offender to pay to the EPA an amount, fixed in the order, representing the costs
and expenses incurred.
(2) An order made by the Land and Environment Court under subsection (1) is
enforceable as if it were an order made by the Land and Environment Court in
Class 4 proceedings under the Land and Environment Court Act 1979.
(3) An order made by the Local Court under subsection (1) is enforceable as if it
were an order made by the Local Court when exercising jurisdiction under the
Civil Procedure Act 2005.
(4) In this section--
costs and expenses, in relation to the investigation of an offence, means the
costs and expenses of--
(a) taking a sample or conducting an inspection, test, measurement or
analysis during the investigation of the offence, or
(b) transporting, storing or disposing of evidence during the investigation
of the offence.
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
[29] Section 95A Orders regarding monetary benefits
Omit section 95A(4), definition of monetary benefits.
[30] Section 95B Additional orders
Insert after section 95B(1)(c)--
(c1) order the offender to carry out a specified environmental audit of
activities carried on by the offender,
(c2) order the offender to pay a specified amount to the Environmental Trust
established under the Environmental Trust Act 1998, or a specified
organisation for--
(i) the purposes of a specified project for the restoration or
enhancement of the environment, or
(ii) general environmental purposes,
(c3) order the offender to attend, or to cause employees or contractors of the
offender to attend, a training or other course specified by the court,
(c4) order the offender to establish, for employees or contractors of the
offender, a training course of a kind specified by the court,
[31] Section 95B(1)
Omit "The Local Court is not authorised to make an order referred to in paragraph (c) or
(d).".
[32] Section 95B(2)
Omit "However, the Local Court is not authorised to make an order under this subsection.".
[33] Section 95B(2A)
Insert after section 95B(2)--
(2A) The Local Court is not authorised to make an order referred to in subsection
(1)(c), (c1), (c2) or (d) or (2).
[34] Section 95B(6)
Omit "management order". Insert instead "relevant order, restriction or covenant".
[35] Part 10, Division 2B
Insert after Division 2A--
Division 2B Civil proceedings to recover particular monetary
benefits
95C Recovery of monetary benefits from related persons after offence proved
(1) This section applies if a court convicts a corporation of an offence against this
Act or the regulations.
(2) The prosecutor for the offence may apply to the court for an order (a monetary
benefits order) that any of the following persons pay an amount representing
the amount of monetary benefits acquired by the person, or accrued or
accruing to the person, as a result of the commission of the offence by the
corporation--
(a) a person who is, or was, at the time of the commission of the offence, a
director of the corporation,
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the offence, a
director of a related body corporate.
(3) The court may make a monetary benefits order in relation to a person only if
the court is satisfied, on the balance of probabilities, that the person acquired,
accrued, or will accrue the monetary benefits as a result of the commission of
the offence by the corporation.
(4) When making a monetary benefits order, the court may order that the person
pay the amount--
(a) into the Environment Protection Authority Fund or another fund the
court considers appropriate, or
(b) to an entity the court considers appropriate in the circumstances.
(5) The regulations may prescribe a protocol to be used in determining the amount
that represents the monetary benefit acquired by the person or accrued or
accruing to the person.
(6) A monetary benefits order made by the court is enforceable as if it were an
order made by the court in Class 4 proceedings under the Land and
Environment Court Act 1979.
(7) A reference in subsection (2) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
(8) In this section--
Environment Protection Authority Fund means the Environment Protection
Authority Fund established under the Protection of the Environment
Administration Act 1991, section 34A.
prosecutor, for an offence, means the person that instituted the proceedings for
the offence.
the court does not include the Local Court.
[36] Section 103 False or misleading information(1), penalty, paragraph (b)
Omit the penalty from section 103(1). Insert instead--
Maximum penalty--
(a) for a corporation--
(i) in relation to a requirement under section 10, 14, 28 or 53B--
$1,000,000, or
(ii) in relation to another requirement--$137,500, or
(b) for an individual--
(i) in relation to a requirement under section 10, 14, 28 or 53B--
$250,000 or imprisonment for 18 months, or both, or
(ii) in relation to another requirement--$66,000 or imprisonment for
18 months, or both.
[37] Section 103A
Insert after section 103--
103A Receiving monetary benefits
(1) Any of the following persons who receives, acquires or accrues a monetary
benefit as a result of the commission by a corporation of a proved offence
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
under this Act or the regulations (the underlying offence) is guilty of an
offence--
(a) a person who is, or was, at the time of the commission of the underlying
offence, a director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the underlying
offence, a director of a related body corporate.
Maximum penalty--
(a) for a corporation--the maximum penalty that applies to a corporation
for the underlying offence, or
(b) for an individual--the maximum penalty that applies to an individual
for the underlying offence.
(2) Proceedings for an offence under this section may be commenced--
(a) after the date on which the underlying offence is alleged to have been
committed, but
(b) despite section 93, no later than the later of the following--
(i) the date that is 12 months after the date on which a court finds the
underlying offence proved,
(ii) the date by which the proceedings may be commenced under
section 93(2).
(3) Despite section 92, proceedings for an offence under this section may not be
dealt with before the Local Court.
(4) Without limiting subsection (1) or (2)(b), a court finds an offence proved if--
(a) the court convicts the offender of the offence, or
(b) the court makes an order under the Crimes (Sentencing Procedure) Act
1999, section 10 against the offender in relation to the offence.
(5) A reference in subsection (1) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
[38] Section 107 Disclosure of information
Omit "100 penalty units" from section 107(1), penalty. Insert instead "200 penalty units".
[39] Section 112 Regulations
Omit "200 penalty units" from section 112(3)(a). Insert instead "400 penalty units".
[40] Section 112(3)(b)
Omit "100 penalty units". Insert instead "200 penalty units".
[41] Schedule 2 Savings and transitional provisions
Insert after Schedule 2, Part 7--
Part 8 Provisions consequent on enactment of
Environment Legislation Amendment Act 2022
30 Definition
In this Part--
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Contaminated Land Management Act 1997 No 140
amended, in relation to a provision, means the provision as in force on and
from the date this Part commences.
31 Extended powers to give clean-up notices
A reference in amended section 46 to land in relation to which the EPA has
been given notice under section 60 extends to land in relation to which the
EPA was given notice under section 60 before the date this clause commences.
32 Court orders in connection with offences
Sections 95AA-95AF and amended 95B extend to proceedings commenced,
but not finally determined, before the date this clause commences.
Page 12
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 2 Amendment of Land and Environment Court Act 1979 No 204
Schedule 2 Amendment of Land and Environment Court Act
1979 No 204
[1] Section 20 Class 4--environmental planning and protection, development contract
and strata renewal plan civil enforcement
Insert after section 20(1)(caa)--
(cab) proceedings under the Contaminated Land Management Act 1997,
section 95AE or 95C,
[2] Section 20(1)(cc)
Insert after section 20(1)(cbb)--
(cc) proceedings under the Pesticides Act 1999, section 99(6) or 112C,
[3] Section 20(1)(cib)
Insert after section 20(1)(cia)--
(cib) proceedings under the Protection of the Environment Operations Act
1997, section 251A,
[4] Section 20(1)(co)
Omit the paragraph. Insert instead--
(co) proceedings under the Radiation Control Act 1990, section 24A, 25B,
27 or 27A,
Page 13
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 3 Amendment of Pesticides Act 1999 No 80
Schedule 3 Amendment of Pesticides Act 1999 No 80
[1] Section 4 Definitions
Insert in alphabetical order in section 4(1)--
Chairperson of the EPA Board means the Chairperson within the meaning of
the Protection of the Environment Administration Act 1991.
monetary benefits means monetary, financial or economic benefits.
related body corporate has the same meaning as in the Corporations Act 2001
of the Commonwealth.
[2] Section 38 Making of pesticide control order
Omit ", with the approval of the Minister," from section 38(1).
[3] Section 38(1), note
Omit "Section 43 (3) of that Act also requires the Authority to obtain the approval of the
Minister before amending or repealing an order under this section.".
[4] Section 38(5B)
Omit the subsection.
[5] Section 44A
Insert after section 44--
44A Receiving monetary benefits
(1) Any of the following persons who receives, acquires or accrues a monetary
benefit as a result of the commission by a corporation of a proved offence
under this Act or the regulations (the underlying offence) is guilty of an
offence--
(a) a person who is, or was, at the time of the commission of the underlying
offence, a director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the underlying
offence, a director of a related body corporate.
Maximum penalty--
(a) for a corporation--the maximum penalty that applies to a corporation
for the underlying offence, or
(b) for an individual--the maximum penalty that applies to an individual
for the underlying offence.
(2) Proceedings for an offence under this section may be commenced--
(a) after the date on which the underlying offence is alleged to have been
committed, but
(b) despite section 72, no later than the later of the following--
(i) the date that is 12 months after the date on which a court finds the
underlying offence proved,
(ii) the date by which the proceedings may be commenced under
section 72(3).
(3) Despite section 71, proceedings for an offence under this section may not be
dealt with before the Local Court.
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 3 Amendment of Pesticides Act 1999 No 80
(4) Without limiting subsection (1) or (2)(b), a court finds an offence proved if--
(a) the court convicts the offender of the offence, or
(b) the court makes an order under the Crimes (Sentencing Procedure) Act
1999, section 10 against the offender in relation to the offence.
(5) A reference in subsection (1) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
[6] Section 93 Orders generally
Insert after section 93(2)--
(3) Orders may be made under this Part regardless of whether a penalty is
imposed, or other action taken, in relation to the offence.
[7] Section 97 Orders regarding costs and expenses of investigation
Omit section 97(3), definition of costs and expenses. Insert instead--
costs and expenses, in relation to the investigation of an offence, means the
costs and expenses--
(a) incurred in taking any sample or conducting any inspection, test,
measurement or analysis during the investigation of the offence, or
(b) of transporting, storing or disposing of evidence during the
investigation of the offence.
[8] Section 99
Omit section. Insert instead--
99 Additional orders
(1) The court may do 1 or more of the following--
(a) order the offender not to use a particular pesticide or a pesticide of a
particular class,
(b) order the offender to take specified action to publicise 1 or more of the
following--
(i) the offence, including the circumstances of the offence,
(ii) the environmental and other consequences of the offence,
(iii) any other orders made against the person in relation to the
offence,
(c) order the offender to take specified action to notify specified persons, or
specified classes of persons of 1 or more of the following--
(i) the offence, including the circumstances of the offence,
(ii) the environmental and other consequences of the offence,
(iii) orders made against the person in relation to the offence,
Examples of specified action to notify specified persons-- Publishing of
the information in an annual report or other notice to the shareholders of a
company, or giving written notice to persons aggrieved or affected by the
offender's conduct.
(d) order the offender to carry out a specified project for the restoration or
enhancement of the environment in a public place or for the public
benefit,
(e) order the offender to carry out a specified environmental audit of
activities carried on by the offender,
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 3 Amendment of Pesticides Act 1999 No 80
(f) order the offender to pay a specified amount to the Environmental Trust
established under the Environmental Trust Act 1998, or a specified
organisation, for--
(i) the purposes of a specified project for the restoration or
enhancement of the environment, or
(ii) general environmental purposes,
(g) order the offender to attend, or to cause employees or contractors of the
offender to attend, a training or other course specified by the court,
(h) order the offender to establish, for employees or contractors of the
offender, a training course of a kind specified by the court,
(i) if the Environment Protection Authority is a party to the proceedings
and the court orders the offender to carry out a specified work or
program for the restoration or enhancement of the environment--order
the offender to provide a financial assurance, of a form and amount
specified by the court, to the Environment Protection Authority.
(2) Without limiting subsection (1)(d), the court may order the offender to carry
out a social or community activity for the benefit of the community or persons
that are adversely affected by the offence (a restorative justice activity) that
the offender has agreed to carry out.
(3) The Local Court is not authorised to make an order referred to in subsection
(1)(d), (e), (f) or (i) or (2).
(4) The court may, in an order under this section--
(a) fix a period for compliance with the requirements under the order, and
(b) impose other requirements the court considers necessary or expedient
for enforcement of the order.
(5) If the offender fails to comply with an order under subsection (1)(b) or (c), the
prosecutor, or a person authorised by the prosecutor, may take action to carry
out the order as far as practicable, including action to publicise or notify--
(a) the original contravention, the environmental and other consequences
of the contravention, and any other penalties imposed on the offender,
and
(b) the failure of the offender to comply with the order.
(6) The reasonable cost of taking action referred to in subsection (5) is recoverable
by the prosecutor or person taking the action, in a court of competent
jurisdiction, as a debt from the offender.
[9] Section 102 Definitions
Omit "Chairperson" from section 102, definition of designated officer. Insert instead
"CEO".
[10] Section 105 Proof of certain things not required
Omit section 105(1). Insert instead--
(1) In any proceedings under this Act, no proof is required, until evidence is given
to the contrary, of the appointment of any of the following persons--
(a) the Chairperson of the Board of the Environment Protection Authority,
(b) the CEO of the Environment Protection Authority,
(c) another member of the staff of the Environment Protection Authority.
Page 16
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 3 Amendment of Pesticides Act 1999 No 80
[11] Section 106 Certificate evidence of certain matters
Omit "Chairperson" from section 106(1). Insert instead "CEO".
[12] Section 107 Evidence of analysts
Omit section 107(3). Insert instead--
(3) A certificate of an analyst that a container containing a sample was received at
a specified laboratory and that the container was sealed by an authorised
officer or another person is admissible in proceedings under this Act as
evidence--
(a) of the facts stated in the certificate, and
(b) that the sample was the same sample as the sample obtained by the
authorised officer or other person, and
(c) that the sample had not been tampered with since the time the container
was sealed by the authorised officer or other person.
[13] Section 112C
Insert after section 112B--
112C Recovery of monetary benefits from related persons after offence proved
(1) This section applies if a court convicts a corporation of an offence against this
Act or the regulations.
(2) The Environment Protection Authority may apply to the court for an order (a
monetary benefits order) that any of the following persons pay an amount
representing the amount of monetary benefits acquired by the person, or
accrued or accruing to the person, as a result of the commission of the offence
by the corporation--
(a) a person who is, or was, at the time of the commission of the offence, a
director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the offence, a
director of a related body corporate.
(3) The court may make a monetary benefits order in relation to a person only if
the court is satisfied, on the balance of probabilities, that the person acquired,
or accrued or will accrue, the monetary benefits as a result of the commission
of the offence by the corporation.
(4) When making a monetary benefits order, the court may order that the person
pay the amount--
(a) into the Environment Protection Authority Fund or another fund the
court considers appropriate, or
(b) to an entity the court considers appropriate in the circumstances.
(5) The regulations may prescribe a protocol to be used in determining the amount
that represents the monetary benefit acquired by the person or accrued or
accruing to the person.
(6) A monetary benefits order made by the court is enforceable as if it were an
order made by the court in Class 4 proceedings under the Land and
Environment Court Act 1979.
Page 17
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 3 Amendment of Pesticides Act 1999 No 80
(7) A reference in subsection (2) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
(8) In this section--
Environment Protection Authority Fund means the Environment Protection
Authority Fund established under the Protection of the Environment
Administration Act 1991, section 34A.
the court does not include the Local Court.
[14] Schedule 2 Savings, transitional and other provisions
Insert after Part 3--
Part 4 Provision consequent on enactment of
Environment Legislation Amendment Act 2022
20 Court orders in connection with offences
(1) Amended sections 93, 97 and 99 extend to proceedings commenced, but not
finally determined, before the date this clause commences.
(2) In this clause--
amended, in relation to a provision, means the provision as in force on and
from the date this clause commences.
Page 18
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
Schedule 4 Amendment of Protection of the Environment
Administration Act 1991 No 60
[1] Section 3 Definitions
Omit "Authority" from section 3(1), definition of Chairperson. Insert instead "Board".
[2] Section 3(1)
Insert in alphabetical order--
Chief Executive Officer or CEO means the person employed in the Public
Service as the Chief Executive Officer of the Authority.
[3] Section 3(1), definition of "environment protection legislation"
Omit the definition.
Insert instead--
environment protection legislation means the following Acts, and the
regulations and other instruments made under the following Acts--
(a) this Act,
(b) Contaminated Land Management Act 1997,
(c) Dangerous Goods (Road and Rail Transport) Act 2008,
(d) Environmental Trust Act 1998,
(e) Environmentally Hazardous Chemicals Act 1985,
(f) Ozone Protection Act 1989,
(g) Pesticides Act 1999,
(h) Protection of the Environment Operations Act 1997,
(i) Radiation Control Act 1990,
(j) Recreation Vehicles Act 1983,
(k) Waste Avoidance and Resource Recovery Act 2001,
(l) any other Act, or part of an Act, prescribed by the regulations for the
purposes of this definition.
Note-- A regulation prescribing an Act, or part of an Act, for the purposes of
paragraph (l) may only be made with the concurrence of the Minister
responsible for the administration of the Act or part--see section 3(1A).
[4] Section 3(1A)
Insert after section 3(1)--
(1A) A regulation prescribing an Act, or part of an Act, for the purposes of
subsection 3(1), definition of environment protection legislation, paragraph
(l) may only be made with the concurrence of the Minister responsible for
administering the Act, or part, to be prescribed.
[5] Section 13
Omit section 13. Insert instead--
13 General directions by Minister
(1) The Minister may give the Authority a written direction in relation to the
functions of the Authority if the Minister is satisfied that, after consulting the
Authority about the proposed direction, it is necessary to do so in the public
interest.
Page 19
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
(2) A direction by the Minister--
(a) must, unless the Authority agrees otherwise, be of a general nature only,
and
(b) must not relate to a specific matter being considered or determined by
the Authority.
(3) In particular, a direction by the Minister under this section must not be made
in relation to the following--
(a) a report or recommendation made to the Minister,
(b) a state of the environment report under section 10, other than directions
for the inclusion of additional information in a report,
(c) any decision to institute criminal or related proceedings.
(4) The Authority must ensure that a direction by the Minister is complied with.
(5) A report of each of the following must be tabled by or on behalf of the Minister
in each House of Parliament within 14 sitting days of that House and be
included in the next available annual report of the Authority--
(a) a direction by the Minister for the inclusion of additional information in
a state of the environment report under section 10,
(b) a direction by the Minister under section 13A and the determination of
the Minister in relation to the exercise of the licensing function
concerned.
(6) The Authority must publish each direction by the Minister, other than a
direction mentioned in subsection (5), on the Authority's website as soon as
practicable after the direction is given.
[6] Part 5, Division 1A
Insert before section 14--
Division 1A Chief Executive Officer of the Authority
[7] Section 14
Omit section 14. Insert instead--
14 Chief Executive Officer of the Authority
The Chief Executive Officer--
(a) is a member of the Board, but
(b) is not entitled to vote on a matter considered by the Board.
14A Chief Executive Officer to manage and control affairs of Authority
(1) The Chief Executive Officer is to manage and control the affairs of the
Authority, subject to--
(a) the policies determined by the Board and other decisions of the Board
under this Act, and
(b) the directions of the Minister under this Act.
(2) An act, matter or thing done in the name of, or on behalf of, the Authority by
the Chief Executive Officer is taken to have been done by the Authority.
Page 20
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
[8] Section 15 Establishment of Board
Omit section 15(2) and (3). Insert instead--
(2) The Board is to consist of at least 5, but not more than 7 members, being--
(a) the Chairperson, and
(b) the Chief Executive Officer, and
(c) at least 3, but not more than 5, part-time members appointed by the
Governor on the recommendation of the Minister.
(3) The Chairperson and the part-time members recommended by the Minister
are, in the Minister's opinion, to collectively have the skills and experience
relevant to the functions of the Board.
(3A) In deciding whether to recommend a person as a part-time member, the
Minister must have regard to the desirability that the Board collectively has
skills and experience in the following--
(a) environmental science or engineering,
(b) environmental law,
(c) corporate, financial and risk planning and management,
(d) business,
(e) human health,
(f) compliance and regulation,
(g) Aboriginal cultural values,
(h) other skills or experience determined by the Minister and published on
the Authority's website.
(3B) A person may only be recommended by the Minister as a person with skills
and experience in Aboriginal cultural values if the person is--
(a) an Aboriginal person within the meaning of the Aboriginal Land Rights
Act 1983, section 4(1), and
(b) recognised as a cultural knowledge holder, and
(c) willing to represent Aboriginal cultural values.
[9] Section 16 Functions of Board
Insert ", including policies and plans relating to organisational governance and risk
management" after "Authority" in section 16(1)(a).
[10] Part 5, Division 3, heading
Omit "Authority" from Part 5, Division 3, heading. Insert instead "Board".
[11] Section 18, heading
Omit "Authority" from section 18, heading. Insert instead "Board".
[12] Section 18(1)
Omit "Authority". Insert instead "Board".
[13] Section 18(2)
Omit "may be appointed on a full-time or". Insert instead "must be appointed on a".
Page 21
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
[14] Section 18(4)
Omit "Schedule 2A". Insert instead "Schedule 1, Part 2".
[15] Section 19 Chairperson to manage and control affairs of Authority
Omit the section.
[16] Section 21 Delegation of functions
Insert after section 21(1A)--
(1B) The CEO may delegate to an authorised person any function, other than this
power of delegation, conferred or imposed on the CEO by or under the
environment protection legislation or any other legislation.
[17] Section 21(2)(c)
Insert at the end of section 21(2)(b)--
, or
(c) by the CEO, if the delegate is authorised in writing to do so by the CEO.
[18] Section 34A Environment Protection Authority Fund
Insert after section 34A(3)(b3)--
(b4) amounts ordered to be paid into the Fund under the following--
(i) the Contaminated Land Management Act 1997, section 95C,
(ii) the Pesticides Act 1999, section 112C,
(iii) the Protection of the Environment Operations Act 1997, section
251A,
(iv) the Radiation Control Act 1990, section 27A, and
[19] Section 35
Omit the section. Insert instead--
35 Exclusion of personal liability
(1) An act or omission of a protected person does not subject the protected person
to any action, liability, claim or demand if the act or omission was done, or
omitted to be done or made, in good faith for the purpose of carrying out a
function conferred or imposed under the environment protection legislation or
other legislation.
(2) In this section--
protected person means any of the following--
(a) the Minister,
(b) the Authority,
(c) the Board,
(d) an advisory committee,
(e) the Chief Executive Officer,
(f) the Chairperson or another member of the Board or of an advisory
committee,
(g) a member of staff of the Authority,
(h) a person acting under the direction of a person referred to in paragraphs
(a)-(g).
Page 22
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
[20] Section 36 Seal of Authority
Omit "Chairperson", wherever occurring in section 36.
Insert instead "Chief Executive Officer".
[21] Schedule 1 Provisions relating to members and procedure of the Board
Insert before clause 1--
Part 1 Preliminary
[22] Schedule 1, clause 1, definition of "appointed member"
Insert "or the CEO" after "Chairperson".
[23] Schedule 1, Part 2
Insert after clause 1--
Part 2 Provisions relating to Chairperson of the Board
2 Term of office
(1) The Chairperson holds office for the term, of not more than 5 years, specified
in the instrument of appointment.
(2) However, the Chairperson is eligible, if otherwise qualified, for
re-appointment.
2A Remuneration and allowances
The Chairperson is to be paid remuneration and allowances decided by the
Minister, from time to time, in consultation with the Public Service
Commissioner.
2B Vacancy in office
(1) The office of Chairperson becomes vacant if the holder--
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by written instrument addressed to the Minister, or
(d) becomes bankrupt, applies to take the benefit of a law for the relief of
bankrupt or insolvent debtors, compounds with the holder's creditors or
makes an assignment of the holder's remuneration for the creditors'
benefit, or
(e) becomes a mentally incapacitated person, or
(f) is convicted in New South Wales of an offence punishable by
imprisonment for 12 months or more or is convicted outside of New
South Wales of an offence that, if committed in New South Wales,
would be an offence so punishable, or
(g) is removed from office under clause 2C.
(2) If the office of Chairperson becomes vacant, a person must, subject to this Act
be appointed to fill the vacancy.
Page 23
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
2C Removal from office
(1) The Governor may remove the Chairperson from office, but only for
incompetence, incapacity or misbehaviour.
(2) The Chairperson cannot be removed from office under the Government Sector
Employment Act 2013, Part 6.
2D Effect of certain other Acts
(1) The provisions of the Government Sector Employment Act 2013 relating to the
employment of Public Service employees do not apply to the Chairperson.
(2) The office of Chairperson is not, for the purposes of any Act, an office or place
of profit under the Crown.
[24] Schedule 1, Part 3
Insert before Schedule 1, clause 3--
Part 3 Provisions relating to appointed members
[25] Schedule 1, clause 5, heading
Insert "and allowances" after "remuneration".
[26] Schedule 1, Part 4
Insert after clause 6--
Part 4 Provision relating to all members
[27] Schedule 1, clauses 8 and 9
Relocate to Part 3 as inserted by this Act and renumber as clauses 6A and 6B, respectively.
[28] Schedule 1, Part 5
Insert before clause 10--
Part 5 Provisions relating to procedure
[29] Schedule 1, clause 11
Omit "members (one of whom must be the Chairperson).". Insert instead--
members, of whom--
(a) 1 must be the Chairperson, and
(b) 2 must be appointed members.
[30] Schedule 2A Provisions relating to Chairperson of Authority
Omit the Schedule.
[31] Schedule 4 Savings, transitional and other provisions
Insert after Part 5--
Page 24
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 4 Amendment of Protection of the Environment Administration Act 1991 No 60
Part 6 Provisions consequent on enactment of
Environment Legislation Amendment Act 2022
11 Definitions
In this Part--
amended, in relation to a provision, means the provision as in force on and
after the commencement date.
commencement date means the date the Environment Legislation Amendment
Act 2022, Schedule 4 commenced.
12 Chairperson of Authority continues as Chairperson of Board
(1) This clause applies to the person who, immediately before the commencement
date, holds the appointment as Chairperson of the Authority.
(2) On the commencement date--
(a) the person's appointment as Chairperson of the Authority ends, and
(b) the person is taken to have been appointed as Chairperson of the Board
under amended section 18(1).
(3) For the purposes of amended section 18(2), the person is taken to be appointed
as Chairperson on a part-time basis on the same terms and conditions as
applied in relation to the person's appointment as Chairperson of the Authority
immediately before the commencement date.
(4) For the purposes of Schedule 1, clause 2, the person is taken to have been
appointed as Chairperson of the Board for the term that ends on the day on
which the person's appointment as the Chairperson of the Authority would
have ended other than because of subclause (2)(a).
(5) For the purposes of amended Schedule 1, clause 2A, the Minister is taken to
have decided that the remuneration and allowances payable to the person as
Chairperson of the Board are the same as the remuneration and allowances that
were payable to the person as Chairperson of the Authority.
(6) Subclause (5) does not affect the Minister's power to otherwise determine the
remuneration and allowances payable to the Chairperson of the Board from
time to time under amended Schedule 1, clause 2A.
13 Continuation of existing Board
(1) This clause applies in relation to appointed members of the existing Board.
(2) Despite amended Part 5, Division 2, from the commencement date--
(a) each appointed member of the existing Board continues as a part-time
member of the Board under amended Part 5, Division 2 on the same
terms and conditions as applied in relation to the appointed member's
appointment immediately before the commencement date, and
(b) the continuing part-time members of the Board are taken to collectively
have the skills and experience stated in amended section 15(3).
(3) In this clause--
appointed member, of the existing Board, means a person who, immediately
before the commencement date, holds an appointment as a part-time member
of the Board.
existing Board means the Board as constituted immediately before the
commencement date.
Page 25
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
Schedule 5 Amendment of Protection of the Environment
Operations Act 1997 No 156
[1] Section 29 Implementing PEPs--action under Environmental Planning and
Assessment Act 1979
Omit "Director-General of the Department of Urban Affairs and Planning" from section
29(b).
Insert instead "Secretary of the Department of Planning, Industry and Environment".
[2] Section 29(c)
Omit "section 117". Insert instead "section 9.1".
[3] Section 50 Timing of licensing of development requiring consent under EP&A Act
Omit "Part 5.1" from section 50(4), definition of development consent.
Insert instead "Division 5.2".
[4] Section 50(4), definition of "existing use"
Omit "Division 10 of Part 4". Insert instead "Division 4.11".
[5] Section 51 Integrated development
Omit "section 91" from section 51(1). Insert instead "section 4.46".
[6] Section 51(1)
Omit "Division 5 of Part 4". Insert instead "Division 4.8".
[7] Section 53 Application for issue of licence
Omit "An" from section 53(2). Insert instead "The".
[8] Section 54 Application for transfer of licence
Omit "An application for the transfer of a licence" from section 54(2).
Insert instead "The application".
[9] Section 55 Grant or refusal of application
Omit section 55(1). Insert instead--
(1) The appropriate regulatory authority may--
(a) in relation to an application for the issue of a licence--
(i) grant the application by issuing the licence, or
(ii) refuse the application, and
(b) in relation to an application for the transfer of a licence--
(i) grant the application by transferring the licence, or
(ii) refuse the application.
[10] Section 55(2)
Omit "such an". Insert instead "the".
[11] Section 55(3)
Insert after section 55(2), before the note--
Page 26
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(3) If the appropriate regulatory authority grants an application for the transfer of
a licence, the licence is, subject to any variation of the conditions of the licence
under section 58(4), transferred subject to the conditions to which the licence
is subject at the time of the transfer.
[12] Section 58 Variation of licences
Omit "licence (including the conditions of a licence)" from section 58(1).
Insert instead "licence, including the conditions of the licence".
[13] Section 58(2)
Omit the subsection. Insert instead--
(2) A variation includes the following--
(a) attaching a condition to a licence, whether or not conditions are already
attached to the licence,
(b) substituting, omitting or amending a condition of a licence.
[14] Section 64 Failure to comply with condition
Omit section 64(3). Insert instead--
(3) This section extends to conditions to which the suspension, revocation or
surrender of a licence is subject under section 81, including a condition varied
under section 81A.
(4) For the purposes of subsection (3), a reference to the holder of the licence
includes a reference to--
(a) the former holder of the licence, and
(b) another person required to comply with the condition or to whom the
condition applies.
[15] Section 66 Conditions requiring monitoring, certification or provision of information,
and related offences
Omit the penalty from section 66(4). Insert instead--
Maximum penalty--
(a) for a corporation--$500,000, or
(b) for an individual--$250,000.
[16] Section 66(6)
Omit the penalty. Insert instead--
Maximum penalty--
(a) for a corporation--$20,000, or
(b) for an individual--$10,000.
[17] Section 66(7)
Omit the penalty. Insert instead--
Maximum penalty--
(a) for a corporation--$20,000, or
(b) for an individual--$10,000.
Page 27
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
[18] Section 81A
Insert after section 81--
81A Variation of conditions of suspension, revocation or surrender to require other
persons to carry out works, programs or activities
(1) This section applies if a condition of the suspension, revocation or surrender
of a licence requires the holder, or former holder, of the licence to do any of
the following--
(a) carry out work or programs, including remediation work or pollution
reduction programs,
(b) provide a financial assurance under Part 9.4,
(c) otherwise do an activity or thing.
(2) A person other than the holder, or former holder, of the licence may apply to
the appropriate regulatory authority to vary the condition to require the person,
instead of or in addition to the holder, or former holder, of the licence to do
any of the following--
(a) carry out the work or programs,
(b) provide the financial assurance,
(c) do the activity or thing.
(3) The application must be made with the written consent of the holder, or former
holder, of the licence unless it is not reasonably practicable to obtain the
consent of the holder, or former holder, of the licence.
(4) The application must--
(a) be made in the form approved by the appropriate regulatory authority,
and
(b) include or be accompanied by the information indicated in the form, or
in material accompanying the form, as being required by the appropriate
regulatory authority, and
(c) be accompanied by the fee prescribed by the regulations.
[19] Section 83 Fit and proper persons
Omit "if the person is a body corporate, a director of the body corporate" from section
83(2)(b).
Insert instead "if the person is a corporation, a current or former director of the corporation
or of a related body corporate".
[20] Section 83(2)(d)
Omit "a body corporate, the record of compliance with the environment protection
legislation of any director or other person concerned in the management of the body
corporate".
Insert instead "a corporation, the record of compliance with the environment protection
legislation of any current or former director of the corporation or of a related body
corporate".
[21] Section 83(2)(g)
Omit "a body corporate, whether, in the opinion of the appropriate regulatory authority, a
director or other person concerned in the management of the body corporate".
Page 28
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
Insert instead "a corporation, whether, in the opinion of the appropriate regulatory
authority, a current or former director of the corporation or of a related body corporate".
[22] Section 83(2)(i)
Omit "a body corporate, whether a director or other person concerned in the management
of the body corporate".
Insert instead "a corporation, whether a current or former director of the corporation or of
a related body corporate".
[23] Section 83(2)(j1)
Insert after section 82(2)(j)--
(j1) if the person is a corporation, whether a current or former director of the
corporation or of a related body corporate, during the previous 3 years
and while a director of the corporation or related body corporate, was--
(i) an undischarged bankrupt or applied to take the benefit of any
law for the relief of bankrupt or insolvent debtors, or
(ii) compounded with the director's creditors or made an assignment
of the director's remuneration for the benefit of the creditors,
[24] Section 83(2)(n1)
Insert after section 82(2)(n)--
(n1) if the person is a corporation, whether a related body corporate is a
person whom the appropriate regulatory authority does not consider to
be a fit and proper person under this section.
[25] Section 91 Clean-up by occupiers or polluters
Omit "either or both" from section 91(1). Insert instead "1 or more".
[26] Section 91(1)(c)
Insert after section 91(1)(b)--
(c) direct a person who is reasonably suspected by the authority of
contributing, to any extent, to a pollution incident,
[27] Section 91(1A) and (1B)
Insert after section 91(1)--
(1A) The appropriate regulatory authority may give a clean-up notice to a person
under subsection (1)(c)--
(a) whether or not another person has been given a clean-up notice in
relation to the pollution incident, and
(b) whether or not another person contributed to the pollution incident.
(1B) Without limiting subsection (1), a clean-up notice given to a person under
subsection (1)(c) may require the person to carry out clean-up actions to
completely prevent, minimise, remove, disperse, destroy or mitigate pollution
resulting or likely to result from the incident irrespective of the nature or extent
of the person's contribution to the incident.
[28] Section 91(4)
Omit the subsection. Insert instead--
Page 29
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(4) If the person given a clean-up notice complies with the notice but was not the
person who caused, or solely caused, the pollution incident, the cost, or part of
the cost, of complying with the notice may be recovered by the person who
complied with the notice as a debt in a court of competent jurisdiction from
any person who caused or contributed to the pollution incident.
[29] Section 91(5)
Omit the subsection.
[30] Section 91, note
Omit the note.
[31] Sections 91A and 91B
Insert after section 91--
91A Clean-up notices may be given to directors and related bodies corporate
(1) This section applies if --
(a) the appropriate regulatory authority has given a clean-up notice under
section 91 (the previous clean-up notice) to a corporation, and
(b) the corporation has not complied with the previous clean-up notice
within the period specified in the notice.
(2) The appropriate regulatory authority may, by written notice (the
supplementary clean-up notice), direct 1 or more of the following to carry
out, or ensure the carrying out of, the clean-up action specified in the notice
within the period specified in the notice--
(a) a current director of the corporation,
(b) a former director of the corporation,
(c) a related body corporate.
(3) The supplementary clean-up notice may require the person to whom the notice
is given to provide reports to the appropriate regulatory authority about
progress on the carrying out of the clean-up action.
(4) If the EPA considers it necessary for the purposes of responding to an
emergency, the EPA may give a supplementary clean-up notice under this
section regardless of whether the EPA is the appropriate regulatory authority
in relation to the pollution incident.
(5) If the person given a supplementary clean-up notice complies with the notice
but was not the person who caused, or solely caused, the pollution incident, the
cost, or part of the cost, of complying with the notice may be recovered by the
person who complied with the notice as a debt in a court of competent
jurisdiction from another person who caused or contributed to the pollution
incident.
(6) A reference in subsection (2) to a director of a corporation extends to a person
involved in the management of the affairs of the corporation.
91B Offence
A person who, without reasonable excuse, does not comply with a clean-up
notice given to the person is guilty of an offence.
Maximum penalty--
Page 30
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
Note-- An offence against this section committed by a corporation is an executive
liability offence attracting executive liability for a director or other person involved in the
management of the corporation--see section 169A.
[32] Section 96A
Insert after section 96--
96A Prevention notices may be given to directors and related bodies corporate
(1) This section applies if --
(a) the appropriate regulatory authority has given a prevention notice under
section 96 (the previous prevention notice) to a corporation in relation
to an activity, and
(b) the corporation has not complied with the previous prevention notice
within the period specified in the notice.
(2) The appropriate regulatory authority may, by written notice (the
supplementary prevention notice), direct 1 or more of the following to take
the action specified in the notice within the period, if any, specified in the
notice to ensure that the activity is carried on in future in an environmentally
satisfactory manner--
(a) a current director of the corporation,
(b) a former director of the corporation,
(c) a related body corporate.
(3) Without limiting subsection (2), the action to be taken may include any of the
actions specified in section 96(3).
(4) When determining the action to be specified in the supplementary prevention
notice, the appropriate regulatory authority must consider the matters
specified in section 96(3A).
(5) The supplementary prevention notice may require the person to whom the
notice is given to provide reports to the appropriate regulatory authority about
progress on the carrying out of the clean-up action.
(6) A reference in subsection (2) to a director of a corporation extends to a person
involved in the management of the affairs of the corporation.
[33] Section 101 Prohibition on activities
Omit "where the EPA recommends to the Minister that a notice be given under this section
because it is of the opinion that the emission or discharge of pollutants from (or within) any
premises in which any activity" from section 101(1).
Insert instead "if the EPA recommends to the Minister that a notice be given under this
section because, in the EPA's opinion, the emission or discharge of pollutants from or
within a premises, or class of premises, in which an activity".
[34] Section 101(2)
Omit the subsection. Insert instead--
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(2) Notice
The Minister may, by written notice, direct, for the period, if any, specified in
the notice--
(a) the occupier of the premises, or occupiers of a class of premises, to
cease carrying on the activity, or a specified aspect of the activity, at the
premises or at premises of the class of premises, or
(b) direct the person, or persons of a class of persons, carrying on the
activity to cease carrying on the activity, or a specified aspect of the
activity, at any premises.
[35] Section 101A
Insert after section 101--
101A Prohibition notices may be given to directors and related bodies corporate
(1) This section applies if --
(a) the Minister has given a prohibition notice under section 101 to a
corporation, and
(b) the corporation has not complied with the prohibition notice.
(2) If the EPA remains satisfied of the matters stated in section 101(1), the EPA
may recommend to the Minister that a notice be given under this section to any
of the following persons--
(a) a current director of the corporation,
(b) a former director of the corporation,
(c) a related body corporate.
(3) On the EPA's recommendation, the Minister may, by written notice, direct the
current or former director, or the related body corporate, to do 1 or more of the
following--
(a) cease carrying on the activity, or a specified aspect of the activity, for
the period, if any, specified in the notice,
(b) take all available steps to end the carrying on of the activity, or a
specified aspect of the activity, for the period, if any, specified in the
notice.
(4) A reference in subsection (2) to a director of a corporation extends to a person
involved in the management of the affairs of the corporation.
[36] Section 104 Compliance cost notices
Omit "under section 91" from section 104(1).
[37] Section 104(2)
Omit the subsection. Insert instead--
(2) Clean-up by public authority
A public authority that takes clean-up action under section 92 may, by written
notice, require 1 or more of the following persons to pay all or part of the
reasonable costs and expenses incurred by the public authority in connection
with the clean-up action--
(a) the occupier of the premises at or from which the authority reasonably
suspects the pollution incident occurred,
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(b) a person who is reasonably suspected by the authority of having caused
or contributed to the pollution incident.
[38] Section 113 False or misleading statements in reports
Insert "or imprisonment for 18 months, or both" after "$250,000" in the penalty, paragraph
(b).
[39] Section 143 Unlawful transporting or depositing of waste
Omit section 143(1)(b). Insert instead--
(b) if the person is not the owner of the waste--the owner of the waste, and
(c) if the waste is transported in a vehicle and the person is not the owner
of the vehicle--the owner of the vehicle,
[40] Section 144AA False or misleading information about waste
Omit the penalty from section 144AA(1). Insert instead--
Maximum penalty--
(a) for a corporation--$500,000, or
(b) for an individual--$250,000.
[41] Section 144AA(2)
Omit the penalty. Insert instead--
Maximum penalty--
(a) for a corporation--$1,000,000, or
(b) for an individual--$500,000 or imprisonment for 18 months, or both.
[42] Section 144AB Repeat waste offenders
Insert before section 144AB(1)(a)--
(aa) section 115(1),
[43] Section 144AB(1)(g)
Insert after section 144AB(1)(f)--
(g) section 144AA(1) or (2).
[44] Section 148 Pollution incidents causing or threatening material harm to be notified
Omit "any of" from section 148(8), definition of relevant authority.
[45] Sections 167A and 167B
Insert after section 167--
167A False or misleading information
(1) A person who gives information to the EPA that is false or misleading in a
material respect is guilty of an offence.
Maximum penalty--
(a) for a corporation--$500,000, or
(b) for an individual--$250,000.
Note-- An offence under this subsection committed by a corporation is an executive
liability offence attracting executive liability for a director or other person involved in the
management of the corporation--see section 169A.
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(2) It is a defence in proceedings against a person for an offence under subsection
(1) if the person establishes that the person took all reasonable steps to ensure
the information was not false or misleading in a material respect.
(3) A person who gives information to the EPA that the person knows is false or
misleading in a material respect is guilty of an offence.
Maximum penalty--
(a) for a corporation--$1,000,000, or
(b) for an individual--$500,000 or imprisonment for 18 months, or both.
(4) If the court is satisfied that a person charged with an offence under subsection
(3) is not guilty of that offence but is satisfied on the evidence that the person
is guilty of an offence under subsection (1), the court may find the person
guilty of the offence under subsection (1), and the person is liable to
punishment accordingly.
(5) Proceedings for an offence against this section may be instituted only by the
EPA.
(6) Despite section 215, proceedings for an offence under subsection (3) may not
be dealt with before the Local Court.
(7) In this section--
information includes a record containing information.
supply information includes cause or permit information to be supplied.
167B Receiving monetary benefits
(1) Any of the following persons who receives, acquires or accrues a monetary
benefit as a result of the commission by a corporation of a proved offence
under this Act or the regulations (the underlying offence) is guilty of an
offence--
(a) a person who is, or was, at the time of the commission of the underlying
offence, a director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the underlying
offence, a director of a related body corporate.
Maximum penalty--
(a) for a corporation--the maximum penalty that applies to a corporation
for the underlying offence, or
(b) for an individual--the maximum penalty that applies to an individual
for the underlying offence.
(2) Proceedings for an offence under this section may be commenced--
(a) after the date on which the underlying offence is alleged to have been
committed, but
(b) despite section 216, no later than the later of the following--
(i) the date that is 12 months after the date on which a court finds the
underlying offence proved,
(ii) the date by which the proceedings may be commenced under
section 216(2).
(3) Despite section 215, proceedings for an offence under this section may not be
dealt with before the Local Court.
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(4) Without limiting subsection (1) or (2)(b)(i), a court finds an offence proved
if--
(a) the court convicts the offender of the offence, or
(b) the court makes an order under the Crimes (Sentencing Procedure) Act
1999, section 10 against the offender in relation to the offence.
(5) A reference in subsection (1) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or body corporate.
[46] Section 169A Liability of directors etc for offences by corporation--offences
attracting executive liability generally
Omit "91(5)" from section 169A(1)(d). Insert instead "91B".
[47] Section 169A(1)(u)
Insert after section 169A(1)(t)--
(u) section 167A(1).
[48] Section 177 Offences
Omit the penalty.
[49] Section 177(1)-(4)
Insert at the end of subsections(1), (2), (3) and (4), respectively--
Maximum penalty--
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 or imprisonment for 18 months, or both,
and, for a continuing offence, a further penalty of $60,000 for each day
the offence continues.
[50] Section 177(5)
Insert at the end of the subsection--
Maximum penalty--
(a) for a corporation--$250,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$120,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
[51] Section 186 Extension of Chapter to other environment protection legislation
Insert before section 186(c)--
(b6) any other environment protection legislation prescribed by the
regulations for the purposes of this paragraph,
[52] Section 211 Offences
Omit the penalty.
[53] Section 211(1) and (4)
Insert at the end of the subsections, respectively--
Maximum penalty, subject to sections 204 and 208--
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
[54] Section 211(2)
Insert at the end of the subsection--
Maximum penalty, subject to sections 204 and 208--
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 or imprisonment for 18 months, or both,
and, for a continuing offence, a further penalty of $60,000 for each day
the offence continues.
[55] Section 211(3)-(3B)
Omit section 211(3). Insert instead--
(3) A person who delays, obstructs, assaults, threatens or intimidates an
authorised officer in the exercise of the authorised officer's powers under this
Chapter is guilty of an offence.
Maximum penalty, subject to sections 204 and 208--
(a) for a corporation--$1,000,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues, or
(b) for an individual--$250,000 and, for a continuing offence, a further
penalty of $60,000 for each day the offence continues.
(3A) A person who wilfully delays, obstructs, assaults, threatens or intimidates an
authorised officer in the exercise of the authorised officer's powers under this
Chapter is guilty of an offence.
Maximum penalty, subject to sections 204 and 208--
(a) for a corporation--$2,000,000 and, for a continuing offence, a further
penalty of $240,000 for each day the offence continues, or
(b) for an individual--$500,000 and, for a continuing offence, a further
penalty of $120,000 for each day the offence continues.
(3B) If the court is satisfied that a person charged with an offence under subsection
(3A) is not guilty of that offence but is satisfied on the evidence that the person
is guilty of an offence under subsection (3), the court may find the person
guilty of the offence under subsection (3), and the person is liable to
punishment accordingly.
[56] Section 213 Application of Chapter
Insert at the end of section 213(2), with appropriate paragraph numbering--
any other environment protection legislation prescribed by the
regulations for the purposes of this paragraph.
[57] Section 216 Time within which summary proceedings may be commenced
Insert after section 216(6), definition of prescribed offence, paragraph (c1)--
(c1a) an offence under section 167A (False or misleading information), or
[58] Section 216(6), definition of "prescribed offence"
Omit "against section 47(1), 48(2) or 144AA(1)" from paragraph (c6).
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
Insert instead "referred to in paragraphs (a)-(c3)".
[59] Section 230 Application of Division
Insert at the end of section 230(1)(b)--
, or
(c) proceedings have been commenced against a person for an offence
against this Act or the regulations and, as a result of the proceedings, the
person may be required to pay an amount that represents the amount of
monetary benefits referred to in section 167B or 249, or
(d) proceedings have been commenced against a person under section
251A and, as a result of the proceedings, the person may be required to
pay an amount that represents the amount of monetary benefits referred
to in section 251A.
[60] Section 230(2), definition of "the defendant"
Omit "subsection (1) (a) or (b)". Insert instead "subsection (1)(a), (b), (c) or (d)".
[61] Section 231 Nature of restraining order
Insert at the end of section 231--
(2) For the purposes of this section, the property of the defendant includes the
amount that represents the amount of any monetary benefits acquired by the
offender, or accrued or accruing to the offender.
[62] Section 249 Orders regarding monetary benefits
Omit section 249(3), definition of monetary benefits.
[63] Part 8.3A
Insert after Part 8.3--
Part 8.3A Civil proceedings to recover particular monetary
benefits
251A Recovery of monetary benefits from related persons after offence proved
(1) This section applies if a court convicts a corporation of an offence against this
Act or the regulations.
(2) The prosecutor for the offence may apply to the court for an order (a monetary
benefits order) that any of the following persons pay an amount representing
the amount of monetary benefits acquired by the person, or accrued or
accruing to the person, as a result of the commission of the offence by the
corporation--
(a) a person who is, or was, at the time of the commission of the offence, a
director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the offence, a
director of a related body corporate.
(3) The court may make the monetary benefits order in relation to a person only if
the court is satisfied, on the balance of probabilities, that the person acquired,
accrued or will accrue the monetary benefits as a result of the commission of
the offence by the corporation.
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(4) The regulations may prescribe a protocol to be used in determining the amount
that represents the monetary benefit acquired by the person or accrued or
accruing to the person.
(5) When making a monetary benefits order, the court may order that the person
pay the amount--
(a) into the Environment Protection Authority Fund or another fund the
court considers appropriate, or
(b) to an entity the court considers appropriate in the circumstances.
(6) A monetary benefits order made by the court is enforceable as if it were an
order made by the court in Class 4 proceedings under the Land and
Environment Court Act 1979.
(7) A reference in subsection (2) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
(8) In this section--
Environment Protection Authority Fund means the Environment Protection
Authority Fund established under the Protection of the Environment
Administration Act 1991, section 34A.
prosecutor, for an offence, means the person who instituted the proceedings
for the offence.
the court does not include the Local Court.
[64] Section 254 Definitions
Omit "Chairperson" from section 254, definition of designated officer.
Insert instead "CEO".
[65] Section 259 Proof of certain appointments not required
Insert ", the CEO" after "the Chairperson" in section 259(a).
[66] Section 261 Certificate evidence of certain matters
Omit "Chairperson" from section 261(1). Insert instead "CEO".
[67] Section 261(2)(u)
Omit "the EPA or Chairperson" from section 261(2)(u).
Insert instead "the EPA, Chairperson or CEO".
[68] Section 262 Evidence of analysts
Omit section 262(3). Insert instead--
(3) A certificate of an analyst that a container containing a sample was received at
a specified laboratory and that the container was sealed by an authorised
officer or another person is admissible in proceedings under this Act as
evidence--
(a) of the facts stated in the certificate, and
(b) that the sample was the same sample as the sample obtained by the
authorised officer or other person, and
(c) that the sample had not been tampered with since the time the container
was sealed by the authorised officer or other person.
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
[69] Section 281 Powers of police after entry by warrant
Omit the penalty from section 281(3). Insert instead--
Maximum penalty--
(a) for an offence against paragraph (a)--
(i) for a corporation--$20,000, or
(ii) for an individual--$10,000, and
(b) for an offence against paragraph (b)--
(i) for a corporation--$40,000, or
(ii) for an individual--$20,000 or imprisonment for 18 months, or
both.
[70] Section 287 Appeals regarding licence applications and licences
Omit "Section 93B" from the note to the section. Insert instead "Section 4.52".
[71] Section 299 Restriction on requiring financial assurance
Insert after section 299(c)--
(c1) the financial capacity of the holder or former holder of the licence or
proposed holder of the licence, or
[72] Section 305 Liability of appropriate regulatory authority, State and others
Insert "the CEO," after "the EPA," in section 305(2).
[73] Part 9.4A
Insert after Part 9.4--
Part 9.4A Restrictions and covenants on land
307A Ongoing maintenance--restrictions and covenants
(1) This section applies to land on which is located premises to which--
(a) a licence or suspended licence applies, or
(b) a revoked or surrendered licence applied where--
(i) the revocation or surrender was subject to conditions, and
(ii) the conditions have not been satisfied or revoked.
(2) The EPA may, under the Conveyancing Act 1919, section 88E--
(a) impose restrictions on the use of, or impose public positive covenants
on the land for the purpose of enforcing a condition of--
(i) the licence, or
(ii) the suspension, revocation or surrender of the licence, and
(b) release or vary a restriction or covenant imposed under this section.
(3) A restriction or covenant imposed under this section may require the owner of
the land to do 1 or more of the following in relation to the land--
(a) to inform the EPA of a change in the ownership or occupancy of the
land, to the extent that the person is aware of the change,
(b) to not carry out, and to not allow other persons to carry out, specified
activities on the land,
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(c) to not use, and to not allow other persons to use, the land for specified
purposes,
(d) to otherwise do, or not do, a thing that may be required to be done, or
that must not be done, under a condition of--
(i) the licence, or
(ii) the suspension, revocation or surrender of the licence.
(4) Despite the Conveyancing Act 1919, section 88E--
(a) the memorandum or deed by which the restriction or covenant referred
to in subsection (2) is imposed, released or varied--
(i) must be executed by the EPA and does not need to be executed
by any other person, and
(ii) does not require the agreement of any other person, and
(b) where a restriction or covenant imposed under this section takes effect,
the EPA may enforce the restriction or covenant against any of the
following--
(i) an owner of the land,
(ii) a lessee of the land,
(iii) a mortgagee of the land.
(5) The EPA may impose, vary or remove a restriction or covenant under this
section whether or not the EPA is the appropriate regulatory authority.
[74] Section 320A False representations as to EPA approval, use or recommendation and
licences
Omit the penalty from section 320A(1). Insert instead--
Maximum penalty--
(a) for a corporation--$1,000,000, or
(b) for an individual--$250,000 or imprisonment for 18 months, or both.
[75] Schedule 1 Scheduled activities
Omit the matter relating to "electricity works (wind farms)" from clause 17, Table, Column
2.
Insert instead--
is the subject of an approval under the Environmental Planning and
Assessment Act 1979, Division 5.2, or
is the subject of an approval granted under the Environmental Planning and
Assessment Act 1979, Part 3A, when that Part was in force or continued in
operation, or
is the subject of a development consent relating to State significant
development granted by--
(a) the Minister under the Environmental Planning and Assessment Act
1979, Part 4, including by operation of that Act, former Schedule 6,
clause 89 before the repeal of that clause, or
Note-- This criteria covers--
(a) development consent granted before 1 August 2005, being development
consent granted before the commencement of the Environmental
Planning and Assessment Act 1979, Part 3A, and
(b) development consent granted after 1 October 2011, being development
consent granted after the repeal of Part 3A.
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
(b) the Independent Planning Commission as a consent authority under the
State Environmental Planning Policy (State and Regional
Development) 2011, clause 8A, or
was being carried out immediately before 1 December 2012 with a capacity to
generate more than 30 megawatts of electrical power
[76] Schedule 2 Regulation-making powers
Insert after clause 10--
10A National environment protection measures
Giving effect to, and enforcing compliance with, a national environment
protection measure made under the National Environment Protection Council
Act 1994 of the Commonwealth, section 14(1).
[77] Schedule 2A, clause 1, definition of "petroleum authority", paragraph (b1)
Insert after clause 1, definition of petroleum authority, paragraph (b)--
(b1) an approval under the Environmental Planning and Assessment Act
1979, Division 5.2 to the extent that it authorises the carrying out of
development for the purposes of petroleum activities, or
[78] Schedule 2A, clause 1, definition of "petroleum authority", paragraph (c)
Omit "under Part 3A of the Environmental Planning and Assessment Act 1979".
Insert instead "under the Environmental Planning and Assessment Act 1979, Part 3A, when
that Part was in force or continued in operation,".
[79] Schedule 2A Enforcement of gas and other petroleum legislation
Omit "section 125 of the Environmental Planning and Assessment Act 1979" from clause
1, definition of petroleum offence, paragraph (b).
Insert instead "the Environmental Planning and Assessment Act 1979, including the
regulations under that Act,".
[80] Schedule 5 Savings, transitional and other provisions
Insert after Part 17--
Part 18 Provision consequent on enactment of
Environment Legislation Amendment Act 2022
48 Definition
In this Part--
amended, in relation to a provision, means the provision as in force on and
from the date this clause commences.
49 Extended powers to issue clean-up notices
(1) Amended section 91 extends to pollution incidents that occurred, or were
occurring, before the date this clause commences.
(2) A reference in section 91A(1) to a previous clean-up notice extends to a
clean-up notice given before the date this clause commences.
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Schedule 5 Amendment of Protection of the Environment Operations Act 1997 No 156
50 Extended powers to issue prevention notices
A reference in section 96A(1) to a previous prevention notice extends to a
prevention notice given before the date this clause commences.
51 Extended powers to issue prohibition notices
(1) Amended section 101 extends to activities in relation to which the EPA has,
before the date this clause commences, recommended to the Minister that
notice be given under section 101.
(2) A reference in section 101A(1) to a prohibition notice extends to a prohibition
notice given before the date this clause commences.
52 Court orders in connection with offences
Amended section 230 extends to proceedings commenced, but not finally
determined, before the date this clause commences.
[81] Dictionary
Omit the definition of Chairperson.
[82] Dictionary
Insert in alphabetical order--
CEO means the Chief Executive Officer within the meaning of the Protection
of the Environment Administration Act 1991.
Chairperson means the Chairperson within the meaning of the Protection of
the Environment Administration Act 1991.
monetary benefits means monetary, financial or economic benefits.
related body corporate has the same meaning as in the Corporations Act 2001
of the Commonwealth.
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 6 Amendment of Protection of the Environment Operations (General) Regulation 2021
Schedule 6 Amendment of Protection of the Environment
Operations (General) Regulation 2021
[1] Schedule 6 Penalty notice offences
Omit the matter relating to Protection of the Environment Operations Act 1997, section 91.
[2] Schedule 6
Insert in appropriate order in the matter relating to the Protection of the Environment
Operations Act 1997--
Section 91B 1, 2, 12, 13, $4,000 if the $8,000 if the
14 penalty penalty
notice is notice is
issued by a issued by a
class 1 class 1
enforcement enforcement
officer, or officer, or
$7,500 in any $15,000 in
other case any other
case
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 7 Amendment of Radiation Control Act 1990 No 13
Schedule 7 Amendment of Radiation Control Act 1990 No 13
[1] Section 4 Definitions
Omit section 4(1), definition of Chairperson of the Authority.
[2] Section 4(1)
Insert in alphabetical order--
CEO of the Authority means the CEO within the meaning of the Protection of
the Environment Administration Act 1991.
monetary benefits means monetary, financial or economic benefits.
related body corporate has the same meaning as in the Corporations Act 2001
of the Commonwealth.
[3] Section 5A Certain persons and public bodies may exercise certain functions of
Authority
Omit "Chairperson" wherever occurring in section 5A(2) and (3). Insert instead "CEO".
[4] Section 5A(2) and (2A)(a)
Omit "the Department of Planning and Environment" wherever occurring.
Insert instead "Regional NSW".
[5] Section 23A Orders regarding monetary benefits
Omit section 23A(4), definition of monetary benefits.
[6] Section 25 Proceedings for offences
Omit "Chairperson" from section 25(4). Insert instead "CEO".
[7] Section 27A
Insert after section 27--
27A Recovery of monetary benefits from related persons after offence proved
(1) This section applies if a court convicts a corporation of an offence against this
Act or regulations.
(2) The prosecutor for the offence may apply to the court for an order (a monetary
benefits order) that any of the following persons pay an amount representing
the amount of monetary benefits acquired by the person, or accrued or
accruing to the person, as a result of the commission of the offence by the
corporation--
(a) a person who is, or was, at the time of the commission of the offence, a
director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the offence, a
director of a related body corporate.
(3) The court may make a monetary benefits order in relation to a person only if
the court is satisfied, on the balance of probabilities, that the person acquired,
accrued or will accrue the monetary benefits as a result of the commission of
the offence by the corporation.
(4) When making a monetary benefits order, the court may order that the person
pay the amount--
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 7 Amendment of Radiation Control Act 1990 No 13
(a) into the Environment Protection Authority Fund or another fund the
court considers appropriate, or
(b) to an entity the court considers appropriate in the circumstances.
(5) The regulations may prescribe a protocol to be used in determining the amount
that represents the monetary benefit acquired by the person or accrued or
accruing to the person.
(6) A monetary benefits order made by the court is enforceable as if it were an
order made by the court in Class 4 proceedings under the Land and
Environment Court Act 1979.
(7) A reference in subsection (2) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
(8) In this section--
Environment Protection Authority Fund means the Environment Protection
Authority Fund established under the Protection of the Environment
Administration Act 1991, section 34A.
prosecutor, for an offence, means the person that instituted the proceedings for
the offence.
the court does not include the Local Court.
[8] Section 28D Restriction on requiring financial assurance
Insert after section 28D(c)--
(c1) the financial capacity of the holder or former holder of the licence or
proposed holder of the licence, or
[9] Section 28J Liability of Authority, State and others
Insert "the CEO of the Authority" after "Board of the Authority," in section 28J(2).
[10] Section 29 Radiation Advisory Council
Omit "Chairperson of the Authority" in section 29(2)(a).
Insert instead "CEO of the Authority".
[11] Section 33B
Insert after section 33A--
33B Receiving monetary benefits
(1) Any of the following persons who receives, acquires or accrues a monetary
benefit as a result of the commission by a corporation of a proved offence
under this Act or the regulations (the underlying offence) is guilty of an
offence--
(a) a person who is, or was, at the time of the commission of the offence, a
director of the corporation,
(b) a related body corporate,
(c) a person who is, or was, at the time of the commission of the offence, a
director of a related body corporate.
Maximum penalty--
(a) for a corporation--the maximum penalty that applies to a corporation
for the underlying offence, or
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Environment Legislation Amendment Bill 2022 [NSW]
Schedule 7 Amendment of Radiation Control Act 1990 No 13
(b) for an individual--the maximum penalty that applies to an individual
for the underlying offence.
(2) Proceedings for an offence under this section may be commenced--
(a) after the date on which the underlying offence is alleged to have been
committed, but
(b) despite section 25(5), no later than the later of the following--
(i) the date that is 12 months after the date on which a court finds the
underlying offence proved,
(ii) the date by which the proceedings may be commenced under
section 25(5).
(3) Despite section 25(1), proceedings for an offence under this section may not
be dealt with before the Local Court.
(4) Without limiting subsection (1) or (2)(b)(i), a court finds an offence proved
if--
(a) the court convicts the offender of the offence, or
(b) the court makes an order under the Crimes (Sentencing Procedure) Act
1999, section 10 against the offender in relation to the offence.
(5) A reference in subsection (1) to a director of a corporation or related body
corporate extends to a person involved in the management of the affairs of the
corporation or related body corporate.
[12] Section 36 Evidentiary matters
Omit "Chairperson" in section 36(2). Insert instead "CEO".
Page 46
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 8 Amendment of the Radiation Control Regulation 2013
Schedule 8 Amendment of the Radiation Control Regulation
2013
[1] Clause 3 Definitions
Omit "Chairperson of the" from clause 3(1), definition of approved.
[2] Clause 28 Radiation management plan
Omit "Chairperson of the" from clause 28(1).
[3] Clause 29 Personal monitoring devices
Omit "Chairperson of the" from clause 29(3).
[4] Clause 31 Area monitoring devices
Omit "Chairperson of the" wherever occurring in clause 31(1) and (3).
[5] Clause 34 Disposal of regulated material
Omit "Chairperson of the" from clause 34(1).
[6] Clause 34(3)
Omit the subclause. Insert instead--
(3) The consent of the Authority may be--
(a) given generally or in a particular case, and
(b) subject to any conditions the Authority considers appropriate.
[7] Clause 38 Duty to report and investigate apparent radiation accidents
Omit "Chairperson of the" from clause 38(1).
[8] Clause 43 Appointment of radiation safety officers and committees
Omit "Chairperson of the" from clause 43(1).
[9] Clause 44 Loss or theft of regulated material
Omit "Chairperson of the" from clause 44(1).
[10] Clause 47, heading
Omit "Department of Planning and Environment". Insert instead "Regional NSW".
[11] Clause 47(1)
Omit "Chairperson". Insert instead "CEO".
[12] Clause 47(2)(a) and (3)(a)
Omit "Work Health and Safety (Mines) Act 2013" wherever occurring.
Insert instead "Work Health and Safety (Mines and Petroleum Sites) Act 2013".
[13] Clause 47(3) and (4)
Omit "the Department of Planning and Environment" wherever occurring.
Insert instead "Regional NSW".
Page 47
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 8 Amendment of the Radiation Control Regulation 2013
[14] Clause 48 Actions by incorrect public body
Omit "Chairperson" from clause 48(1). Insert instead "CEO".
[15] Clause 50 Destruction or disposal of records
Omit "Chairperson of the" wherever occurring in clause 50(2)-(5).
[16] Clause 50(5)
Omit "the Chairperson". Insert instead "the Authority".
Page 48
Environment Legislation Amendment Bill 2022 [NSW]
Schedule 9 Amendment of Waste Avoidance and Resource Recovery Act 2001 No 58
Schedule 9 Amendment of Waste Avoidance and Resource
Recovery Act 2001 No 58
[1] Section 44 Offence to claim refund for containers not subject to Scheme
Omit "the commencement of this Part" wherever occurring in section 44(1)(b) and (2)(b).
Insert instead "1 December 2017".
[2] Section 44(2), penalty
Omit the penalty from section 44(2).
[3] Section 44, penalty
Insert at the end of the section--
Maximum penalty for subsections (1) and (2)--
(a) for a corporation--4,000 penalty units, or
(b) for an individual--1,000 penalty units.
Page 49
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