Part 8Special environment protection provisions

Part 8—Special environment protection provisions Division 1—Water quality in water protection areas 61—Interpretation (1) In this Division— lake means a natural lake and includes a natural lagoon, swamp, marsh or spring; owner in relation to a vessel or aircraft includes a person who has, or is entitled to, possession or control of the vessel or aircraft; surface water means water in a watercourse or lake and includes— (a) water in a dam, reservoir or artificial lake that is situated in a water protection area; and (b) floodwaters that have overflown the banks of a watercourse or lake; underground water means— (a) water occurring naturally below ground level; (b) water pumped, diverted or released into a well for storage underground; watercourse means— (a) a river, creek or other natural watercourse (whether modified or not); (b) an artificial channel (but not a channel declared by regulation to be excluded from the ambit of this definition); water protection area means a part of the State for the time being declared by proclamation to be a water protection area; Water Resources Minister means the Minister for the time being administering the Landscape South Australia Act 2019. (2) A pollutant floating on the surface of water will be taken to have entered the water. (3) A pollutant that enters surface or underground water in a water protection area of the State will be taken to have degraded the water if the quality of the water is detrimentally affected as the pollutant disperses through or over it notwithstanding that, as dispersion continues, the detrimental effect may be reduced to a negligible level. (4) For the purposes of this Division a pollutant in a vehicle, or that has entered water from a vehicle, will be taken to be on the land, or to have entered the water from the land, on which the vehicle is standing or moving. 61A—Proclamation of water protection areas (1) The Governor may, by proclamation made on the recommendation of the Authority, declare any part of the State to be a water protection area and may by subsequent proclamation, vary or revoke such a proclamation. (2) The Authority must consult the Water Resources Minster and the Minister for the time being administering the Waterworks Act 1932 before making a recommendation to the Governor under subsection (1). 62—Appointment of authorised officers by the Water Resources Minister (1) The Water Resources Minister may, after consultation with the Authority, appoint pursuant to Part 10 Division 1 a person who is an authorised officer under the Landscape South Australia Act 2019 to be an authorised officer under this Act. (2) The Water Resources Minister may, at any time, revoke an appointment made by him or her, or vary or revoke a condition specified in the instrument of appointment or impose a further condition. 63—Water Resources Minister may exercise Authority's enforcement powers (1) The Water Resources Minister may, after consultation with the Authority, exercise such powers of the Authority under Part 10 as the Water Resources Minister considers necessary for the protection of the quality of surface or underground water within a water protection area. (2) The provisions of this Act apply in relation to the exercise of a power by the Water Resources Minister under subsection (1) as if a reference to the Authority includes a reference to the Water Resources Minister. 64—Certain matters to be referred to Water Resources Minister (1) Where an application of a kind prescribed by subsection (1a) is made under Part 6 for an environmental authorisation in respect of an activity to be undertaken in a water protection area (except a water protection area, or part of a water protection area, excluded from the operation of this section by regulation)— (a) the application must be referred to the Water Resources Minister together with a copy of any relevant information provided by the applicant; and (b) subject to subsection (2), the Authority must not make a decision on the application until it receives a response from the Water Resources Minister. (1a) The following kinds of applications are prescribed for the purposes of subsection (1): (a) an application for an environmental authorisation to drain or discharge any solid, liquid or gaseous material directly or indirectly into a well that is a prescribed well under the Landscape South Australia Act 2019; (b) an application for an environmental authorisation in respect of any activity that might, in the opinion of the Authority, create a significant risk of environmental harm to a water resource within the meaning of the Landscape South Australia Act 2019. (1b) Subsection (1a) does not apply in relation to an activity that is development for the purposes of the Planning, Development and Infrastructure Act 2016 and that is authorised by a development authorisation under that Act. (2) If a response is not received from the Water Resources Minister within the period prescribed by regulation, it will be presumed that the Water Resources Minister does not wish to make a response, but the period prescribed will, if the Waters Resources Minister notifies the Authority of the need for such extension, be extended by a period of time equal to the time taken by the applicant to furnish further information in compliance with a requirement under subsection (3). (3) Where the Water Resources Minister requires further information before giving a response under this section, the Water Resources Minister may, by notice in writing served on the applicant no later than two months after the application was made, require the applicant to furnish further specified information in writing. (4) The Water Resources Minister may require any further information required under subsection (3) to be verified by statutory declaration. (5) Where further information is required under this section in respect of an application, the application is to be taken not to have been duly made for the purposes of Part 6 until the information is furnished as required by the Water Resources Minister. (6) The regulations may— (a) provide that the Authority must not make a decision on an application referred to the Water Resources Minister under this section— (i) without having regard to the response of the Water Resources Minister; or (ii) without the concurrence of the Water Resources Minister (which concurrence may be given on such conditions as the Water Resources Minister thinks fit); (b) empower the Water Resources Minister to direct the Authority— (i) to refuse the application; or (ii) if the Authority decides to grant the application—to impose such conditions as the Water Resources Minister thinks fit, (and the Authority must comply with any such direction). (7) Where the Authority acting by direction of the Water Resources Minister refuses an application or imposes conditions in respect of an environmental authorisation, the Authority must notify the applicant that the application was refused, or the conditions imposed, by direction under this section. (8) Where a refusal or condition referred to in subsection (7) is appealed against to the Environment, Resources and Development Court under this Act, the Water Resources Minister will be a party to the appeal. (9) The Water Resources Minister may, by notice in writing, instruct the Authority to refer an application of a kind referred to in subsection (1) in respect of an activity that is to be undertaken in the region of a regional landscape board to the board instead of to the Minister and in that event references to the Water Resources Minister in this section and in a regulation made under this section will be taken to be references to the board. 64A—Action by Minister in case of unauthorised release of pollutant (1) Where the Minister knows of, or has reason to suspect, the unauthorised entry of a pollutant into surface or underground water in a water protection area and is of the opinion that the pollutant has degraded or is likely to degrade the water, the Minister may, by notice served on the owner or occupier of the land, or the owner of the vessel or aircraft, from which the pollutant entered the water, direct the owner or occupier of the land or the owner of the vessel or aircraft to take such action as the Minister specifies in the notice— (a) to prevent further entry of a pollutant into the water or any other water; (b) to remove a pollutant that has entered the water from the water or from land on which the pollutant has been deposited. (2) A person on whom a notice has been served is entitled to enter any land in order to comply with the notice. (3) If the person on whom a notice has been served fails to comply with the notice, the Minister may enter the land, vessel or aircraft and take the action specified in the notice and such other action as the Minister considers appropriate in the circumstances and the Minister's costs will be a debt due by the person to the Minister. (4) In an emergency the Minister is not obliged to serve notice under subsection (1) but may enter the land, vessel or aircraft and take such action as the Minister considers appropriate in the circumstances and the Minister's costs will be a debt due to the Minister by the owner and occupier of the land or the owner of the vessel or aircraft. 64B—Risk of escape of pollutant from land etc (1) Where the Minister is of the opinion that precautions should be taken to ensure that a pollutant on or under any land or on any vessel or aircraft does not enter any surface or underground water in a water protection area, the Minister may by notice served on the owner or occupier of the land or the owner of the vessel or aircraft direct him or her to take such action (to be specified in the notice) as the Minister considers necessary or desirable. (2) A person who fails to comply with a notice under subsection (1) is guilty of an offence. If the offender is a body corporate—$120 000. If the offender is a natural person—$75 000. (3) Where a person on whom a notice has been served fails to comply with the notice, the Minister may enter the land, vessel or aircraft and take the action specified in the notice and such other action as the Minister considers appropriate in the circumstances and the Minister's costs will be a debt due by the person to the Minister. 64C—Delegation of powers under sections 64A and 64B (1) The Minister may delegate any of his or her powers under section 64A or 64B to any person or body. (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the Minister to exercise any of those powers; and (d) is revocable at will by the Minister. 64D—Costs to be a charge on land (1) Where costs are a debt due by a person to the Minister or to a delegate of the Minister under section 64A(3) or (4) or 64B(3)— (a) the Minister or delegate may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (b) the amount together with any interest charge so payable is until paid a charge in favour of the Minister or delegate on any land owned by the person in relation to which the costs are due under section 64A or 64B. (2) A charge imposed on land by this section has priority over— (a) any prior charge on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and (b) any other charge on the land other than a charge registered prior to service of the notice referred to in subsection (1)(a) on the owner of the land. Division 2—Beverage containers 64E—Outline of Division (1) This Division establishes a litter control and waste management system for beverage containers through a regulatory scheme that has the following general features: (a) beverage containers are prohibited from sale in the State unless approved by the Authority as category A or category B containers or exempted; (b) empty category A containers bearing an approved refund marking are returnable to retailers of such containers for a refund; (c) empty category B containers bearing an approved refund marking are returnable to collection depots for a refund; (d) the operators of collection depots and persons carrying on business as super collectors must be approved by the Authority under this Division; (e) the Authority has power to attach conditions to approvals under this Division to ensure the reuse, recycling or other appropriate disposal of returned containers. (2) This Division also, for the protection of the environment, prohibits the sale or supply of beverages in certain containers. 65—Interpretation In this Division— approved collection depot, means a collection depot in respect of which an approval under section 69 is in force; approved refund marking, in relation to containers of a particular class, means a marking specified by the Authority as a condition of an approval under section 68 for containers of that class indicating the refund amount for the containers; beverage means a liquid intended for human consumption by drinking but does not include a liquid of a kind excluded from the ambit of this definition by the regulations; category A container means a container of a class approved by the Authority under section 68 as category A containers, being a container that may, subject to this Division, be presented for a refund at a place in the State where beverages are sold by retail in containers of that class; category B container means a container of a class approved by the Authority under section 68 as category B containers, being a container that may, subject to this Division, be presented at a collection depot for a refund; collection depot means a facility or premises for the collection and handling of category B containers delivered to the facility or premises in consideration of the payment of refund amounts, and includes a facility or premises of a kind prescribed by regulation; container means— (a) a container that— (i) is made for the purpose of containing a beverage; and (ii) when filled with the beverage, is sealed for the purposes of storage, transport and handling prior to its sale or delivery for the use or consumption of its contents; or (b) a container of a kind prescribed by regulation; corresponding law means a law of another State or a Territory of the Commonwealth declared by the regulations to be a corresponding law for the purposes of this Division; Food Standards Code has the same meaning as in the Food Act 2001; glass container means a container made of glass whether alone or in combination with any other substance or thing; refund amount, in relation to a container of a particular class, means an amount prescribed as the refund amount for containers of that class; retailer means a person whose business is or includes that of selling a beverage for the purpose of the use or consumption of that beverage and, in the case of such sale by means of a vending machine, includes the owner of that vending machine unless the owner has let out the machine on hire to some other person, in which case the expression includes that other person; spirituous liquor means— (a) a liqueur or other alcoholic beverage produced by distillation (for example, brandy, gin, rum, vodka or whisky); or (b) a beverage of a kind prescribed by regulation, (c) a pre‑mixed beverage containing a beverage referred to in paragraph (a) or (b) and another beverage; or (d) a pre‑mixed beverage of a kind excluded from the ambit of this definition by the regulations; super collector means— (a) a person who, whether personally or through an agent, collects, handles and delivers for reuse, recycling or other disposal, containers received from collection depots; or (b) a person who carries on activities of a kind prescribed by regulation; waste management arrangement, in relation to containers of a particular class, means an arrangement for the collection, sorting and aggregation of containers of that class when empty and their reuse, recycling or other disposal; wine means— (a) a beverage produced by fermentation of grapes (whether or not with additives permitted under Standard 2.7.4 of the Food Standards Code); or (b) a beverage that is a blend of a beverage referred to in paragraph (a) and other grape products; or (c) a beverage of a kind prescribed by regulation, (d) a pre‑mixed beverage containing a beverage referred to in paragraph (a), (b) or (c) and another beverage that is not a grape product; or (e) a pre‑mixed beverage of a kind excluded from the ambit of this definition by the regulations. 66—Division not to apply to certain containers This Division does not apply to glass containers made for the purpose of containing wine or spirituous liquor. 67—Exemption of certain containers by regulation The Governor may, by regulation, exempt containers of a specified class from the application of this Division, or specified provisions of this Division, either unconditionally or subject to conditions specified in the regulations. 68—Approval of classes of containers as category A or category B containers (1) An application may be made (whether by a manufacturer, distributor or retailer of containers) to the Authority for approval of a class of containers as category A containers or category B containers. (2) An application for an approval under this section— (a) must be made in a manner and form determined by the Authority; and (b) must be accompanied by the prescribed fee; and (c) must, on request by the Authority, be accompanied by additional information to enable the Authority to determine the application. (3) An approval under this section— (a) must be granted subject to the following conditions: (i) that containers of the class to which the approval relates must bear the refund marking specified by the Authority for containers of that class; (ii) that the holder of the approval must have in place an effective and appropriate waste management arrangement in relation to containers of that class; (iii) in the case of an approval in relation to category B containers—that the waste management arrangement must require the holder of the approval to provide specified super collectors with a declaration in the form determined by the Authority in relation to each sale of such containers by the holder of the approval as soon as practicable after the sale; and (b) may be granted subject to any other conditions the Authority thinks fit; and (c) must be notified in the Gazette. (4) Without limiting the grounds on which the Authority may refuse an application for an approval under this section, the Authority may refuse such an application if satisfied that— (a) the container material (including the labelling or refund marking) is unsuitable for recycling, reuse or other disposal considered appropriate by the Authority; or (b) the manner of application of the labelling or refund marking proposed in respect of the class of containers is likely to render the containers unsuitable for recycling, reuse or other disposal considered appropriate by the Authority; or (c) there is no ongoing, effective and appropriate waste management arrangement in place in relation to the class of containers. (5) If the Authority refuses an application for an approval under this section, it must give the applicant written notice of the refusal and the reasons for the refusal. (6) The Authority may, on its own initiative or on application, by notice in the Gazette, vary an approval under this section or vary or revoke a condition of such an approval or impose a condition or further condition. (7) The Authority may, by notice in the Gazette, revoke an approval under this section if satisfied that a condition of the approval has been contravened. (8) Before the Authority revokes an approval under subsection (7), the Authority must— (a) give the holder of the approval written notice of its proposed action specifying reasons for the proposed action; and (b) allow the holder of the approval at least 14 days within which to make submissions to the Authority in relation to the proposed action. (9) A notice under this section— (a) must, in the case of a notice of approval, specify— (i) the class of containers to which the approval relates by reference to the manufacturer or distributor of the containers and any 1 or more of the following: (A) product name; (B) container contents when full; (C) container capacity; (D) container material; (E) any other factor considered relevant by the Authority; (ii) the conditions of the approval; and (b) may contain transitional provisions as to the operation of this Division in relation to containers that are— (i) held by manufacturers, distributors or retailers for sale; or (ii) sold but remaining to be returned as empty containers under this Division; and (c) has effect from the date of publication of the notice or a future date specified in the notice. 69—Approval of collection depots and super collectors (1) A person must not— (a) operate a collection depot; or (b) carry on business as a super collector, without the approval of the Authority. (a) in the case of a body corporate—$60 000; (b) in the case of a natural person—$30 000. (2) An application for an approval under this section— (a) must be made in a manner and form determined by the Authority; and (b) must be accompanied by the prescribed fee; and (c) must, on request by the Authority, be accompanied by additional information to enable the Authority to determine the application. (3) The Authority may, in determining— (a) an application for an approval under this section; or (b) what should be the conditions of such an approval, have regard to the need for a sustainable waste management system for containers and, in particular, for that purpose, the need for— (c) ongoing, effective and appropriate waste management arrangements in relation to the classes of containers proposed to be handled under the approval; and (d) effective processes for resolving disputes between the parties to those arrangements. (4) An approval under this section may be granted unconditionally or subject to conditions and must be notified (together with any conditions) in the Gazette. (5) If the Authority refuses an application for an approval under this section, the Authority must give the applicant written notice of the refusal and the reasons for the refusal. (6) The Authority may, on its own initiative or on application, by notice in the Gazette, vary an approval under this section or impose, vary or revoke a condition of an approval. (7) The Authority may, by notice in the Gazette, revoke an approval under this section if satisfied that a condition of the approval has been contravened. (8) Before the Authority acts on its own initiative under subsection (6) or acts under subsection (7), the Authority must— (a) notify the holder of the approval in writing of its proposed action specifying reasons for the proposed action; and (b) allow the holder of the approval at least 14 days within which to make submissions to the Authority in relation to the proposed action. (9) A notice under this section has effect from the date of publication of the notice in the Gazette or a future date specified in the notice. 69A—Annual fees and returns for collection depots and super collectors (1) The holder of an approval to operate a collection depot or carry on business as a super collector must— (a) in each year, lodge with the Authority, before the date fixed by regulation, an annual return containing the information required by the Authority by condition of the approval or by notice in writing; and (b) in each year other than a year in which the approval is due to expire, pay to the Authority, before the date fixed by regulation, the fee fixed by regulation. (2) If a person fails to lodge a return or pay a fee in accordance with this section, the Authority may, by notice in writing, require the person to make good the default and, in addition, to pay to the Authority the amount fixed by regulation as a penalty for default. (3) If a person fails to comply with the notice within 14 days after the giving of the notice, the approval is suspended until the notice is complied with. (4) If a person fails to comply with the notice within 6 months after the giving of the notice, the approval is revoked. (5) The Authority must cause written notice of the suspension or revocation under this section to be given to the person. (6) An annual fee (including a penalty for default) payable under this section is recoverable by the Authority as a debt due to the Authority. 69B—Sale and supply of beverages in containers (1) A retailer must not sell a beverage in a container unless the container— (a) is a category A or category B container; and (b) bears the approved refund marking for containers of that class. (2) A person must not— (a) supply a beverage in a container to a retailer for sale by the retailer; or (b) sell a beverage in a container for consumption, unless the container is a category A or category B container and bears the approved refund marking for containers of that class. (3) A person must not— (a) supply a beverage in a container bearing a refund marking to a distributor or retailer for sale by the distributor or retailer; or (b) sell a beverage in a container bearing a refund marking for consumption, knowing that there is no waste management arrangement in place in relation to the container. Maximum penalty: $30 000. 69C—Offence to claim refund on beverage containers purchased outside State or corresponding jurisdiction (1) A person must not present to a retailer, the operator of a collection depot or a person carrying on business as a super collector, for the purpose of claiming refund amounts, containers that the person knows or has reason to believe were not purchased in this State or a jurisdiction in which a corresponding law is in force. Maximum penalty: $30 000. (2) Subject to subsection (3), a retailer, the operator of a collection depot or a person carrying on business as a super collector may request any person presenting containers for the purpose of claiming refund amounts to complete a declaration in the form prescribed by regulation for the purposes of this section stating that the person has no reason to believe that the containers were not purchased in this State or a jurisdiction in which a corresponding law is in force. (3) If, within any 48 hour period, a person presents to a retailer or the operator of a collection depot 3 000 or more containers for the purpose of claiming refund amounts, the retailer or operator must request the person to complete a declaration of a kind referred to in subsection (2). (4) A retailer, the operator of a collection depot or a person carrying on business as a super collector must— (a) keep each declaration made under this section (or copy of the declaration) at his or her place of business in the State for 3 years from the date of the declaration; and (b) have the document readily available for inspection at all reasonable times by an authorised officer. 69D—Offence to contravene condition of beverage container approval The holder of a beverage container approval must not contravene a condition of the approval. 70—Retailers to pay refund amounts for certain empty category A containers (1) Subject to subsection (2), a retailer who sells a beverage in category A containers of a particular class must not refuse or fail, or permit a person acting on the retailer's behalf to refuse or fail— (a) to accept delivery of empty containers of that class that bear the approved refund marking, or a former approved refund marking, for containers of that class; or (b) in respect of each such container, to pay to the person delivering that container the refund amount for that container. (2) A retailer or a person acting on the retailer's behalf may refuse or fail to accept delivery of a container if— (a) the container is in an unclean condition; or (b) he or she reasonably believes the container was not purchased in this State or in a jurisdiction in which a corresponding law is in force; or (c) the retailer or person acting on the retailer's behalf has made a request for a declaration under section 69C(2) or (3) in respect of the container and the request has been refused. (3) In proceedings for an offence against subsection (1), an allegation in the complaint that the retailer sells beverages in containers of a particular class is, in the absence of proof to the contrary, proof of the matter so alleged. 71—Collection depots to pay refund amounts for certain empty category B containers (1) Subject to subsection (2), the operator of an approved collection depot must not refuse or fail, or permit a person acting on his or her behalf to refuse or fail— (a) to accept delivery of empty category B containers that bear the approved refund marking, or a former approved refund marking, for containers of that class; or (b) in respect of each such container, to pay to the person delivering that container the refund amount for that container. (2) The operator of an approved collection depot or a person acting on his or her behalf may refuse or fail to accept delivery of a container if— (a) the approval of the operator of the depot is subject to a condition limiting the operation of the depot to the receipt of category B containers of a specified class and the container does not belong to that class; or (b) the container is in an unclean condition; or (c) he or she reasonably believes the container was not purchased in this State or in a jurisdiction in which a corresponding law is in force; or (d) the operator of the collection depot or a person acting on his or her behalf has made a request for a declaration under section 69C(2) or (3) in respect of the container and the request has been refused. 71A—Manner of payment of refund amounts A person who is required under this Division to pay a refund amount for a container must pay the amount— (a) in the case of a refund amount dispensed from a reverse vending machine— (i) in cash; or (ii) by way of credit note redeemable for cash; or (iii) in a manner prescribed by regulation; or (b) in any other case— (i) unless subparagraph (ii) applies, in cash; or (ii) if the person to whom the refund amount is payable agrees— (A) by way of electronic funds transfer to a bank account or credit card account; or (B) in a manner prescribed by regulation. 72—Certain containers prohibited (1) In this section— prohibited container means— (a) a sealed container (commonly known as a "ring pull container") that is wholly or mainly constructed of metal (whether or not of more than one kind of metal) and capable of being opened, without the aid of any instrument, by the removal of portion of the container in such a manner as results or may result in severance from the body of the container of the portion so removed; or (b) a sealed glass container of a prescribed kind in which the contents are held under pressure; or (c) a plastic container of a class prescribed as prohibited containers. (2) The Governor may not make a regulation prescribing a class of plastic containers as prohibited containers for the purposes of paragraph (c) of the definition of prohibited container in subsection (1) unless satisfied that an effective system of resource recovery of the containers— (a) is not assured in advance of introduction of the containers to the market; or (b) has not been established or maintained following the introduction of the containers to the market. (3) A retailer must not sell a beverage in a prohibited container. (4) A person must not— (a) supply a beverage in a prohibited container to a retailer for sale by the retailer; or (b) sell a beverage in a prohibited container for consumption. 73—Evidentiary provisions In proceedings for an offence against this Division, an allegation in the complaint that— (a) a specified liquid was a beverage; or (b) a specified container was a glass container, is, in the absence of proof to the contrary, proof of the matter so alleged.