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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Environmental Protection Amendment Bill 2020 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Environmental Protection Act 1986 amended 3. Act amended 3 4. Section 3 amended 3 5. Section 3A amended 8 6. Section 7 amended 8 7. Section 8 replaced 10 8. Independence of Authority and Chair 10 8. Section 11 replaced 10 11. Meetings of Authority 10 9. Section 14 amended 12 10. Section 14A inserted 12 14A. Decision without meeting 12 11. Section 16 amended 13 12. Section 17 amended 13 13. Section 26 amended 14 14. Section 32 amended 14 15. Sections 37B to 38A replaced 15 37B. Terms used 15 38. Referral of proposals 15 38A. Calling in a proposal 16 38B. Requirements as to referrals 17 38C. Proponent may amend a referred proposal 17 38D. Proponent may give notice that a referred proposal will not proceed 18 38E. Proposals derived from assessed strategic proposals 18 38F. Request for further information 20 181--1 page i Environmental Protection Amendment Bill 2020 Contents 38G. Authority must decide whether to assess a referred proposal 21 38H. Nomination of person responsible for proposal 22 38I. Change of person responsible for proposal 23 16. Section 39 replaced 24 39. Authority to keep records of referred proposals 24 17. Sections 39A and 39B deleted 24 18. Section 40 amended 25 19. Section 40AA inserted 26 40AA. Assessment of significant amendments 26 20. Section 40A amended 27 21. Section 40B replaced 28 40B. Application of assessment provisions to strategic proposals and strategic assessments 28 22. Section 41 amended 28 23. Section 41A amended 29 24. Section 42 amended 30 25. Section 43 amended 30 26. Section 43A replaced 31 43A. Amendments to proposals during assessment 31 27. Section 44 amended 32 28. Sections 45 to 45C replaced 32 44A. Terms used 32 45. Procedure for deciding if proposal may be implemented 33 45A. Implementation conditions 37 45B. Implementation of derived proposal 39 45C. Amending approved proposals or implementation conditions without inquiry or assessment 40 45D. Division or consolidation of proposals and issue of separate or combined Ministerial statements 42 29. Section 46 amended 43 30. Section 46A amended 45 31. Sections 46B to 48 replaced 46 47. Duties of proponents after service of Ministerial statement 46 47A. Duration and withdrawal of Ministerial statement 47 48. Control of implementation of proposals 48 page ii Environmental Protection Amendment Bill 2020 Contents 32. Part IV Division 2A inserted 51 Division 2A -- Payments relating to proposals 48AA. Fees and charges for referral and assessment of proposals 51 33. Section 48A amended 52 34. Section 48BA inserted 52 48BA. Request for further information about a referred scheme 52 35. Section 48B amended 53 36. Section 48C amended 53 37. Section 48D amended 55 38. Sections 48F and 48G deleted 55 39. Sections 48EA, 48F and 48G inserted 55 48EA. Terms used 55 48F. Procedure for agreeing or deciding on conditions to which schemes are to be subject 56 48G. Review of conditions in statements published under section 48F 57 40. Section 48H amended 58 41. Section 48J amended 58 42. Section 51 deleted 58 43. Section 51A amended 59 44. Sections 51B to 51D replaced 59 51B. Declaration of environmentally sensitive areas by regulation 59 51C. Unauthorised clearing of native vegetation 60 51D. Section 51C(a) does not apply to certain land 60 51DA. Referral of proposed clearing to CEO for decision on whether a clearing permit should be obtained 61 45. Section 51E amended 63 46. Section 51F replaced 65 51F. Effect of referred proposal on decisions about clearing 65 47. Section 51H amended 67 48. Section 51I amended 67 49. Section 51J amended 68 50. Section 51K amended 68 51. Sections 51KA and 51KB inserted 69 51KA. Application to amend clearing permit 69 51KB. Effect of referred proposal on application to amend clearing permit 70 52. Section 51L amended 71 page iii Environmental Protection Amendment Bill 2020 Contents 53. Section 51M amended 72 54. Section 51MA inserted 73 51MA. Surrendering clearing permit 73 55. Section 51O amended 75 56. Section 51P amended 75 57. Section 51Q replaced 76 51Q. CEO to keep a record of clearing permits and related matters 76 58. Section 51R amended 76 59. Section 51S deleted 76 60. Part V Division 3 replaced 77 Division 3 -- Licences Subdivision 1 -- Preliminary 52. Terms used 77 53. Purpose of licence 78 Subdivision 2 -- Requirement for licence 53A. Licence for controlled work 79 53B. Licence for prescribed activity 79 Subdivision 3 -- Applications 53C. Kinds of application 80 53D. Requirements as to applications 80 53E. Consultation in respect of application for licence or for amendment of licence 81 Subdivision 4 -- Licence provisions 54. How applications are dealt with 82 54A. Duration of licence 83 55. Amendment of licence 84 56. Revocation or suspension of licence 86 57. Notice and submissions in respect of proposed amendment, revocation or suspension 87 58. Notice of amendment, revocation or suspension 88 58A. Actions taken to give effect to decision on appeal 88 58B. Effect of suspension 88 59. Transfer of licence 89 60. Surrender of licence 90 60A. Effect of referred proposal on decisions about licences 90 60B. Relationship between licences and approved policies 91 Subdivision 5 -- Conditions 61. Licence conditions 93 61A. Some kinds of conditions 94 page iv Environmental Protection Amendment Bill 2020 Contents 62. Contravening licence conditions 97 63. Offences as to conditions by persons other than holder of licence 97 Subdivision 6 -- Miscellaneous 64. CEO to keep records of licences and related matters 98 61. Section 64A replaced 98 64A. CEO to keep records of notices 98 62. Section 66 amended 98 63. Section 68A amended 99 64. Section 70 amended 100 65. Part V Division 5 heading replaced 102 Division 5 -- Defences 66. Sections 74 and 74A replaced 102 74. Defence of emergency or accident 102 74A. Defence of authority of this Act 104 67. Sections 74C to 74E inserted 105 74C. Defence of due diligence 105 74D. Defence of lack of knowledge of effect of licence 107 74E. Notice of defence 107 68. Part V Division 6 heading inserted 107 Division 6 -- General 69. Section 86E amended 108 70. Section 86G amended 108 71. Part VB inserted 109 Part VB -- Environmental protection covenants 86H. Terms used 109 86I. CEO may enter into environmental protection covenant 110 86J. Form of environmental protection covenant 110 86K. Registration of environmental protection covenant 111 86L. Binding effect of environmental protection covenant 112 86M. Application for amendment of environmental protection covenant 112 86N. Amendment of environmental protection covenant 113 86O. Enforcement of environmental protection covenant 114 86P. Duties upon passing interests in affected land 114 page v Environmental Protection Amendment Bill 2020 Contents 86Q. Discharge of environmental protection covenant 115 86R. Cancelling registration of memorial 116 72. Section 89 amended 117 73. Section 90 replaced 118 89A. Use of assistance and force 118 90. Powers of inspectors to obtain information 119 74. Section 92F deleted 121 75. Section 92H amended 121 76. Section 99 amended 122 77. Part VIA Division 1 heading replaced 122 Division 1 -- Prescribed offences and modified penalties 78. Section 99AA inserted 122 99AA. Term used: prescribed offence 122 79. Section 99A amended 123 80. Section 99E amended 124 81. Section 99J amended 124 82. Section 99Z amended 125 83. Part VIA Division 5 inserted 125 Division 5 -- Injunctions 99ZC. Injunctions to prevent improper conduct 125 84. Section 100 amended 127 85. Section 101 amended 128 86. Section 102 replaced 130 101B. Appeals against decisions as to environmental protection covenants 130 102. Appeals against decisions as to licences 130 87. Section 105 replaced 132 105. Matters on which appeals cannot be lodged 132 88. Section 106 amended 133 89. Section 107 amended 133 90. Section 107B amended 134 91. Section 110 amended 134 92. Part VIIB inserted 135 Part VIIB -- Environmental monitoring programmes Division 1 -- Preliminary 110K. Terms used 135 page vi Environmental Protection Amendment Bill 2020 Contents Division 2 -- Environmental monitoring programmes 110L. Regulations as to environmental monitoring programmes 135 110M. Funding for environmental monitoring programmes 136 Division 3 -- Collection of levy 110N. Payment of levy 137 110O. Financial assurance 137 110P. Payment by instalments 138 110Q. Penalty for non-payment 138 110R. Recovery of levy 139 110S. Evading levy 139 93. Section 112 replaced 139 112. False information 139 94. Section 112A amended 140 95. Section 114 amended 140 96. Section 116A and 116B inserted 141 116A. Proof not required of certain matters 141 116B. Proof of remotely sensed images 142 97. Section 120 amended 145 98. Section 121B inserted 145 121B. Dealing with moneys paid or contributed under this Act 145 99. Section 122B inserted 146 122B. Forms and other matters relating to documentation 146 100. Part VIIIA inserted 147 Part VIIIA -- Bilateral agreements with the Commonwealth 124A. Terms used 147 124B. Effect of Part 148 124C. Additional function of Authority 148 124D. Application for a matter to be dealt with as a bilateral matter 148 124E. Performance of functions in respect of bilateral matters 148 124F. Fees in relation to bilateral matters 150 124G. Disclosure of information for the purposes of bilateral agreements 151 124H. Regulations 151 101. Part IX Division 4 inserted 152 Division 4 -- Transitional provisions for Environmental Protection Amendment Act 2020 Subdivision 1 -- General provision 133A. Term used: amending Act 152 page vii Environmental Protection Amendment Bill 2020 Contents Subdivision 2 -- Transitional provisions relating to clearing matters 133B. Declaration of environmentally sensitive areas 152 133C. Clearing permit applications 153 133D. Clearing injunctions 154 Subdivision 3 -- Transitional provisions relating to works approvals and licences 133E. Terms used 155 133F. Works approvals 155 133G. Licences 156 133H. Existing applications for works approvals or licences 157 133I. Existing applications as to existing works approvals 157 133J. Existing applications as to existing licences 157 133K. Appeals in respect of refusal to grant works approvals and licences 158 133L. Other appeals in respect of works approvals and licences 159 Subdivision 4 -- Other matters 133M. Referred proposals 160 133N. Chair and Deputy Chair 162 133O. Transitional regulations 162 133P. Interpretation Act 1984 not affected 164 102. Schedule 1 Part 1 Division 1 amended 164 103. Schedule 1 Part 1 Division 2 amended 164 104. Schedule 1 Part 2 Division 1 amended 165 105. Schedule 1 Part 2 Division 2 amended 165 106. Schedule 1 Part 2 Division 3 amended 166 107. Schedule 1 Part 3 amended 167 108. Schedule 2 amended 167 109. Schedule 5 amended 169 110. Schedule 6 amended 169 111. Amendments as to gender neutral language 171 112. Other provisions amended 177 Part 3 -- Other Acts amended 113. Biodiversity Conservation Act 2016 amended 179 114. Bush Fires Act 1954 amended 179 115. Contaminated Sites Act 2003 amended 179 116. Mining Act 1978 amended 180 page viii Environmental Protection Amendment Bill 2020 Contents 117. Waste Avoidance and Resource Recovery Act 2007 amended 180 118. Waste Avoidance and Resource Recovery Levy Act 2007 amended 180 6. Liability to pay levy 181 page ix Western Australia LEGISLATIVE ASSEMBLY Environmental Protection Amendment Bill 2020 A Bill for An Act to amend the Environmental Protection Act 1986 and to consequentially amend other Acts. The Parliament of Western Australia enacts as follows: page 1 Environmental Protection Amendment Bill 2020 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Environmental Protection Amendment Act 2020. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) Part 1 -- on the day on which this Act receives the 7 Royal Assent; 8 (b) section 59 -- on the day on which section 83 comes into 9 operation; 10 (b) the rest of the Act -- on a day fixed by proclamation, 11 and different days may be fixed for different provisions. page 2 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 3 1 Part 2 -- Environmental Protection Act 1986 amended 2 3. Act amended 3 This Part amends the Environmental Protection Act 1986. 4 4. Section 3 amended 5 (1) In section 3(1) delete the definitions of: 6 applicant 7 bilateral agreement 8 Chairman 9 Deputy Chairman 10 implementation agreement or decision 11 implementation conditions 12 licensee 13 prescribed premises 14 proposal 15 works approval 16 (2) In section 3(1) insert in alphabetical order: 17 18 approved proposal means a proposal the 19 implementation of which is authorised under a 20 Ministerial statement; 21 Chair means the Authority member appointed to be 22 Chair of the Authority under section 7(4a); 23 Commonwealth Environment Act means the 24 Environment Protection and Biodiversity Conservation 25 Act 1999 (Commonwealth); 26 Deputy Chair means the Authority member 27 appointed to be Deputy Chair of the Authority under 28 section 7(4a); page 3 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 4 1 development approval means a development approval 2 under a scheme or a scheme Act; 3 ecological community has the meaning given in the 4 Biodiversity Conservation Act 2016 section 5(1); 5 environmental monitoring programme has the 6 meaning given in section 110K; 7 environmental protection covenant means an 8 environmental protection covenant entered into and in 9 effect under Part VB; 10 environmental undertaking means -- 11 (a) a biodiversity conservation agreement under the 12 Biodiversity Conservation Act 2016 13 section 114; or 14 (b) a biodiversity conservation covenant under the 15 Biodiversity Conservation Act 2016 16 section 122; or 17 (c) a conservation covenant or agreement to 18 reserve under the Soil and Land Conservation 19 Act 1945 section 30B; or 20 (d) an environmental protection covenant; or 21 (e) some other form of binding undertaking to 22 manage land for the protection of the 23 environment; 24 implementation conditions has the meaning given in 25 section 44A; 26 Ministerial statement has the meaning given in 27 subsection (1A); 28 planning instrument means -- 29 (a) a scheme or a strategy, policy or plan made or 30 adopted under a scheme; or 31 (b) a State planning policy approved under the 32 Planning and Development Act 2005 section 29 33 and published in the Gazette; or page 4 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 4 1 (c) a local planning strategy made under the 2 Planning and Development Act 2005; 3 prescribed means prescribed by the regulations; 4 prescribed activity means an activity prescribed as a 5 prescribed activity for the purposes of Part V; 6 proposal means any of the following but not a 7 scheme -- 8 (a) a policy, plan or programme; 9 (b) a project, undertaking or development; 10 (c) a change in land use; 11 (d) an amendment of any proposal described in 12 paragraph (a), (b) or (c); 13 (e) an amendment described in paragraph (b) of the 14 definition of significant amendment; 15 referred proposal means a proposal referred to the 16 Authority under section 38; 17 Registrar of Deeds and Transfers has the meaning 18 given in the Registration of Deeds Act 1856 section 2; 19 Registrar of Titles means the person designated to be 20 the Registrar of Titles under the Transfer of Land 21 Act 1893 section 7(1); 22 significant amendment, of an approved proposal, 23 means -- 24 (a) a proposal that -- 25 (i) is or includes the amendment of an 26 approved proposal; and 27 (ii) is likely, if implemented, to have a 28 significant effect on the environment; 29 or 30 (b) a proposed amendment to implementation 31 conditions relating to an approved proposal if 32 implementation of the proposal under the page 5 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 4 1 amended implementation conditions is likely to 2 have a significant detrimental effect on the 3 environment in addition to, or different from, 4 the effect the proposal has in its implementation 5 under the existing implementation conditions; 6 7 (3) In section 3(1): 8 (a) in the definition of appeals committee delete 9 "section 45(3)" and insert: 10 11 section 45(6) 12 13 (b) in the definition of Authority member delete "Chairman 14 and Deputy Chairman;" and insert: 15 16 Chair and Deputy Chair; 17 18 (c) in the definition of decision-making authority -- 19 (i) delete "authority means" and insert: 20 21 authority, in relation to a proposal, means 22 23 (ii) delete "any proposal" and insert: 24 25 the proposal 26 27 (d) in the definition of Western Australian Planning 28 Commission delete "Act 2005;" and insert: 29 30 Act 2005. 31 page 6 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 4 1 (4) Delete section 3(2) and insert: 2 3 (1A) A reference in this Act to a Ministerial statement is a 4 reference to -- 5 (a) a statement served and published under 6 section 45(8) or under section 45(8) as applied 7 by section 46(8); or 8 (b) a statement published under section 45(8)(b) as 9 applied by section 110(3); or 10 (c) a statement published as required by 11 section 45D(2) or (3); or 12 (d) if it is appropriate in the context, the 13 implementation agreement or decision, as 14 defined in section 44A, set out in a statement 15 mentioned in paragraph (a), (b) or (c). 16 (1B) A reference in this Act to the effect of a proposal on 17 the environment includes a reference to the cumulative 18 effect of impacts of the proposal on the environment. 19 (2) In the case of humans, the reference to social 20 surroundings in the definition of environment in 21 subsection (1) is a reference to aesthetic, cultural, 22 economic and other social surroundings to the extent to 23 which they directly affect or are affected by physical or 24 biological surroundings. 25 26 (5) In section 3(2b) delete "section 38(6)" and insert: 27 28 section 38H(2) 29 page 7 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 5 1 (6) In section 3(3a) before "changing" insert: 2 3 amendment or 4 5 (7) Delete section 3(4) and insert: 6 7 (4) A reference in this Act to amending a clearing permit 8 or licence includes a reference to revoking or amending 9 any condition to which the clearing permit or licence is 10 subject and to making the clearing permit or licence 11 subject to a new condition. 12 13 5. Section 3A amended 14 In section 3A(3) in the definition of threshold amount delete 15 "$20 000," and insert: 16 17 $100 000, 18 19 6. Section 7 amended 20 (1) Delete section 7(3) and insert: 21 22 (3) Before making a recommendation under subsection (2) 23 the Minister must publish a notice calling for 24 expressions of interest in appointment to the office of 25 Authority member. 26 page 8 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 6 1 (2) In section 7(4a), (4b) and (4c) delete "Chairman" (each 2 occurrence) and insert: 3 4 Chair 5 6 (3) Delete section 7(7) and (8) and insert: 7 8 (7) The office of an Authority member becomes vacant if 9 the Authority member -- 10 (a) becomes an insolvent under administration 11 within the meaning of the Corporations 12 Act 2001 (Commonwealth); or 13 (b) after appointment as an Authority member, 14 becomes a person employed under and subject 15 to the Public Sector Management Act 1994 16 Part 3; or 17 (c) is removed from office by the Governor -- 18 (i) on the grounds of misbehaviour, 19 incompetence, or mental or physical 20 incapacity, impairing the performance 21 of the Authority member's functions 22 and proved to the satisfaction of the 23 Governor; or 24 (ii) on the grounds of being absent without 25 leave, if it is proved to the satisfaction 26 of the Governor that the Authority 27 member has been absent, except on 28 leave granted by the Minister, from 29 3 consecutive meetings of the Authority 30 of which the Authority member has had 31 reasonable notice; 32 or page 9 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 7 1 (d) resigns from office by notice in writing 2 delivered to the Minister. 3 (8) The person who is the Chair or the Deputy Chair 4 ceases to hold that office if the person's office as an 5 Authority member becomes vacant. 6 7 7. Section 8 replaced 8 Delete section 8 and insert: 9 10 8. Independence of Authority and Chair 11 Subject to this Act, neither of the following is subject 12 to the direction of the Minister -- 13 (a) the Authority; 14 (b) the Chair. 15 16 8. Section 11 replaced 17 Delete section 11 and insert: 18 19 11. Meetings of Authority 20 (1) Meetings of the Authority are to be held at such times 21 and places as the Authority determines, but -- 22 (a) the Chair may convene a meeting of the 23 Authority at any time; and 24 (b) the Minister may convene a meeting of the 25 Authority if the Minister wishes it to discuss a 26 matter on which the Minister has requested its 27 advice. page 10 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 8 1 (2) At a meeting of the Authority -- 2 (a) the person who presides is -- 3 (i) the Chair, if present; or 4 (ii) if the Chair is not present -- the Deputy 5 Chair, if present; or 6 (iii) if both the Chair and the Deputy Chair 7 are not present -- an Authority member 8 elected to preside by the Authority 9 members present; 10 and 11 (b) 3 Authority members constitute a quorum; and 12 (c) subject to section 12(5)(b), each Authority 13 member present must cast a deliberative vote 14 on any question that is to be decided; and 15 (d) any question must be decided by a majority of 16 the votes cast by the Authority members 17 present, but if the voting on a question is 18 equally divided, the person presiding at that 19 meeting has a casting vote in addition to a 20 deliberative vote; and 21 (e) a question cannot be decided unless at least 22 3 Authority members vote on it. 23 (3) Notice of meetings of the Authority must be given to 24 the Department. 25 (4) The CEO, or a representative of the CEO, is entitled to 26 be present at any meeting and to take part in the 27 consideration and discussion of any matter before a 28 meeting, but cannot vote on any matter. 29 (5) At a meeting of the Authority the presence of an 30 Authority member need not be by attendance in person 31 but may be by that Authority member, each other 32 Authority member at the meeting and any person at the 33 meeting under subsection (4) being simultaneously in page 11 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 9 1 contact by telephone or other means of instantaneous 2 communication. 3 (6) At a meeting of the Authority the presence of a person 4 under subsection (4) need not be by attendance in 5 person but may be by that person and each Authority 6 member at the meeting being simultaneously in contact 7 by telephone or other means of instantaneous 8 communication. 9 10 9. Section 14 amended 11 Delete section 14(2) and insert: 12 13 (2) The Authority must cause the minutes kept under 14 subsection (1) to be published. 15 16 10. Section 14A inserted 17 After section 14 insert: 18 19 14A. Decision without meeting 20 (1) The purpose of this section is to enable the Authority to 21 make a decision on a matter (the matter) without a 22 meeting of the Authority being held. 23 (2) A notice setting out a draft decision on the matter may 24 be sent by the Chair to each other Authority member 25 for consideration. 26 (3) The Deputy Chair may send a notice under 27 subsection (2) if the Chair is unable to do so for any 28 reason. page 12 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 11 1 (4) Subject to subsection (5), an Authority member may, 2 by notice sent to each other Authority member, cast a 3 vote on whether or not the decision should be made. 4 (5) An Authority member who has a direct or indirect 5 pecuniary interest in the matter cannot cast a vote 6 under subsection (4). 7 (6) If at least 3 Authority members cast a vote under 8 subsection (4) and a majority of the votes are in favour 9 of the decision being made, the decision is taken to 10 have been made and is as effectual as if it had been 11 made at a meeting of the Authority. 12 (7) The Authority must cause a record to be kept of each 13 decision under subsection (6) and section 14(2) applies 14 to that record. 15 16 11. Section 16 amended 17 In section 16: 18 (a) delete paragraph (aa); 19 (b) in paragraph (q) before "prescribed." insert: 20 21 conferred by this Act or 22 23 12. Section 17 amended 24 Delete section 17(4). page 13 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 13 1 13. Section 26 amended 2 In section 26(1): 3 (a) delete paragraph (d) and insert: 4 5 (d) cause a notice containing prescribed particulars 6 of the draft referred to in paragraph (c), 7 including the places at which, and the period 8 during which, that draft will be available for 9 public inspection, to be published -- 10 (i) in the Gazette; and 11 (ii) if the regulations so require, in any other 12 manner specified in the regulations; 13 and 14 15 (b) in paragraph (f) delete "of the kind referred to in 16 paragraph (d)(ii)," and insert: 17 18 concerned with the protection of a portion of the 19 environment confined to, or with the prevention, control 20 or abatement of pollution or environmental harm in, a 21 particular local government district or districts, 22 23 14. Section 32 amended 24 In section 32(1)(a)(iii) delete "of the kind referred to in 25 section 26(1)(d)(ii)," and insert: 26 27 concerned with the protection of a portion of the environment 28 confined to, or with the prevention, control or abatement of 29 pollution or environmental harm in, a particular local 30 government district or districts, 31 page 14 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 15 1 15. Sections 37B to 38A replaced 2 Delete sections 37B, 38 and 38A and insert: 3 4 37B. Terms used 5 (1) In this Division -- 6 proposal of a prescribed class includes a proposal of a 7 prescribed class under an assessed scheme; 8 significant proposal means a proposal likely, if 9 implemented, to have a significant effect on the 10 environment and includes a significant amendment of 11 an approved proposal; 12 strategic proposal has the meaning given in 13 subsection (2). 14 (2) A proposal is a strategic proposal if and to the extent 15 to which it identifies -- 16 (a) a future proposal likely, if implemented, to 17 have a significant effect on the environment; or 18 (b) future proposals likely, if implemented in 19 combination with each other, to have a 20 significant effect on the environment. 21 38. Referral of proposals 22 (1) The proponent of a significant proposal, or any other 23 person, may refer the proposal to the Authority. 24 (2) In the case of a proposal under an assessed scheme, 25 only the proponent can refer the proposal to the 26 Authority under subsection (1). 27 (3) If it appears to the Minister that there is public concern 28 about the likely effect of a proposal, if implemented, on 29 the environment, the Minister may refer the proposal to 30 the Authority. page 15 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 15 1 (4) A decision-making authority must refer a proposal to 2 the Authority as soon as it has notice of the proposal if 3 the proposal appears to it to be -- 4 (a) a significant proposal; or 5 (b) a proposal of a prescribed class. 6 (5) Subsection (4) does not apply if the proposal has been 7 referred to the Authority under subsection (1) or (3). 8 (6) In the case of a proposal under an assessed scheme, the 9 application of subsection (4)(a) is subject to 10 section 48I. 11 (7) The proponent of a strategic proposal may refer the 12 proposal to the Authority. 13 38A. Calling in a proposal 14 (1) If a proposal has not been referred to the Authority 15 under section 38, the Authority must require the 16 proponent or a decision-making authority to refer the 17 proposal to the Authority if the Authority considers 18 that the proposal is -- 19 (a) a significant proposal; or 20 (b) a proposal of a prescribed class. 21 (2) A requirement under subsection (1) must be in writing 22 and must specify the period within which it has to be 23 complied with. 24 (3) A proponent or decision-making authority that is 25 required under subsection (1) to refer a proposal to the 26 Authority must do so within the period specified in the 27 requirement. 28 (4) In the case of a proposal under an assessed scheme, the 29 Authority can only require the referral of the proposal 30 if it did not, when it assessed the assessed scheme 31 under Division 3, have sufficient scientific or technical page 16 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 15 1 information to enable it to assess the environmental 2 issues raised by the proposal. 3 (5) A requirement under subsection (1) has effect despite 4 section 48I(2). 5 (6) A proposal referred to the Authority under 6 subsection (3) is taken to have been referred to the 7 Authority under section 38. 8 38B. Requirements as to referrals 9 (1) A referral to the Authority must be in writing. 10 (2) A proposal cannot be referred to the Authority more 11 than once unless -- 12 (a) under section 38D, a referral of the proposal is 13 taken to have been withdrawn; or 14 (b) under section 38F(4), a referral of the proposal 15 has been declared to have been withdrawn; or 16 (c) under section 40A, assessment of the proposal 17 has been terminated; or 18 (d) under section 47A, a Ministerial statement 19 relating to the proposal has been withdrawn or 20 is taken to have been withdrawn. 21 38C. Proponent may amend a referred proposal 22 (1) At any time before the Authority decides whether or 23 not to assess a referred proposal, the proponent may, by 24 written notice, request the Authority to approve of the 25 proposal being amended in the manner set out in the 26 request. 27 (2) The Authority may, at its discretion, give or refuse to 28 give approval under subsection (1). page 17 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 15 1 (3) If approval is given by the Authority the proposal as so 2 amended is taken to have been referred to the Authority 3 under section 38. 4 38D. Proponent may give notice that a referred proposal 5 will not proceed 6 (1) If at any time before the Authority has decided whether 7 or not to assess a referred proposal the Authority 8 receives written notice from the proponent that the 9 proponent does not wish to proceed with the proposal, 10 the referral of the proposal is taken to have been 11 withdrawn. 12 (2) This section applies whether or not the proposal was 13 referred to the Authority by the proponent. 14 38E. Proposals derived from assessed strategic proposals 15 (1) A referred proposal may be dealt with under this 16 section if -- 17 (a) there has been an assessment under this 18 Division (the strategic assessment) of a 19 strategic proposal; and 20 (b) a Ministerial statement has been published in 21 relation to the strategic proposal. 22 (2) If this section applies, the proponent of a referred 23 proposal may request the Authority in writing to 24 declare the referred proposal to be a derived proposal. 25 (3) If the proposal is referred by the proponent, a request 26 under subsection (2) may be made in the referral. 27 (4) If a request is made under subsection (2), the Authority 28 must declare the referred proposal to be a derived 29 proposal if it considers that -- 30 (a) the referred proposal was identified in the 31 strategic proposal; and page 18 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 15 1 (b) in the implementation agreement or decision set 2 out in the statement mentioned in 3 subsection (1)(b) it was agreed or decided that 4 the referred proposal could be implemented, or 5 could be implemented subject to conditions and 6 procedures agreed or decided under section 45. 7 (5) Despite subsection (4), the Authority may refuse to 8 declare the referred proposal to be a derived proposal if 9 it considers that -- 10 (a) environmental issues raised by the proposal 11 were not adequately assessed in the strategic 12 assessment; or 13 (b) there is significant new or additional 14 information that justifies the reassessment of 15 the issues raised by the proposal; or 16 (c) there has been a significant change in the 17 relevant environmental factors since the 18 strategic assessment was completed. 19 (6) If the Authority declares the referred proposal to be a 20 derived proposal, it must -- 21 (a) record the declaration in the public record kept 22 under section 39(1); and 23 (b) give written notice of the declaration to the 24 Minister. 25 (7) If the Authority declares the referred proposal to be a 26 derived proposal, it cannot decide to assess the 27 proposal except for the purposes of conducting an 28 inquiry under section 46(4). 29 (8) If the Authority refuses to declare the referred proposal 30 to be a derived proposal, it must give written notice of 31 the refusal to the proponent. 32 (9) A notice under subsection (8) may be included in the 33 notice given under section 38G(1)(b)(i). page 19 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 15 1 (10) For the purposes of this section it does not matter 2 whether the proponent of the referred proposal was, or 3 was not, the proponent of the strategic proposal. 4 38F. Request for further information 5 (1) This subsection applies if the Authority considers that 6 it does not have enough information about a referred 7 proposal to enable it to decide -- 8 (a) whether or not to assess the proposal; or 9 (b) whether or not to agree to a request made under 10 section 38E(2). 11 (2) If subsection (1) applies, the Authority may, by written 12 notice (a requisition), request any person to provide it 13 with additional information about the proposal before 14 the end of a period specified in the notice (the 15 compliance period). 16 (3) In determining whether the 28 day period set by 17 section 38G(1) has ended the following are to be 18 disregarded -- 19 (a) if a requisition is complied with within the 20 compliance period -- the period from the day 21 on which it was issued until the day on which it 22 was complied with; 23 (b) if a requisition is not complied with within the 24 compliance period -- the compliance period. 25 (4) If a requisition in relation to a proposal is issued to the 26 person who referred the proposal and the compliance 27 period ends without the requisition having been 28 complied with, the Authority may, by written notice to 29 the person, declare the referral to have been withdrawn. 30 (5) If the proposal was not referred by the proponent, the 31 Authority must obtain the consent of the proponent 32 before giving notice under subsection (4). page 20 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 15 1 38G. Authority must decide whether to assess a referred 2 proposal 3 (1) The Authority must, within 28 days after the referral of 4 a proposal -- 5 (a) decide whether or not to assess the referred 6 proposal; and 7 (b) give written notice of the decision -- 8 (i) to the proponent; and 9 (ii) if the proposal was not referred by the 10 proponent -- to the person that referred 11 it; and 12 (iii) to any decision-making authority 13 determined by the Authority to be a 14 relevant decision-making authority in 15 relation to the proposal. 16 (2) Subsection (1) does not apply if -- 17 (a) under section 38D, the referral is taken to have 18 been withdrawn; or 19 (b) the proposal is declared under section 38E to be 20 a derived proposal; or 21 (c) under section 38F(4), the referral has been 22 declared to have been withdrawn. 23 (3) The Authority's decision under subsection (1) must be 24 based on -- 25 (a) any information submitted to it when the 26 proposal was referred; and 27 (b) any additional information provided to it under 28 section 38F; and 29 (c) any information derived from its own 30 investigations and inquiries. page 21 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 15 1 (4) In making its decision under subsection (1) the 2 Authority may take into account other statutory 3 decision-making processes that can mitigate the 4 potential impacts of the proposal on the environment. 5 (5) If, for any reason, a relevant decision-making authority 6 is not given notice as required by subsection (1)(b)(iii) 7 that a proposal is going to be assessed, the Authority 8 may give written notice to the decision-making 9 authority under this subsection. 10 (6) Notice under subsection (5) may be given by the 11 Authority of its own motion or at the request of the 12 decision-making authority, and may be given at any 13 time before a report on the proposal is given to the 14 Minister under section 44(1). 15 (7) If the Authority decides not to assess a proposal, it may 16 nevertheless give advice and make recommendations 17 on the environmental aspects of the proposal to the 18 proponent or any other relevant person or authority. 19 38H. Nomination of person responsible for proposal 20 (1) This section applies to a proposal if -- 21 (a) the proposal is referred, or is required to be 22 referred, to the Authority under section 38; and 23 (b) the Authority decides that the proposal should 24 be assessed by it under this Part. 25 (2) Except when the responsibility for a proposal is 26 imposed on a public authority under another written 27 law, the Authority must nominate a person as being 28 responsible for the proposal. page 22 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 15 1 (3) If an individual is nominated under subsection (2), the 2 nomination may be made -- 3 (a) by reference to the individual's name; or 4 (b) by reference to the individual being the person 5 for the time being holding or acting in a 6 particular office or position. 7 (4) Written notice of a nomination under subsection (2) 8 must be served on -- 9 (a) the person nominated; and 10 (b) any decision-making authority to which or 11 whom notice of the Authority's decision to 12 assess the proposal has been given under 13 section 38G(1)(b)(iii) or (5). 14 38I. Change of person responsible for proposal 15 (1) A person nominated under section 38H(2) in relation to 16 a proposal that proposes to transfer responsibility for 17 the proposal to another person must give written notice 18 advising the name of that other person -- 19 (a) to the Authority; or 20 (b) if a statement relating to the proposal has been 21 published under section 45(8)(b) -- to the 22 Minister. 23 (2) The Authority may -- 24 (a) revoke a nomination under section 38H(2) in 25 relation to a proposal; and 26 (b) nominate another person under section 38H(2) 27 in relation to the proposal. 28 (3) Subsection (2) applies even if -- 29 (a) no written notice has been given to the 30 Authority under subsection (1); or page 23 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 16 1 (b) the person mentioned in subsection (2)(b) is not 2 the person named in a written notice given to 3 the Authority under subsection (1). 4 (4) Subsections (1) and (2) apply even if a report on the 5 proposal has been published under section 44(3) or a 6 statement has been published under section 45(8)(b) 7 but, if a statement has been published, the powers 8 conferred by subsection (2) must be exercised by the 9 Minister. 10 (5) Subsections (1) and (2) do not apply if the assessment 11 of the proposal has been terminated under section 40A. 12 (6) For the purposes of subsections (1) and (2) and 13 section 3(2b), a person that has been notified under 14 section 38G(1)(b)(i) that the Authority is going to 15 assess a proposal is taken to have been nominated 16 under section 38H(2) as being responsible for the 17 proposal whether or not such a nomination has been 18 made. 19 20 16. Section 39 replaced 21 Delete section 39 and insert: 22 23 39. Authority to keep records of referred proposals 24 (1) The Authority must keep a public record of each 25 referred proposal. 26 (2) The public record must set out whether or not that 27 proposal is to be assessed under this Part. 28 29 17. Sections 39A and 39B deleted 30 Delete sections 39A and 39B. page 24 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 18 1 18. Section 40 amended 2 (1) Delete section 40(4) and (5) and insert: 3 4 (4) Subject to any direction made under section 43(1), the 5 Authority may cause the following to be published -- 6 (a) any information or report provided in 7 compliance with a requirement made under 8 subsection (2)(a) or (aa); 9 (b) any report made in compliance with a 10 requirement made under subsection (2)(b). 11 (5) When publishing information or a report under 12 subsection (4) the Authority may -- 13 (a) declare the information or report to be available 14 for public review; and 15 (b) specify the period within which, the extent to 16 which and the manner in which public 17 authorities or persons may make submissions to 18 the Authority in respect of the information or 19 report. 20 21 (2) In section 40(6): 22 (a) delete "causes any information or report to be made 23 available for public review under subsection (4) --" and 24 insert: 25 26 declares any information or report to be available for 27 public review under subsection (5)(a) -- 28 page 25 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 19 1 (b) delete paragraph (a)(i) and insert: 2 3 (i) at the proponent's own expense, publish 4 notice of that information or report 5 being available for public review; and 6 7 (c) in paragraph (a)(ii) before "at such" insert: 8 9 in such manner and 10 11 (d) in paragraph (a)(iii) before "at such" insert: 12 13 in such manner, 14 15 19. Section 40AA inserted 16 Before section 40A insert: 17 18 40AA. Assessment of significant amendments 19 (1) This section applies if the Authority assesses a 20 significant amendment of an approved proposal. 21 (2) The Authority must assess the significant amendment 22 in the context of the approved proposal and have regard 23 to the combined effect that the implementation of the 24 approved proposal and the significant amendment 25 might have on the environment. 26 (3) For the purposes of subsection (2) the Authority may 27 inquire into and report on the implementation 28 conditions relating to the approved proposal. page 26 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 20 1 (4) Each of those implementation conditions continues to 2 apply in relation to the approved proposal subject to -- 3 (a) it being amended under section 45C or 46(9); 4 or 5 (b) revised conditions or procedures being agreed 6 or decided under sections 45 and 45A in 7 relation to the approved proposal after the 8 significant amendment has been assessed. 9 (5) Subsection 41A(1) does not apply to the doing of 10 anything to implement the approved proposal. 11 (6) If a statement is served and published under 12 subsection 45(8), it may be in the form of -- 13 (a) a statement that only applies to the significant 14 amendment; or 15 (b) a statement that includes the implementation 16 conditions for the approved proposal as 17 amended by the significant amendment, and 18 supersedes the previous Ministerial statement 19 relating to the approved proposal. 20 21 20. Section 40A amended 22 After section 40A(1)(a) insert: 23 24 (aa) the Authority receives written notice from the 25 proponent that the proponent does not wish to 26 proceed with the proposal; or 27 page 27 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 21 1 21. Section 40B replaced 2 Delete section 40B and insert: 3 4 40B. Application of assessment provisions to strategic 5 proposals and strategic assessments 6 (1) Sections 41, 41A and 45(12) do not apply in relation to 7 a strategic proposal. 8 (2) Sections 44, 45 (other than subsection (12)) and 45A 9 apply in relation to a strategic proposal as if references 10 in them to implementation were references to the 11 implementation of a future proposal identified in the 12 strategic proposal in the event of that future proposal 13 being declared under section 38E to be a derived 14 proposal. 15 (3) This section does not affect the application of 16 sections 41, 41A, 44, 45 and 45A in relation to a 17 strategic proposal to the extent to which the strategic 18 proposal is itself a significant proposal. 19 20 22. Section 41 amended 21 (1) In section 41(2): 22 (a) delete paragraph (a) and insert: 23 24 (a) has referred a proposal to the Authority under 25 section 38; or 26 27 (b) in paragraph (b) delete "section 38(3)" and insert: 28 29 section 38A(1) 30 page 28 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 23 1 (c) in paragraph (c) delete "section 39A(3)(b) that the 2 Authority is not going to assess the proposal and the 3 period within which an appeal against that decision" and 4 insert: 5 6 section 38G(1)(b)(iii) that the Authority is not going to 7 assess the proposal and the period within which an 8 appeal against the decision that the proposal not be 9 assessed 10 11 (d) in paragraph (d) delete "section 45(7)," and insert: 12 13 section 45(12), 14 15 (2) In section 41(3): 16 (a) delete "section 39A(3)(c) or (4)" and insert: 17 18 section 38G(1)(b)(iii) or (5) 19 20 (b) delete "section 45(7)" and insert: 21 22 section 45(12) 23 24 23. Section 41A amended 25 (1) In section 41A(1) delete "section 45(5)(b) or a notification is 26 given under section 45(8)" and insert: 27 28 section 45(8)(b) or a notification is given under section 45(13) 29 page 29 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 24 1 (2) In section 41A(2) delete "section 45(5)(b) and (8) were 2 references to the application of those provisions to any revised 3 or further" and insert: 4 5 section 45(8)(b) and (13) were references to the application of 6 those provisions to any new 7 8 24. Section 42 amended 9 In section 42(1)(b) delete "Chairman of " and insert: 10 11 Chair of 12 13 25. Section 43 amended 14 (1) In section 43(1)(a) delete "proposal referred to it under 15 section 38" and insert: 16 17 referred proposal 18 19 (2) In section 43(2) delete "39, 39A(3), 40(2), (3), (4), (5), (6), (7), 20 and (8)," and insert: 21 22 38G(1), 39, 40(2) to (8), 23 24 (3) Delete section 43(3) and insert: 25 26 (3) A direction cannot be given under subsection (1) if a 27 statement has been served under section 45(8)(a) or a 28 notification has been given under section 45(13). page 30 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 26 1 (3A) A direction can be given under subsection (1) even if 2 the Minister has dismissed an appeal under 3 section 100(1)(a) against a decision by the Authority 4 that the proposal is not to be assessed. 5 6 26. Section 43A replaced 7 Delete section 43A and insert: 8 9 43A. Amendments to proposals during assessment 10 (1) While a proposal is being assessed, the proponent may, 11 by written notice -- 12 (a) advise the Authority that the proponent wishes 13 to amend the proposal in the manner set out in 14 that notice; and 15 (b) request that the Authority approve of the 16 assessment of the proposal being completed in 17 respect of the proposal as so amended. 18 (2) The Authority may, at its discretion, give or refuse to 19 give approval under subsection (1)(b). 20 (3) If the Authority gives approval under 21 subsection (1)(b) -- 22 (a) the proposal as so amended is taken to have 23 been referred to the Authority under section 38; 24 and 25 (b) without limiting section 40, the Authority, if it 26 thinks fit, may perform, or perform again, any 27 function that it could have performed, or has 28 already performed, in respect of the proposal. 29 page 31 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 27 1 27. Section 44 amended 2 (1) In section 44(1) delete "is to" and insert: 3 4 must 5 6 (2) Before section 44(2a) insert: 7 8 (2AA) In considering key environmental factors and any 9 recommendations that may be included in the 10 assessment report the Authority may take into account 11 other statutory decision-making processes that can 12 mitigate the potential impacts of the proposal on the 13 environment. 14 15 (3) In section 44(3)(b)(ii) delete "section 39A(3)(c) or (4)" and 16 insert: 17 18 section 38G(1)(b)(iii) or (5) 19 20 28. Sections 45 to 45C replaced 21 Delete sections 45, 45A, 45B and 45C and insert: 22 23 44A. Terms used 24 In this Division -- 25 assessed proposal means the proposal to which a report 26 mentioned in section 45(1) relates; 27 DMA decision means a decision of a decision-making 28 authority that could have the effect of causing or 29 allowing the assessed proposal to be implemented; page 32 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 28 1 implementation agreement or decision means an 2 agreement or decision under sections 45 and 45A (or 3 under those sections as applied by section 46(8)) as to 4 whether or not a proposal to which a report published 5 under section 44(3)(a) relates may be implemented 6 and, if that proposal may be implemented, as to what 7 conditions and procedures, if any, that implementation 8 is subject; 9 implementation conditions means the conditions and 10 procedures, if any, agreed or decided in relation to the 11 assessed proposal under section 45 and 45A (or under 12 those sections as applied by section 46(8)) and, if those 13 conditions and procedures are amended under 14 section 45C or on an appeal lodged under 15 section 100(3), means those conditions and procedures 16 as so amended; 17 implementation issue means -- 18 (a) the issue of whether or not the assessed 19 proposal may be implemented; or 20 (b) the issue of the conditions and procedures, if 21 any, to which the assessed proposal, if 22 implemented, should be subject; 23 key decision-making authority means a 24 decision-making authority determined by the Minister 25 under section 45(2) to have a role in making major 26 decisions in relation to matters in the assessed proposal 27 that may have significant effects on the environment. 28 45. Procedure for deciding if assessed proposal may be 29 implemented 30 (1) This section applies after the Minister has caused a 31 report to be published under section 44(3)(a). 32 (2) For the purposes of this section the Minister must 33 determine which or whom of the decision-making 34 authorities in relation to the assessed proposal has a page 33 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 28 1 role, or have roles, in making major decisions in 2 relation to matters in the proposal that may have 3 significant effects on the environment. 4 (3) If the key decision-making authority, or one or more of 5 the key decision-making authorities, is or are another 6 Minister or other Ministers, the Minister must consult 7 and, if possible, agree with that Minister or those 8 Ministers on the implementation issues. 9 (4) If neither the key decision-making authority, nor any of 10 the key decision-making authorities, as the case 11 requires, is another Minister, the Minister must consult 12 and, if possible, agree with that key decision-making 13 authority or those key decision-making authorities on 14 the implementation issues. 15 (5) If the Minister and the other Minister or Ministers 16 referred to in subsection (3) cannot agree on an 17 implementation issue, the Minister must refer the 18 matter or matters in dispute to the Governor for 19 decision, and the decision of the Governor on that 20 matter or matters is final and without appeal. 21 (6) If the Minister and the decision-making authority or 22 decision-making authorities referred to in 23 subsection (4) cannot agree on an implementation 24 issue, the Minister must appoint an appeals committee 25 to consider and report to the Minister on the matter or 26 matters in dispute. 27 (7) Sections 106, 107, 108, 109 and 110 apply to and in 28 relation to a matter in respect of which the Minister has 29 appointed an appeals committee under subsection (6) 30 as if that matter were the subject of an appeal from a 31 decision of the Minister. page 34 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 28 1 (8) If the implementation agreement or decision is that the 2 assessed proposal may be implemented, or may be 3 implemented subject to implementation conditions, the 4 Minister must -- 5 (a) cause copies of a statement setting out the 6 implementation agreement or decision to be 7 served on -- 8 (i) the Authority; and 9 (ii) each key decision-making authority and 10 any other decision-making authority to 11 which or whom notice of the 12 Authority's decision to assess the 13 proposal was given under 14 section 38G(1)(b)(iii) or (5); and 15 (iii) the proponent of the assessed proposal; 16 and 17 (iv) the person who referred the assessed 18 proposal (if it was not referred by a 19 person referred to in subparagraph (ii) 20 or (iii)); 21 and 22 (b) cause the statement to be published as soon as 23 is practicable after it is served under 24 paragraph (a). 25 (9) Section 45A sets out some kinds of implementation 26 conditions that may be agreed or decided in relation to 27 the assessed proposal, but nothing in that section 28 prevents any other implementation condition from 29 being agreed or decided. 30 (10) Despite anything in this section -- 31 (a) an implementation issue cannot be agreed or 32 decided under this section during the period of 33 21 days referred to in section 100(3a)(b); and page 35 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 28 1 (b) if an appeal is lodged under section 100(1)(d) 2 in respect of the report mentioned in 3 subsection (1) -- 4 (i) an implementation issue cannot be 5 agreed or decided under this section 6 while the appeal is pending; and 7 (ii) if the decision on the appeal is to remit 8 the assessed proposal to the Authority 9 for further assessment or 10 reassessment -- an implementation 11 issue cannot be agreed or decided under 12 this section before the report on that 13 further assessment or reassessment has 14 been published under section 44(3)(a). 15 (11) Subsection (12) applies if -- 16 (a) a statement has been published under 17 subsection (8)(b) in relation to the assessed 18 proposal; and 19 (b) the Minister is satisfied that there is no reason 20 why the assessed proposal should not be 21 implemented. 22 (12) As soon as this subsection applies, the Minister may 23 cause to be served on the decision-making authority 24 precluded by section 41 from making a DMA decision 25 an authority in writing permitting a DMA decision to 26 be made. 27 (13) If the implementation agreement or decision is that the 28 assessed proposal may not be implemented, the 29 Minister must give written notice of the 30 implementation agreement or decision to -- 31 (a) the Authority; and 32 (b) each key decision-making authority and any 33 other decision-making authority to which or 34 whom notice of the Authority's decision to page 36 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 28 1 assess the proposal was given under 2 section 38G(1)(b)(iii) or (5); and 3 (c) the proponent of the assessed proposal; and 4 (d) the person who referred the assessed proposal 5 (if it was not referred by a person referred to in 6 paragraph (b) or (c)). 7 (14) If notice is given under subsection (13) of an 8 implementation agreement or decision for a significant 9 amendment of an approved proposal, that 10 implementation agreement or decision does not affect 11 the implementation of the approved proposal. 12 45A. Implementation conditions 13 (1) The following list sets out things the proponent of the 14 assessed proposal can be required to do under 15 implementation conditions -- 16 (a) substantially commence implementation of the 17 proposal within a specified period or before a 18 specified date; 19 (b) at the proponent's expense, take environmental 20 protection, abatement or restoration measures 21 on the subject land, or on other land, in order to 22 directly or indirectly offset the impacts of the 23 implementation of the proposal on the 24 environment; 25 (c) contribute moneys to be used for the purpose of 26 taking environmental protection, abatement or 27 restoration measures on the subject land or 28 other land; 29 (d) give an environmental undertaking in relation 30 to other land; 31 (e) arrange for an environmental protection 32 covenant to be given by a specified person page 37 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 28 1 other than the proponent in relation to other 2 land; 3 (f) at the proponent's expense, prepare, implement 4 and adhere to environmental management 5 systems, environmental management plans and 6 environmental improvement plans; 7 (g) at the proponent's expense, arrange for audits 8 as to whether or not the implementation 9 conditions have been complied with to be 10 carried out at specified times by a person 11 nominated or approved by the CEO and report 12 to the CEO on the findings of those audits. 13 (2) In subsection (1) -- 14 other land means land other than the subject land; 15 specified means specified in an implementation 16 condition; 17 subject land means the land to which the assessed 18 proposal relates. 19 (3) If the implementation agreement or decision authorises 20 the assessed proposal to be implemented only if it is 21 implemented in 2 or more stages, the implementation 22 agreement or decision may include implementation 23 conditions specifying requirements in relation to the 24 implementation of a stage of the proposal that must be 25 met to the satisfaction of the CEO before the 26 implementation of the next stage can take place. 27 (4) An implementation condition may require the 28 proponent to pay fees or charges payable under 29 section 48AA(1) in relation to the assessed proposal. page 38 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 28 1 45B. Implementation of derived proposal 2 (1) In this section -- 3 section 38E declaration means a declaration under 4 section 38E that a proposal is a derived proposal. 5 (2) Subject to subsection (3), when the Minister is notified 6 under section 38E(6)(b) of a section 38E declaration, 7 the previous Ministerial statement relating to the 8 derived proposal takes effect and the Minister must 9 cause written notice of the taking effect of the 10 Ministerial statement to be served on -- 11 (a) the Authority; and 12 (b) each decision-making authority that received 13 the Ministerial statement under 14 section 45(8)(a)(ii); and 15 (c) the proponent of the derived proposal; and 16 (d) the person who referred the derived proposal (if 17 it was not referred by a person referred to in 18 paragraph (b) or (c)). 19 (3) If the previous Ministerial statement relating to the 20 derived proposal included implementation conditions 21 relating generally to 2 or more future proposals, the 22 Minister may, in the notice under subsection (2), 23 specify which of those implementation conditions 24 apply to the derived proposal and, subject to 25 sections 46 and 46A, the conditions and procedures so 26 specified are the implementation conditions relating to 27 the derived proposal. page 39 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 28 1 45C. Amending approved proposals or implementation 2 conditions without inquiry or assessment 3 (1) The Minister, after receiving a written request from the 4 proponent to do so, may -- 5 (a) approve an amendment to an approved 6 proposal; or 7 (b) amend implementation conditions relating to an 8 approved proposal; or 9 (c) approve an amendment to an approved proposal 10 and amend implementation conditions relating 11 to the approved proposal. 12 (2) The Minister may, by written notice, request the 13 proponent to provide the Minister with additional 14 information about an amendment to which a request 15 under subsection (1) applies to enable the Minister to 16 decide whether or not to approve or make the requested 17 amendment. 18 (3) The Minister must not approve or make an amendment 19 requested under subsection (1) if the Minister considers 20 that the requested amendment is a significant 21 amendment. 22 (4) Whether or not there has been a request under 23 subsection (1), the Minister may amend an approved 24 proposal if the Minister considers that the amendment 25 is of a minor nature and is necessary and desirable in 26 order to correct in the description of the proposal -- 27 (a) a clerical mistake or unintentional error or 28 omission; or 29 (b) a figure that has been miscalculated; or 30 (c) a misdescription of any person, thing or 31 property. page 40 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 28 1 (5) Whether or not there has been a request under 2 subsection (1), the Minister may amend 3 implementation conditions relating to an approved 4 proposal if the Minister considers that the amendment 5 is of a minor nature and is necessary and desirable in 6 order to -- 7 (a) standardise the implementation conditions 8 applying to different proposals; or 9 (b) correct in the implementation conditions -- 10 (i) a clerical mistake or unintentional error 11 or omission; or 12 (ii) a figure that has been miscalculated; or 13 (iii) a misdescription of any person, thing or 14 property; 15 or 16 (c) make an administrative change to the format of 17 the implementation conditions that does not 18 alter the obligations of the proponent. 19 (6) The Minister must cause notice of amendments 20 approved or made under subsection (1), (4) or (5) -- 21 (a) to be given in writing to -- 22 (i) the Authority; and 23 (ii) each decision-making authority that was 24 consulted under this Act in relation to 25 the implementation conditions; and 26 (iii) the proponent of the proposal; 27 and 28 (b) to be published. page 41 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 28 1 (7) If the Minister refuses to approve or make an 2 amendment as requested under subsection (1), the 3 Minister must give written notice of the refusal to the 4 proponent and the proponent may refer the requested 5 amendment to the Authority under section 38(1) as a 6 significant amendment of an approved proposal. 7 (8) Without limiting this Division, where notice has been 8 given under subsection (7) in relation to a requested 9 amendment of implementation conditions -- 10 (a) the Minister may make a request under 11 section 46(1) whether or not the Minister 12 considers that the implementation conditions, 13 or any of them, should be amended; or 14 (b) the Minister may agree with any 15 decision-making authority that was consulted 16 under this Act in relation to the existing 17 implementation conditions that the proposed 18 amendment to conditions is a significant 19 amendment that must be referred by the 20 decision-making authority under section 38(4) 21 as a significant proposal. 22 45D. Division or consolidation of proposals and issue of 23 separate or combined Ministerial statements 24 (1) Without limiting section 45C, an amendment approved 25 or made under section 45C(1) may comprise or 26 include -- 27 (a) the division of an approved proposal into 2 or 28 more proposals (the separate proposals) and 29 the division of the implementation agreement 30 or decision for the approved proposal into 31 implementation agreements or decisions for 32 each of the separate proposals; or page 42 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 29 1 (b) the consolidation of 2 or more approved 2 proposals into 1 proposal (the consolidated 3 proposal) and the consolidation of the 4 implementation agreements or decisions for the 5 approved proposals to form an implementation 6 agreement or decision for the consolidated 7 proposal. 8 (2) If subsection (1)(a) applies, the notice given and 9 published under section 45C(6) must be in the form of 10 statements relating to each of the separate proposals 11 and those statements supersede the previous Ministerial 12 statement relating to the approved proposal. 13 (3) If subsection (1)(b) applies, the notice given and 14 published under section 45C(6) must be in the form of 15 a statement relating to the consolidated proposal and 16 that statement supersedes the previous Ministerial 17 statements relating to the approved proposals. 18 19 29. Section 46 amended 20 (1) Delete section 46(1) and insert: 21 22 (1) If the Minister considers that the implementation 23 conditions relating to an approved proposal, or any of 24 them, should be amended (whether because of an 25 amendment to the proposal approved under 26 section 45C or for any other reason), the Minister may 27 request the Authority to inquire into and report on the 28 matter within the period specified in the request. 29 page 43 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 29 1 (2) In section 46(4): 2 (a) delete "section 39B" and insert: 3 4 section 38E(4) 5 6 (b) delete "changed." and insert: 7 8 amended. 9 10 (3) In section 46(6)(a) delete "changed; and" and insert 11 12 amended; and 13 14 (4) In section 46(8): 15 (a) delete "changed" and insert: 16 17 amended 18 19 (b) delete "section 45 applies" and insert: 20 21 sections 45 and 45A apply 22 23 (5) After section 46(8) insert: 24 25 (8A) Despite subsection (8), the Minister's obligations under 26 section 45(3) or (4) as applied by subsection (8) do not 27 extend to a decision-making authority unless the 28 Minister considers that the report under subsection (6) 29 recommends an amendment to an implementation 30 condition that would, if made, affect the page 44 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 30 1 decision-making functions of that decision-making 2 authority. 3 4 (6) In section 46(9): 5 (a) delete "section 45(5)" and insert: 6 7 section 45(8) 8 9 (b) delete "change" and insert: 10 11 amend 12 13 (7) Delete section 46(10). 14 Note: The heading to amended section 46 is to read: 15 Amending implementation conditions after inquiry 16 30. Section 46A amended 17 (1) In section 46A(1) delete "section 45(5)" and insert: 18 19 section 45(8)(b) 20 21 (2) Delete section 46A(2)(a)(ii) and insert: 22 23 (ii) each decision-making authority that 24 received the original Ministerial 25 statement under section 45(8)(a)(ii); and 26 page 45 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 31 1 31. Sections 46B to 48 replaced 2 Delete sections 46B, 46C, 47 and 48 and insert: 3 4 47. Duties of proponents after service of Ministerial 5 statement 6 (1) If a Ministerial statement has been published and the 7 proponent does not ensure that any implementation of 8 the proposal to which the statement relates is carried 9 out in accordance with the implementation conditions, 10 the proponent commits an offence. 11 (2) Subsection (1) does not apply to an implementation 12 condition mentioned in section 45A(1)(a). 13 (3) In order to enable the CEO to assess compliance with 14 the implementation conditions in a Ministerial 15 statement, the CEO may by written notice given to the 16 proponent -- 17 (a) require the proponent to give the CEO reports 18 and information about the implementation of 19 the proposal to which the statement relates; and 20 (b) require the proponent to undertake tests, 21 surveys, investigations, monitoring or other 22 work and give the CEO reports and information 23 about the tests, surveys, investigations, 24 monitoring or work. 25 (4) If, without reasonable excuse, the proponent refuses or 26 fails to comply with a requirement made under 27 subsection (3), the proponent commits an offence. 28 (5) If a notification has been given under section 45(13) 29 and the proponent does anything to implement the 30 proposal to which the notification relates, the 31 proponent commits an offence. page 46 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 31 1 47A. Duration and withdrawal of Ministerial statement 2 (1) The Ministerial statement relating to an approved 3 proposal continues to have effect unless it is withdrawn 4 or taken to have been withdrawn under this section. 5 (2) This subsection applies if -- 6 (a) the Ministerial statement relating to an 7 approved proposal contains a condition 8 mentioned in section 45A(1)(a) (the 9 commencement condition); and 10 (b) the CEO gives the Minister written notice that, 11 in the CEO's opinion, the commencement 12 condition has not been complied with. 13 (3) This subsection applies if the proponent of an approved 14 proposal requests the Minister, in writing, to withdraw 15 the Ministerial statement relating to the proposal and 16 the Minister is satisfied -- 17 (a) that the proposal has been implemented and 18 that the implementation conditions, if any, have 19 been complied with or no longer need to be 20 complied with; or 21 (b) that the impacts of the implementation of the 22 proposal can be satisfactorily mitigated by way 23 of licensing or some other form of regulatory 24 control under this Act or another written law. 25 (4) If subsection (2) or (3) applies, the Minister may 26 withdraw the Ministerial statement if the Minister 27 considers that it is appropriate to do so. 28 (5) If under subsection (4) the Minister withdraws the 29 Ministerial statement relating to an approved proposal, 30 the Minister must cause notice of the withdrawal to be 31 served on -- 32 (a) the Authority and the CEO; and page 47 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 31 1 (b) each decision-making authority that received 2 the Ministerial statement under 3 section 45(8)(a)(ii); and 4 (c) the proponent of the proposal; and 5 (d) the person who referred the proposal (if it was 6 not referred by a person referred to in 7 paragraph (b) or (c)). 8 (6) The Minister must cause notice of the withdrawal to be 9 published as soon as is practicable after it is served 10 under subsection (5). 11 (7) If the Ministerial statement relating to an approved 12 proposal specifies that it has effect for a specified 13 period, it is taken to have been withdrawn when that 14 period ends. 15 (8) If a Ministerial statement is withdrawn or taken to have 16 been withdrawn under this section, the statement has 17 no further effect. 18 48. Control of implementation of proposals 19 (1) The CEO may monitor the implementation of an 20 approved proposal, or cause it to be monitored, for the 21 purpose of determining whether the implementation 22 conditions relating to the proposal are being complied 23 with. 24 (2) If the CEO finds that any of the implementation 25 conditions is not being complied with, the CEO -- 26 (a) may exercise any power in respect of the 27 non-compliance that is exercisable by the CEO 28 under a written law; and 29 (b) in any event, must report the non-compliance to 30 the Minister. page 48 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 31 1 (3) This subsection applies if, under implementation 2 conditions, the implementation of the approved 3 proposal is subject to requirements made by -- 4 (a) a decision-making authority; or 5 (b) another public authority with functions or 6 expertise relevant to the proposal. 7 (4) If subsection (3) applies, the decision-making authority 8 or other public authority may monitor that 9 implementation of the approved proposal, or cause it to 10 be monitored, for the purpose of determining whether 11 the implementation conditions of that kind are being 12 complied with. 13 (5) If the decision-making authority or other public 14 authority finds that any implementation conditions of 15 that kind is not being complied with, it -- 16 (a) may exercise any power in respect of the 17 non-compliance that is exercisable by it under a 18 written law or otherwise; and 19 (b) in any event, must report the non-compliance to 20 the Minister. 21 (6) The Minister may exercise one or more of the powers 22 set out in subsection (7) in relation to the approved 23 proposal if -- 24 (a) the Minister receives any relevant report made 25 under subsection (2)(b) or (5)(b); or 26 (b) the Minister is not satisfied with any relevant 27 monitoring conducted under this section, any 28 relevant exercise of power under this section or 29 any relevant report made under this section. page 49 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 31 1 (7) The powers of the Minister under subsection (6) are as 2 follows -- 3 (a) after making reasonable endeavours to consult 4 the proponent of the approved proposal -- 5 power to cause to be served on that proponent a 6 written notice issued by the Minister requiring 7 that proponent -- 8 (i) forthwith to stop the implementation of 9 the proposal; and 10 (ii) not to resume the implementation of the 11 proposal during a period specified in 12 that notice being a period ending not 13 more than 28 days after the day on 14 which that notice is served; 15 (b) power to cause to be served on the proponent of 16 the relevant proposal a written notice issued by 17 the Minister requiring that proponent to take the 18 steps specified in the notice within the period 19 so specified for the purpose of -- 20 (i) complying with the relevant 21 implementation condition; or 22 (ii) preventing, controlling or abating any 23 pollution or environmental harm caused 24 by any non-compliance with the 25 relevant implementation condition; 26 (c) power to cause the taking of steps necessary for 27 the purpose of -- 28 (i) complying with the relevant 29 implementation condition; or 30 (ii) preventing, controlling or abating any 31 pollution or environmental harm caused 32 by any non-compliance with the 33 relevant implementation condition; page 50 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 32 1 (d) if the Minister considers that the relevant 2 condition or procedure should be changed -- 3 power to make a request under section 46(1). 4 (8) Subject to section 101(4), the cost of taking any steps 5 referred to in subsection (7)(c) is a debt due to the 6 Crown by the proponent concerned and may be 7 recovered from the proponent by the Minister by action 8 in a court of competent jurisdiction and must, if so 9 recovered, be credited to the Consolidated Account. 10 (9) A proponent who does not comply with a notice served 11 on the proponent under subsection (7)(a) or (b) 12 commits an offence. 13 (10) Subsection (9) does not apply to the resumption of the 14 implementation of a proposal before the end of the 15 period specified in a notice under subsection (7)(a)(ii) 16 if the Minister has served a written notice on the 17 proponent authorising implementation to be resumed. 18 (11) It is not necessary to publish in the Gazette a notice 19 served under subsection (7)(a) or (b) or (10). 20 21 32. Part IV Division 2A inserted 22 After Part IV Division 2 insert: 23 24 Division 2A -- Payments relating to proposals 25 48AA. Fees and charges for referral and assessment of 26 proposals 27 (1) Without limiting section 123(1) and (2), regulations 28 may be made under section 123(1) prescribing fees or 29 charges that are payable by proponents in prescribed 30 circumstances in relation to the referral, assessment 31 and implementation of proposals under Division 1 or 2. page 51 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 33 1 (2) Moneys paid as fees and charges under subsection (1) 2 are to be used for the purpose of defraying the costs 3 incurred by the Department in receiving and assessing 4 proposals and monitoring the implementation of 5 proposals. 6 7 33. Section 48A amended 8 (1) In section 48A(1)(b)(i) delete "and any relevant 9 decision-making authority". 10 (2) In section 48A(2) delete paragraph (b)(ii) and (iii) and insert: 11 12 (ii) the responsible authority, 13 14 34. Section 48BA inserted 15 After section 48A insert: 16 17 48BA. Request for further information about a referred 18 scheme 19 (1) In this section -- 20 information period means the 28 day period set by 21 section 48A(1)(a), (b) or (c) or the 60 day period set by 22 section 48A(1)(b). 23 (2) This subsection applies if the Authority considers that 24 it does not have enough information about a scheme 25 referred to it under the relevant scheme Act to enable it 26 to decide -- 27 (a) whether or not to assess the scheme; or 28 (b) whether or not the scheme is by its nature 29 incapable of being made environmentally 30 acceptable. page 52 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 35 1 (3) If subsection (2) applies, the Authority may, by written 2 notice (a requisition), request any person to provide it 3 with additional information about the scheme before 4 the end of a period specified in the notice (the 5 compliance period). 6 (4) In determining whether an information period has 7 ended the following are to be disregarded -- 8 (a) if a requisition is complied with within the 9 compliance period -- the period from the day 10 on which it was issued until the day on which it 11 was complied with; 12 (b) if a requisition is not complied with within the 13 compliance period -- the compliance period. 14 15 35. Section 48B amended 16 (1) In section 48B(1) delete "shall, subject to this section," and 17 insert: 18 19 must 20 21 (2) Delete section 48B(2). 22 36. Section 48C amended 23 (1) Delete section 48C(4) and insert: 24 25 (3A) The Authority may cause to be published -- 26 (a) any report made in compliance with a 27 requirement made under subsection (1)(a) 28 or (aa); or 29 (b) any information provided in compliance with a 30 requirement made under subsection (1)(b). page 53 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 36 1 (4) When publishing a report or information under 2 subsection (3A) the Authority may -- 3 (a) declare the report or information to be available 4 for public review; and 5 (b) specify the period within which, the extent to 6 which and the manner in which public 7 authorities or persons may make submissions to 8 the Authority in respect of the report or 9 information. 10 11 (2) In section 48C(5) delete "made available for public review 12 under subsection (4) or" and insert: 13 14 declared to be available for public review under 15 subsection (4)(a) or made available for public review under 16 17 (3) Delete section 48C(5)(a)(i) and insert: 18 19 (i) at its own expense, publish notice that 20 the report or information is available for 21 public review; and 22 23 (4) In section 48C(6): 24 (a) delete "subsections (3), (4) and (5)," and insert: 25 26 subsections (3) to (5), 27 28 (b) in paragraph (b), delete "subsections (3), (4) and (5)" 29 and insert: 30 31 subsections (3) to (5) 32 page 54 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 37 1 37. Section 48D amended 2 (1) In section 48D(1): 3 (a) delete paragraph (d) and insert: 4 5 (d) the Authority's recommendations as to whether 6 or not that scheme may be implemented and, if 7 it recommends that the scheme be 8 implemented, as to the conditions, if any, to 9 which that scheme should be subject. 10 11 (b) delete "and may make such recommendations in that 12 report as it sees fit." 13 (2) In section 48D(3)(b)(iii) delete "relates and any relevant 14 decision-making authority." and insert: 15 16 relates. 17 18 38. Sections 48F and 48G deleted 19 Delete sections 48F and 48G. 20 39. Sections 48EA, 48F and 48G inserted 21 At the beginning of Part IV Division 4 insert: 22 23 48EA. Terms used 24 In this Division -- 25 implementation conditions means the conditions, if 26 any, agreed or decided in relation to a scheme under 27 section 48F or 48J(d); page 55 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 39 1 implementation issue means -- 2 (a) whether or not the scheme may be 3 implemented; and 4 (b) the conditions, if any, to which the scheme, if 5 implemented, should be subject; 6 scheme means the scheme to which a report published 7 under section 48D(3) relates. 8 48F. Procedure for agreeing or deciding on conditions to 9 which schemes are to be subject 10 (1) After causing a report to be published under 11 section 48D(3) the Minister must consult and, if 12 possible, agree with the responsible Minister on the 13 implementation issues. 14 (2) If an agreement is made under this section, or a 15 decision is made under section 48J(d), that the scheme 16 may be implemented and as to the conditions, if any, to 17 which the scheme should be subject, the Minister 18 must -- 19 (a) cause copies of a statement which sets out the 20 implementation issues agreed or decided on to 21 be delivered to -- 22 (i) the Authority; and 23 (ii) the responsible Minister; and 24 (iii) any other Minister to whom a copy of 25 the report has been given under 26 section 48D(3)(b)(ii) and the 27 responsible authority; 28 and 29 (b) cause that statement to be published as soon 30 after the delivery referred to in paragraph (a) as 31 is practicable. page 56 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 39 1 (3) Despite anything in this section or section 48J -- 2 (a) an agreement or decision on any of the 3 implementation issues relating to the scheme 4 cannot be made under this section or 5 section 48J during the period of 21 days 6 referred to in section 100(3a)(c); and 7 (b) if an appeal is lodged under section 100(1)(e) in 8 respect of the report, an agreement or decision 9 on any of the implementation issues relating to 10 the scheme cannot be made under this section 11 or section 48J while the appeal is pending 12 except for the purposes of section 101(2d)(a). 13 48G. Review of conditions in statements published under 14 section 48F 15 (1) A responsible authority may, after the publication of a 16 statement under section 48F(2)(b) that sets out 17 implementation conditions and before the responsible 18 Minister or the Governor grants final approval of the 19 scheme to which that statement relates, request the 20 responsible Minister to initiate a review of any 21 implementation conditions. 22 (2) If the responsible Minister agrees to a request under 23 subsection (1), the responsible Minister and the 24 Minister must consult each other and attempt to agree 25 on whether or not the implementation conditions 26 should be altered and, if so, to what extent. 27 (3) If implementation conditions are altered by agreement 28 under this section or a decision under section 48J(e), 29 the Minister must -- 30 (a) cause copies of a statement setting out those 31 conditions as altered to be delivered to -- 32 (i) the Authority; and 33 (ii) the responsible Minister; and page 57 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 40 1 (iii) the responsible authority; 2 and 3 (b) cause that statement to be published as soon 4 after the service referred to in paragraph (a) as 5 is practicable. 6 (4) Conditions altered by agreement under this section or a 7 decision under section 48J(e) are taken for the purposes 8 of this Act to have been agreed under section 48F or 9 decided under section 48J. 10 11 40. Section 48H amended 12 In section 48H(1) delete "condition agreed under section 48F or 13 decided under section 48J" and insert: 14 15 implementation condition 16 17 41. Section 48J amended 18 (1) Delete section 48J(d) and insert: 19 20 (d) on an implementation issue; or 21 22 (2) In section 48J(e) delete "conditions referred to in 23 section 48G(2)" and insert: 24 25 implementation conditions 26 27 42. Section 51 deleted 28 Delete section 51. page 58 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 43 1 43. Section 51A amended 2 (1) In section 51A insert in alphabetical order: 3 4 agreement to reserve means an agreement to reserve as 5 referred to in the SLC Act section 30B(2); 6 conservation covenant means a conservation covenant 7 as referred to in the SLC Act section 30B(2); 8 SLC Act means the Soil and Land Conservation 9 Act 1945; 10 soil conservation notice has the same meaning as it has 11 in the SLC Act Part V. 12 13 (2) In section 51A in the definition of purpose permit delete 14 "section 51E(8)." and insert: 15 16 section 51E(8); 17 18 44. Sections 51B to 51D replaced 19 Delete sections 51B, 51C and 51D and insert: 20 21 51B. Declaration of environmentally sensitive areas by 22 regulation 23 Regulations may declare as an environmentally 24 sensitive area for the purposes of this Part -- 25 (a) an area of the State specified in the regulations; 26 or 27 (b) an area of the State of a class specified in the 28 regulations. page 59 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 44 1 51C. Unauthorised clearing of native vegetation 2 A person who causes or allows clearing commits an 3 offence unless -- 4 (a) the clearing is done in accordance with a 5 clearing permit; or 6 (b) the clearing is of a kind set out in Schedule 6; 7 or 8 (c) the clearing is of a kind prescribed for the 9 purposes of this paragraph and is not done in an 10 environmentally sensitive area; or 11 (d) the clearing is done after the person has 12 received notice under section 51DA(5) that the 13 CEO has decided that the person should not be 14 required to obtain a clearing permit for the 15 clearing. 16 51D. Section 51C(a) does not apply to certain land 17 (1) In this section -- 18 Commissioner means the person for the time being 19 holding or acting in the office of the Commissioner of 20 Soil and Land Conservation under the SLC Act. 21 (2) Section 51C(a) does not apply to clearing on land the 22 subject of an agreement to reserve unless -- 23 (a) the clearing permit was granted with the written 24 approval of the Commissioner; or 25 (b) the clearing is done with the written approval of 26 the Commissioner. 27 (3) Section 51C(a) does not apply to clearing -- 28 (a) on land the subject of a conservation covenant; 29 or page 60 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 44 1 (b) on land the subject of an environmental 2 protection covenant; or 3 (c) in contravention of a soil conservation notice. 4 51DA. Referral of proposed clearing to CEO for decision 5 on whether a clearing permit should be obtained 6 (1) This section applies to clearing unless -- 7 (a) it is on land the subject of an agreement to 8 reserve; or 9 (b) it is on land the subject of a conservation 10 covenant; or 11 (c) it is on land the subject of an environmental 12 protection covenant. 13 (2) A person who proposes to do clearing to which this 14 section applies (the referrer) may refer the proposed 15 clearing to the CEO in the form and in the manner 16 approved by the CEO. 17 (3) The CEO must consider proposed clearing referred 18 under subsection (2) and decide whether or not the 19 referrer should be required to obtain a clearing permit 20 for the proposed clearing. 21 (4) In making a decision under subsection (3) the CEO 22 must have regard to -- 23 (a) whether the area proposed to be cleared (the 24 area) is small relative to the total remaining 25 vegetation -- 26 (i) within the region in which the area is 27 situated; or 28 (ii) of the ecological community of which 29 the vegetation proposed to be cleared 30 forms part; 31 and page 61 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 44 1 (b) whether there are any known or likely 2 significant environmental values within the 3 area; and 4 (c) whether the state of scientific knowledge about 5 vegetation within the region in which the area 6 is situated is adequate; and 7 (d) whether the issues that would arise as a result 8 of the proposed clearing are likely to require 9 conditions to manage or mitigate effects on the 10 environment. 11 (5) The CEO must give the referrer notice in writing of a 12 decision made by the CEO under subsection (3). 13 (6) If the CEO considers that the proposed clearing would 14 contravene a soil conservation notice, no decision is to 15 be made under subsection (3) and the CEO must give 16 the referrer notice in writing that the proposed clearing 17 cannot be done. 18 (7) The CEO must publish -- 19 (a) the referral of proposed clearing under 20 subsection (2); and 21 (b) the notice given under subsection (5) or (6). 22 (8) The referrer may, in writing, request the CEO to treat 23 the referral of proposed clearing under subsection (2) 24 as an application for a clearing permit under 25 section 51E(1) if the referrer -- 26 (a) receives notice under subsection (5) that the 27 CEO has decided that the referrer should be 28 required to obtain a clearing permit for the 29 proposed clearing; or 30 (b) does not receive any notice under 31 subsection (5) or (6) within the period of 32 21 days after referring the proposed clearing. page 62 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 45 1 (9) If a request is made under subsection (8), the referral 2 may be dealt with under section 51E as an application 3 that complies with section 51E(1) and (2) if -- 4 (a) the referral was made in the form and manner 5 mentioned in subsection (2); and 6 (b) the referral met the requirements set out in 7 section 51E(1)(b) and (d) and (2); and 8 (c) the request is accompanied by the fee referred 9 to in section 51E(1)(c). 10 11 45. Section 51E amended 12 (1) In section 51E(1): 13 (a) delete "shall --" and insert: 14 15 must -- 16 17 (b) delete paragraph (d) and insert: 18 19 (d) contain or be accompanied by any information 20 required as indicated in the form or in material 21 accompanying the form. 22 23 (2) After section 51E(1) insert: 24 25 (1A) If the CEO requires further information to determine 26 the application, the CEO may, by written notice given 27 to the applicant, require the applicant to give the CEO 28 further specified information within a specified time. 29 page 63 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 45 1 (3) Delete section 51E(3) to (6) and insert: 2 3 (3) If an application does not comply with subsections (1) 4 and (2), or further information is not provided in 5 accordance with subsection (1A), the CEO must 6 decline to deal with the application and advise the 7 applicant accordingly. 8 (4) If, under subsection (3), the CEO declines to deal with 9 the application, the CEO does not have to perform any 10 function under any of subsections (4A) to (12) in 11 relation to the application. 12 (4A) The CEO must invite comments on the application 13 within a period specified by the CEO from any public 14 authority or person which or who has, in the opinion of 15 the CEO, a direct interest in the subject matter of the 16 application. 17 (4B) The CEO must publish -- 18 (a) the application; and 19 (b) the information mentioned in subsection (1)(d). 20 (4C) When publishing the application and information under 21 subsection (4B) the CEO must -- 22 (a) invite any person who wishes to comment on 23 the application and information to do so; and 24 (b) specify the period within which comments can 25 be made. 26 (5) The CEO must, subject to this Division -- 27 (a) grant a clearing permit subject to such of the 28 conditions referred to in section 51H as the 29 CEO specifies in the permit; or 30 (b) refuse to grant a clearing permit. page 64 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 46 1 (5A) In determining whether to grant a clearing permit and 2 the conditions to which the clearing permit is to be 3 subject, the CEO must take into account any comments 4 made pursuant to an invitation under subsection (4A) 5 or (4C) in respect of the application. 6 (6) The CEO must give the applicant written notice of the 7 refusal to grant a clearing permit. 8 9 (4) After section 51E(10) insert: 10 11 (10A) The CEO must publish notice of -- 12 (a) the grant of a clearing permit; or 13 (b) a refusal to grant a clearing permit. 14 15 (5) In section 51E(11) delete "(5)(b), (6) or (7)(a)" and insert: 16 17 (5), (5A), (6), (7)(a) or (10A) 18 19 Note: The heading to amended section 51E is to read: 20 How applications for clearing permits are made and dealt with 21 46. Section 51F replaced 22 Delete section 51F and insert: 23 24 51F. Effect of referred proposal on decisions about 25 clearing 26 (1) In this section -- 27 clearing decision means -- 28 (a) a decision under section 51DA(3) as to whether 29 or not a clearing permit is needed for proposed 30 clearing; or page 65 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 46 1 (b) a decision under section 51E(5) to grant or 2 refuse to grant a clearing permit for proposed 3 clearing. 4 (2) For the purposes of this section, proposed clearing is 5 related to a referred proposal if the clearing, while not 6 part of the referred proposal, is connected or associated 7 with it in such a way that the clearing would not need 8 to be done if the implementation of the referred 9 proposal did not proceed. 10 (3) Despite subsection (2), clearing that is proposed so that 11 tests, surveys, investigations or other work -- 12 (a) can be done to comply with a requirement 13 made under section 40(2)(a), (aa) or (b); or 14 (b) can be done under section 40(2a), 15 for the purposes of assessing a referred proposal is not 16 related to the referred proposal for the purposes of this 17 section. 18 (4) While any decision-making authority is precluded by 19 section 41 from making a decision that could have the 20 effect of causing or allowing a referred proposal to be 21 implemented, the CEO must not make a clearing 22 decision concerning proposed clearing that is related to 23 the referred proposal. 24 (5) The CEO must not make a clearing decision 25 concerning proposed clearing that is related to a 26 referred proposal if the decision is contrary to, or 27 otherwise than in accordance with, a Ministerial 28 statement. 29 (6) Subsections (4) and (5) do not apply if the proposed 30 clearing is for the purpose of doing minor or 31 preliminary work to which the Authority has consented 32 under section 41A(3). page 66 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 47 1 (7) If a decision-making authority makes a decision that 2 has the effect of preventing the implementation of a 3 proposal to which proposed clearing is related, the 4 CEO does not have to make a clearing decision 5 concerning the proposed clearing while the 6 decision-making authority's decision has effect. 7 8 47. Section 51H amended 9 In section 51H(1) before "offsetting" insert: 10 11 directly or indirectly 12 13 48. Section 51I amended 14 (1) Delete section 51I(2)(b) and (c) and insert: 15 16 (b) establish and maintain vegetation on other land 17 in order to directly or indirectly offset the loss 18 of the cleared vegetation; 19 (c) contribute moneys to be used for the purpose of 20 establishing or maintaining vegetation on other 21 land; 22 (ca) give an environmental undertaking in relation 23 to specified other land; 24 (cb) arrange for an environmental protection 25 covenant to be given by a specified person 26 other than the permit holder in relation to 27 specified other land; 28 page 67 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 49 1 (2) After section 51I(2) insert: 2 3 (2A) If a condition of a clearing permit requires the holder 4 of the permit to give or arrange the giving of an 5 environmental undertaking as referred to in 6 subsection (2)(ca) or (cb), the condition can require 7 that the holder of the permit not cause or allow clearing 8 on any land on which clearing is authorised by the 9 permit until the environmental undertaking is given. 10 11 (3) In section 51I(4) insert in alphabetical order: 12 13 give includes enter into; 14 other land means land other than land cleared under 15 the clearing permit; 16 17 49. Section 51J amended 18 Delete section 51J(2) and insert: 19 20 (2) If a clearing permit is subject to a condition referred to 21 in section 51I(2)(ca), a reference in this Division to a 22 contravention of a condition includes a reference to a 23 contravention of the environmental undertaking given 24 or entered into by the permit holder. 25 26 50. Section 51K amended 27 (1) In section 51K(1): 28 (a) in paragraph (c) delete "section 51I(2)(b) or (c)" and 29 insert: 30 31 section 51I(2)(b), (ca) or (cb) page 68 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 51 1 2 (b) after paragraph (c) insert: 3 4 (ca) in the case of a purpose permit, adding, 5 deleting, modifying or redescribing a purpose 6 for which clearing may be done under the 7 permit; or 8 9 (2) Delete section 51K(2) and insert: 10 11 (2) A clearing permit may be amended -- 12 (a) on application by the holder of the permit; or 13 (b) on the initiative of the CEO. 14 15 51. Sections 51KA and 51KB inserted 16 After section 51K insert: 17 18 51KA. Application to amend clearing permit 19 (1) An application under section 51K(2)(a) for an 20 amendment to a clearing permit must -- 21 (a) be made in the manner and form approved by 22 the CEO; and 23 (b) be accompanied by the fee prescribed by or 24 determined under the regulations; and 25 (c) contain or be accompanied by any information 26 required as indicated in the form or in material 27 accompanying the form. 28 (2) If the CEO requires further information to determine 29 the application, the CEO may, by written notice given 30 to the applicant, require the applicant to give the CEO 31 further specified information within a specified time. page 69 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 51 1 (3) If an application for an amendment to a clearing permit 2 does not comply with subsection (1), or further 3 information is not provided in accordance with 4 subsection (2), the CEO must decline to deal with the 5 application and advise the applicant accordingly. 6 (4) On an application under section 51K(2)(a) for an 7 amendment to a clearing permit the CEO must, subject 8 to this Division -- 9 (a) amend the clearing permit; or 10 (b) refuse to amend the clearing permit. 11 (5) The CEO must give the applicant written notice of the 12 following actions under this section-- 13 (a) an amendment of a clearing permit; 14 (b) a refusal to amend a clearing permit. 15 (6) Without limiting subsection (5)(a), notice of an 16 amendment can be given in the form of a revised 17 clearing permit. 18 (7) The CEO must publish notice of a decision under this 19 section to -- 20 (a) amend a clearing permit; or 21 (b) refuse to amend a clearing permit. 22 51KB. Effect of referred proposal on application to amend 23 clearing permit 24 (1) For the purposes of this section, an amendment of a 25 clearing permit (a proposed amendment) is related to a 26 referred proposal if the proposed amendment is 27 connected or associated with the referred proposal in 28 such a way that the proposed amendment would not 29 need to be made if the implementation of the referred 30 proposal did not proceed. page 70 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 52 1 (2) While any decision-making authority is precluded by 2 section 41 from making a decision in relation to a 3 referred proposal, the CEO must not make a proposed 4 amendment that is related to the referred proposal. 5 (3) The CEO must not make a proposed amendment that is 6 related to a referred proposal if the proposed 7 amendment is contrary to, or otherwise than in 8 accordance with, a Ministerial statement. 9 (4) If a decision-making authority makes a decision that 10 has the effect of preventing the implementation of a 11 referred proposal to which a proposed amendment is 12 related, the CEO does not have to make a decision as to 13 the proposed amendment while the decision-making 14 authority's decision has effect. 15 16 52. Section 51L amended 17 In section 51L(2): 18 (a) in paragraph (a) delete "breach" and insert: 19 20 contravention 21 22 (b) in paragraph (c) delete "respect; or" and insert: 23 24 respect. 25 26 (c) delete paragraph (d). page 71 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 53 1 53. Section 51M amended 2 (1) Delete section 51M(1) and (2) and insert: 3 4 (1) This section applies to the amendment of a clearing 5 permit under section 51K(2)(b), or the revocation or 6 suspension of a clearing permit under section 51L(1). 7 (2) Before amending, revoking or suspending a clearing 8 permit (the proposed action) the CEO must give the 9 holder of the permit a written notice under this 10 subsection. 11 12 (2) In section 51M(3) delete "is to --" and insert: 13 14 must -- 15 16 (3) In section 51M(5): 17 (a) in paragraph (a) delete "gives the CEO written notice" 18 and insert: 19 20 advises the CEO in writing 21 22 (b) in paragraph (b) delete "notice" (1st occurrence) and 23 insert: 24 25 advice 26 27 (4) In section 51M(6) delete "is to" and insert: 28 29 must 30 page 72 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 54 1 (5) Delete section 51M(8) and insert: 2 3 (8) Subsections (1) to (7) do not apply to anything done by 4 the CEO under section 110(1) to give effect to a 5 decision of the Minister under section 107(2) or 109(3) 6 on an appeal. 7 8 (6) Delete section 51M(9). 9 (7) In section 51M(10) delete "is to" and insert: 10 11 must 12 13 (8) After section 51M(11) insert: 14 15 (12) The CEO must publish notice of the amendment, 16 revocation or suspension of a clearing permit. 17 18 Note: The heading to amended section 51M is to read: 19 Procedure for CEO when amending, revoking or suspending 20 clearing permit 21 54. Section 51MA inserted 22 After section 51M insert: 23 24 51MA. Surrendering clearing permit 25 (1) The holder of a clearing permit may apply to the CEO 26 to surrender the permit. 27 (2) An application to surrender a clearing permit must -- 28 (a) be made in the form and in the manner 29 approved by the CEO; and page 73 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 54 1 (b) contain or be accompanied by any information 2 required as indicated in the form or in material 3 accompanying the form; and 4 (c) be accompanied by the fee prescribed by or 5 determined under the regulations. 6 (3) If the CEO requires further information to determine 7 the application, the CEO may, by written notice given 8 to the applicant, require the applicant to give the CEO 9 further specified information within a specified time. 10 (4) If the application does not comply with subsection (2), 11 or further information is not provided in accordance 12 with subsection (3), the CEO must decline to deal with 13 the application and advise the applicant accordingly. 14 (5) If, under subsection (4), the CEO declines to deal with 15 the application, the CEO does not have to perform any 16 function under subsections (6) to (10) in relation to the 17 application. 18 (6) The CEO must publish the application. 19 (7) The CEO must consider the application and must -- 20 (a) accept the surrender; or 21 (b) if not satisfied that the conditions of the 22 clearing permit have been complied with, 23 refuse to accept the surrender. 24 (8) The CEO must give the holder of the clearing permit 25 written notice of the CEO's decision on the application. 26 (9) If the CEO accepts the surrender the clearing permit 27 ceases to be in force when the notice under 28 subsection (8) is given. page 74 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 55 1 (10) The CEO must publish notice of -- 2 (a) acceptance of the surrender; or 3 (b) refusal to accept the surrender. 4 5 55. Section 51O amended 6 (1) In section 51O(1): 7 (a) in the definition of decision delete "matter;" and insert: 8 9 matter. 10 11 (b) delete the definition of planning instrument. 12 (2) In section 51O(3) delete "and published". 13 (3) In section 51O(4) after "any" insert: 14 15 development approval, 16 17 56. Section 51P amended 18 After section 51P(3) insert: 19 20 (4) Without limiting section 51F(5) or 51KB(3), 21 subsection (3) does not authorise the imposition of a 22 condition that is contrary to, or not in accordance with, 23 a Ministerial statement. 24 page 75 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 57 1 57. Section 51Q replaced 2 Delete section 51Q and insert: 3 4 51Q. CEO to keep a record of clearing permits and 5 related matters 6 The CEO must keep a public record of -- 7 (a) such particulars of the following as are 8 prescribed -- 9 (i) applications for clearing permits and 10 amendments of clearing permits; 11 (ii) clearing permits and amendments of 12 clearing permits; 13 (iii) the surrender, suspension and 14 revocation of clearing permits; 15 (iv) undertakings mentioned in 16 section 51E(9); 17 (v) notifications received under 18 section 51N(1); 19 (vi) environmental protection covenants; 20 and 21 (b) such other information and documents relating 22 to clearing permits as are prescribed. 23 24 58. Section 51R amended 25 Delete section 51R(1) and (2). 26 59. Section 51S deleted 27 Delete section 51S. page 76 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 60. Part V Division 3 replaced 2 Delete Part V Division 3 and insert: 3 4 Division 3 -- Licences 5 Subdivision 1 -- Preliminary 6 52. Terms used 7 In this Division -- 8 controlled work means -- 9 (a) work at premises that is designed to enable a 10 prescribed activity that is not authorised by a 11 licence to be carried out at the premises; and 12 (b) work at premises that is designed to change the 13 way of carrying out a prescribed activity that is 14 authorised by a licence to be carried out at the 15 premises if the change will -- 16 (i) cause an emission that is not authorised 17 by the licence; or 18 (ii) result in an alteration in the nature or 19 volume of an emission authorised by the 20 licence; 21 and 22 (c) any other thing that is specified by the 23 regulations as being controlled work for the 24 purposes of this definition, 25 but does not include anything that is specified by the 26 regulations as not being controlled work for the 27 purposes of this definition; 28 work includes -- 29 (a) the construction or alteration of any building or 30 structure; and page 77 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (b) the installation or alteration of any plant or 2 equipment. 3 53. Purpose of licence 4 (1) A licence may be granted for the following purposes -- 5 (a) to authorise the carrying out of controlled work; 6 (b) to authorise the carrying out of a prescribed 7 activity; 8 (c) to deal with the carrying out of an activity that 9 would be a prescribed activity if it met the 10 prescribed threshold for that category of 11 activity. 12 (2) A licence may be granted or amended so as to cover 13 any or all of the work and activities referred to in 14 subsection (1). 15 (3) Without limiting subsection (1), a licence authorising 16 the carrying out of a prescribed activity may provide 17 that the prescribed activity is only authorised to be 18 carried out at premises specified in the licence. 19 (4) A licence authorising or dealing with the carrying out 20 of work or an activity may prohibit, authorise, control 21 or regulate any act, omission, emission or impact on 22 the environment related to the work or activity to an 23 extent, and in a manner, considered by the CEO to be 24 necessary or convenient for the purposes of this Act 25 relating to the prevention, control, abatement or 26 mitigation of pollution or environmental harm. 27 (5) For the purposes of subsection (4) it does not matter 28 whether the act, omission, emission or impact on the 29 environment occurs on premises on which the work or 30 activity is carried out or not. 31 (6) Subsection (4) does not limit Subdivision 5. page 78 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 Subdivision 2 -- Requirement for licence 2 53A. Licence for controlled work 3 (1) A person who carries out controlled work, or causes or 4 allows controlled work to be carried out, commits an 5 offence unless -- 6 (a) the carrying out of the controlled work is 7 authorised by a licence; and 8 (b) the person -- 9 (i) is the holder of the licence; or 10 (ii) is directly or indirectly engaged, 11 authorised or permitted by the holder of 12 the licence to carry out the controlled 13 work. 14 (2) Subsection (1) does not apply to controlled work 15 carried out in accordance with a requirement in a notice 16 given or issued under Division 4. 17 53B. Licence for prescribed activity 18 (1) A person who carries out a prescribed activity, or 19 causes or allows a prescribed activity to be carried out, 20 commits an offence unless -- 21 (a) the carrying out of the prescribed activity is 22 authorised by a licence; and 23 (b) the person -- 24 (i) is the holder of the licence; or 25 (ii) is directly or indirectly engaged, 26 authorised or permitted by the holder of 27 the licence to carry out the prescribed 28 activity. 29 (2) Subsection (1) does not apply to a prescribed activity 30 carried out in accordance with a requirement in a notice 31 given or issued under Division 4. page 79 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 Subdivision 3 -- Applications 2 53C. Kinds of application 3 (1) A person may apply to the CEO for a licence. 4 (2) The holder of a licence may apply to the CEO -- 5 (a) for the amendment of the licence; or 6 (b) to transfer the licence; or 7 (c) to surrender the licence. 8 53D. Requirements as to applications 9 (1) An application under section 53C must -- 10 (a) be made in the form and in the manner 11 approved by the CEO; and 12 (b) contain or be accompanied by any information 13 required as indicated in the form or in material 14 accompanying the form. 15 (2) If the CEO requires further information to determine 16 the application, the CEO may, by written notice given 17 to the applicant, require the applicant to give the CEO 18 further specified information within a specified time. 19 (3) If the application does not comply with subsection (1), 20 or further information is not provided in accordance 21 with subsection (2), the CEO must decline to deal with 22 the application and advise the applicant accordingly. 23 (4) If, under subsection (3), the CEO declines to deal with 24 the application, the CEO does not have to perform any 25 function under section 53E, 54, 55, 59 or 60 in relation 26 to the application. page 80 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 53E. Consultation in respect of application for licence or 2 for amendment of licence 3 (1) In this section -- 4 application means an application under section 53C for 5 a licence or for the amendment of a licence; 6 designated area means -- 7 (a) a catchment area or water reserve constituted 8 under the Country Areas Water Supply 9 Act 1947 or the Metropolitan Water Supply, 10 Sewerage, and Drainage Act 1909; or 11 (b) an Underground Water Pollution Control Area 12 constituted under the Metropolitan Water 13 Supply, Sewerage, and Drainage Act 1909; or 14 (c) a watercourse or wetland to and in relation to 15 which the Rights in Water and Irrigation 16 Act 1914 Part III Division 1B applies; or 17 (d) a proclaimed area declared under section 26B, 18 or irrigation district constituted under 19 section 28, of the Rights in Water and 20 Irrigation Act 1914; 21 Minister (Water Resources) means the Minister 22 administering the Water Agencies (Powers) Act 1984. 23 (2) The CEO must invite comments on an application 24 within a period specified by the CEO from -- 25 (a) any public authority or person which or who 26 has, in the opinion of the CEO, a direct interest 27 in the subject matter of the application; and page 81 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (b) in the case of an application for a licence for 2 the discharge of waste into a designated area or 3 for an amendment relating to that discharge, a 4 person nominated by the Minister (Water 5 Resources). 6 (3) The CEO must publish -- 7 (a) an application; and 8 (b) the information mentioned in 9 section 53D(1)(b). 10 (4) When publishing the application and information under 11 subsection (3) the CEO must -- 12 (a) invite any person who wishes to comment on 13 the application and information to do so; and 14 (b) specify the period within which comments can 15 be made. 16 Subdivision 4 -- Licence provisions 17 54. How applications are dealt with 18 (1) On an application under section 53C(1) for a licence 19 the CEO must, subject to this Division -- 20 (a) grant a licence subject to such of the conditions 21 referred to in section 61 as the CEO specifies in 22 the licence; or 23 (b) refuse to grant a licence. 24 (2) In determining whether to grant a licence and the 25 conditions to which the licence is to be subject, the 26 CEO -- 27 (a) must take into account any comments made 28 pursuant to an invitation under section 53E(2) 29 or (4)(a) in respect of the application; and page 82 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 (b) must have regard to -- 2 (i) any prescribed standards the CEO 3 considers relevant; and 4 (ii) any development approval or planning 5 instrument the CEO considers relevant; 6 and 7 (iii) whether the applicant would have, and 8 be capable of exercising, substantial 9 control over the carrying out of work or 10 activity that would be authorised or 11 dealt with by the licence if the licence 12 were granted; and 13 (iv) any other matter the CEO considers 14 relevant; 15 and 16 (c) if the licence is to authorise the carrying out of 17 a prescribed activity, must have regard to 18 whether in the opinion of the CEO the 19 conditions of any relevant licence in force in 20 relation to controlled work to enable the 21 prescribed activity to be carried out have been 22 complied with. 23 (3) If under subsection (1)(b) the CEO refuses to grant a 24 licence, the CEO must give written notice of the refusal 25 to the applicant. 26 (4) The CEO must publish notice of -- 27 (a) the grant of a licence; or 28 (b) a refusal to grant a licence. 29 54A. Duration of licence 30 Unless it is surrendered or revoked, a licence continues 31 in force for the period specified in the licence. page 83 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 55. Amendment of licence 2 (1) On an application under section 53C(2)(a) for the 3 amendment of a licence the CEO must, subject to this 4 Division -- 5 (a) amend the licence; or 6 (b) refuse to amend the licence. 7 (2) A licence may be amended by the CEO on the CEO's 8 initiative. 9 (3) The CEO may amend a licence under subsection (1)(a) 10 or (2) by -- 11 (a) removing or varying any condition to which the 12 licence is subject; or 13 (b) subjecting the licence to a new condition; or 14 (c) redescribing the boundaries or area of any 15 premises referred to in the licence; or 16 (d) adding, deleting, modifying or redescribing any 17 work or activity the carrying out of which is 18 authorised or dealt with by the licence; or 19 (e) correcting in the licence -- 20 (i) a clerical mistake or unintentional error 21 or omission; or 22 (ii) a figure which has been miscalculated; 23 or 24 (iii) the misdescription of any person, thing 25 or property; 26 or 27 (f) making an administrative change to the format 28 of the licence that does not alter the obligations 29 of the holder of the licence; or 30 (g) adding a discharge point or emission point; or page 84 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 (h) deleting any discharge point or emission point 2 which is no longer in use; or 3 (i) amending the licence in conformity with an 4 approved policy or prescribed standard or with 5 an exemption conferred under this Act; or 6 (j) amending the licence to give effect to a 7 decision of the Minister under this Act (whether 8 on an appeal or otherwise); or 9 (k) extending the duration of the licence. 10 (4) In determining whether to amend a licence under this 11 section, the CEO -- 12 (a) if subsection (1) applies, must take into account 13 any comments made pursuant to an invitation 14 under section 53E(2) or (4)(a) in respect of the 15 application; and 16 (b) must have regard to -- 17 (i) any prescribed standards the CEO 18 considers relevant; and 19 (ii) any development approval or planning 20 instrument the CEO considers relevant; 21 and 22 (iii) any other matter the CEO considers 23 relevant; 24 and 25 (c) if acting under subsection (3)(d), must have 26 regard to whether the holder of the licence 27 would have, and be capable of exercising, 28 substantial control over the carrying out of the 29 work or activity in question; and page 85 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (d) if the amendments are to authorise the carrying 2 out of a prescribed activity, must have regard to 3 whether the conditions of any relevant licence 4 in force in relation to controlled work to enable 5 the prescribed activity to be carried out have 6 been complied with. 7 (5) If under subsection (1)(b) the CEO refuses to amend a 8 licence, the CEO must give written notice of the refusal 9 to the applicant. 10 (6) The CEO must publish notice of -- 11 (a) the amendment of a licence; or 12 (b) a refusal to amend a licence. 13 56. Revocation or suspension of licence 14 (1) The CEO may revoke a licence. 15 (2) The CEO may suspend a licence -- 16 (a) in respect of all the work or all the activities 17 authorised or dealt with by the licence; or 18 (b) in respect of some of the work or some of the 19 activities authorised or dealt with by the 20 licence. 21 (3) The grounds for revocation or suspension of a licence 22 are that -- 23 (a) the CEO is satisfied that there has been a 24 contravention of any of the conditions to which 25 the licence is subject; or 26 (b) the carrying out of work or an activity 27 authorised or dealt with by the licence is 28 exempted by the regulations from requiring a 29 licence; or page 86 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 (c) information contained in or supporting the 2 application was false or misleading in a 3 material respect; or 4 (d) the holder of the licence has not paid a 5 prescribed fee in respect of the licence; or 6 (e) the current business address of the holder of the 7 licence is unknown to the CEO; or 8 (f) a development approval or planning instrument 9 required to carry out controlled work or a 10 prescribed activity under the licence is no 11 longer in force; or 12 (g) in the opinion of the CEO, the holder of the 13 licence no longer has, or is no longer capable of 14 exercising, substantial control over the carrying 15 out of work or an activity authorised or dealt 16 with by the licence. 17 57. Notice and submissions in respect of proposed 18 amendment, revocation or suspension 19 (1) Before amending, revoking or suspending a licence 20 (the proposed action) the CEO must give the holder of 21 the licence a written notice under this section. 22 (2) The notice must -- 23 (a) state details of the proposed action; and 24 (b) invite the holder to make representations to the 25 CEO to show why the action should not be 26 taken; and 27 (c) state the period (at least 21 days after the notice 28 is given to the holder) within which 29 representations may be made. 30 (3) The representations must be made in writing. page 87 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (4) The CEO may take the proposed action -- 2 (a) at any time after the holder of the licence 3 advises the CEO in writing that the holder does 4 not intend to make any representations or any 5 further representations; or 6 (b) if such advice is not given -- after the end of 7 the period stated in the notice within which 8 representations may be made. 9 (5) The CEO must have regard to any representations 10 properly made by the holder of the licence. 11 (6) Subsections (1) to (5) do not apply to the amendment 12 of a licence if the holder applied for the amendment. 13 58. Notice of amendment, revocation or suspension 14 (1) The CEO must give the holder of a licence written 15 notice of any amendment, revocation or suspension of 16 the licence. 17 (2) Without limiting subsection (1), notice of an 18 amendment can be given in the form of a revised 19 licence document. 20 (3) The CEO must publish notice of any amendment, 21 revocation or suspension of the licence. 22 58A. Actions taken to give effect to decision on appeal 23 Sections 57 and 58 do not apply to anything done by 24 the CEO under section 110 to give effect to a decision 25 of the Minister under section 107(2) or 109(3) on an 26 appeal. 27 58B. Effect of suspension 28 (1) While a licence is suspended it continues in force and 29 is capable of being revoked or transferred. page 88 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 (2) Despite subsection (1), a licence that is suspended does 2 not authorise the carrying out of controlled work or a 3 prescribed activity. 4 (3) In the case of a suspension under section 56(2)(b), 5 subsection (2) applies only to the work or activities in 6 respect of which the licence has been suspended. 7 59. Transfer of licence 8 (1) If an application (a transfer application) is made under 9 section 53C(2)(b) for the transfer of a licence to a 10 person (the transferee) the applicant must give notice 11 of the application to the transferee. 12 (2) On a transfer application the CEO must, subject to this 13 Division -- 14 (a) transfer the licence; or 15 (b) refuse to transfer the licence. 16 (3) In determining whether to transfer the licence, the CEO 17 must have regard to -- 18 (a) any prescribed standards the CEO considers 19 relevant; and 20 (b) any development approval or planning 21 instrument the CEO considers relevant; and 22 (c) whether the transferee would have, and be 23 capable of exercising, substantial control over 24 the carrying out of work or activity authorised 25 or dealt with by the licence if the licence were 26 transferred; and 27 (d) any other matter the CEO considers relevant. 28 (4) The CEO must give written notice of the CEO's 29 decision on the transfer application to the applicant and 30 the transferee. page 89 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (5) The CEO must publish notice of the CEO's decision on 2 the transfer application. 3 60. Surrender of licence 4 (1) On an application under section 53C(2)(c) to surrender 5 a licence the CEO must, subject to this Division -- 6 (a) accept the surrender; or 7 (b) refuse to accept the surrender. 8 (2) In determining whether to accept the surrender of a 9 licence, the CEO must have regard to -- 10 (a) any prescribed standards the CEO considers 11 relevant; and 12 (b) any development approval or planning 13 instrument the CEO considers relevant; and 14 (c) any other matter the CEO considers relevant. 15 (3) The CEO must give the holder of the licence written 16 notice of the CEO's decision on the application to 17 surrender the licence. 18 (4) If the CEO accepts the surrender the licence ceases to 19 be in force when the notice under subsection (3) is 20 given. 21 (5) The CEO must publish notice of the CEO's decision on 22 the application. 23 60A. Effect of referred proposal on decisions about 24 licences 25 (1) For the purposes of this section, the grant, amendment 26 or transfer of a licence (a proposed grant, amendment 27 or transfer) is related to a referred proposal if the 28 proposed grant, amendment or transfer is connected or 29 associated with the referred proposal in such a way that 30 the proposed grant, amendment or transfer would not page 90 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 need to be made if the implementation of the referred 2 proposal did not proceed. 3 (2) While any decision-making authority is precluded by 4 section 41 from making a decision in relation to a 5 referred proposal, the CEO must not make a proposed 6 grant, amendment or transfer that is related to the 7 referred proposal. 8 (3) The CEO must not make a proposed grant, amendment 9 or transfer that is related to a referred proposal if the 10 proposed grant, amendment or transfer is contrary to, 11 or otherwise than in accordance with, a Ministerial 12 statement. 13 (4) Subsections (2) and (3) do not apply to the grant, 14 amendment or transfer of a licence to enable the doing 15 of minor or preliminary work to which the Authority 16 has consented under section 41A(3). 17 (5) If a decision-making authority makes a decision that 18 has the effect of preventing the implementation of a 19 referred proposal to which a proposed grant, 20 amendment or transfer is related, the CEO does not 21 have to perform any function under 22 section 54(1), 55(1) or 59(2) concerning the proposed 23 grant, amendment or transfer while the 24 decision-making authority's decision has effect. 25 (6) This section does not apply to anything done by the 26 CEO under section 110(1) to give effect to a decision 27 of the Minister under section 107(2) or 109(3) on an 28 appeal. 29 60B. Relationship between licences and approved policies 30 (1) In considering -- 31 (a) an application for a licence; or page 91 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (b) an application for an amendment of a licence; 2 or 3 (c) an application for the transfer of a licence, 4 the CEO must ensure that the licence, amendment or 5 transfer is consistent with any approved policy. 6 (2) The CEO must not amend or must refuse to grant or 7 transfer a licence if the CEO considers that the 8 associated effect on the environment would be 9 inconsistent with any approved policy. 10 (3) Despite subsections (1) and (2) -- 11 (a) if the CEO is satisfied that, as a result of 12 environmental circumstances having changed, 13 the environment or an environmental value of 14 the area concerned requires a higher level of 15 protection than would be provided by the 16 standards required by or under any approved 17 policy or by prescribed standards, the CEO may 18 grant or amend a licence so as to make the 19 licence subject to conditions which specify 20 standards that are more stringent than those 21 required by or under the approved policy or by 22 the prescribed standards; and 23 (b) if the CEO is satisfied that, as a result of the 24 approval under section 31(d) of a new approved 25 policy or as a result of an approved policy as 26 amended being confirmed under 27 section 37(3)(a), any condition to which an 28 existing licence is subject is inconsistent with 29 that approved policy, the CEO may amend that 30 licence to make it consistent with that approved 31 policy. 32 (4) Subsection (3) does not authorise the imposition of a 33 condition that is contrary to, or not in accordance with, 34 a Ministerial statement. page 92 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 (5) For the purposes of the application of 2 section 74A(1)(b), if conditions more stringent 3 than others required by or under an approved policy or 4 by a prescribed standard are imposed under 5 subsection (3)(a), the conditions so imposed must be 6 complied with instead of or in addition to those other 7 conditions. 8 Subdivision 5 -- Conditions 9 61. Licence conditions 10 (1) A licence may be granted or transferred subject to 11 conditions the CEO considers to be necessary or 12 convenient for the purposes of this Act relating to the 13 prevention, control, abatement or mitigation of 14 pollution or environmental harm. 15 (2) Section 61A sets out some kinds of conditions that may 16 be attached to a licence. 17 (3) The regulations may prescribe further kinds of 18 conditions that may be attached to a licence. 19 (4) Nothing in section 61A or regulations made under 20 subsection (3) prevents other conditions from being 21 attached to a licence. 22 (5) Without limiting subsection (3), the regulations may 23 prescribe conditions to which every licence, or every 24 licence of a kind specified in the regulations, is subject 25 unless otherwise specified in the licence. 26 (6) Without limiting subsections (1) to (5), a licence may 27 be subject to a condition that the holder of the licence 28 comply with a requirement to pay a levy imposed 29 under the Waste Avoidance and Resource Recovery 30 Levy Act 2007 in relation to waste received at premises 31 to which the licence relates. page 93 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (7) Without limiting subsections (1) to (5), a licence may 2 be subject to a condition that the holder of the licence 3 comply with a requirement to pay a levy imposed 4 under Part VIIB Division 2A if the licence authorises a 5 monitored activity. 6 (8) Except as provided in section 60B a condition must not 7 be inconsistent with an approved policy or a prescribed 8 standard. 9 61A. Some kinds of conditions 10 (1) In this section -- 11 specified means specified by the CEO in the licence 12 concerned. 13 (2) The following list sets out things that the holder of a 14 licence can be required to do (at the expense of the 15 holder) under conditions attached to the licence -- 16 (a) design, construct or operate any facilities or 17 plant in accordance with specified criteria; 18 (b) install or operate any equipment for preventing, 19 controlling, abating or monitoring pollution or 20 environmental harm in accordance with 21 specified criteria; 22 (c) take specified measures for the purpose of 23 minimising the likelihood of pollution or 24 environmental harm; 25 (d) take specified measures to prevent, control, 26 abate or mitigate any emission or potential 27 emission resulting from an activity authorised 28 by the licence to be carried out; 29 (e) meet specified criteria, or comply with 30 specified limits, as to the characteristics, 31 volume, rate, duration and effects of emissions; page 94 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 (f) meet specified ambient concentration limits in 2 specified premises or places; 3 (g) comply with requirements set by management 4 plans, prescribed standards, guidelines 5 published on the Department's website or other 6 specified programmes; 7 (h) monitor operations; 8 (i) conduct analysis of monitoring data; 9 (j) provide information on the nature and quantity 10 of wastes and on materials leading to the 11 generation of those wastes; 12 (k) dispose of waste in a specified manner; 13 (l) if practicable -- 14 (i) reuse waste wholly or in part; or 15 (ii) make waste available for reuse by 16 another person; 17 (m) investigate options for measures for preventing, 18 controlling or abating pollution or 19 environmental harm; 20 (n) conduct environmental risk assessment studies; 21 (o) provide reports on monitoring data, and 22 analysis of it, to the CEO; 23 (p) provide reports on audits and studies of 24 specified kinds to the CEO; 25 (q) provide audit compliance reports to the CEO; 26 (r) prepare, implement and adhere to 27 environmental management systems, waste 28 management systems, safety management 29 systems, environmental management plans and 30 environmental improvement plans; page 95 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 60 1 (s) have something required to be done under a 2 condition done by -- 3 (i) a person of a class approved by the 4 CEO; or 5 (ii) a laboratory registered by the National 6 Association of Testing Authorities; 7 (t) do something required to be done under a 8 condition -- 9 (i) within a specified period or before a 10 specified date; or 11 (ii) in a specified form or manner. 12 (3) Without limiting section 62, the holder of a licence 13 commits an offence if, having been required under a 14 condition attached to the licence to provide a report on 15 monitoring data, or analysis of it, to the CEO, the 16 holder -- 17 (a) fails to do so within the specified period or 18 before the specified date; or 19 (b) fails to do so in the specified form or manner. 20 (4) Without limiting subsection (2), a condition referred to 21 in subsection (2)(h) can require the holder of a licence 22 to carry out a specified monitoring programme for the 23 purpose of supplying the CEO with information 24 relating -- 25 (a) to the characteristics and volume of any waste 26 to which the licence relates that is being held or 27 stored; or 28 (b) to the characteristics, volume and effects of any 29 pollutant being or likely to be emitted into the 30 environment from premises where an activity is 31 being carried out as authorised by the licence, 32 and to the characteristics of the environment. page 96 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 60 1 62. Contravening licence conditions 2 The holder of a licence who contravenes a condition to 3 which the licence is subject commits an offence. 4 63. Offences as to conditions by persons other than 5 holder of licence 6 (1) In this section -- 7 licensed action means the carrying out of work or an 8 activity authorised or dealt with by a licence (the 9 licence). 10 (2) This subsection applies to an act or omission if -- 11 (a) it occurs in the carrying out of work or an 12 activity constituting or relating to a licensed 13 action; and 14 (b) it is an act or omission of a person other than 15 the holder of the licence; and 16 (c) it would, if it had been an act or omission of the 17 holder of the licence, have contravened a 18 condition to which the licence is subject. 19 (3) If subsection (2) applies to an act or omission the 20 person mentioned in subsection (2)(b) commits an 21 offence. 22 (4) If it is proved that subsection (2) applies to an act or 23 omission, the holder of the licence is taken for the 24 purposes of section 62 to have contravened the 25 condition mentioned in subsection (2)(c) whether or 26 not the person mentioned in subsection (2)(b) is 27 charged with an offence under subsection (3) in 28 relation to the act or omission. page 97 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 61 1 Subdivision 6 -- Miscellaneous 2 64. CEO to keep records of licences and related matters 3 The CEO must keep a public record of -- 4 (a) such particulars of the following as are 5 prescribed -- 6 (i) applications for licences, amendments 7 of licences and transfers of licences; 8 (ii) licences, amendments of licences and 9 transfers of licences; 10 (iii) the surrender, suspension and 11 revocation of licences; 12 and 13 (b) such other information and documents relating 14 to licences as are prescribed. 15 16 61. Section 64A replaced 17 Delete section 64A and insert: 18 19 64A. CEO to keep records of notices 20 The CEO must keep a public record of such particulars 21 of notices given under this Division as are prescribed. 22 23 62. Section 66 amended 24 Delete section 66(5). page 98 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 63 1 63. Section 68A amended 2 (1) In section 68A(1) delete the definition of relevant premises and 3 insert: 4 5 relevant premises means premises at which conduct is 6 being or has been engaged in under an authorisation; 7 8 (2) Delete section 68A(2) and insert: 9 10 (2) If the CEO considers on reasonable grounds that, as a 11 result of anything that has been done or has happened 12 at relevant premises before the expiry, revocation or 13 suspension of an authorisation, ongoing investigation, 14 monitoring or management is or will be required at the 15 premises following that expiry, revocation or 16 suspension, the CEO may cause a notice (a closure 17 notice) to be given in respect of the premises. 18 19 (3) Delete section 68A(7)(b) and insert: 20 21 (b) anything that a person could be required to do under a 22 condition attached to a licence; 23 24 (4) In section 68A(10) delete "sections 66," and insert: 25 26 sections 66(1) and (2), 27 28 (5) After section 68A(10) insert: 29 30 (10A) A closure notice given in respect of an authorisation 31 suspended under section 56(2) ceases to have effect page 99 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 64 1 when the suspension ceases to have effect unless the 2 licence is revoked under section 56(1). 3 (10B) When a closure notice registered under section 66(2) as 4 applied by subsection (10) ceases to have effect under 5 subsection (10A) or is revoked under section 65(4)(b) 6 as applied by subsection (10), the CEO must deliver to 7 the Western Australian Planning Commission and to 8 the Registrar of Titles or the Registrar of Deeds and 9 Transfers, as the case requires, a certificate signed by 10 the CEO and certifying that the cessation or revocation 11 took effect on the date specified in that certificate. 12 (10C) On receiving a certificate delivered under 13 subsection (10B), the Registrar of Titles or the 14 Registrar of Deeds and Transfers, as the case requires, 15 must cancel the registration of the relevant closure 16 notice and endorse or note accordingly the appropriate 17 Register or register or record in respect of the land to 18 which that certificate relates. 19 20 64. Section 70 amended 21 (1) In section 70(1) delete the definition of unlawful clearing. 22 (2) In section 70(1) insert in alphabetical order: 23 24 unlawful clearing means -- 25 (a) anything constituting a contravention of 26 section 51C or 51J; or 27 (b) anything constituting a contravention of an 28 environmental protection covenant; 29 watercourse has the meaning given in Schedule 5 30 clause 2; 31 wetland has the meaning given in Schedule 5 clause 2. 32 page 100 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 64 1 (3) Delete section 70(4) and (5) and insert: 2 3 (4) A vegetation conservation notice must specify -- 4 (a) the name and address of the person to whom it 5 is given; and 6 (b) the reason for which it is given. 7 (4A) A vegetation conservation notice given under 8 subsection (2)(b) may require any person bound by 9 it -- 10 (a) to take, within or for the duration of a specified 11 period, such specified measures (the required 12 action) as the CEO considers necessary for one 13 or more of the following purposes -- 14 (i) to repair any damage caused by the 15 clearing; 16 (ii) to re-establish and maintain vegetation 17 on any area affected by the clearing to a 18 condition as near as possible to the 19 condition of the vegetation before the 20 clearing occurred; 21 (iii) to prevent the erosion, drift or 22 movement of sand, soil, dust or water; 23 (iv) to ensure that specified land, or a 24 specified watercourse or wetland, will 25 not be damaged or detrimentally 26 affected, or further damaged or 27 detrimentally affected, by the clearing; 28 and 29 (b) to monitor, keep records of and report to the 30 CEO on the required action. 31 (5) Before a vegetation conservation notice containing a 32 requirement under subsection (4A)(a) is given to a 33 person the CEO must, by written notice given to the page 101 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 65 1 person, invite the person to make submissions to the 2 CEO within the period specified in the notice on any 3 matter relevant to the determination of whether or not 4 the person should have to take the required action. 5 6 (4) In section 70(10) delete "action required by a vegetation 7 conservation notice to be taken" and insert: 8 9 the required action, or any of it, 10 11 65. Part V Division 5 heading replaced 12 Delete the heading to Part V Division 5 and insert: 13 14 Division 5 -- Defences 15 16 66. Sections 74 and 74A replaced 17 Delete sections 74 and 74A and insert: 18 19 74. Defence of emergency or accident 20 (1) It is a defence to proceedings for an offence under this 21 Part in respect of an emission or an act causing 22 environmental harm if the person charged with that 23 offence (the alleged offender) -- 24 (a) proves -- 25 (i) that the emission or act occurred for the 26 purpose of preventing danger to human 27 life or health or irreversible damage to a 28 significant portion of the environment; 29 or page 102 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 66 1 (ii) that the emission or act occurred as a 2 result of an accident caused otherwise 3 than by the negligence of the alleged 4 offender and that the alleged offender 5 took all reasonable precautions to 6 prevent the emission or act; 7 and 8 (b) proves that as soon as was reasonably 9 practicable after the emission or act occurred 10 the alleged offender notified particulars of the 11 emission or act in writing to the CEO. 12 (2) It is a defence to proceedings for an offence under 13 section 49A(2) or (3) if the person charged with that 14 offence (the alleged offender) -- 15 (a) proves -- 16 (i) that the waste was discharged or 17 abandoned for the purpose of preventing 18 danger to human life or health or 19 irreversible damage to a significant 20 proportion of the environment; or 21 (ii) that the waste was discharged or 22 abandoned as a result of an accident 23 caused otherwise than by the negligence 24 of the alleged offender and that the 25 alleged offender took all reasonable 26 precautions to prevent the discharge or 27 abandonment; 28 and 29 (b) proves that as soon as was reasonably 30 practicable after the waste was discharged or 31 abandoned the alleged offender notified 32 particulars of the discharge or abandonment in 33 writing to the CEO. page 103 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 66 1 (3) It is a defence to proceedings for an offence under 2 section 51C if the person charged with that offence (the 3 alleged offender) -- 4 (a) proves -- 5 (i) that the clearing was done for the 6 purpose of preventing danger to human 7 life or health or irreversible damage to a 8 significant proportion of the 9 environment; or 10 (ii) that the clearing was done as a result of 11 an accident caused otherwise than by 12 the negligence of the alleged offender; 13 and 14 (b) proves that as soon as was reasonably 15 practicable after the clearing was done the 16 alleged offender notified particulars of the 17 clearing in writing to the CEO. 18 (4) This section has effect subject to section 74E. 19 74A. Defence of authority of this Act 20 (1) It is a defence to proceedings under this Part for 21 causing pollution, in respect of an emission, or for 22 causing serious environmental harm or material 23 environmental harm, or for discharging or abandoning 24 waste in water to which the public has access if the 25 person charged with that offence proves that the 26 pollution, emission, environmental harm, discharge or 27 abandonment occurred -- 28 (a) in the implementation of a proposal in 29 accordance with a Ministerial statement; or 30 (b) in accordance with -- 31 (i) a prescribed standard; or 32 (ii) a requirement contained in a closure 33 notice, an environmental protection page 104 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 67 1 notice, a vegetation conservation notice 2 or a prevention notice; or 3 (iii) an approved policy; or 4 (iv) a declaration under section 6; or 5 (v) an exemption under section 75; or 6 (vi) an exemption given under the 7 regulations; 8 or 9 (c) as authorised by, and in accordance with the 10 conditions of -- 11 (i) a clearing permit; or 12 (ii) a licence; or 13 (iii) a licence, permit or approval granted, 14 issued or given under the regulations; 15 or 16 (d) in the exercise of any power conferred under 17 this Act. 18 (2) A licence does not authorise an emission unless the 19 emission is specified in the licence as an authorised 20 emission. 21 22 67. Sections 74C to 74E inserted 23 After section 74B insert: 24 25 74C. Defence of due diligence 26 (1) It is a defence to proceedings for a Tier 1 offence if the 27 person charged with that offence proves -- 28 (a) that the person took reasonable precautions and 29 exercised due diligence to prevent the 30 commission of the offence; and page 105 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 67 1 (b) that as soon as was reasonably practicable after 2 the occurrence that gave rise to the charge the 3 person notified particulars of the occurrence in 4 writing to the CEO. 5 (2) It is a defence to proceedings for an offence under 6 section 51J(1), 53A(1), 53B(1), 62 or 63(3) if the 7 person charged with that offence proves -- 8 (a) that the person took reasonable precautions and 9 exercised due diligence to prevent the 10 commission of the offence; and 11 (b) that as soon as was reasonably practicable after 12 the occurrence that gave rise to the charge the 13 person notified particulars of the occurrence in 14 writing to the CEO. 15 (3) It is a defence to proceedings for an offence under 16 section 62 in which the prosecution relies on the 17 operation of section 63(4) if the person charged with 18 that offence (the alleged offender) proves -- 19 (a) that the person mentioned in section 63(2)(b) 20 took reasonable precautions and exercised due 21 diligence to prevent the occurrence that gave 22 rise to the charge; and 23 (b) that as soon as was reasonably practicable after 24 the occurrence that gave rise to the charge the 25 person mentioned in section 63(2)(b), or the 26 alleged offender, notified particulars of the 27 occurrence in writing to the CEO. 28 (4) Subsection (3) does not limit the application of 29 subsection (2) to proceedings for an offence under 30 section 62 in which the prosecutor relies on the 31 operation of section 63(4). 32 (5) This section has effect subject to section 74E. page 106 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 68 1 74D. Defence of lack of knowledge of effect of licence 2 (1) It is a defence to proceedings for an offence under 3 section 63(3) if the person charged with that offence 4 proves that the person did not know, and could not 5 reasonably be expected to have known, that the 6 carrying out of the work or activity mentioned in 7 section 63(2)(a) constituted or was related to a licensed 8 action as defined in section 63(1). 9 (2) This section has effect subject to section 74E. 10 74E. Notice of defence 11 The defence referred to in section 74(1), (2) 12 or (3), 74C(1), (2) or (3) or 74D(1) is not available to a 13 person unless the person notifies the CEO of the 14 person's intention to rely on that defence within 15 21 days after the day on which -- 16 (a) the relevant court hearing notice is served on 17 the person; or 18 (b) if no court hearing notice is served on the 19 person in respect of the relevant offence, the 20 person is informed of the place and time at 21 which the person is alleged to have committed 22 that offence and of the nature of that offence. 23 24 68. Part V Division 6 heading inserted 25 Before section 75 insert: 26 27 Division 6 -- General 28 page 107 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 69 1 69. Section 86E amended 2 In section 86E(1): 3 (a) in paragraph (a) delete "section 48(4) or" and insert: 4 5 section 48(7) or 6 7 (b) in paragraph (c) delete "section 68A(11)(a) or" and 8 insert: 9 10 section 68A(11)(a), 70(10)(a) or 11 12 70. Section 86G amended 13 (1) In section 86G(2) delete "section 48(5), 68A(11)(b), 69(3), 14 73(4a)" and insert: 15 16 section 48(8), 68A(11)(b), 69(3), 70(10)(b), 73(4a) 17 18 (2) In section 86G(4): 19 (a) in paragraph (a) delete "section 68A(11)(b), 73(4a)" and 20 insert: 21 22 section 68A(11)(b), 70(10)(b), 73(4a) 23 24 (b) in paragraph (b) delete "section 68A(11)(b), 73(4a)" and 25 insert: 26 27 section 68A(11)(b), 70(10)(b), 73(4a) 28 page 108 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 71 1 71. Part VB inserted 2 After Part VA insert: 3 4 Part VB -- Environmental protection covenants 5 86H. Terms used 6 In this Part -- 7 native vegetation has the meaning given in 8 section 51A; 9 occupier of land has the meaning given in section 51A; 10 owner of land means -- 11 (a) in relation to land alienated from the Crown, 12 the holder (at law or in equity) of an estate in 13 fee simple in the land; and 14 (b) in relation to land that the Crown has lawfully 15 agreed to alienate, the person who is entitled to 16 the benefit of the agreement; and 17 (c) in relation to any other land, the public 18 authority that has the care, control or 19 management of the land or, if there is no such 20 public authority, the Crown; 21 relevant land registration officer means -- 22 (a) where the land is under the operation of the 23 Transfer of Land Act 1893 or the Land 24 Administration Act 1997 -- the Registrar of 25 Titles; and 26 (b) where the land is alienated from the Crown but 27 is not under the operation of the Transfer of 28 Land Act 1893 -- the Registrar of Deeds and 29 Transfers. page 109 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 71 1 86I. CEO may enter into environmental protection 2 covenant 3 (1) The CEO may enter into an environmental protection 4 covenant with the owner of land if it is a condition of a 5 clearing permit, or of a Ministerial statement relating to 6 a proposal, that the owner enter into the covenant. 7 (2) An environmental protection covenant requires the 8 consent in writing of each person who is an owner or 9 occupier of the land to which the covenant applies at 10 the time it is entered into. 11 86J. Form of environmental protection covenant 12 (1) An environmental protection covenant must -- 13 (a) be prepared by the CEO; and 14 (b) identify the land to which it applies; and 15 (c) identify each person who is an owner or 16 occupier of that land. 17 (2) The CEO may, for the purpose of preparing an 18 environmental protection covenant, by written notice 19 require the owner of the land to which the covenant 20 will apply to provide the CEO with specified surveys 21 or other specified information within a specified time. 22 (3) An environmental protection covenant may contain 23 such provisions as the CEO and the owner of the land 24 agree. 25 (4) Without limiting subsection (3), an environmental 26 protection covenant may -- 27 (a) restrict the use of land to which it applies; and 28 (b) require specified work or work of a specified 29 kind to be carried out in accordance with 30 specified standards on the land; and page 110 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 71 1 (c) restrict the nature of work that may be carried 2 out on the land. 3 (5) An environmental protection covenant -- 4 (a) may be expressed to have effect for a period of 5 time specified in the covenant or in perpetuity; 6 and 7 (b) may be expressed to be irrevocable. 8 (6) The costs and expenses of preparing and registering an 9 environmental protection covenant must be borne -- 10 (a) if it is a condition of a clearing permit that the 11 covenant be entered into -- by the holder of the 12 clearing permit; or 13 (b) if it is a condition of a Ministerial statement 14 that the covenant be entered into -- by the 15 proponent of the proposal. 16 (7) The CEO may require the payment of the costs and 17 expenses referred to in subsection (6) before entering 18 into the covenant. 19 86K. Registration of environmental protection covenant 20 (1) The CEO may deliver a memorial of an environmental 21 protection covenant to the relevant land registration 22 officer. 23 (2) The memorial must be in a form approved by the 24 relevant land registration officer. 25 (3) The relevant land registration officer must register the 26 memorial and accordingly endorse or note the 27 appropriate register or record in respect of the land to 28 which the environmental protection covenant applies. page 111 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 71 1 86L. Binding effect of environmental protection covenant 2 An environmental protection covenant -- 3 (a) binds the owner of land by whom it was given 4 for so long as the covenant subsists and that 5 person continues to be the owner of the land; 6 and 7 (b) binds each occupier of the land who consented 8 to the covenant for so long as the covenant 9 subsists and that person continues to be an 10 occupier of the land; and 11 (c) while a memorial of the covenant remains 12 registered under section 86K(3), binds each 13 successive owner or occupier of the land. 14 86M. Application for amendment of environmental 15 protection covenant 16 (1) An owner of land who is bound by an environmental 17 protection covenant under section 86L(a) or (c) may 18 apply to the CEO for the amendment of the 19 environmental protection covenant. 20 (2) An application under subsection (1) for the amendment 21 of an environmental protection covenant must -- 22 (a) be made in the form and in the manner 23 approved by the CEO; and 24 (b) contain or be accompanied by any information 25 required as indicated in the form or in material 26 accompanying the form; and 27 (c) be accompanied by the fee prescribed by or 28 determined under the regulations. 29 (3) If the CEO requires further information to determine 30 the application, the CEO may, by written notice given 31 to the applicant, require the applicant to give the CEO 32 further specified information within a specified time. page 112 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 71 1 (4) If the application does not comply with subsection (2) 2 or further information is not provided in accordance 3 with subsection (3), the CEO must decline to deal with 4 the application and advise the applicant accordingly. 5 (5) If, under subsection (4), the CEO declines to deal with 6 the application, the CEO does not have to perform any 7 function under section 86N(1) or (4) in relation to the 8 application. 9 86N. Amendment of environmental protection covenant 10 (1) On an application under section 86M(1) for the 11 amendment of an environmental protection covenant 12 the CEO must -- 13 (a) amend the covenant; or 14 (b) refuse to amend the covenant. 15 (2) The CEO may amend an environmental protection 16 covenant on the CEO's initiative -- 17 (a) to correct in the covenant -- 18 (i) a clerical mistake or unintentional error 19 or omission; or 20 (ii) a figure which has been miscalculated; 21 or 22 (iii) the misdescription of any person, thing, 23 area, property or activity; 24 or 25 (b) to make an administrative change to the format 26 of the covenant which does not alter the 27 obligations of the covenantor; or 28 (c) to bring the covenant into conformity with an 29 approved policy or with an exemption 30 conferred under this Act; or page 113 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 71 1 (d) to give effect to a decision of the Minister 2 under this Act (whether on an appeal or 3 otherwise); or 4 (e) as agreed to by each person who is bound by 5 the covenant. 6 (3) The CEO must give written notice of any amendment 7 under this section of an environmental protection 8 covenant -- 9 (a) to each person who is bound by the covenant; 10 and 11 (b) if the covenant is registered under section 86K, 12 to the relevant land registration officer. 13 (4) If under subsection (1) the CEO refuses to amend an 14 environmental protection covenant, the CEO must give 15 written notice of the refusal to the applicant. 16 86O. Enforcement of environmental protection covenant 17 (1) A person bound by an environmental protection 18 covenant who contravenes the covenant commits an 19 offence. 20 (2) Section 51R applies to any proceedings under this 21 section as if the proceedings were proceedings under 22 Part V Division 2. 23 86P. Duties upon passing interests in affected land 24 (1) While a memorial of an environmental protection 25 covenant remains registered under section 86K, each 26 owner or occupier of the land to which the covenant 27 relates must -- 28 (a) before agreeing with another person in writing 29 that the other person will succeed the owner or 30 occupier in ownership or occupation or both, as page 114 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 71 1 the case requires, of that land, notify the other 2 person in writing of the following -- 3 (i) the content of the covenant; 4 (ii) the fact that the covenant will be 5 binding on the other person if the other 6 person succeeds the owner or occupier 7 in ownership or occupation or both; 8 and 9 (b) within 14 days after ceasing to be an owner or 10 occupier of the land to which the covenant 11 relates, notify the CEO in writing of that 12 cessation and of the name and address of each 13 person who succeeds the owner or occupier in 14 the ownership or occupation or both, as the case 15 requires, of that land. 16 (2) A person who contravenes subsection (1) commits an 17 offence. 18 86Q. Discharge of environmental protection covenant 19 (1) In this section -- 20 revocable environmental protection covenant means 21 an environmental protection covenant that is not 22 expressed to be irrevocable. 23 (2) A person who is bound by a revocable environmental 24 protection covenant may apply in writing to the CEO 25 for the discharge of the covenant. 26 (3) On an application under subsection (2) for the 27 discharge of a revocable environmental protection 28 covenant the CEO must -- 29 (a) subject to subsection (5), discharge the 30 covenant; or 31 (b) refuse to discharge the covenant. page 115 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 71 1 (4) Subject to subsection (5), a revocable environmental 2 protection covenant may be discharged by the CEO on 3 the CEO's initiative. 4 (5) The CEO may discharge a revocable environmental 5 protection covenant under this section if, and only if, 6 the CEO is of the opinion that -- 7 (a) the covenant is no longer necessary; or 8 (b) there is other just cause for discharging the 9 covenant. 10 (6) If a revocable environmental protection covenant is 11 discharged under this section -- 12 (a) the CEO must give written notice of the 13 discharge to each person bound by the 14 covenant; and 15 (b) if the covenant is registered under 16 section 86K(3), the CEO must give a certificate 17 under section 86R(1) to the relevant land 18 registration officer. 19 (7) If under subsection (3)(b) the CEO refuses to discharge 20 a revocable environmental protection covenant, the 21 CEO must give written notice of the refusal to the 22 applicant. 23 86R. Cancelling registration of memorial 24 (1) If an environmental protection covenant registered 25 under section 86K(3) is discharged under section 86Q, 26 the CEO must give the relevant land registration officer 27 a certificate in a form approved by the relevant land 28 registration officer and signed by the CEO certifying 29 that the covenant was discharged on the date specified 30 in the certificate. page 116 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 72 1 (2) The relevant land registration officer must, on 2 receiving a certificate under subsection (1), cancel the 3 registration of the memorial of the environmental 4 protection covenant and endorse or note the appropriate 5 register or record accordingly. 6 7 72. Section 89 amended 8 (1) In section 89(1): 9 (a) delete "with such assistance as he may require"; 10 (b) after paragraph (e) insert: 11 12 (ea) the implementation or operation of an 13 environmental monitoring programme; or 14 15 (c) in paragraph (f)(ii): 16 (i) delete "permit, works approval" and insert: 17 18 permit, environmental protection covenant 19 20 (ii) delete "this Act." and insert: 21 22 this Act; 23 24 (d) after paragraph (f) insert: 25 26 or 27 (g) determining whether an offence under this Act 28 has been, is being or is likely to be committed. 29 30 (2) In section 89(3) delete "with such assistance as he may require". page 117 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 73 1 73. Section 90 replaced 2 Delete section 90 and insert: 3 4 89A. Use of assistance and force 5 (1) An inspector may use assistance and force that is 6 reasonably necessary in the circumstances when 7 exercising a power under section 89 but cannot use 8 force against a person. 9 (2) If the use of reasonable force is likely to cause 10 significant damage to property, the inspector is not 11 entitled to use force without the prior authority of the 12 CEO in the particular case. 13 (3) An inspector may request a police officer or other 14 person to assist the inspector in exercising a power 15 under this Part, and that person may assist the inspector 16 in the exercise of the power. 17 (4) A person while assisting an inspector at the request of 18 the inspector and in accordance with this Act -- 19 (a) has the same powers as are conferred on an 20 inspector under this Part; and 21 (b) is subject to the same responsibilities as an 22 inspector under this Part but is not required to 23 give notice under section 89(4); and 24 (c) has the same protection from liability as an 25 inspector. 26 (5) Nothing in this section derogates from the powers of a 27 police officer. page 118 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 73 1 90. Powers of inspectors to obtain information 2 (1) An inspector may -- 3 (a) direct the occupier of any premises from which 4 there has been, is, or is likely to be, an 5 emission, or onto which any waste has been or 6 is being discharged, to produce to the 7 inspector -- 8 (i) any books or other sources of 9 information relating to that emission or 10 to any manufacturing, industrial or trade 11 processes carried on at those premises; 12 or 13 (ii) any data from any monitoring 14 equipment or monitoring programme in 15 respect of that emission; 16 or 17 (b) direct any person to produce to the inspector 18 any books or other sources of information in 19 the custody or possession of that person relating 20 to -- 21 (i) any emission; or 22 (ii) the manufacture, sale or distribution for 23 sale of any prescribed equipment or 24 material. 25 (2) An inspector may direct a person to produce to the 26 inspector any licence, registration, permit, approval, 27 certificate or authority granted and issued under this 28 Act to the person or alleged by the person to have been 29 so granted and issued. 30 (3) An inspector may -- 31 (a) conduct any examination or inquiry the 32 inspector considers necessary to ascertain page 119 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 73 1 whether there has been compliance with the 2 Act; and 3 (b) question any person to ascertain whether or not 4 there has been compliance with this Act and 5 direct that person to do either or both of the 6 following -- 7 (i) answer any question put to the person; 8 (ii) produce any books or other sources of 9 information in the custody or possession 10 of that person relating to compliance 11 with the Act. 12 (4) A direction given under subsection (1), (2) 13 or (3)(b)(ii) -- 14 (a) must be given in writing to the person required 15 to produce the document, books or other 16 sources of information or data; and 17 (b) must specify the time at which, or the period 18 within which, the document, books or other 19 sources of information or data are to be 20 produced to the inspector; and 21 (c) may require that the document, books or other 22 sources of information or data be produced to 23 the inspector -- 24 (i) at a place specified in the direction; and 25 (ii) by a means specified in the direction. 26 (5) A direction under subsection (3)(b)(i) -- 27 (a) may be given orally or in writing; and 28 (b) must specify the time at which, or period within 29 which, the answer must be given to the 30 inspector; and page 120 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 74 1 (c) may require any of the following -- 2 (i) that the answer be given orally or in 3 writing; 4 (ii) if the answer is directed to be given in 5 writing, be given by means specified in 6 the direction; 7 (iii) that the answer be verified by a 8 statutory declaration. 9 (6) A person who does not comply with a direction given 10 to the person under subsection (1), (2) or (3) commits 11 an offence. 12 (7) An inspector may do any of the following in relation to 13 any books or other sources of information or data 14 produced to the inspector in compliance with a 15 direction under this section -- 16 (a) examine them; 17 (b) take copies of or data or extracts from them; 18 (c) download or print them out. 19 (8) An inspector may record an answer given orally under 20 this section, including by making an audiovisual 21 recording. 22 23 74. Section 92F deleted 24 Delete section 92F. 25 75. Section 92H amended 26 In section 92H(1)(a) delete "section 89(3); or" and insert: 27 28 section 89(1) or (3); or 29 page 121 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 76 1 76. Section 99 amended 2 Delete section 99(4). 3 77. Part VIA Division 1 heading replaced 4 Delete the heading to Part VIA Division 1 and insert: 5 6 Division 1 -- Prescribed offences and modified penalties 7 8 78. Section 99AA inserted 9 Before section 99A insert: 10 11 99AA. Term used: prescribed offence 12 In this Division -- 13 prescribed offence means -- 14 (a) a Tier 1 offence under a section listed in the 15 Table; or 16 (b) a Tier 2 offence. 17 Table s. 6(7) s. 47(1) s. 47(4) s. 48(9) s. 49(3) s. 50(2) s. 50A(2) s. 51C s. 69(5) s. 71(5) 18 page 122 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 79 1 79. Section 99A amended 2 (1) Delete section 99A(1) and insert: 3 4 (1) This section applies to a person if the CEO is of the 5 opinion that -- 6 (a) the person has committed a prescribed offence; 7 and 8 (b) there is sufficient evidence to support the 9 allegation of the offence; and 10 (c) having regard to the nature and particulars of 11 the alleged offence and to the particulars of the 12 circumstances relating to the alleged offence, 13 the alleged offence can adequately be dealt with 14 under this Division. 15 (1A) For the purposes of subsection (1)(c), the CEO must 16 have regard to -- 17 (a) the potential or actual effect on the environment 18 of any occurrence giving rise to the allegation 19 of the offence; and 20 (b) in the case of a prescribed offence other than an 21 offence under section 49A(2) or (3), whether, 22 as soon as was reasonably practicable after the 23 occurrence giving rise to the allegation of the 24 offence, the alleged offender notified 25 particulars of the occurrence in writing to the 26 CEO; and 27 (c) in the case of a prescribed offence other than an 28 offence under section 49A(2) or (3), whether, 29 after the occurrence giving rise to the allegation 30 of the offence, the alleged offender took all 31 reasonable and practicable steps to minimise 32 and remedy any adverse environmental effects 33 of that occurrence; and page 123 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 80 1 (d) whether the alleged offender cooperated with 2 officers and employees of the Department and 3 provided information and assistance when so 4 requested; and 5 (e) whether the alleged offender has taken 6 reasonable steps to ensure that the 7 circumstances giving rise to the allegation of 8 the offence do not reoccur. 9 10 (2) In section 99A(2) delete "Tier 2" and insert: 11 12 prescribed 13 14 80. Section 99E amended 15 Delete section 99E(3) and insert: 16 17 (3) If this subsection applies, the CEO must publish -- 18 (a) a notice of payment of the modified penalty; 19 and 20 (b) such particulars as are prescribed. 21 22 81. Section 99J amended 23 (1) In section 99J(1) delete "may, within 35 days after the alleged 24 offence is believed to have been committed, give" and insert: 25 26 may give 27 page 124 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 82 1 (2) After section 99J(2) insert: 2 3 (3) The infringement notice must be served within 4 12 months after the day on which the alleged 5 infringement notice offence is believed to have been 6 committed. 7 8 82. Section 99Z amended 9 In section 99Z(2) delete the definition of monetary benefits and 10 insert: 11 12 monetary benefits means -- 13 (a) monetary, financial or economic benefits of any 14 kind; and 15 (b) monetary savings, or a reduction in 16 expenditure, achieved by the avoidance of 17 charges, fees or other costs that would have 18 been incurred by the offender if the offender 19 had not committed the offence. 20 21 83. Part VIA Division 5 inserted 22 At the end of Part VIA insert: 23 24 Division 5 -- Injunctions 25 99ZC. Injunctions to prevent improper conduct 26 (1) In this section -- 27 contravention includes the continuation of a 28 contravention; 29 court means the Supreme Court; page 125 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 83 1 improper conduct means an act or omission 2 constituting a contravention of, or involvement in a 3 contravention of, section 41A(1), 47(1) or (5), 49(2), 4 (3), (4) or (5), 50(1) or (2), 50A(1) or (2), 50B(1) or 5 (2), 51C, 51J(1), 53A(1), 53B(1), 62 or 63(3); 6 involvement in a contravention means -- 7 (a) aiding, abetting, counselling, or procuring the 8 contravention; or 9 (b) inducing the contravention, whether by threats 10 or promises or otherwise; or 11 (c) being in any way, directly or indirectly, 12 knowingly concerned in, or party to, the 13 contravention; or 14 (d) conspiring with others to effect the 15 contravention; or 16 (e) attempting to do anything constituting 17 involvement in a contravention under 18 paragraph (a), (b), (c) or (d). 19 (2) Without limiting any other power the court may have 20 to grant injunctive relief, it is declared that the court 21 may grant an injunction to prevent a person from 22 engaging in improper conduct (a conduct injunction). 23 (3) The CEO may apply for a conduct injunction. 24 (4) If the court is satisfied that it would be appropriate to 25 grant a conduct injunction, the injunction may be 26 granted -- 27 (a) whether or not it is proved that the person 28 intends to engage, or to engage again, or to 29 continue to engage, in improper conduct of the 30 kind sought to be prevented by the injunction; 31 and 32 (b) whether or not the person has previously 33 engaged in improper conduct of that kind. page 126 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 84 1 (5) An interim conduct injunction may be granted before 2 final determination of an application for a conduct 3 injunction. 4 (6) The court must not require, as a condition of granting 5 an interim conduct injunction, that an undertaking be 6 given as to damages or costs. 7 (7) The taking of proceedings against any person for an 8 offence under this Act is not affected by -- 9 (a) the making of an application for a conduct 10 injunction; or 11 (b) the grant or refusal of a conduct injunction or 12 an interim conduct injunction; or 13 (c) the rescission, variation or expiry of a conduct 14 injunction or an interim conduct injunction. 15 16 84. Section 100 amended 17 (1) In section 100(3) delete "section 45(1) (or under section 45(1)" 18 and insert: 19 20 section 45(3) or (4) (or under section 45(3) or (4) 21 22 (2) In section 100(3a): 23 (a) in paragraphs (a), (b) and (c) delete "14" and insert: 24 25 21 26 27 (b) delete paragraph (e) and insert: 28 29 (d) under subsection (3), within 14 days after the 30 publication of the Ministerial statement setting 31 out the agreement. 32 page 127 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 85 1 (3) Delete section 100(4)(a) and (b) and insert: 2 3 (a) a notice served on the proponent under 4 section 48(7)(b); or 5 (b) the taking of any steps under section 48(7)(c) 6 or (d), 7 8 85. Section 101 amended 9 (1) In section 101(1): 10 (a) delete paragraphs (b) and (c) and insert: 11 12 (b) in the case of an appeal referred to in 13 section 100(1)(a), remit the proposal to the 14 Authority for the making of a fresh decision as 15 to whether or not the proposal is to be assessed; 16 or 17 (c) in the case of an appeal referred to in 18 section 100(1)(a), remit the proposal to the 19 Authority for assessment and for that purpose 20 make a direction under section 43; or 21 22 (b) delete paragraph (e) and insert: 23 24 (e) in the case of an appeal against a notice served 25 under section 48(7)(b), set aside or alter that 26 notice; or 27 28 (c) in paragraph (f) delete "section 48(4)(c)" and insert: 29 30 section 48(7)(c) 31 page 128 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 85 1 (2) In section 101(3): 2 (a) in paragraph (b) delete "section 45(6)" and insert: 3 4 section 45(10) 5 6 (b) delete paragraph (c) and insert: 7 8 (c) referred to in section 100(3) as to conditions or 9 procedures agreed under section 45(3) or (4) 10 otherwise than as applied by section 46(8) 11 prevents the implementation of the proposal 12 concerned; or 13 (d) referred to in section 100(3) as to conditions or 14 procedures agreed under section 45(3) or (4) as 15 applied by section 46(8) does not prevent the 16 implementation, or continued implementation, 17 of the proposal concerned subject to the 18 implementation conditions; or 19 20 (c) delete paragraph (e) and insert: 21 22 (e) against a notice served under section 48(7)(b) 23 suspends the operation of that notice; or 24 25 (d) in paragraph (f) delete "section 48(4)(c)" and insert: 26 27 section 48(7)(c) 28 29 (e) delete "or (2d)." and insert: 30 31 or (2d) or section 107(2). 32 page 129 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 86 1 (3) In section 101(4) delete "section 48(5)" and insert: 2 3 section 48(8) 4 5 86. Section 102 replaced 6 Delete section 102 and insert: 7 8 101B. Appeals against decisions as to environmental 9 protection covenants 10 (1) Subject to section 105, an applicant -- 11 (a) under section 86M(1) for the amendment of an 12 environmental protection covenant; or 13 (b) under section 86Q(2) for the discharge of an 14 environmental protection covenant, 15 who is aggrieved by the refusal of the CEO under 16 section 86N(1)(b) or 86Q(3)(b) to amend or discharge 17 the covenant, may, within 21 days after being notified 18 of the refusal, lodge with the Minister an appeal in 19 writing setting out the grounds of the appeal. 20 (2) Pending the determination of the relevant appeal 21 lodged under subsection (1), the decision against which 22 the appeal is lodged continues to have effect. 23 102. Appeals against decisions as to licences 24 (1) This subsection applies if -- 25 (a) an applicant for a licence is aggrieved by the 26 refusal of the CEO to grant the licence under 27 section 54(1)(b); or 28 (b) an applicant for the amendment of a licence is 29 aggrieved by the refusal of the CEO to amend 30 the licence under section 55(1)(b); or page 130 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 86 1 (c) an applicant for the transfer of a licence is 2 aggrieved by the refusal of the CEO to transfer 3 the licence under section 59(2)(b); or 4 (d) an applicant for a licence or transfer of a 5 licence is aggrieved by the specification by the 6 CEO of any condition in the licence under 7 section 61(1) (a condition specification). 8 (2) Subject to section 105, if subsection (1) applies the 9 applicant may lodge an appeal with the Minister within 10 21 days after being notified of the refusal or condition 11 specification. 12 (3) This subsection applies if the holder of a licence is 13 aggrieved by -- 14 (a) the amendment of the licence under 15 section 55(2); or 16 (b) the suspension of the licence under 17 section 56(2); or 18 (c) the refusal to accept the surrender of the licence 19 under section 60(1)(b). 20 (4) Subject to section 105, if subsection (3) applies the 21 holder may lodge an appeal with the Minister within 22 21 days after being notified of the amendment, 23 suspension or refusal. 24 (5) Subject to section 105, the former holder of a licence 25 who is aggrieved by the revocation of the licence under 26 section 56(1) may lodge an appeal with the Minister 27 within 21 days after being notified of that revocation. 28 (6) If a person who is not the applicant referred to in 29 subsection (1)(d) is aggrieved by a condition 30 specification, the person may lodge an appeal with the 31 Minister within the period within which the applicant 32 can lodge an appeal about that condition specification. page 131 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 87 1 (7) If a person who is not the holder of a licence is 2 aggrieved by an amendment referred to in 3 subsection (3)(a), the person may lodge an appeal with 4 the Minister within the period within which the holder 5 can lodge an appeal about that amendment. 6 (8) An appeal under this section must be in writing and 7 must set out the grounds of the appeal. 8 (9) Pending the determination of an appeal lodged under 9 subsection (2), (4), (5) or (6) in respect of a refusal, 10 condition specification, revocation or suspension, the 11 decision against which that appeal is lodged continues 12 to have effect. 13 (10) Pending the determination of an appeal lodged under 14 subsection (4) in respect of an amendment, the 15 amendment is taken not to have been made. 16 (11) Pending the determination of an appeal lodged under 17 subsection (7), the amendment continues to have effect. 18 19 87. Section 105 replaced 20 Delete section 105 and insert: 21 22 105. Matters on which appeals cannot be lodged 23 An appeal cannot be lodged -- 24 (a) under section 101A, 101B(1), 102 or 103 in 25 respect of anything done by the CEO under 26 section 110(1) to give effect to a decision of the 27 Minister under section 107(2) or 109(3) on an 28 appeal; or 29 (b) under section 101A(2) in respect of the 30 amendment of a clearing permit by amending it 31 under section 51K(1)(e), (f), (g) or (h); or page 132 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 88 1 (c) under section 102(4) in respect of the 2 amendment of a licence by amending it under 3 section 55(3)(e), (f), (h), (i) or (j). 4 5 88. Section 106 amended 6 (1) In section 106(1)(b) delete "section 101A, 102," and insert: 7 8 section 101A, 101B(1), 102, 9 10 (2) Delete section 106(4) and insert: 11 12 (4) Subsection (1) does not apply if an appeals committee 13 has been appointed. 14 (5) If an appeal is lodged under section 100 by a person 15 other than a decision-making authority and the 16 decision-making authority has made submissions to the 17 Minister in respect of the proposal to which the appeal 18 relates -- 19 (a) the Appeals Convenor must have regard to 20 those submissions when reporting on, and 21 otherwise dealing with, the appeal; and 22 (b) if an appeals committee has been appointed, it 23 must have regard to those submissions when 24 considering and reporting to the Minister on the 25 appeal. 26 27 89. Section 107 amended 28 (1) Delete section 107(1). page 133 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 90 1 (2) In section 107(2) delete "made under subsection (1)," and 2 insert: 3 4 mentioned in section 106(1)(a), (b) or (d), 5 6 Note: The heading to amended section 107 is to read: 7 Minister's powers on appeal 8 90. Section 107B amended 9 After section 107B(3) insert: 10 11 (4) If an appeal under section 100, 101A, 101B(1), 102, 12 103 or 104(1), as enacted at any time, is lodged with 13 the Appeals Convenor, it is taken to have been lodged 14 with the Minister. 15 (5) Subsection (4) extends, and is taken to have always 16 extended, to appeals lodged before the coming into 17 operation of the Environmental Protection Amendment 18 Act 2020 section 90. 19 20 91. Section 110 amended 21 After section 110(2) insert: 22 23 (3) If implementation conditions are changed on an appeal 24 under section 100(3), a statement setting out the 25 implementation conditions as changed must be 26 published by the Minister and section 45(8)(b) applies. 27 page 134 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 92 1 92. Part VIIB inserted 2 After section 110J insert: 3 4 Part VIIB -- Environmental monitoring 5 programmes 6 Division 1 -- Preliminary 7 110K. Terms used 8 In this Part -- 9 environmental monitoring programme means a 10 monitoring programme established to monitor the 11 effect on the environment of one or more prescribed 12 activities, including pollution or environmental harm 13 resulting from the activity or activities; 14 levy means a levy imposed under Division 2A; 15 monitoring station means equipment or a facility for 16 collecting and obtaining data, and taking 17 measurements, for the purposes of an environmental 18 monitoring programme. 19 Division 2 -- Environmental monitoring programmes 20 110L. Regulations as to environmental monitoring 21 programmes 22 Regulations may -- 23 (a) provide for the investigations, consultation or 24 other processes to be carried out or undertaken 25 to determine if an environmental monitoring 26 programme is needed; and 27 (b) provide for the development, establishment, 28 implementation and operation of an 29 environmental monitoring programme; and page 135 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 92 1 (c) provide for the powers that may be exercised 2 for the purposes of -- 3 (i) determining whether an environmental 4 monitoring programme is needed; and 5 (ii) developing, establishing, implementing 6 or operating an environmental 7 monitoring programme; 8 and 9 (d) without limiting paragraph (c)(ii) -- 10 (i) provide for the installation, maintenance 11 and operation of monitoring stations and 12 for agreements to be entered for those 13 purposes; and 14 (ii) require persons who own or occupy land 15 to provide assistance relating to the 16 installation, maintenance and operation 17 of monitoring stations on the land; 18 and 19 (e) provide for and regulate the ownership, use and 20 dissemination of data collected and obtained in 21 the implementation and operation of an 22 environmental monitoring programme; and 23 (f) require the CEO to review and report on an 24 environmental monitoring programme. 25 110M. Funding for environmental monitoring 26 programmes 27 (1) This subsection applies to the following moneys -- 28 (a) any amount paid by way of levy; and 29 (b) any amount paid by way of penalty under 30 section 110Q; and 31 (c) any amount of a kind prescribed for the 32 purposes of this section. page 136 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 92 1 (2) Moneys to which subsection (1) applies are to be used 2 for the following purposes -- 3 (a) determining whether an environmental 4 monitoring programme is needed; 5 (b) developing, establishing, implementing and 6 operating environmental monitoring 7 programmes; 8 (c) the refund of amounts overpaid by way of levy, 9 and the payment of rebates, under the 10 regulations; 11 (d) a purpose of a prescribed kind; 12 (e) any other purpose relating to environmental 13 monitoring programmes that is approved by the 14 Minister. 15 Division 3 -- Collection of levy 16 110N. Payment of levy 17 (1) A levy is due and payable -- 18 (a) at the time or times prescribed; and 19 (b) in the manner prescribed. 20 (2) A levy is payable to the Minister. 21 (3) The regulations may provide for the refund or 22 deduction of amounts overpaid by way of levy and the 23 payment of rebates. 24 110O. Financial assurance 25 The regulations may make provision -- 26 (a) empowering the CEO to require the holder of a 27 licence, or a person required to hold a licence, 28 to provide a financial assurance for the purpose 29 of securing or guaranteeing payment of a levy; 30 and page 137 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 92 1 (b) with respect to the form, amount, maintenance 2 and termination of the financial assurance; and 3 (c) with respect to the conditions and procedures 4 under which the financial assurance may be 5 called on or used; and 6 (d) with respect to matters necessary for, or 7 incidental to, the effective operation of a 8 financial assurance. 9 110P. Payment by instalments 10 (1) The regulations may provide for the payment of an 11 amount of a levy to be made by instalments, and, 12 subject to subsection (2), each instalment is due and 13 payable at a time ascertained in accordance with the 14 regulations. 15 (2) If an instalment is not paid at or before the time due for 16 the payment of the instalment, the whole of the amount 17 of the levy unpaid becomes due and payable at that 18 time. 19 110Q. Penalty for non-payment 20 (1) If an amount of a levy remains unpaid after the day on 21 which it becomes due for payment, there is payable to 22 the Minister by way of penalty, in addition to the 23 amount of the levy, an amount calculated at the rate 24 of 20% per annum upon the amount of the levy from 25 time to time remaining unpaid. 26 (2) The amount by way of penalty referred to in 27 subsection (1) is to be calculated from the time when 28 the amount of the levy becomes payable. page 138 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 93 1 110R. Recovery of levy 2 The following amounts may be recovered by the 3 Minister in a court of competent jurisdiction as debts 4 due to the Minister -- 5 (a) an amount of a levy that is due and payable; 6 (b) an amount payable under section 110P. 7 110S. Evading levy 8 (1) A person who evades or attempts to evade payment of 9 all or any amount of a levy commits an offence. 10 Penalty for this subsection: a fine of $10 000 and treble 11 the amount evaded or attempted to be evaded. 12 (2) The imposition on a person of a fine under 13 subsection (1) does not affect the liability of the person 14 to pay any amount of the levy and any penalty under 15 section 110Q. 16 17 93. Section 112 replaced 18 Delete section 112 and insert: 19 20 112. False information 21 A person who, in purporting to comply with a 22 requirement or request under this Act to give 23 information to the Minister, the Authority, the CEO, a 24 police officer, an inspector or an authorised person, 25 gives or causes to be given information that to the 26 person's knowledge is false or misleading in a material 27 particular commits an offence. 28 page 139 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 94 1 94. Section 112A amended 2 In section 112A(2) delete "information) if the individual 3 objected at the time of doing so on the ground that it might 4 incriminate the individual." and insert: 5 6 information). 7 8 95. Section 114 amended 9 (1) Delete section 114(1) and insert: 10 11 (1) Proceedings in respect of a Tier 1 offence, whether by 12 way of -- 13 (a) giving a modified penalty notice under 14 section 99A(2)(b); or 15 (b) prosecution for the offence, 16 as determined by the CEO, are not to be instituted 17 otherwise than by the CEO. 18 19 (2) In section 114(1b) delete "section 79(2), a prosecution for a Tier 20 3 offence" and insert: 21 22 section 79(2) and (3), a prosecution for a Tier 3 offence or an 23 offence under a regulation 24 25 (3) Delete section 114(3) and insert: 26 27 (3) A prosecution for an offence under section 49A(2) 28 or (3), 81(2), 82(2), 83 or 93 may be instituted by any 29 of the following -- 30 (a) the CEO; page 140 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 96 1 (b) a police officer, acting with the consent of the 2 CEO; 3 (c) the chief executive officer of a local 4 government, acting with the consent of the 5 CEO. 6 7 (4) In section 114(4) after "instituted by" insert: 8 9 the CEO or 10 11 96. Section 116A and 116B inserted 12 After section 116 insert: 13 14 116A. Proof not required of certain matters 15 In proceedings for an offence under this Act, each of 16 the following matters is taken to have been proved in 17 the absence of proof to the contrary -- 18 (a) that the prosecutor is authorised to institute the 19 prosecution; 20 (b) that a signature on the prosecution notice 21 alleging the offence is the signature of a person 22 authorised to institute the prosecution; 23 (c) that at a specified time a specified person was 24 the CEO, an authorised officer or an inspector 25 or a person assisting an inspector under 26 section 89A; 27 (d) that at a specified time a specified authorised 28 person or a specified inspector was authorised 29 to do a specified thing. page 141 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 96 1 116B. Proof of remotely sensed images 2 (1) In this section -- 3 captured includes taken; 4 image includes -- 5 (a) a photograph; and 6 (b) a digital image; 7 image data source means a website, database, data 8 storage facility or other body or source of 9 information -- 10 (a) containing or including either or both of the 11 following -- 12 (i) remotely sensed images; 13 (ii) digital or electronic information from 14 which remotely sensed images can be 15 produced; 16 and 17 (b) declared by the regulations to be an image data 18 source for the purposes of this section; 19 official document means a document purporting to be 20 signed by the CEO or a person appointed under the 21 Land Administration Act 1997 section 30 to be an 22 authorised land officer; 23 remotely sensed image means an aerial photograph or 24 any other image of land captured using airborne 25 equipment or equipment mounted in or on a satellite. 26 (2) In this section a reference to the capture of an image 27 includes a reference to the capture of digital or 28 electronic information from which the image was 29 produced. page 142 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 96 1 (3) For the purposes of this section, a remotely sensed 2 image derived from an image data source -- 3 (a) is taken to have been captured on the date 4 recorded or shown in the image data source as 5 being the date on which the image was 6 captured; and 7 (b) is taken to be an image of the land recorded or 8 shown in the image data source as being the 9 land to which the image relates. 10 (4) In proceedings under this Act a remotely sensed image 11 of land is evidence of the vegetation on the land, and 12 its condition, on the date on which the image was 13 captured. 14 (5) Subsection (4) applies to an image even if it, or the 15 information from which it was produced, has been 16 modified or enhanced so that colours, tones or 17 brightness more accurately represent what would be 18 visible with the naked eye. 19 (6) In proceedings under this Act an official document 20 certifying the matters set out in subsection (7) or any of 21 those matters is, in the absence of proof to the contrary, 22 taken to be proof of the matters certified. 23 (7) The matters that may be certified are -- 24 (a) that an image comprising or specified in the 25 document is, or is a true copy of, a remotely 26 sensed image of land; and 27 (b) that an image comprising or specified in the 28 document is derived from an image data source; 29 and page 143 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 96 1 (c) that the image data source from which an image 2 comprising or specified in the document is 3 derived records or shows a date specified in the 4 document as being the date on which the image 5 was captured; and 6 (d) that the image data source from which an image 7 comprising or specified in the document is 8 derived records or shows land specified in the 9 document as being the land to which the image 10 relates; and 11 (e) that a remotely sensed image of land 12 comprising or specified in the document has 13 been marked to correctly identify, and correctly 14 show the boundaries of, the land according to 15 records held by the Western Australian Land 16 Information Authority established by the Land 17 Information Authority Act 2006 section 5. 18 (8) In subsection (7)(e) a reference to the marking of an 19 image is a reference to the marking or modification of 20 the image, or the information from which it was 21 produced, by the application of computer software or 22 by other means. 23 (9) An image, or a document comprising or specifying an 24 image, must not be admitted pursuant to this section as 25 evidence that the land has been cleared unless the court 26 is satisfied that, after the time at which the image was 27 captured, the Minister, the CEO or a person acting with 28 the authority of the Minister or of the CEO has entered 29 upon and inspected the land for the purposes of 30 ascertaining whether the land has been so cleared. 31 page 144 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 97 1 97. Section 120 amended 2 Delete section 120(ba). 3 98. Section 121B inserted 4 After section 121A insert: 5 6 121B. Dealing with moneys paid or contributed under this 7 Act 8 (1) This section applies when section 45A(1)(c), 48AA(2), 9 51I(2)(c), 110M(2) or any other provision of this Act 10 requires or authorises the payment or contribution of 11 moneys (the moneys) to be used for a purpose specified 12 in the provision (the specified purpose). 13 (2) Regulations may prescribe the manner in which the 14 moneys are to be managed and expended. 15 (3) Without limiting subsection (2), regulations may -- 16 (a) provide that, despite the Financial Management 17 Act 2006 section 38, income derived from the 18 investment of the moneys may be applied for 19 the specified purpose; and 20 (b) prescribe reporting requirements in relation to 21 the use, management and expenditure of the 22 moneys; and 23 (c) require or authorise the payment of the moneys 24 into an account maintained for the specified 25 purpose. 26 (4) This section does not affect the operation of Part VIIA. 27 page 145 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 99 1 99. Section 122B inserted 2 After section 122A insert: 3 4 122B. Forms and other matters relating to documentation 5 (1) In this section -- 6 approved means approved by the CEO; 7 documentation includes a document, application, 8 report, return, certificate, decision, statement or 9 recommendation and information or data; 10 publish includes keep a public record of and make 11 available for public inspection; 12 submit includes make, provide or produce. 13 (2) Forms may be prescribed or approved for use in 14 submitting documentation under this Act. 15 (3) If a form is prescribed or approved for use in 16 submitting documentation, the documentation must be 17 submitted in, and in accordance with, that form but 18 deviations from the form not materially affecting the 19 substance, nor likely to mislead, do not invalidate the 20 form used. 21 (4) Regulations may make provision with respect to -- 22 (a) publishing documentation submitted or 23 obtained under, or created for the purposes of, 24 this Act; and 25 (b) measures and procedures for maintaining 26 confidentiality in respect of documentation, 27 including -- 28 (i) the making of a request that 29 documentation not be published; and page 146 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 100 1 (ii) the manner in which a request of that 2 kind is to be made, received and dealt 3 with. 4 (5) Without limiting subsection (4)(a), regulations may 5 require or authorise the publication of documentation 6 that is not otherwise required or authorised under this 7 Act to be published. 8 (6) Subject to the measures or procedures referred to in 9 subsection (4)(b) -- 10 (a) documentation must or can be published if this 11 Act requires or authorises it to be published; 12 and 13 (b) if a manner is prescribed for use in publishing 14 documentation, it must be published in that 15 manner. 16 17 100. Part VIIIA inserted 18 After section 124 insert: 19 20 Part VIIIA -- Bilateral agreements with the 21 Commonwealth 22 124A. Terms used 23 In this Part, unless the contrary intention appears -- 24 bilateral agreement means an agreement referred to in 25 the Commonwealth Environment Act section 45(2) to 26 which the State is a party; 27 bilateral matter means a matter in respect of which an 28 application has been made in accordance with 29 regulations referred to in section 124D; 30 guidelines includes policies, plans and information; page 147 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 100 1 State entity means the Minister, the CEO or the 2 Authority. 3 124B. Effect of Part 4 This Part has effect despite any other provision of this 5 Act. 6 124C. Additional function of Authority 7 (1) It is a function of the Authority to facilitate the 8 implementation of bilateral agreements. 9 (2) A reference in any enactment to the Authority's 10 functions includes a reference to its function under 11 subsection (1). 12 124D. Application for a matter to be dealt with as a 13 bilateral matter 14 Regulations may provide for procedures under which a 15 person may apply for a matter to be dealt with under 16 this Act as a bilateral matter where, under a bilateral 17 agreement, the performance of functions in respect of 18 the matter by a State entity will or may have effect for 19 the purposes of the Commonwealth Environment Act. 20 124E. Performance of functions in respect of bilateral 21 matters 22 (1) A State entity may perform functions under this Act in 23 respect of a bilateral matter in a manner that is 24 consistent with, and enables the implementation of, a 25 bilateral agreement. 26 (2) When performing functions under this Act in respect of 27 a bilateral matter a State entity may have regard to 28 guidelines in accordance with a bilateral agreement. page 148 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 100 1 (3) Without limiting subsection (1) or section 17, for the 2 purposes of performing functions under Part IV in 3 respect of a bilateral matter the Authority may, in 4 relation to a proposal -- 5 (a) have regard to requirements made by a bilateral 6 agreement when making requirements or taking 7 other action under section 40; and 8 (b) prepare guidelines and publish material as 9 required under a bilateral agreement; and 10 (c) require the proponent to do anything necessary 11 to give effect to a bilateral agreement; and 12 (d) make its assessment and report in a manner that 13 satisfies the requirements of a bilateral 14 agreement. 15 (4) Without limiting subsection (1), when consulting with 16 other Ministers and decision-making authorities or 17 making decisions for the purposes of Part IV in respect 18 of a bilateral matter, the Minister may -- 19 (a) rely on a report of the Authority, including any 20 part of the report relating to matters of national 21 environmental significance under the 22 Commonwealth Environment Act; and 23 (b) impose implementation conditions for the 24 purpose of the implementation of a bilateral 25 agreement. 26 (5) Without limiting subsection (1), when performing 27 functions under Part V Division 2 in respect of a 28 bilateral matter the CEO may -- 29 (a) have regard to requirements made by a bilateral 30 agreement; and 31 (b) prepare guidelines and publish material as 32 required under a bilateral agreement; and page 149 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 100 1 (c) require a person to do anything necessary to 2 give effect to a bilateral agreement; and 3 (d) make any assessment and report required by a 4 bilateral agreement in a manner that satisfies 5 the requirements of a bilateral agreement; and 6 (e) attach conditions to a clearing permit for the 7 purpose of the implementation of a bilateral 8 agreement. 9 (6) When performing functions under Part VII in relation 10 to an appeal in respect of a bilateral matter the 11 following are to have regard to the effect of 12 subsections (1) to (5) on the performance of 13 functions -- 14 (a) the Minister; 15 (b) the Authority; 16 (c) the CEO; 17 (d) the Appeals Convenor; 18 (e) an appeals panel; 19 (f) an appeals committee. 20 124F. Fees in relation to bilateral matters 21 (1) Regulations may prescribe, or provide for the 22 determination of, fees payable to a State entity, or a 23 delegate of a State entity, in respect of things done, or 24 to be done, by or on behalf of the State entity or 25 delegate in respect of a bilateral matter. 26 (2) Regulations relating to a fee in respect of a matter may 27 prescribe, or provide for the determination of, a greater 28 or additional fee if the matter is, or is to be, dealt with 29 as a bilateral matter. page 150 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 100 1 (3) Schedule 2 items 2 and 2A apply in relation to fees 2 mentioned in this section. 3 124G. Disclosure of information for the purposes of 4 bilateral agreements 5 (1) Subject to this section, the provisions of this Act in 6 relation to the confidentiality and disclosure of 7 information apply to information obtained in or for the 8 purposes of the performance of functions in accordance 9 with this Part. 10 (2) To facilitate the implementation of a bilateral 11 agreement information that a State entity has may be 12 disclosed to a person that performs functions under the 13 Commonwealth Environment Act. 14 (3) A person does not commit an offence under 15 section 120 if the disclosure of information referred to 16 in that section is made under, or for the purposes of the 17 implementation of, a bilateral agreement. 18 124H. Regulations 19 Without limiting section 123(1) and (2), regulations 20 may prescribe all matters that are required or permitted 21 by this Part to be prescribed or that are necessary or 22 convenient to be prescribed for -- 23 (a) giving effect to the purposes of this Part; or 24 (b) facilitating the implementation of bilateral 25 agreements. 26 page 151 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 101 1 101. Part IX Division 4 inserted 2 At the end of Part IX insert: 3 4 Division 4 -- Transitional provisions for Environmental 5 Protection Amendment Act 2020 6 Subdivision 1 -- General provision 7 133A. Term used: amending Act 8 In this Division -- 9 amending Act means the Environmental Protection 10 Amendment Act 2020. 11 Subdivision 2 -- Transitional provisions relating to 12 clearing matters 13 133B. Declaration of environmentally sensitive areas 14 (1) In this section -- 15 former section means section 51B of this Act as in 16 force before the coming into operation of section 44 of 17 the amending Act; 18 new section means section 51B as in force after the 19 coming into operation of section 44 of the amending 20 Act; 21 regulations means regulations made under the new 22 section. 23 (2) Until regulations come into operation the declaration of 24 an environmentally sensitive area by notice made under 25 the former section continues to have effect as if it had 26 been made by regulations. page 152 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 101 1 133C. Clearing permit applications 2 (1) In this section -- 3 commencement means the coming into operation of 4 section 45 of the amending Act; 5 existing application means an application for a 6 clearing permit made under section 51E before the 7 commencement that has neither been withdrawn nor 8 dealt with under section 51E(3) or (5) before the 9 commencement. 10 (2) On and from the commencement an existing 11 application is taken to have been the referral under and 12 in accordance with section 51DA(2) (the deemed 13 referral) of a proposal for the clearing specified in the 14 existing application. 15 (3) If the CEO did not comply with section 51E(4)(c) in 16 relation to an existing application before the 17 commencement, section 51DA(3) to (6) apply to the 18 deemed referral, and if the person who made the 19 existing application -- 20 (a) receives notice under section 51DA(5) that the 21 CEO has decided that a clearing permit is 22 needed for the proposed clearing; or 23 (b) does not receive any notice under 24 section 51DA(5) within the period of 21 days 25 beginning on the commencement, 26 the person may, in writing, request the CEO to treat the 27 deemed referral as an application for a clearing permit 28 under section 51E(1). page 153 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 101 1 (4) If the CEO complied with section 51E(4)(c) in relation 2 to an existing application before the commencement, 3 the person who made the existing application is taken 4 to have -- 5 (a) received notice under section 51DA(5) that the 6 CEO has decided that a clearing permit is 7 needed for a proposed clearing; and 8 (b) requested the CEO under section 51DA(8) to 9 treat the deemed referral as an application for a 10 clearing permit under section 51E(1). 11 (5) If a request is made under subsection (3), or if 12 subsection (4) applies, the deemed referral is to be 13 treated as an application for a clearing permit under 14 section 51E, and section 51DA(9) does not apply. 15 133D. Clearing injunctions 16 (1) In this section -- 17 clearing injunction has the meaning given in 18 section 51S(2) of this Act as in force before the 19 commencement; 20 commencement means the coming into operation of 21 sections 59 and 83 of the amending Act; 22 conduct injunction has the meaning given in 23 section 99ZC(2); 24 existing application means an application for a 25 clearing injunction made under section 51S of this Act 26 as in force before the commencement that has neither 27 been withdrawn nor finally determined before the 28 commencement. 29 (2) A clearing injunction in force immediately before the 30 commencement has effect on and after the 31 commencement as if it were a conduct injunction. page 154 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 101 1 (3) An existing application has effect on and after the 2 commencement as if it were an application for a 3 conduct injunction made under section 99ZC(3). 4 Subdivision 3 -- Transitional provisions relating to works 5 approvals and licences 6 133E. Terms used 7 In this Subdivision -- 8 commencement means the coming into operation of 9 section 60 of the amending Act; 10 existing Act means this Act as in force immediately 11 before being amended by the amending Act; 12 former provisions means Part V Division 3 of this Act 13 as in force before the commencement; 14 new licence means a licence granted under the new 15 provisions; 16 new provisions means Part V Division 3 as in force 17 after the commencement. 18 133F. Works approvals 19 (1) Despite section 60 of the amending Act a works 20 approval in effect under the former provisions 21 immediately before the commencement (the works 22 approval) continues to have effect on and after the 23 commencement. 24 (2) The provisions of the existing Act are to be taken to 25 continue in force to the extent necessary to give effect 26 to subsection (1). 27 (3) Subsection (1) has effect subject to subsection (4) and 28 to the former provisions as continued in force by 29 subsection (2). page 155 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 101 1 (4) The CEO may, by notice in writing to the occupier, 2 amend the works approval so that it conforms with the 3 new provisions and the form of licences issued under 4 the new provisions and, from the service of that notice, 5 the works approval as so amended is taken to be a new 6 licence granted to the occupier in respect of the works 7 specified in the works approval as so amended and has 8 effect accordingly. 9 (5) Without limiting subsection (4), a works approval may 10 be amended under that subsection to specify emissions 11 authorised by the works approval. 12 133G. Licences 13 (1) Despite section 60 of the amending Act a licence in 14 effect under the former provisions immediately before 15 the commencement (the licence) continues to have 16 effect on and after the commencement. 17 (2) The provisions of the existing Act are to be taken to 18 continue in force to the extent necessary to give effect 19 to subsection (1). 20 (3) Subsection (1) has effect subject to subsection (4) and 21 to the former provisions as continued in force by 22 subsection (2). 23 (4) Despite subsection (1) the licence may be amended 24 under Part V Division 3 Subdivisions 3 and 4 and, from 25 the giving of notice of the amendment under 26 section 58, the licence as so amended is taken to be a 27 new licence granted to the occupier in respect of the 28 prescribed activities specified in the conditions of the 29 licence as so amended and has effect accordingly. page 156 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 101 1 133H. Existing applications for works approvals or 2 licences 3 (1) In this section -- 4 existing application means an application for a works 5 approval or licence made under the former provisions 6 that has neither been withdrawn nor finally determined 7 before the commencement. 8 (2) An existing application has effect on and after the 9 commencement as if it were an application for a new 10 licence made under the new provisions. 11 133I. Existing applications as to existing works approvals 12 (1) In this section -- 13 existing application means an application for the 14 amendment, surrender or transfer of a works approval 15 (the works approval) made under the former provisions 16 that has neither been withdrawn nor finally determined 17 before the commencement. 18 (2) Without limiting section 133F(1) and (2), those 19 provisions apply in relation to an existing application. 20 (3) If an existing application has neither been withdrawn 21 nor finally determined before the time at which the 22 works approval becomes a new licence under 23 section 133F(4), the existing application has effect 24 from that time as if it were an application under the 25 new provisions for the amendment, surrender or 26 transfer of the new licence as the case requires. 27 133J. Existing applications as to existing licences 28 (1) In this section -- 29 existing application means an application for the 30 amendment, surrender or transfer of a licence (the 31 licence) made under the former provisions that has page 157 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 101 1 neither been withdrawn nor finally determined before 2 the commencement. 3 (2) Without limiting section 133G(1) and (2), those 4 provisions apply in relation to an existing application. 5 (3) If an existing application has neither been withdrawn 6 nor finally determined before the time at which the 7 licence becomes a new licence under section 133G(4), 8 the existing application has effect from that time as if it 9 were an application under the new provisions for the 10 amendment, surrender or transfer of the new licence as 11 the case requires. 12 133K. Appeals in respect of refusal to grant works 13 approvals and licences 14 (1) In this section -- 15 pending appeal means an appeal against the refusal of 16 the CEO to grant a works approval or licence made 17 under the former provisions that has neither been 18 withdrawn nor finally determined before the 19 commencement. 20 (2) A decision made before the commencement to uphold 21 an appeal against the refusal of the CEO to grant a 22 works approval or licence under the former provisions 23 is taken on and after the commencement to be a 24 decision to uphold an appeal against the refusal of the 25 CEO to grant a licence under the new provisions. 26 (3) The provisions of the existing Act are to be taken to 27 continue in force on and after the commencement to 28 the extent necessary to enable -- 29 (a) any pending appeal to be withdrawn or finally 30 determined; and 31 (b) an appeal against the refusal of the CEO, before 32 the commencement, to grant a works approval page 158 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 101 1 or licence under the former provisions to be 2 lodged and dealt with. 3 (4) If under the provisions of the existing Act as continued 4 in force by subsection (3) the Minister makes a 5 decision to uphold an appeal against the refusal of the 6 CEO to grant a works approval or licence under the 7 former provisions, that decision is taken to be a 8 decision to uphold an appeal against the refusal of the 9 CEO to grant a licence under the new provisions. 10 133L. Other appeals in respect of works approvals and 11 licences 12 (1) In this section -- 13 pending appeal means an appeal against a specified 14 decision that has neither been withdrawn nor finally 15 determined before the commencement; 16 specified decision means a decision of the CEO under 17 the former provisions -- 18 (a) to refuse to transfer a works approval or 19 licence; or 20 (b) to specify a condition in a works approval or 21 licence; or 22 (c) to amend, revoke or suspend a works approval 23 or licence. 24 (2) The provisions of the existing Act are to be taken to 25 continue in force on and after the commencement to 26 the extent necessary to enable -- 27 (a) any pending appeal to be withdrawn or finally 28 determined; and 29 (b) an appeal against a specified decision made 30 before the commencement to be lodged and 31 dealt with. page 159 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 101 1 (3) If under the provisions of the existing Act as continued 2 in force by subsection (2) the Minister makes a 3 decision as to an appeal, the provisions of the existing 4 Act are to be taken to continue in force to the extent 5 necessary to enable the CEO to do anything necessary 6 to implement and give effect to the Minister's decision. 7 (4) If -- 8 (a) under the provisions of the existing Act as 9 continued in force by subsection (2) the 10 Minister makes a decision to uphold an appeal 11 against a specified decision relating to a works 12 approval or licence; and 13 (b) under section 133F(4) or 133G(4) the works 14 approval or licence is taken to be a new licence, 15 the decision on the appeal has effect, subject to any 16 necessary modifications, in relation to the new licence. 17 Subdivision 4 -- Other matters 18 133M. Referred proposals 19 (1) In subsection (2) -- 20 referral means referral to the Authority under 21 section 38. 22 (2) Each of the following is taken to be a referral of a 23 significant amendment of an approved proposal -- 24 (a) the referral by the proponent, before the coming 25 into operation of section 28 of the amending 26 Act (the commencement), of a revised proposal 27 after the publication of a statement under 28 section 45(5) of this Act as in force before the 29 commencement in relation to a proposal; page 160 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 101 1 (b) the referral, before the coming into operation of 2 section 31 of the amending Act (the 3 commencement), of a new proposal as required 4 by section 46B(2) of this Act as in force before 5 the commencement; 6 (c) the referral by the proponent, after the coming 7 into operation of section 28 of the amending 8 Act, of a revised proposal in respect of a 9 proposed change if, when it is dealt with in 10 accordance with subsection (6), the proposed 11 change is not approved. 12 (3) In subsection (4) -- 13 commencement means the coming into operation of 14 section 26 of the amending Act; 15 proposed change means a change to a proposal to 16 which section 43A of this Act as in force before the 17 commencement applied. 18 (4) If at the commencement the Authority has yet to 19 determine whether to consent to a proposed change, the 20 proposed change is taken to have been requested under 21 section 43A(1)(b). 22 (5) In subsection (6) -- 23 commencement means the coming into operation of 24 section 28 of the amending Act; 25 proposed change means a change to a proposal to 26 which section 45C of this Act as in force before the 27 commencement applied. 28 (6) If at the commencement the Minister has yet to 29 determine whether to approve of a proposed change, 30 the proposed change must be dealt with as if 31 section 45C of this Act as in force before 32 commencement had not been repealed. page 161 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 101 1 (7) In subsection (8) -- 2 commencement means the coming into operation of 3 section 16 of the amending Act; 4 section 39 means section 39 of this Act as in force 5 before the commencement. 6 (8) If a request made under section 39(2) has not been 7 dealt with before the commencement, the request must 8 be dealt with as if section 39(3) and (4) had not been 9 repealed. 10 133N. Chair and Deputy Chair 11 (1) In this section -- 12 commencement means the coming into operation of 13 section 6 of the amending Act. 14 (2) Subject to this Act -- 15 (a) a person holding office as Chairman of the 16 Authority immediately before the 17 commencement holds office after the 18 commencement as Chair of the Authority; and 19 (b) a person holding office as Deputy Chairman of 20 the Authority immediately before the 21 commencement holds office after the 22 commencement as Deputy Chair of the 23 Authority. 24 133O. Transitional regulations 25 (1) In this section -- 26 publication day, for regulations made under 27 subsection (2), means the day on which those 28 regulations are published in the Gazette; 29 specified means specified or described in regulations 30 made under subsection (2); page 162 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 101 1 transitional matter -- 2 (a) means a matter that needs to be dealt with for 3 the purpose of effecting the transition required 4 because of the enactment of the amending Act; 5 and 6 (b) includes a saving or application matter. 7 (2) If there is no sufficient provision in this Division for 8 dealing with a transitional matter, the Governor may 9 make regulations prescribing matters -- 10 (a) required to be prescribed for the purpose of 11 dealing with the transitional matter; or 12 (b) necessary or convenient to be prescribed for the 13 purpose of dealing with the transitional matter. 14 (3) Regulations made under subsection (2) may provide 15 that specified provisions of this Act -- 16 (a) do not apply to or in relation to a specified 17 matter; or 18 (b) apply with specified modifications to or in 19 relation to a specified matter. 20 (4) If regulations made under subsection (2) provide that a 21 specified state of affairs is taken to have existed, or not 22 to have existed, on and after a day that is earlier than 23 publication day for those regulations but not earlier 24 than the day on which the relevant provision of the 25 amending Act came into operation, the regulations 26 have effect according to their terms. 27 (5) If regulations made under subsection (2) contain a 28 provision referred to in subsection (4), the provision 29 does not operate so as -- 30 (a) to affect in a manner prejudicial to a person 31 (other than the State or an authority of the 32 State) the rights of that person existing before 33 publication day for those regulations; or page 163 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 102 1 (b) to impose liabilities on a person (other than the 2 State or an authority of the State) in respect of 3 an act done or omission made before 4 publication day for those regulations. 5 133P. Interpretation Act 1984 not affected 6 Except to the extent that this Division or regulations 7 made under section 133O expressly provide differently, 8 the Interpretation Act 1984 Part V applies in relation to 9 the amendments effected by the amending Act. 10 11 102. Schedule 1 Part 1 Division 1 amended 12 (1) In Schedule 1 Part 1 Division 1 item 2 column 2 delete "or (4)". 13 (2) In Schedule 1 Part 1 Division 1 after row 2 insert: 14 2A 47(5) $500 000 $100 000 15 16 (3) In Schedule 1 Part 1 Division 1 item 3 column 2 delete "48(6)" 17 and insert: 18 19 48(9) 20 21 103. Schedule 1 Part 1 Division 2 amended 22 (1) In Schedule 1 Part 1 Division 2 item 2 column 2 delete "or (4)". 23 (2) In Schedule 1 Part 1 Division 2 after row 2 insert: 24 2A 47(5) $1 000 000 $200 000 25 page 164 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 104 1 (3) In Schedule 1 Part 1 Division 2 item 3 column 2 delete 2 "48(6)"and insert: 3 4 48(9) 5 6 104. Schedule 1 Part 2 Division 1 amended 7 (1) In Schedule 1 Part 2 Division 1 item 1D column 2 delete "50D" 8 and insert: 9 10 50D(2) 11 12 (2) In Schedule 1 Part 2 Division 1 delete items 2, 3, 4, 5, 5A, 6, 7, 13 7A and 8. 14 (3) In Schedule 1 Part 2 Division 1 insert in alphanumerical order: 15 2 53A(1) $62 500 $12 500 3 53B(1) $62 500 $12 500 4 62 $62 500 $12 500 5 63(3) $62 500 $12 500 11B 86O(1) $62 500 $12 500 11C 86P(2) $62 500 $12 500 16 17 105. Schedule 1 Part 2 Division 2 amended 18 (1) In Schedule 1 Part 2 Division 2 item 1D column 2 delete "50D" 19 and insert: 20 21 50D(2) 22 page 165 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 106 1 (2) In Schedule 1 Part 2 Division 2 delete items 2, 3, 4, 5, 5A, 6, 7, 2 7A and 8. 3 (3) In Schedule 1 Part 2 Division 2 insert in alphanumerical order: 4 2 53A(1) $125 000 $25 000 3 53B(1) $125 000 $25 000 4 62 $125 000 $25 000 5 63(3) $125 000 $25 000 11B 86O(1) $125 000 $25 000 11C 86P(2) $125 000 $25 000 5 6 106. Schedule 1 Part 2 Division 3 amended 7 (1) In Schedule 1 Part 2 Division 3 item 1 column 2 delete "47(3)" 8 and insert: 9 10 47(4) 11 12 (2) In Schedule 1 Part 2 Division 3 delete item 2. 13 (3) In Schedule 1 Part 2 Division 3 item 3 column 2 delete "62A(2)" 14 and insert: 15 16 61A(3) 17 18 (4) In Schedule 1 Part 2 Division 3 item 15 column 2 delete "90(2)" 19 and insert: 20 21 90(6) 22 page 166 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 107 1 (5) In Schedule 1 Part 2 Division 3 item 21 column 3 delete 2 "$50 000" and insert: 3 4 $100 000 5 6 (6) In Schedule 1 Part 2 Division 3 item 22 column 3 delete 7 "$50 000" and insert: 8 9 $100 000 10 11 107. Schedule 1 Part 3 amended 12 In Schedule 1 Part 3 insert in alphanumerical order: 13 9A 90(6) $5 000 $1 000 14 15 108. Schedule 2 amended 16 (1) In Schedule 2 item 2(a) before "the time" insert: 17 18 subject to this Act, 19 20 (2) After Schedule 2 item 2(c) insert: 21 22 (ca) when a fee submitted in respect of an application made 23 under this Act is taken to have been received for the 24 purposes of this Act; 25 page 167 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 108 1 (3) Delete Schedule 2 item 2(e) and insert: 2 3 (e) penalties for, and other consequences of, failure to pay fees, 4 late payment of fees or underpayment of fees; 5 6 (4) In Schedule 2 item 14 delete "premises, whether or not those 7 premises are prescribed premises or a public place." and insert: 8 9 premises or a place. 10 11 (5) Delete Schedule 2 item 26 and insert: 12 13 26. Prescribing a specified activity as a prescribed activity for the 14 purposes of Part V, either generally or in circumstances 15 specified for that category of activity. 16 17 (6) After Schedule 2 item 35A insert: 18 19 35B. Providing for notices, orders or other documents to be given, 20 sent or served under this Act by electronic communication (as 21 defined in the Electronic Transactions Act 2011 section 5(1)) 22 and providing for the proof of that giving, sending or service. 23 24 (7) In Schedule 2 item 36 delete "The" and insert: 25 26 Without limiting section 122B, the 27 page 168 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 109 1 (8) After Schedule 2 item 36A insert: 2 3 36B. Establishing or recognising a scheme or system for the 4 accreditation of persons as environmental practitioners for 5 purposes related to this Act. 6 7 (9) In Schedule 2 item 37 delete "$5 000." and insert: 8 9 $20 000. 10 11 109. Schedule 5 amended 12 In Schedule 5 clause 2 delete the definition of "threatened 13 ecological community" and insert: 14 15 threatened ecological community means -- 16 (a) a threatened ecological community as defined in the 17 Biodiversity Conservation Act 2016 section 5(1); or 18 (b) any other ecological community listed, designated 19 or declared as threatened, endangered or vulnerable 20 under or for the purposes of a written law; or 21 (c) a listed threatened ecological community as defined 22 in the Commonwealth Environment Act 23 section 528; 24 25 110. Schedule 6 amended 26 (1) In Schedule 6 item 1 delete "written law." and insert: 27 28 prescribed enactment. 29 page 169 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 110 1 (2) In Schedule 6 item 2: 2 (a) in paragraph (a) delete "an implementation agreement or 3 decision; or" and insert: 4 5 a Ministerial statement; or 6 7 (b) delete paragraph (c)(ii). 8 (3) Delete Schedule 6 item 3 and insert: 9 10 3. Clearing in the performance of functions that the CEO, as 11 defined in the Conservation and Land Management 12 Act 1984 section 3, has under section 33(1)(a) or (aa) of that 13 Act. 14 15 (4) In Schedule 6 item 10: 16 (a) in paragraph (e) delete "section 26," and insert: 17 18 section 26; or 19 20 (b) after paragraph (e) insert: 21 22 (f) to comply with a notice given under section 33(1); 23 or 24 (g) as authorised under section 36(b), 25 26 (5) After Schedule 6 item 10 insert: 27 28 10A. Clearing that is done by a local government under the Bush 29 Fires Act 1954 section 33(4) if the person who is given a 30 notice mentioned in item 10(f) fails to comply with it. page 170 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 111 1 10B. Clearing that is done by the occupier of land, or an energy 2 operator, under the Energy Operators (Powers) Act 1979 3 section 54. 4 5 (6) After Schedule 6 item 14 insert: 6 7 15. Clearing that is done by the owner or occupier of land to 8 comply with a notice given under the Local Government 9 Act 1995 section 3.25(1) in respect of something prescribed 10 in Schedule 3.1 Division 1 item 5A, 8 or 9 of that Act. 11 16. Clearing that is done by a local government under the Local 12 Government Act 1995 section 3.26 if the person who is 13 given a notice mentioned in item 15 fails to comply with it. 14 15 111. Amendments as to gender neutral language 16 (1) Amend the provisions listed in the Table as set out in the Table. 17 Table Provision Delete Insert s. 3(1) def. of public his an authority s. 6(5) on him or it s. 6(5) his or its intention the intention of the Minister or Authority s. 6(7) he (each occurrence) the person s. 76(1) s. 80(1) s. 86(4) page 171 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 111 Provision Delete Insert s. 7(6) his the s. 87(4)(b) s. 88(5)(b) s. 94(2)(b) s. 101(2) s. 124(2) s. 9 his the Authority member's s. 12(1) his knowledge the Authority member's knowledge s. 12(1) his interest the interest s. 16(e) he the Minister s. 29(1)(a) s. 31(c) s. 37(1) and (3) s. 44(3) s. 48D(3) s. 69(2) and (4) s. 101(2d)(a) and (b) s. 18(1) his the Minister's s. 31(e) s. 36(1)(a) page 172 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 111 Provision Delete Insert s. 24 him or it (1st the Minister or the occurrence) Authority s. 24 by him or it s. 25(2) s. 25(1)(a) and (b) he or it the Minister or the Authority s. 25(2) s. 25(1)(a) him or it s. 25(3) his the member's s. 29(4) s. 40(8) s. 29(1) to him s. 31(a)(i) s. 37(3) s. 48D(3) s. 29(1) by him by the Minister s. 29(2)(b) chairman of member presiding s. 42(1)(b) over s. 29(4) chairman member presiding over s. 40(8) s. 44(3)(b)(i) him the Minister s. 124(1)(c) page 173 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 111 Provision Delete Insert s. 48H(3) him the responsible Minister s. 101(2d)(a) s. 65(6) on him s. 89(4) s. 99(2) s. 65(6) of him of the person s. 65(7) his the person's s. 67 when he ceases as soon as practicable after ceasing s. 67(a) and (b) him that owner or occupier s. 69(3) and (5) him the person s. 79(3)(c) s. 87(4)(b) s. 88(5)(b) s. 94(2)(b) s. 95(2) s. 96(3) s. 97(2) s. 104(1) page 174 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 111 Provision Delete Insert s. 71(1) he (each occurrence) the CEO s. 75(1) and (4) s. 95(1) s. 75(1) his the CEO's s. 80(2) him the occupier s. 81(1)(a) he (each occurrence) the authorised person or police officer s. 82(1) s. 81A(2b) he or she (each the person occurrence) Sch. 7 cl. 4(1)(b) s. 82(1) him (each the authorised person occurrence) or police officer s. 82(3) he (each occurrence) the authorised person s. 87(3) s. 83(a) him that occupier or person s. 87(3) him (each the authorised person occurrence) s. 88(1)(f) him the CEO s. 88(4) him (each the inspector occurrence) page 175 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 111 Provision Delete Insert s. 88(4) he (each occurrence) the inspector s. 89(4) on him s. 99(2) s. 91(2) his the inspector's s. 91A(1) he the inspector or authorised person s. 93 of his powers under power conferred by s. 97(1)(b) who has in his has possession of possession s. 99(1)(d) and (2) him the police officer s. 99(1) he (each occurrence) the police officer s. 107B(3) his or her the Appeals Convenor's s. 108(2) him the member s. 118(4) his or her capacity as that capacity such s. 120 him (each the person occurrence) page 176 Environmental Protection Amendment Bill 2020 Environmental Protection Act 1986 amended Part 2 s. 112 1 (2) Delete section 91A(2) and insert: 2 3 (2) A person who, being in charge of a vehicle or vessel 4 and being informed by a person that the person is an 5 inspector or an authorised person, fails to stop the 6 vehicle or vessel when so required by that person 7 commits an offence. 8 9 112. Other provisions amended 10 Amend the provisions listed in the Table as set out in the Table. 11 Table Provision Delete Insert s. 3(1) def. of books section 3 section 5 s. 3(1) def. of final section 87(2), as section 29 or 31 approval par. (e) read with section 32, s. 40A(1)(b)(i) section 40(2)(a) section 40(2)(a), (aa) or (b); or (b); s. 48C(7) def. of sections 84 section 84, public review and 87(1), par. (e) s. 48E(2) 48A, 48A(1)(b) and (c), (2) and (3), s. 68A(1) def. of a works approval, authorisation s. 86A def. of authorisation page 177 Environmental Protection Amendment Bill 2020 Part 2 Environmental Protection Act 1986 amended s. 112 Provision Delete Insert s. 72(1)(b) works approval or s. 119(b) s. 73(1)(a) and (4)(a) works approval, s. 73A(1)(a) s. 86A def. of the exemption the declaration or responsible person exemption par. (b) s. 99H def. of by the regulations infringement notice offence s. 109(2) section 102(2) in section 102(4) in respect of the respect of the amendment of a amendment of a licence under licence under section 59(1)(a) or section 55(3)(a) (b) or (b) published in such s. 110(2) published. manner as is prescribed. s. 110C(a) a licensee the holder of a licence Sch. 2 it. 2A works approval or Sch. 2 it. 36A a licensee the holder of a licence page 178 Environmental Protection Amendment Bill 2020 Other Acts amended Part 3 s. 113 1 Part 3 -- Other Acts amended 2 113. Biodiversity Conservation Act 2016 amended 3 (1) This section amends the Biodiversity Conservation Act 2016. 4 (2) In section 43(1)(b) before "in" insert: 5 6 or (1A) 7 8 (3) In section 97(f)(i) delete "section 3(1); or" and insert: 9 10 section 44A; or 11 12 114. Bush Fires Act 1954 amended 13 (1) This section amends the Bush Fires Act 1954. 14 (2) In section 24C delete the definition of rubbish tip and insert: 15 16 rubbish tip means disposal premises as defined in the 17 Waste Avoidance and Resource Recovery Levy 18 Act 2007 section 3; 19 20 115. Contaminated Sites Act 2003 amended 21 (1) This section amends the Contaminated Sites Act 2003. 22 (2) In section 92 before "117" insert: 23 24 116A, 25 page 179 Environmental Protection Amendment Bill 2020 Part 3 Other Acts amended s. 116 1 116. Mining Act 1978 amended 2 (1) This section amends the Mining Act 1978. 3 (2) In section 6: 4 (a) in subsection (1a)(b) delete "section 38(5)" and insert: 5 6 section 38(4) 7 8 (b) in subsection (1d) after "38" insert: 9 10 or 38A 11 12 117. Waste Avoidance and Resource Recovery Act 2007 amended 13 (1) This section amends the Waste Avoidance and Resource 14 Recovery Act 2007. 15 (2) In section 74(a) delete "a licensee, or occupier" and insert: 16 17 the holder of a licence, or a person 18 19 (3) In section 93 before "117" insert: 20 21 116A, 22 23 118. Waste Avoidance and Resource Recovery Levy 24 Act 2007 amended 25 (1) This section amends the Waste Avoidance and Resource 26 Recovery Levy Act 2007. 27 (2) In section 3 delete the definition of disposal premises. page 180 Environmental Protection Amendment Bill 2020 Other Acts amended Part 3 s. 118 1 (3) In section 3 insert in alphabetical order: 2 3 disposal premises means premises at which a 4 licensable waste activity is carried out; 5 licensable waste activity means an activity -- 6 (a) which involves receiving waste; and 7 (b) the carrying out of which is an offence under 8 the EP Act section 53B unless authorised by a 9 licence; 10 11 (4) Delete section 6 and insert: 12 13 6. Liability to pay levy 14 The holder of a licence in respect of a licensable waste 15 activity, or in the case of a licensable waste activity in 16 respect of which a licence is not in force, a person 17 required under the EP Act to hold a licence in respect 18 of the activity, is liable to pay the amount of any levy 19 imposed in respect of waste received at the disposal 20 premises at which the activity is carried out. 21 22
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