Part 5Environment protection policies

Part 5—Environment protection policies Division 1—General 26—Interpretation In this Division— (a) a reference to a draft environment protection policy includes a reference to a draft amendment to, or a draft revocation of, an environment protection policy previously made under this Division; (b) a reference to an environment protection policy includes a reference to an amendment to, or a revocation of, an environment protection policy previously made under this Division. 27—Nature and contents of environment protection policies (1) Environment protection policies may be made as contemplated by this Act or for any purpose directed towards securing the objects of this Act. (2) An environment protection policy may do one or more of the following according to its terms: (a) set out matters to be taken into account by the Authority— (i) in determining matters required to be determined by the Authority under Part 6 in relation to environmental authorisations or applications for environmental authorisations; (ii) in determining matters required to be determined by the Authority under Part 6 in relation to applications for development authorisations referred to the Authority under the Planning, Development and Infrastructure Act 2016; (b) set out matters to be taken into account by the Authority or another administering agency in determining any specified matters required to be determined by the Authority or another administering agency for the purposes of this Act; (c) set out requirements, standards, goals and guidelines; (d) specify that certain requirements or standards (mandatory provisions) are to be enforceable under Division 2. (3) Where an environment protection policy contains a mandatory provision, the policy— (a) must declare whether contravention of the mandatory provision will be a category A, B, C, D or E offence for the purposes of Division 2; and (b) may contain provisions that— (i) prevent the granting of an exemption under Part 6 from compliance with the mandatory provision; or (ii) specify the circumstances in which such an exemption may be granted or the conditions that must be attached to it, or both. (4) The provisions of an environment protection policy may— (a) be of general application or limited application; (b) make different provisions according to the matters or circumstances to which they are expressed to apply; (c) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a body specified in the policy, as in force from time to time or as in force at a specified time; (d) provide that a matter or thing is to be determined according to the discretion of the Authority, another administering agency, an authorised officer or a prescribed person or body. (5) If an environment protection policy refers to a code, standard or other document, the code, standard or other document has effect as if it formed part of the policy. (6) Copies of each environment protection policy and of each code, standard or other document referred to in an environment protection policy must be kept available for inspection by the public, without charge and during ordinary office hours, at an office or offices specified in the regulations. (7) In any legal proceedings, evidence of the contents of an environment protection policy or of a code, standard or other document referred to in an environment protection policy may be given by production of a document certified by the Authority as a true copy of the policy, code, standard or other document. 28—Normal procedure for making policies (1) This section sets out the normal procedure to be followed in making environment protection policies. (2) The Authority may prepare draft environment protection policies. (3) Before commencing to prepare a draft environment protection policy, the Authority— (a) must consult with the Minister in relation to the general purpose and intended effect of the proposed policy; and (b) after consulting with the Minister— (i) must publish in the Gazette a notice of its intention to prepare the draft policy that includes a description of the general purpose of the proposed policy; and (ii) must also publish a copy of the notice— (A) on a website determined by the Authority; or (B) in a newspaper circulating generally in the State, (or both). (3a) Where a committee or subcommittee of the Board is established under this Act to advise the Authority in relation to the preparation or contents of a draft environment protection policy, the Authority must obtain and consider the advice of the committee or subcommittee in relation to the policy. (4) The Authority must, when it has prepared a draft environment protection policy, prepare a report containing— (a) an explanation of the purpose and effect of the draft policy; and (b) a summary of any background and issues relevant to the draft policy and of the analysis and reasoning applied in formulating the policy. (5) The Authority must, after preparation of the draft policy and related report, refer that policy and report— (a) to any body prescribed for the purposes of this section; and (b) to any public authority whose area of responsibility is, in the opinion of the Authority, particularly affected by the policy. (6) The Authority must also, after preparation of the draft policy and related report, cause an advertisement to be published in the Gazette and in a newspaper circulating generally in the State— (a) giving notice of places at which the draft policy and the report, or copies of the draft policy and the report, are to be available for inspection and, if copies are to be available for purchase, of places at which copies may be purchased; and (b) inviting interested persons to make written submissions in relation to the draft policy within a period specified in the advertisement (being not less than two months from the date of publication of the advertisement); and (c) stating that the submissions will be available for inspection by interested persons as provided by subsection (8); and (d) stating that the Authority's response to any submissions will be available for inspection by interested persons as provided by subsection (9); and (e) appointing a place and time at which a public information session will be held by the Authority in relation to the draft policy. (8) Where written submissions are made in response to an advertisement published under subsection (6), a copy of those submissions must be made available for inspection by interested persons during ordinary business hours at the principal office of the Authority from the end of the period specified for the making of submissions until the Authority reports to the Minister on the draft policy under subsection (11). (9) Where written submissions are made in response to a draft policy, the Authority must, as soon as is reasonably practicable after the end of the period specified for the making of submissions, prepare a response to the submissions and make the response available for inspection by interested persons during ordinary business hours at the principal office of the Authority until the Authority reports to the Minister on the draft policy under subsection (11). (11) The Authority must then report to the Minister and the Minister may, after taking into account the report and any recommendations of the Authority on the matter— (a) approve the draft policy; or (b) alter the draft policy and approve the draft policy as altered; or (c) decline to approve the draft policy. (12) A draft policy approved by the Minister under subsection (11) may be referred to the Governor and the Governor may, by notice in the Gazette— (a) declare the draft to be an authorised environment protection policy under this Act; and (b) fix a day on which it will come into operation. 29—Simplified procedure for making certain policies (1) Where the Minister is satisfied that a draft environment protection policy refers to or incorporates without substantial modification the whole or part of a standard or other document prepared by a body prescribed for the purposes of this section— (a) the normal procedure for making environment protection policies does not apply in relation to the draft policy; and (b) the Minister may refer the draft policy directly to the Governor. (1a) Where a national environment protection measure has been made, amended or revoked or has expired— (a) the normal procedure for making environment protection policies under this Division does not apply in relation to— (i) a draft environment protection policy to implement the national environment protection measure or the amendment, revocation or expiry; or (ii) a draft environment protection policy that amends or revokes another environment protection policy as the Minister considers necessary or desirable in consequence of implementation of the national environment protection measure or the amendment, revocation or expiry; and (b) the Minister may refer a draft policy referred to in paragraph (a) directly to the Governor. (1b) For the purposes of subsection (1a), a draft environment protection policy will be taken to implement a national environment protection measure despite the fact that it includes provisions that are not included in or required by the measure if the Minister is satisfied that the provisions relate to the enforcement of the policy (including the imposition of penalties for contravention of the policy) or are otherwise necessary for the application of the policy in this jurisdiction. (2) The Governor may, on reference of a draft policy under this section, by notice in the Gazette— (a) declare the draft to be an authorised environment protection policy under this Act; and (b) fix a day on which it will come into operation. 30—Reference of policies to Parliament (1) When the Governor declares a draft environment protection policy to be an authorised environment protection policy under this Act, the Minister must— (a) within 14 days, refer the policy to the Environment, Resources and Development Committee of the Parliament; and (b) within 14 sitting days, cause the policy to be laid before both Houses of Parliament. (2) If the Environment, Resources and Development Committee, after receipt of the policy under subsection (1), resolves to suggest an amendment to the policy, the Governor may, on the recommendation of the Minister, by notice in the Gazette, proceed to make such an amendment. (3) If either House of Parliament passes a resolution disallowing the policy, the policy ceases to have effect. (4) If an amendment suggested by resolution under subsection (2) has been made to the policy by the Governor under that subsection, a resolution may nevertheless be passed under subsection (3) disallowing the policy as amended. (5) A resolution is not effective for the purposes of subsection (3) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the policy was laid before the House. (6) Where a policy that revokes the whole or part of another policy is disallowed, the policy or part sought to be revoked revives. (7) Where a policy is disallowed by resolution of either House, notice of the resolution must forthwith be published in the Gazette. 31—Interim policies (1) If the Governor is of the opinion that it is necessary for the proper administration of this Act that a draft environment protection policy should come into operation without delay, the Governor may declare, by notice in the Gazette, that the policy will come into operation on an interim basis on a day specified in the notice (being the day of publication in the Gazette of an advertisement concerning the draft policy and related report in accordance with the normal procedure, or any later day). (2) Where a notice has been published under subsection (1), the policy comes into operation on the day specified in the notice. (3) The Minister must, as soon as practicable after the publication of a notice under subsection (1), prepare a report on the matter and cause copies of the report to be laid before both Houses of Parliament. (4) A policy that has come into operation under this section ceases to operate— (a) if the Governor, by notice published in the Gazette, terminates the operation of the policy; or (b) if either House of Parliament passes a resolution disallowing the policy after copies of the policy have been laid before both Houses of Parliament in accordance with the normal procedure; or (c) if the policy has not been authorised by the Governor in accordance with the normal procedure within 12 months from the day on which it came into operation; or (d) if the policy is superseded by another policy that comes into operation under this Division. (5) If a policy ceases to operate by virtue of subsection (4)(b) or (c), notice of the cessation must forthwith be published in the Gazette. (6) If a policy that revokes the whole or part of another policy ceases to operate by virtue of subsection (4)(a), (b), or (c), the policy or part sought to be revoked revives. 32—Certain amendments may be made by Gazette notice only (1) The Minister may, by notice in the Gazette, amend an environment protection policy— (a) in order to correct an error in the policy; or (b) in order to make a change of form (not involving a change of substance) in the policy; or (ba) if the Minister considers it necessary to amend the policy in consequence of— (i) an amendment to this Act or the making, variation or revocation of regulations under this Act or the making, amendment or revocation of another environment protection policy; or (ii) the commencement or amendment of a prescribed Act; or (c) if the policy itself or the regulations provide that a change of a specified kind may be made to the policy by amendment under this section—in order to make a change of that kind. (2) An amendment under this section comes into operation on the day fixed in the notice of the amendment. Division 2—Contravention of mandatory provisions 34—Offence to contravene mandatory provisions of policy (1) A person who intentionally or recklessly contravenes a mandatory provision of an environment protection policy is guilty of an offence. (a) for a category A offence— (i) in the case of a body corporate—$250 000; (ii) in the case of a natural person—$120 000 or imprisonment for 2 years, or both; (b) for a category B, C, D or E offence—$30 000. (2) A person who contravenes a mandatory provision of an environment protection policy is guilty of an offence. (a) for a category A offence— (i) in the case of a body corporate—$150 000; (ii) in the case of a natural person—$60 000; (b) for a category B offence—$4 000; (c) for a category C offence—$2 000; (d) for a category D offence—$500; (e) for a category E offence—$100. (a) for a category B offence—$300; (b) for a category C offence—$200; (c) for a category D offence—$100; (d) for a category E offence—$50. (3) For the purposes of this section, contravention of a mandatory provision of an environment protection policy is a category A, B, C, D or E offence if the policy declares that such contravention will be an offence of that category. (4) If in proceedings for an offence against subsection (1) the court is not satisfied that the defendant is guilty of the offence charged but is satisfied that the defendant is guilty of an offence against subsection (2), the court may find the defendant guilty of the latter offence.