Contaminated Sites Act 2003

The Act defines its core terms and classification framework so that legal consequences follow set factual predicates. Contaminated is defined as a substance present at above background concentrations that presents, or has the potential to present, a risk of harm to human health, the environment or any environmental value (s 4(1)). The breadth of the definition extends to land, underground water and surface water, because site and land expressly include groundwater and surface water (s 3, definition of site; s 61 for Part 6). Regulations may carve out prescribed classes of land or water from the definition (s 4(2)).

Site and source/affected site distinctions are central. Site is an area of land including underground and surface water (s 3). Source site means the site from which contamination has originated and migrated; affected site means a site on which contamination was caused, or contributed to, by that migration (s 3 definitions). The Act therefore contemplates remediation and liability both at the origin and at lands to which contamination has migrated, with linked responsibility rules (s 27(2a), (2b)).

Owner, occupier, mortgagee and lessee are defined and relevant to duties and the binding nature of notices (s 3, s 5-6). Owner includes freehold holders and certain Crown land managers (s 5). Occupier means a person in occupation or control of land, irrespective of ownership (s 3 definition). A reference to owner, occupier, mortgagee or lessee is a reference to each person who occupies or holds the relevant interest in the land comprising all or part of a site (s 6).

Classification schema determines legal consequences. Schedule 1 lists classifications ranging from "report not substantiated" through "possibly contaminated , investigation required" to "contaminated , remediation required" and upward to "decontaminated" and "not contaminated , unrestricted use". The CEO classifies sites taking account of guidelines, accepted industrial standards and other relevant information (s 13(3)-(4)). Certain classifications carry explicit obligations and public-record consequences: only sites classified as "contaminated , remediation required" must be remediated under the Act (s 23); specified classifications must be included in the public contaminated sites database (s 19(1)); memorials are required for certain classifications and for notices (s 58(1)).

Hierarchy of responsibility sets primary allocation rules. Section 24 establishes a hierarchy: persons who caused or contributed to contamination (s 25) have primary responsibility; persons who change the use of land to a use that requires remediation because of the change bear responsibility for remediation to that extent (s 26); and owners may be liable to the extent provided in s 27. These provisions are subject to insolvency and State responsibility rules (s 28-29). The committee may allocate or vary that responsibility and determine extent (s 36-39).

Notices constitute coercive regulatory instruments. The Act differentiates investigation, clean up and hazard abatement notices, listing the content and potential requirements of each (s 49-51). Notices are binding on persons to whom they are given and, subject to memorial registration and other provisions, can bind successors in title (s 47-48). Notices can require management plans, sampling programmes, community consultation plans, monitoring and reporting, and engagement of auditors (s 49(4), 50(4), 44).

Accredited auditors and mandatory auditor’s reports are a statutory quality-control mechanism. The CEO accredits auditors under regulations (s 69). Mandatory auditor’s reports must comply with the regulations and are accompanied by statements by both the person commissioning the report and the auditor certifying accuracy and disclosure (s 73). False or misleading information in mandatory auditor’s reports is criminalised and attracts penalties (s 74), and self‑incrimination is not an exemption for providing information required under s 74 (s 75).

Records, database, memorials and public access are transparency mechanisms. The CEO must keep a contaminated sites database listing all sites classified in three specified categories and make it publicly available free of charge (s 19). The CEO must also keep documents and records (s 20) and provide prescribed summaries to those who request them on payment of a fee (s 21). Memorials are lodged with the Registrar where a site receives specified classifications or where a Part 4 notice is given; memorials affect registration, planning approvals and may include restrictions on registration of instruments without CEO consent (s 58(1), (5)-(6)).

Financial mechanisms and recovery rules allocate costs. The Contaminated Sites Management Account is an agency special purpose account to receive appropriations, proceeds from sale of orphan-site land, fees and recovered moneys and to fund State remediation actions and actions under s 53 (s 60). The CEO and private persons may recover reasonable costs in defined circumstances (ss 55-56). The Act permits the State to create charges on land to secure remediation costs and to take land compulsorily in limited circumstances (ss 30(3)(b), 31(3)(b), 32(2)-(4)).

Appeals are controlled and limited. Appeals against committee decisions as to responsibility and exemption certificates lie to the Supreme Court but are limited to questions of law in many instances (s 77(1), (4)). Administrative appeals against classifications and notices proceed through the committee and the processes set out in Part 8 (s 79-83).

The Act imposes obligations and creates rights that attach to a range of identifiable actors. Primary categories of affected persons and entities are set out explicitly in the text.

Owners and occupiers: They have reporting duties where they know or suspect contamination (s 11(3)(a)). Owners can be responsible for remediation under the owner rules (s 27) depending on the timing of ownership and what the owner knew or ought to have known at acquisition. Owners who become parties to transactions involving contaminated land have a pre-completion disclosure duty to potential purchasers, mortgagees or lessees for certain classified land or land with registered memorials (s 68). Owners of Crown land are treated differently in part: Crown land care or management bodies are owners for freehold-equivalent responsibilities (s 5).

Persons who caused or contributed to contamination: Those who have caused or contributed to contamination after commencement are liable to remediate to the extent of their contribution (s 25(1)-(2)). Contamination caused before commencement can still attract liability if the act that caused contamination was done without lawful authority (s 25(3)-(5)).

Mortgagees and mortgagees in possession: Mortgagees in possession may become owners for the purpose of owner obligations (s 5(1)(a)(ii)). Specific transfer mechanisms exist where a mortgagee in possession requests transfer of responsibility to the State within 45 days (s 31(1)-(3)). Memorial and charge regimes can affect mortgagees because statutory charges can be created in favour of the State with priority features (s 32(3)).

People changing land use: Owners or occupiers who change the use of land after commencement are liable for remediation to the extent remediation is required because of the change (s 26). This creates an acquisition and development-relevant exposure for prospective redevelopers.

Persons engaging auditors and accredited auditors: Persons who commission mandatory auditor’s reports are addressed by the certification and disclosure requirements (s 73). Auditors themselves must be accredited (s 69). The Act proscribes false statements in auditor-related processes and prohibits non-accredited persons from holding themselves out as auditors (s 71).

The CEO and the Contaminated Sites Committee: The CEO has broad administrative and enforcement functions: receiving reports, classifying sites (s 13), giving notices (s 42), entering land and taking action (s 53), keeping and publishing the database and records (s 19-21) and administering the Contaminated Sites Management Account (s 60). The committee decides issues of responsibility and exemption certificates and makes final appeal decisions under Part 8 Division 2 (s 33, s 36, s 82). The committee’s composition, remuneration and procedure are set out (s 33-34).

State and public authorities: The State can be responsible for remediation in a range of specified circumstances (s 29). Public authorities, other than local authorities, are subject to particular liability if contamination results from their directions or actions (s 29(1)(a)). The Act contemplates State recovery of costs where the State has undertaken remediation and a responsible private person is later identified (s 55(2)-(4)).

Potential purchasers, mortgagees and lessees: The Act affects purchasers by (a) making public certain site classifications via the database (s 19), (b) requiring statutory disclosure to potential owners etc for certain classified land (s 68), and (c) permitting memorials that attach to title and constrain registration of instruments without CEO consent (s 58(5)). A purchaser may therefore face transfer consequences, binding notices and potential remediation responsibilities depending on timing and the existence of exemption certificates (s 65).

Directors and related corporations: Where a body corporate responsible for remediation is insolvent or would become insolvent by remediating, the committee may, in prescribed circumstances, decide that directors or related bodies corporate at the relevant time become responsible to the extent decided by the committee (s 28). The committee can only apply these powers if it decides insolvency was the result of deliberate conduct intended to avoid responsibility, and certain mental element and influence tests are met (s 28(2)-(4)).

Community and local government: Local governments appear as recipients of notice of memorials (s 59(d)) and as entities that may be consulted by the CEO (s 13(5), s 42(5)). Community consultation obligations can be imposed on persons on whom investigation or clean up notices are binding (s 49(4)(e), s 50(4)(d)).

Other regulated entities and professionals: The Act affects those who supply information and reports, including consultants and laboratories, because false or misleading information attracts significant penalties and mandatory auditor processes must be followed (s 74, s 94). Registration of memorials interacts with planning approvals and subdivision decisions under the Planning and Development Act (s 58(6)).

In sum, the Act largely targets private owners, occupiers, polluters and professionals involved in land management and remediation, while giving central administrative roles to the CEO, the Health Department CEO in health matters, the Contaminated Sites Committee and the State as financier and potential residual responsible party (s 13(5), s 42(5), s 33, s 29, s 60).

Reporting duties: Owners, occupiers, persons who caused or contributed to contamination and auditors engaged for required reports must report known contamination within 21 days from first knowing, or suspected contamination as soon as reasonably practicable (s 11(3)-(4)). Reports must be in the prescribed form, identify the site and summarise the information on which the knowledge or suspicion is based (s 11(2)). There is a statutory defence where the site has already been reported, was reported under the EP Act, or is to be reported under a CEO-approved programme (s 11(5)).

CEO duties and discretions on classification and notice: The CEO must classify a site when required by the Act and may do so at other times (s 13(1)). The CEO must classify sites in accordance with Schedule 1 and take into account guidelines and industrial standards (s 13(3)-(4)). After receiving a report, the CEO is to inquire into it and classify the site within 45 days, or later if particular circumstances make that timeframe impractical, with written notice if extended (s 14). When classifying, the CEO must consult the CEO of the Health Department and attempt to reach agreement on classification (s 13(5)).

Notices and compliance: The CEO may give investigation, clean up or hazard abatement notices to persons responsible for remediation, persons the CEO considers would be responsible if the land were part of a "contaminated , remediation required" site, and owners or occupiers of the land (s 42(1)). Notices must be in writing and include appeal details (s 42(3)). Persons on whom notices are binding must comply with notice requirements within the time specified, with failure attracting substantial penalties and enabling the CEO to take action under s 53 (s 43(1)-(2)). Notices may require the engagement of an auditor to report on compliance with the notice (s 44).

Remediation , who and when: Only sites classified as "contaminated , remediation required" are required to be remediated under the Act (s 23). Responsibility follows a hierarchy: causal contributors (s 25), then those who change land use causing remediation requirements (s 26), then owners in specified circumstances (s 27). Multiple persons may be responsible and responsibility is allocated to the extent provided under Part 3 (s 22). The committee makes decisions as to who is responsible and the extent of responsibility, subject to procedural steps including notice before a decision (s 36-39).

Transfer and State responsibility: A person responsible for remediation may transfer responsibility to another person with that person’s agreement and CEO approval, or to the State in prescribed circumstances with Ministerial approval (s 30). Mortgagees in possession who become responsible under s 27 may request transfer to the State within 45 days (s 31). The State becomes responsible under detailed circumstances, including where contamination resulted from a public authority’s direction or action, where a certificate of contamination audit failed to identify contamination under s 63(4), where no other person is responsible, where a responsible person cannot be found, or where responsibility is transferred or a person is insolvent (s 29).

Memorials and title effects: The CEO must ensure memorials are lodged for land comprising specified classifications and for land subject to Part 4 notices; the Registrar registers the memorial which then affects the priority of charges and interacts with planning approvals (s 58). The CEO may specify that instruments affecting land with a memorial are not to be registered without CEO consent (s 58(5)). Notification requirements accompany registration and withdrawal of memorials (s 59).

Auditor accreditation and mandatory reports: The CEO accredits auditors under regulations (s 69). Auditors receive written authorities and may have limitations specified (s 70). Mandatory auditor’s reports must satisfy certification requirements and be accompanied by signed declarations by both the commissioning person and the auditor (s 73). Offences for false or misleading information in auditor processes attract penalties (s 74). Self-incriminatory protection does not excuse providing required information for mandatory reports (s 75).

Rights to certificates and disclosure: Any owner, occupier, person responsible or person on whom a Part 4 notice is binding may request a certificate of contamination audit (s 62). The CEO must give a certificate where satisfied all identifiable contamination has been identified, taking account of guidelines and standards (s 63(4)). Owners who make disclosure statements within specified transitional windows may obtain exemption certificates from the committee which displace certain owner liabilities (s 64-65). Exemption certificates may be transferred subject to committee decision and may be cancelled or amended if the disclosure was false or misleading (s 65-66).

Appeals and procedural rights: There are staged appeal rights. Administrative appeals against classifications and notices are conducted through the committee processes in Part 8 Division 2, with lodging requirements and time limits (s 79). For committee decisions as to responsibility for remediation and exemption certificate decisions, appeals to the Supreme Court are available on questions of law within 21 days (s 77(1)-(4)); for many committee decisions appeals are limited to questions of law (s 77(4)). Interim effect of decisions and suspension of notice requirements pending appeal are provided for in s 79(3).

Financial recovery and liability: The CEO may recover reasonable costs incurred when the CEO takes action under s 53 from persons on whom the relevant notice is binding (s 55(1)). If the State remediates an orphan site and a responsible person is later identified within six years, the committee can require that person to repay reasonable costs (s 55(2)-(4)). Private persons who act to investigate or remediate may recover reasonable costs from persons responsible for remediation, subject to time limitations (s 56).

Confidentiality and protected information: Reports under ss 11 or 12 are protected from disclosure of the reporter’s identity except where necessary for administration of the Act (s 96(1)). Officials and others are subject to a duty of confidentiality with specific exceptions (s 96(2)-(3)). False or misleading information in specified contexts is an offence with significant penalties (s 94).

Penalties in the Act are a mix of fixed fines and daily penalties, and they vary by the seriousness of the breach or the provision breached. The Act also provides for criminal prosecutions, civil recoveries, and administrative enforcement powers exercised by the CEO and authorised officers.

Major monetary penalties and daily penalty regimes: Several offences attract large maximum fines and daily penalties. Examples include: contravening a Ministerial exemption order condition (s 10(11)) , penalty $250 000 and daily penalty $50 000; failing to report contamination when required (s 11(3)) , penalty $250 000 and daily penalty $50 000; failing to comply with a notice (s 43(1)) , penalty $500 000 and daily penalty $100 000; refusing to give permission to enter or obstructing remediation that triggers s 54(1)(b) , owner/occupier offence carries penalty $500 000 and daily penalty $100 000 (s 54(2)); offences related to accreditation and false holding out as an auditor (s 71) attract penalties of $125 000; false or misleading information in mandatory auditor’s reports and related commissions are penalised up to $250 000 (s 74); false or misleading information in various prescribed reporting contexts attracts penalty $125 000 and daily penalty $25 000 (s 94); and victimisation offences attract $125 000 and daily penalty $25 000 (s 95).

Daily penalty mechanism: The Act treats continuing contraventions as continuing offences for the purpose of daily penalties and section 87 sets out that the daily penalty may be applied for each day the contravention continues after written notice by the CEO or after conviction (s 87(1)-(3)). This produces exposure to accumulating liability for prolonged non‑compliance.

Enforcement actors and processes: Prosecutions are to be instituted by the CEO or a person authorised by the CEO (s 84). There is a statutory limitation period for prosecutions of two years generally, with special provisions where the prosecution notice specifies when evidence first came to the attention of an authorised person (s 85). The Act imports evidentiary presumptions: specified averments are taken to be proved unless the contrary is shown (s 86). Inspectors and authorised officers appointed under the Environmental Protection Act may exercise specified powers for the Act; inspectors have powers to enter and collect samples on land subject to notices or classified as contaminated for purposes relevant to compliance and allocation of responsibility (s 89(2)-(3)). The CEO may enter land and take action to ensure notice compliance or to remediate where the State is responsible (s 53), with notice requirements except in limited urgent circumstances approved by the Minister (s 53(2)-(4)).

Civil recovery and cost-recovery mechanisms: The CEO may recover reasonable costs incurred when the CEO takes action under s 53(1)(a) from persons on whom the relevant notice is binding (s 55(1)). Where the State remediates an orphan site and a responsible person is later identified within six years, the committee may require repayment to the CEO and the CEO may recover the amounts as a debt (s 55(2)-(4)). Private persons who incur reasonable investigation or remediation costs may recover those costs from persons responsible for remediation, subject to limitations, as a debt (s 56(1)-(2)). Section 57 creates liability for losses to owners and occupiers where persons enter land with permission to remediate or comply with notices.

Additional legal machinery: The Act imports additional enforcement powers from the Environmental Protection Act, including provisions that expand court powers in respect of offences (s 90). Attempt, incitement and accessory after the fact provisions are applied by reference to the Criminal Code (s 88). The Act also includes a provision preventing civil actions against the State in relation to accreditation decisions (s 72).

Appeals and limits on review: Administrative determinations by the committee have a controlled appeal structure. Appeals against committee decisions as to responsibility for remediation and exemption certificates to the Supreme Court are limited to questions of law in various instances (s 77(1)-(4)). Some committee appeal decisions under Part 8 Division 2 are final and without further appeal (s 82(2)). These appeal limits affect enforcement risk allocation and the finality of certain administrative determinations.

The Act is explicitly drafted to operate alongside and complement other State laws, and it cross-references several statutes and statutory instruments to integrate contaminated sites regulation with existing administrative and property frameworks.

Relationship with the Environmental Protection Act: The Act is designed to be complementary to the EP Act (s 9(1)-(2)) and expressly imports a number of EP Act provisions to apply to and in relation to the Contaminated Sites Act (s 92). The Act also cross‑refers to offences and enforcement tiers under the EP Act (s 92 Table). Inspectors, authorised persons and analysts appointed under the EP Act may be appointed for the purposes of this Act and carry the same functions, with references to "this Act" read as references to the Contaminated Sites Act for those purposes (s 89(1)-(5)). The Act therefore layers contaminated‑sites-specific powers on top of the EP Act’s enforcement framework.

Property and land administration statutes: The Act interacts with land law and planning. The definition of “owner” depends on the Land Administration Act (s 5(2)). Memorials registered under s 58 are to be lodged with the Registrar under the Transfer of Land Act 1893 or the Registration of Deeds Act 1856 as appropriate, and section 58(3)(b) expressly states that section 110 of the Transfer of Land Act 1893 does not apply to the charge created under the Act. Memorials also require the Western Australian Planning Commission and responsible authorities to seek and take into account the CEO’s advice before approving subdivisions or developments of affected land (s 58(6)). The Act allows compulsory acquisition of orphan-site land under Parts 9 and 10 of the Land Administration Act on ministerial recommendation (s 32(4)).

Corporations Act and insolvency: Insolvency concepts rely on the Corporations Act 2001 definitions and concepts; for bodies corporate the Act uses the Corporations Act definition of insolvency (s 3 definition of insolvent and s 28(7) definitions). Section 28 uses Corporations Act definitions for directors and related bodies corporate when determining when directors or related bodies may be made responsible for remediation of insolvent entities.

Interpretation Act and regulatory instruments: Ministerial exemption orders are subject to the Interpretation Act 1984 procedures (s 10(12)). The Act authorises regulations and lists matters for regulation in Schedule 2, including fees, auditors’ accreditation criteria, disclosure statement forms and appeals procedures (s 98, Schedule 2). The Act also authorises the CEO to make guidelines that are not subsidiary legislation but that the CEO must make available to the public (s 97).

Financial Management and Auditor General Acts: The Contaminated Sites Management Account is established under the Financial Management Act 2006 and is subject to the financial administration and audit provisions under the Financial Management Act and the Auditor General Act (s 60(1), (5)). The Account may receive appropriation, sale proceeds from orphan-site land, fees and recovered funds and can be applied toward State-responsible site investigation and remediation (s 60(2)-(3)).

Criminal Code: Attempt, incitement and accessory after the fact provisions from the Criminal Code are applied to offences under the Act, making attempts and accessories subject to equivalent penalties (s 88).

Health legislation: The CEO is required to consult and, where possible, reach agreement with the CEO of the Health Department on classifications and any notice requirements that relate to human health (s 13(5), s 42(5)). Where agreement cannot be reached the Ministers appoint a person to decide the classification or notice requirements (s 13(6), s 42(6)).

Overall, the Act is designed to be interoperable with environmental, land, planning, corporations, financial and criminal law frameworks, using references and incorporation by cross‑reference rather than creating wholly separate institutions. The Act’s provisions on memorials, planning approvals and registration of charges create direct interfaces with property and planning law which materially affect transactions in land.

The statutory text supplied includes amendment annotations and a compilation table that record principal amending Acts and commencement dates. Key amendments and enactment milestones in the compilation table and in‑text notes are:

• Original Act: Contaminated Sites Act 2003, assented 7 November 2003, commenced 1 December 2006 (Compilation table).
• Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004), commenced 1 May 2005 (Compilation table).
• Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (No. 84 of 2004), commenced 2 May 2005 (Compilation table).
• Planning and Development (Consequential and Transitional Provisions) Act 2005 (No. 38 of 2005), commenced 9 April 2006 (Compilation table). Section 58 was amended by No. 38 of 2005 s 15 (in‑text note).
• Contaminated Sites Amendment Act 2005 (No. 40 of 2005), assented 12 December 2005; multiple in‑text amendments show s 3 amended by No. 40 of 2005 s 4 and other sections annotated as amended by No. 40 of 2005 (Compilation table and in‑text notes). Notable s 24 amendment reference and others (in‑text bracketed notes).
• Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006), relevant to Part 5 and the Contaminated Sites Management Account, commenced 1 February 2007 (Compilation table). Section 60 heading amended (in‑text).
• Reprint 1: Contaminated Sites Act 2003 as at 9 February 2007 includes earlier amendments (compilation table).
• Public Sector Reform Act 2010 (No. 39 of 2010) s 89 amended s 33; commenced 1 December 2010 (Compilation table and in‑text note s 33 amended).
• COVID-19 Response and Economic Recovery Omnibus Act 2020 (No. 34 of 2020), commenced 12 September 2020 (Compilation table).
• Environmental Protection Amendment Act 2020 (No. 40 of 2020) s 115 revisions to s 92 and cross-references, commenced 3 February 2021 (Compilation table and in‑text).
• Directors’ Liability Reform Act 2023 (No. 9 of 2023) affecting aspects related to directors’ liability and insolvency provisions, commenced 5 April 2023 (Compilation table).
• Statutes (Repeals and Minor Amendments) Act 2025 (No. 14 of 2025) amended s 3 and other minor editorial changes, commenced 26 September 2025 (Compilation table and in‑text s 3 amendment note).

In‑text bracketed annotations mark specific amendments to sections. For example, s 3 has an in‑text amendment note showing No. 40 of 2005 s 4; No. 14 of 2025 s 8(2). Section 33 shows an amendment reference No. 39 of 2010 s 89. Section 24 notes an amendment No. 40 of 2005 s 5. Section 27 shows amendments No. 40 of 2005 s 6. Section 28 shows No. 40 of 2005 s 7. Section 35 annotated No. 40 of 2005 s 8. Section 58 annotated No. 38 of 2005 s 15. Section 60 heading annotated No. 77 of 2006 s 17. Section 77 annotated No. 40 of 2005 s 11. Section 92 annotated No. 40 of 2020 s 115(2); No. 9 of 2023 s 43. Section 94 annotated No. 40 of 2005 s 12.

The compilation table at the end summarises enactment dates and shows where reprints and subsequent amending Acts altered the Act. The in‑text amendment notes reflect those changes where relevant sections were modified, so contemporary readers should consult the compilation table and the Act’s reprint history for the authoritative chain of amendments.

The text supplied does not include judicial decisions or case law applying the Contaminated Sites Act 2003. The Act itself provides the appellate pathways and procedural constraints that litigants and courts will encounter:

• Administrative appeals to the Contaminated Sites Committee and its processes are set out in Part 8 Division 2 (s 79-83). The committee may affirm, vary or set aside classifications and notices; decisions of that appeal committee are final and without further appeal in Division 2 circumstances (s 82(2)).
• Appeals from committee decisions as to responsibility for remediation and exemption certificates to the Supreme Court are permitted but are limited to questions of law in many cases (s 77(1), (4)). The Supreme Court may affirm, substitute, vary, or remit decisions to the committee with its opinion on the question of law (s 78(1)).
• Interim effect of appeals is addressed: pending determination of some appeals, classifications and notices continue to have effect and certain notices or requirements may be suspended as provided by Part 8 (s 79(3)).
• For prosecutorial matters and enforcement, the Act confers powers on the CEO to institute proceedings (s 84), sets limitation periods (s 85), and includes evidentiary presumptions useful in prosecutions (s 86).

Because the supplied Act text contains no reported cases or litigation annotations, this note cannot identify precedent, judicial interpretation or disputes that have arisen under the Act. For litigation history, practitioners should consult case law databases and court registers for decisions invoking the Act, bearing in mind the procedural limits on appeals to the Supreme Court for committee decisions and the availability of substantive and procedural avenues outlined in Part 8.

The Act’s structure creates several practical trapdoors and friction points that statutory actors need to anticipate because they affect cost allocation, title transactions, timeliness and evidentiary exposure.

Discretion concentrated in the CEO: The CEO is given wide discretion to classify sites (s 13(1)), to give notices and to decide when to take action and recover costs (s 42, s 53-55). Guidelines and industrial standards are to be taken into account (s 13(4), s 63(4)) but the CEO’s judgment on what constitutes reasonable grounds or particular circumstances is central. That discretion matters because classifications trigger remediation obligations, database entries and memorial registration (s 14; s 19; s 58).

Consultation promises but potential for disagreement: The CEO must consult and attempt to reach agreement with the CEO of the Health Department on classifications and notice requirements that relate to human health (s 13(5), s 42(5)). If they cannot agree, Ministers jointly appoint a person to decide (s 13(6), s 42(6)). This creates a procedural step with potential for delay and uncertainty if the appointed person’s timing and reasoning vary.

Public database limited to certain classifications: The public contaminated sites database must contain sites classified as "contaminated , remediation required", "contaminated , restricted use" and "remediated for restricted use" (s 19(1)). Other classifications, such as “possibly contaminated , investigation required” or “report not substantiated”, are not required to be listed on the public database which affects due diligence outcomes. However memorials are required for those classifications as well (s 58(1)(a)(i)), and memorials affect title and planning approvals (s 58(5)-(6)).

Memorials affect land dealings, and CEO consent can block registration: Where the CEO specifies that an instrument affecting land with a memorial is not to be registered without the CEO’s written consent, the Registrar must give effect to that specification (s 58(5)). This is a direct mechanism by which the Act can affect transfers and the marketability of land.

Binding notices can bind successors and mortgagees: Notices may bind persons who become owners after a memorial is registered (s 48). Mortgagees in possession are subject to a 45‑day window before certain notices become binding (s 48(2)), and they have a specific statutory route to transfer responsibility to the State within 45 days (s 31). The 45‑day timing and the interaction with transfers and charges can have important commercial consequences for lenders and receivers.

Transfer of responsibility to State and financial capacity tests: Transfers of responsibility to another person require CEO approval and financial capacity statements and certificates of contamination audit or requests for them (s 30(2)-(4)). The CEO can request additional financial capacity information and false or misleading statements attract heavy penalties (s 30(5)-(6)). Parties attempting to transfer responsibility must therefore be able to demonstrate financial capacity and accurate audit documentation.

Limited appeals on questions of law: Appeals from committee decisions to the Supreme Court in specified categories are limited to questions of law (s 77(4)). That restricts the scope of judicial review for some decisions and may limit the avenues for challenging factual allocations of remediation responsibility.

Strict false‑information regimes and mandatory disclosure rules: The Act criminalises false or misleading statements in many contexts, including reporting (s 11), mandatory auditor’s reports (s 73-74), disclosure statements (s 64), requests for summaries of records (s 21), and other information supplied under the Act (s 94). Self‑incrimination is not a shield for required mandatory auditor report information (s 75). These provisions create significant compliance and evidentiary exposure for persons preparing reports and disclosures.

Orphan sites and six‑year recovery window: If the State remediates an orphan site, it may recover costs from an identified responsible person if that person is located within six years of the site becoming an orphan site (s 55(2)). The six‑year window is therefore significant for cost allocation and risk management for purchasers or parties with latent historical liability.

Director and related‑corporate liability is conditional and fact‑sensitive: Section 28 permits the committee to make directors or related bodies corporate responsible for remediation of insolvent bodies, but only where the committee decides insolvency was a result of deliberate conduct intended to avoid remediation responsibility and specific mental element and influence conditions are met (s 28(2)-(4)). This is a fact‑sensitive and potentially high-stakes mechanism which will hinge on committee findings of intent and influence.

Time limits for prosecutions and civil recoveries: Prosecutions must generally be commenced within two years of the alleged offence, though a prosecution notice may specify when evidence first came to the attention of an authorised person and extend the period (s 85). Civil recoveries by private persons for reasonable costs under s 56 are limited to causes of action accruing within six years (s 56(4)). These limitation periods affect risk assessment for enforcement and recovery.

Confidentiality limited and whistleblower protection: The Act protects the identity of reporters except as necessary for administration (s 96(1)), and provides a victimisation offence where someone is prejudiced for making reports or providing assistance (s 95). At the same time, confidentiality exceptions for use in enforcement and judicial proceedings exist (s 96(3)), which means identity protections are not absolute.

Regulatory dependency on delegated instruments: Many operational details are delegated to regulations and guidelines , for example matters in Schedule 2 include accreditation, the content of disclosure statements, additional mandatory audit requirements, fees and appeal procedures. Those delegated instruments will therefore materially shape how the Act works in practice.

This section provides a practical compliance checklist grounded in the Act’s provisions. It is not exhaustive legal advice but references the sections that create duties and processes.

1. Reporting obligations (s 11)

   • If you are an owner, occupier, person who caused or contributed to contamination, or an auditor engaged for a required report, ensure you understand the reporting timetable: known contamination must be reported within 21 days of first knowing unless CEO approval for a later period is obtained (s 11(3)(a)); suspected contamination must be reported as soon as reasonably practicable (s 11(3)(b)).
   • Use the prescribed form and include a location description and the information summarising knowledge or suspicion as required by s 11(2).
   • If you are subject to an approved programme under s 12, ensure the programme is completed and reports are made in accordance with the programme timetable (s 12(1), (6)).

2. Due diligence before acquisition (s 19, s 21, s 62, s 68)

   • Check the contaminated sites database for listed classifications relevant to the land (s 19(1)-(2)).
   • Request the prescribed summary of records under s 21 in the prescribed manner and pay any fee.
   • If appropriate, request (or require the seller to request) a certificate of contamination audit under s 62, ensuring the request includes required materials (s 62(3)). Note the CEO has 45 days to act on a certificate request unless further information is sought (s 63(2)).
   • Insist on the disclosure required under s 68: for classified land or land with a Part 4 notice and a registered memorial, at least 14 days before completion the seller must provide a written disclosure in the prescribed form to potential buyers and to the CEO (s 68(1)). Failure to do so attracts penalties and may give rise to civil actions.

3. If you receive a notice (Part 4)

   • Treat notices as statutory instruments requiring compliance within the specified timeframe or face penalties (s 42(3), s 43(1)).
   • Notices may require preparation and submission of management plans, sampling and analysis programmes, monitoring and community consultation plans (s 49(4), s 50(4)).
   • Notices commonly require engagement of an accredited auditor to report on actions taken to comply (s 44). Engage auditors accredited under the regulations (s 69) and ensure mandatory auditor’s reports comply with regulatory requirements and include the signed statements required by s 73.

4. Managing remediation responsibility (Part 3)

   • Understand hierarchy of responsibility (s 24-27). If you have caused or contributed to contamination after commencement, expect responsibility under s 25. If you changed the use of land after commencement, assess potential exposure under s 26.
   • If you are an owner who acquired land without knowledge or reasonable grounds to suspect contamination, you may be liable under s 27(2) to the extent specified. Consider seeking an exemption certificate via a disclosure statement (s 64-65) if the transitional window and criteria apply.
   • If remediation responsibility is to be transferred to another person, obtain CEO approval and be prepared to provide a statement of financial capacity and a certificate of contamination audit (s 30(2)-(4)). Be truthful and accurate , false or misleading statements attract heavy penalties (s 30(6)).

5. Auditor processes and documentation (Part 7)

   • Use only accredited auditors for mandatory auditor’s reports and ensure the authority in writing is obtained and conditions observed (s 69-70).
   • Ensure mandatory reports are accompanied by the required signed statements from the commissioning party and the auditor (s 73).
   • Do not provide or produce information known to be false or misleading; s 74 and s 94 apply to information supplied in many contexts and carry strict penalties.

6. Title and memorial considerations (s 58-59)

   • Be prepared that classification or a Part 4 notice will trigger registration of a memorial, which can affect the priority of charges and registration of instruments. Obtain CEO advice when considering subdivision, amalgamation or development where a memorial exists (s 58(5)-(6)).
   • Where a memorial is registered or withdrawn, the CEO is to notify owners, the Planning Commission, the Health Department CEO and relevant local governments (s 59).

7. If State action occurs or the CEO enters land (s 53-55)

   • If the CEO acts to ensure compliance or to remediate where the State is responsible, be aware that costs may be recoverable from persons on whom notices are binding (s 55(1)) and that there is a six‑year window for recovery from identified persons in certain orphan-site scenarios (s 55(2)). Document interactions and cost calculations carefully.

8. Appeals and dispute resolution (Part 8)

   • If you wish to challenge a classification or notice, follow the Part 8 procedures: Lodge written notice of appeal to the committee within 21 days where required, set out grounds and facts (s 79(1)-(2)). Bear in mind some appeals suspend notice requirements automatically whereas others do not (s 79(3)).
   • For committee decisions on responsibility for remediation or exemption certificates, appeals to the Supreme Court are limited to questions of law within 21 days (s 77).

9. Record keeping, confidentiality and information obligations (s 20, s 96)

   • Maintain accurate records of sampling, management plans, notices, audit reports and correspondence and provide information in the prescribed forms when requested by the CEO (s 20). Records may be retained in electronic form (s 20(2)).
   • Observe confidentiality obligations: identity of reporters is protected except where necessary for administration and designated persons are under a duty of confidentiality (s 96).

10. Governance, guidelines and regulation monitoring (s 97-98)

    • Monitor the CEO’s guidelines for assessment, management and reporting (s 97). Although guidelines are not subordinate legislation, the CEO must make them publicly available and they are factors the CEO and auditors will use in assessments (s 13(4), s 63(4)).
    • Keep track of regulations under schedule 2 that will specify details on auditors, fees, forms and procedures (s 98, Schedule 2).

Practical steps for transactional risk management

• Insert contractual warranties and indemnities in sale agreements requiring sellers to disclose contamination and to provide certificates or auditor’s reports, and consider escrow arrangements for remediation liabilities.
• Require sellers to deliver written disclosure under s 68 where applicable and verify any registered memorial via title searches.
• Obtain legal advice before acquiring land with any suspected contamination, ensure environmental due diligence is comprehensive and that required mandatory auditor’s reports are procured where necessary.
• Document financial capacity if seeking to assume remediation responsibility or to have responsibility transferred to another party or the State (s 30).

Following the statutory steps above, providing accurate information and engaging accredited auditors where required will reduce enforcement risk under the Act and support defensible positions on responsibility and remediation.