Environment Protection Act 1997

Part 2.5 Summary proceedings for indictable offences 169 2.14 Certain offences may be dealt with summarily 169

Page contents 10 Environment Protection Act 1997 Schedule 3 Reviewable decisions 170 Dictionary 175 1 About the endnotes 186 2 Abbreviation key 186 3 Legislation history 187 4 Amendment history 198 5 Earlier republications 218

An Act to provide for the protection of the environment, and for related purposes

1 Name of Act This Act is the Environment Protection Act 1997.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘land sublease—see the Planning Act 2023, dictionary.’ means that the term ‘land sublease’ is defined in that dictionary and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3A Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

3B Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1): • s 92 (Fuel sales––provision of information) • s 92A (Confidential commercial information must not be disclosed) • s 136K (Contravention of enforceable undertakings) • sch 2, s 2.4 (Sale or installation of solid fuel-burning equipment without certification or plate). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Certain provisions of the Criminal Code, ch 2 (the applied provisions) apply to all offences against this Act. The applied provisions include geographical application provisions (see Code, s 10). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

3C Objects of Act (1) The objects of this Act are to— (a) protect and enhance the quality of the environment; and (b) prevent environmental degradation and risk of harm to human health by promoting the following: (i) pollution prevention; (ii) clean production technology; (iii) reuse and recycling of materials; (iv) waste minimisation programs; and

(c) require people engaging in polluting activities to make progressive environmental improvements; and (d) achieve effective integration of environmental, economic, social and cultural considerations in decision-making processes; and (e) facilitate the implementation of national environment protection measures under national scheme laws; and (f) provide for the monitoring and reporting of environmental quality on a regular basis; and (g) ensure that contaminated land is managed having regard to human health and the environment; and (h) coordinate activities needed to protect, restore or improve the ACT environment; and (i) establish a process for investigating and, where appropriate, remediating land areas where contamination is causing or is likely to cause a significant risk— (i) of harm to human health; or (ii) of material environmental harm or serious environmental national scheme law means— (a) the National Environment Protection Council Act 1994 (Cwlth); and (b) the National Environment Protection Council Act 1994.

3D Principles applying to Act (1) A person administering this Act must have regard to the following principles where relevant: (a) the principle of a shared responsibility for the environment, including through— (i) acknowledging environmental needs in economic and social decision-making; and (ii) public education about and public involvement in decisions about protection, restoration and enhancement of the environment; (b) the precautionary principle; (c) the inter-generational equity principle; (d) the waste minimisation principle; (e) the polluter pays principle; (f) the principle of ecologically sustainable development. ecologically sustainable development means the effective integration of economic and environmental considerations in decision-making processes, achievable through implementation of the following: (a) the precautionary principle; (b) the inter-generational equity principle; (c) conservation of biological diversity and ecological integrity; (d) improved valuation and pricing of environmental resources. inter-generational equity principle means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

polluter pays principle means that polluters should bear the appropriate share of the costs that arise from their activities. precautionary principle means that, if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. waste minimisation principle means controlling the generation, storage, collection, transportation, treatment and disposal of waste to reduce, minimise and, where practical, eliminate harm to the environment.

4 Meaning of contaminated land (1) In this Act: contaminated, in relation to land, means the presence in, on or under the land, or a building or structure on the land, of a substance at a concentration above the concentration at which the substance is normally present in, on or under land, or a building or structure on land, in the same locality, if the presence causes, or is likely to cause either or both of the following: (a) a risk of harm to human health; (b) a risk of environmental harm. (2) For subsection (1), land may be contaminated even if it became contaminated partly or entirely by the migration of contaminants into, onto or under the land from other land. (3) However, land is not contaminated only because in any surface water standing or running on the land a substance is present in a concentration above the concentration at which the substance is normally present in, on or under land, or a building or structure on land, in the same locality.

5 Things taken to have impact causing environmental harm For this Act, a thing mentioned in the dictionary, definition of pollutant, paragraphs (a) to (e) is taken to cause environmental harm if— (a) the measure of the pollutant entering the environment exceeds the prescribed measure; or (b) the pollutant entering the environment is a prescribed pollutant.

6 Application of Act to Emergencies Act 2004 (1) This Act does not apply to the exercise or purported exercise by a relevant person of a function under the Emergencies Act 2004 for the purpose of— (a) protecting life or property; or (b) controlling, extinguishing or preventing the spread of a fire. emergency controller—see the Emergencies Act 2004, dictionary. relevant person means— (a) an emergency controller; or (b) a member of the ambulance service; or (c) a member of the fire and rescue service; or (d) a member of the rural fire service; or (e) a member of the SES; or (f) any other person under the control of— (i) an emergency controller; or (ii) the chief officer (ambulance service); or (iii) the chief officer (fire and rescue service); or

(iv) the chief officer (rural fire service); or (v) the chief officer (SES); or (g) a police officer.

7 Construction consistent with certain other laws (1) This Act must be construed and administered in a way that is consistent with an environment law or a health law unless the contrary intention appears from this Act or that law. (2) This Act must be taken to be consistent with an environment law or a health law to the extent that it is capable of operating concurrently with that law. environment law means a territory law that has as 1 of its objects or purposes the protection of the environment. health law means a territory law that has as 1 of its objects or purposes the protection of public health.

8 Limitation of application in relation to certain people and things (1) This Act does not apply in relation to noise made by or a pollutant emitted into the air by— (a) a light rail vehicle or other train; or (b) a Commonwealth jurisdiction aircraft within the meaning of the Air Services Act 1995 (Cwlth); or (c) a person using only the person’s body; or (d) an animal; or

(e) a motor vehicle being driven on a road, unless the motor vehicle— (i) is being driven on the road for the purpose of conducting reliability trials or speed tests; and (ii) has been exempted under the road transport legislation from the provisions of that legislation about attaching silencers to the exhaust pipes of motor vehicles, rules of the road and speed limits during the trials or tests. (2) This Act does not apply to environmental harm that results, or is alleged to result solely from the appearance or siting, or both, of a structure (other than a structure naturally occurring). light rail vehicle—see the Road Transport (General) Act 1999, dictionary. road—see the Road Transport (General) Act 1999, dictionary. road transport legislation—see the Road Transport (General)

9 Civil remedies and common law not affected (1) Except as expressly provided by this Act, nothing in this Act must be taken to affect any civil right or remedy available to a person in relation to conduct to which this Act applies. (2) Compliance with this Act is not, of itself, evidence that a common law duty of care has been satisfied.

10 Criminal liability of the Territory The Territory is liable for an offence against this Act. Note This Act binds all governments, including the Commonwealth (see Legislation Act, s 121 (1) and the Australian Capital Territory (Self-Government) Regulations 2021 (Cwlth)). However, this Act does not make a government (other than the Territory) liable to be prosecuted for an offence (see Legislation Act, s 121 (3)).

Environment Protection Authority Division 2.1

11 Environment Protection Authority The director-general must appoint a public servant as the Environment Protection Authority.

12 Authority’s functions (1) The authority’s functions are— (a) to administer this Act; and (b) any other function given to the authority by this Act or another territory law. (2) In the exercise of the authority’s functions, the authority must have regard to the objects stated in section 3C. Note A provision of a law that gives an entity (including a person) a function also gives the entity the powers necessary and convenient to exercise the function (see Legislation Act, s 196 (1) and dict, pt 1, defs of entity and function).

13 Delegation by authority The authority may delegate the authority’s functions under this Act or another territory law to— (a) a public servant; or

(b) an officer or employee of a State or Commonwealth agency, if the functions of the State or Commonwealth agency relate, directly or indirectly, to the protection of the environment in the State or Commonwealth. Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1). Note 2 For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4. Note 3 In exercising the delegation, the delegate is subject to any conditions, limitations or directions in the instrument making or evidencing the delegation (see Legislation Act, s 239).

14 Authorised officers (1) The director-general may appoint a public servant as an authorised officer. (2) The authority is also an authorised officer. (3) In addition to the powers given to an authorised officer under this Act, an authorised officer also has powers given to the officer under any other territory law.

15 Analysts (1) The authority may appoint a person as an analyst for this Act.

Environment Protection Authority Division 2.1 (2) An analyst under the Public Health Act 1997, section 15 is also an analyst for this Act. Note Analyst includes the government analyst (see Public Health Act 1997, dict).

16 Identity cards (1) The director-general must issue to the authority an identity card that specifies the authority’s name and office, and on which appears a recent photograph of the authority. (2) The authority must issue to an authorised officer an identity card that specifies the authorised officer’s name and office, and on which appears a recent photograph of the authorised officer. (3) The authority must issue to an analyst an identity card that specifies the analyst’s name and office, and on which appears a recent photograph of the analyst. (4) On ceasing to occupy, or to act in— (a) the office of the authority; or (b) to occupy, or to act in, an office of authorised officer or analyst; a person must not, without reasonable excuse, fail to return the person’s identity card to the director-general or the authority, as the case may be. Maximum penalty (subsection (4)): 1 penalty unit.

17 Disclosure of interests (1) If the authority discloses a conflict of interest in accordance with the Public Sector Management Act 1994, section 9 (1) (b), the authority must not, unless the director-general otherwise decides, make a decision in relation to the matter.

(2) Unless the director-general decides that the authority should make a decision in relation to the matter, the director-general must appoint another public servant (the acting authority) to act as the authority for making a decision in relation to the matter. nominating the occupant of a position (see Legislation Act, s 217). (3) The instrument of appointment must state the period for which the acting authority is appointed. (4) For making a decision in relation to the matter, the acting authority may exercise all the functions of the authority. (5) For this Act, a decision made by the acting authority is taken to have been made by the authority. (6) This section does not prevent the authority from continuing to exercise the functions of the authority in relation to any other matter during the period for which the acting authority is appointed.

18 Legal immunity (1) No civil or criminal proceedings lie against a person who is, or has been the authority, an authorised officer or an analyst for an act or omission done honestly in the exercise or purported exercise of a function given to the person in that capacity for this Act. (2) Subsection (1) does not affect any liability that the Territory would, apart from that subsection, have in relation to an act or omission mentioned in that subsection. (3) The Territory is vicariously liable in relation to a tort committed by a person in the exercise or purported exercise of a function given to the person for this Act, if the exercise or purported exercise is in the course of the person’s capacity as a public employee.

Public access to documents Division 2.2

19 Public access to documents (1) The authority must make the following documents available to the public: (a) any environmental authorisation granted by the authority including details of the conditions to which the authorisation is subject, the person holding that authorisation and whether the authorisation is in effect; (b) any environmental improvement plan submitted in compliance with a requirement by the authority; (c) any emergency plan approved by the authority; (d) an environment protection policy made under part 4; (e) codes of practice accredited under part 5; (f) any environmental protection agreement entered into by the authority; (g) any environment protection order; (h) any document setting out the results of a review of an environmental authorisation; (i) results given to the authority of monitoring or testing required by the authority to be conducted under an environmental authorisation, environmental protection agreement or environment protection order; (j) the list of auditors approved under section 75; (k) environmental audit reports under division 9.2; (l) the list of authorised officers; (m) an order under section 91C (1) (Order to assess whether land contaminated);

(n) an assessment under section 91C (4) (a); (o) an environmental audit under section 91C (4) (b); (p) an order under section 91D (1) (Order to remediate land); (q) an environmental audit under section 91D (4) (b); (r) the register of contaminated sites kept under section 21A; (s) any document prescribed by regulation. (2) The authority must make a document mentioned in subsection (1) available by— (a) making the document available for inspection without charge during ordinary business hours at an ACT government office; or (b) making the document accessible without charge on an ACT government website, or by a link on an ACT government website; or (c) if a person requests a copy of the document—giving the person a copy of the document on payment of any reasonable copying costs. (3) This section is subject to section 21 (Exclusion of material from public access).

21 Exclusion of material from public access (1) This section applies if a person provides a document to the authority in relation to— (a) the grant, variation or review of an environmental authorisation; or (b) the submission of an environmental improvement plan; or (c) the approval of an emergency plan; or (d) the entry into an environment protection agreement; or

Public access to documents Division 2.2 (e) the making of an order under— (i) section 91C (1) (Order to assess whether land contaminated); or (ii) section 91D (1) (Order to remediate land); or (f) the making of an environment protection order; or (g) setting out the results of monitoring or testing required by the authority to be conducted; or (h) the submission of an environmental audit report; or (i) the conduct of an activity to which section 159A (National pollutant inventory—provision of information) applies. (2) The person, or another person whose interests are affected by the provision of the document, may apply to the authority to exclude the document, or a stated part of the document, from public access under section 19 because— (a) public access to the document or part of the document— (i) would reveal a trade secret; or (ii) would, or would reasonably be expected to, adversely affect the applicant in relation to the lawful business affairs of the applicant; and (b) it would not be in the public interest for the document or part of the document to be published. (3) The application must— (b) be made at the same time as the document is provided to the authority.

(4) If the authority is satisfied of the matters mentioned in subsection (2) (a) and (b), it must— (a) for a document—not make the document available to the public under section 19; or (b) for part of a document— (i) exclude that part from any copy of the document made available to the public under section 19; and (ii) include a statement in the copy made available to the public that an unspecified part of the document has been excluded to protect the confidentiality of information in the excluded part. (5) The authority must not make a document, or part of a document, that is the subject of an application available to the public under section 19 until the later of— (a) 28 days after the authority makes a decision on the application; and (b) if an entity applies to the ACAT for review of the decision— the application (including any appeal) has been decided.

21A Register of contaminated sites (1) The authority must keep a register of contaminated sites. (2) The register— (a) may be in electronic form; and

Register of contaminated sites Division 2.3 (b) must contain particulars of land in relation to— (i) an order under section 91C (1) (Order to assess whether land contaminated), section 91D (1) (Order to remediate land) or section 125 (2) or (3) (Environment protection orders); and (ii) a requirement to commission an environmental audit under section 76 (2) (Authority may require environmental audit); and (iii) a notice under section 76A (1) (Requests for auditor’s statements) not relating to an order or requirement mentioned in subparagraph (i) or (ii). (3) The authority must make an entry in the register— (a) for an order under section 91D (1)—if satisfied that the remediation of the land has been conducted as mentioned in section 91D (4) (a); and (b) for an order under section 125 (2) or (3)—if the authority is no longer satisfied as mentioned in that section, or the order is revoked, whichever happens first. (4) The authority must remove an entry from the register— (a) for an entry made under subsection (2) (b) (i) in relation to an order under section 91C (1)—within 60 days after receiving an environmental audit of assessment under section 91C in relation to the entry unless the authority has, within that period, made an order under section 91D (1) or section 125 (2) or (3); or (b) for an entry made under subsection (2) (b) (ii) or (iii)—within 60 days after receiving the audit required under section 76 (2) or the site audit statement mentioned in section 76A (2) in relation to the entry unless, within that period— (i) the authority has entered into an environmental protection agreement under section 38 (Entering agreements); or

(ii) a condition or annotation has been included on the crown lease or title for the land in relation to the environmental audit; or (c) in any case—if the authority decides, based on advice from an approved auditor under section 75 (Certain auditors to be approved), that ongoing management of the land is no longer required. (5) As soon as practicable after entering particulars of land in the register or removing an entry from the register, the authority must give written notice of the entry or removal to— (a) the territory planning authority; and (b) if the land is in a designated area—the national capital authority. designated area—see the Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), section 4, definition of Designated Area.

21B Notification of making of certain entries in register (1) If the authority makes an entry in the register under section 21A (2) (b) or (3) or removes an entry under section 21A (4), the authority must prepare a notice stating that the entry has been made or removed. (2) The notice must state where the following documents are available to the public under section 19: (a) an order under section 91C (1) (Order to assess whether land contaminated); (b) an assessment under section 91C (4) (a); (c) an environmental audit under section 91C (4) (b); (d) an order under section 91D (1) (Order to remediate land);

Register of contaminated sites Division 2.3 (e) an environmental audit under section 91D (4) (b). (3) The notice is a notifiable instrument. (4) The authority must give additional public notice of the notice. requirement in s (4) is in addition to the requirement for notification on

22 General environmental duty (1) A person must take the steps that are practicable and reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person. (2) In deciding whether a person has complied with the general environmental duty, regard must first be had, and greater weight must be given, to the risk of the environmental harm or environmental nuisance involved in conducting the activity, and, in addition, regard must then be had to— (a) the nature and sensitivity of the receiving environment; and (b) the current state of technical knowledge for the activity; and (c) the financial implications of taking the steps mentioned in (d) the likelihood and degree of success in preventing or minimising the environmental harm or environmental nuisance of each of the steps that might be taken; and (e) other circumstances relevant to the conduct of the activity. (3) Subject to section 125, section 143 and section 160, failure to comply with the general environmental duty does not of itself— (a) give rise to a civil right or remedy; or (b) constitute an offence; or (c) constitute grounds for action under this Act.

Environmental duties Part 3

23 Duty to notify of actual or threatened environmental harm (1) Subject to subsection (2), this section applies to a person conducting an activity who becomes aware that the activity has caused, is causing or is likely to cause serious or material environmental harm from pollution (an environmental situation). (2) This section does not apply if the environmental harm or potential environmental harm is authorised by or under this Act or another territory law. (3) As soon as reasonably practicable after becoming aware of the environmental situation, the person must notify the authority of the environmental situation, its nature and the action taken to deal with the situation and any environmental harm that has been caused. (4) Subject to subsection (5), a person must not, without reasonable excuse, contravene subsection (3). (5) A person is not required to notify the authority of an environmental situation if the person has reasonable grounds for believing that the environmental situation has already come to the notice of an authorised officer.

23A Duty to notify existence of contaminated land (1) A relevant person in relation to land must notify the authority, in writing, as soon as practicable after becoming aware that the land is contaminated in such a way as to present, or to be likely to present— (a) a significant risk of harm to human health; or (b) a risk of material environmental harm or serious environmental (2) A relevant person must not, without reasonable excuse, contravene subsection (1).

(a) the occupier of the land; or (b) if the occupier is not the lessee—the lessee; or

Environment protection policies Part 4

23B Definitions for pt 4 consultation period—see section 25 (1). draft environment protection policy includes a draft amendment of an environment protection policy, other than an amendment proposing changes solely of a formal nature. environment protection policy includes an amendment or repeal of an environment protection policy.

24 Contents Environment protection policies are documents prepared by the authority, in accordance with this part and relevant best practice, setting out— (a) guidelines to which the authority must have regard in administering this Act generally or in relation to specified functions of the authority; or (b) guidelines for effective environment protection and management within a particular industry or for the community generally; or (c) matters that the authority may take into account in relation to the making of a decision in the exercise of a discretion under this Act.

25 Consultation on draft environment protection policy (1) If the authority prepares a draft environment protection policy, the authority must also prepare a notice— (a) containing a brief description of the draft policy; and (b) stating where the draft policy is available to the public; and (c) inviting anyone to make suggestions or comments about the draft policy to the authority, at the place stated in the notice, within 40 working days after the day the notice is notified under the Legislation Act (the consultation period). (3) The authority must give additional public notice of the notice. (4) During the consultation period, the authority must make the draft environment protection policy available to the public in accordance with the notice. (5) The authority must also send a copy of a draft policy, without charge, to an entity prescribed by regulation.

26 Consideration of suggestions etc and revision of draft environment protection policy (1) The authority must consider the suggestions and comments made to it during the consultation period about the draft environment protection policy. (2) The authority may, in writing, revise the draft environment protection policy in accordance with any of the suggestions or comments.

Environment protection policies Part 4

27 Making of environment protection policy (1) After complying with section 26 in relation to the draft environment protection policy, the authority may submit the draft policy (as revised, if at all, under that section) to the Minister for consent to make the policy. (2) If the Minister consents, the authority must make the draft policy as an environment protection policy.

28 Notification of environment protection policies etc (1) An environment protection policy is a notifiable instrument. (2) If an environment protection policy is made, public notice must be given of the following: (a) a brief description of the policy; (b) a statement of when the policy takes effect; (c) a statement of where the policy is made available to the public under section 19. newspaper circulating in the ACT (see Legislation Act, dict, pt 1).

30 Legal character Despite any other territory law, an environment protection policy— (a) must be taken for all purposes to be an instrument of an administrative character; and (b) must not be taken for any purpose to be an instrument of a legislative character.

31 Accrediting codes of practice (1) The Minister may accredit a code of practice that sets out ways of achieving compliance with the general environmental duty when— (a) a specified activity or a group of related activities; or (b) some or all of the activities carried on within a particular industry; is conducted that causes or is likely to cause environmental harm. (2) The Minister may accredit a code of practice under subsection (1) only if satisfied that the code has been prepared in consultation with people or organisations representing those conducting an activity or carrying on the industry to which the code relates, and the public. (3) A code of practice accredited under subsection (1) is a disallowable instrument.

32 Public notice of accredited codes of practice (1) Within 10 working days after the day an accredited code of practice is notified under the Legislation Act, the Minister must give additional public notice of the accreditation. requirement in s (1) is in addition to the requirement for notification on the legislation register as a disallowable instrument. (2) A public notice under subsection (1) must state where the accredited code of practice is available to the public under section 19 (Public access to documents).

Accredited codes of practice Part 5

33 Deemed compliance with general environmental duty A person is taken to have complied with the general environmental duty in conducting an activity if the person has substantially complied with the code of practice accredited under section 31 (1) for the activity.

34 Schemes for economic measures The authority may develop and implement schemes involving economic measures as a means of achieving the objects of this Act, examples of which include bubble licence schemes and tradeable permit schemes.

35 Bubble licences A bubble licence scheme may include 1 or both of the following: (a) the determination of the aggregate measure of a pollutant that is permitted to enter the environment as a result of activities conducted by a group of people or on a group of sites; (b) the apportionment from time to time of the aggregate measure among the members of the group.

36 Tradeable permits A tradeable permit scheme may include any of the following: (a) the determination of the aggregate measure of a pollutant that is permitted to enter the environment, whether for the whole of the ACT or a particular part of the ACT; (b) the creation of tradeable emission permits or credits; (c) the allocation (whether by sale or otherwise) from time to time of tradeable permits or credits.

Economic measures Part 6

37 Regulation may make provision for schemes (1) A regulation may make provision in relation to schemes under this part, including regulating or prohibiting certain conduct. (2) A regulation under subsection (1) may be inconsistent with another part of this Act to the extent to which they authorise or prohibit certain conduct that apart from the regulation would not be authorised, and, in the event of an inconsistency, the regulation prevails. Note A reference to a provision of an Act includes a reference to the statutory instruments made or in force under the provision, including regulations (see Legislation Act, s 104).

Part 7 Environmental protection agreements

38 Entering agreements (1) Under section 42 (2) (a) or otherwise giving effect to the objects of this Act, the Authority may enter into an environmental protection agreement in relation to an activity with the person who is conducting, or proposing to conduct, the activity. (2) The authority must give the person in subsection (1) a copy of the agreement.

39 Form and terms of agreements An environmental protection agreement— (a) must be in writing executed by the parties to the agreement; and (b) has effect for a specified period, unless terminated earlier in accordance with the agreement; and (c) may contain terms providing for any matter that the parties agree is appropriate for furthering the objects of this Act, for example, agreeing— (i) to take specified action, to comply with an industry standard or code of practice or to comply with other specified standards (including prescribed standards), for the purpose of preventing, minimising or eliminating environmental harm caused or likely to be caused by the activity; or (ii) to meet progressively higher standards for the prevention, minimisation or elimination of environmental harm caused or likely to be caused by the activity; or (iii) to provide for how the agreement will operate if there is a change in the person who is conducting the activity; or

Environmental protection agreements Part 7 (iv) to provide for the consequences of a party breaching the agreement, including the circumstances in which a party may terminate for breach; or (v) to provide for the circumstances in which and the method by which a party may terminate the agreement; and (d) may be varied in writing by the parties, including by extending the term of the agreement.

40 Effect of agreements (1) An environmental protection agreement does not relieve a party to the agreement from any obligation or duty under this Act or another law. (2) No action or proceeding lies against a party to an environment protection agreement arising out of an act or omission only because it constitutes a breach of the agreement.

41 Notification of environmental protection agreements (1) If the authority enters into an environmental protection agreement under section 38 (Entering agreements), the authority must prepare a notice stating that the agreement— (a) has been entered into; and (b) is available to the public under section 19 (Public access to documents). (3) Within 10 working days after the day an environmental protection agreement is notified under the Legislation Act, the authority must give additional public notice of the accreditation.

(4) The Minister may declare that this section does not apply to an environmental protection agreement if satisfied that the implementation of the agreement— (a) is not likely to cause environmental harm; or (b) is likely to cause environmental harm, but not material (5) A declaration under subsection (4) is a disallowable instrument.

Interpretation for pt 8 Division 8.1A

Division 8.1A Interpretation for pt 8

41A Meaning of environmental authorisation environmental authorisation includes an authorisation that is declared under section 67A to be a recognised environmental authorisation to which division 8.2 applies. Division 8.1 Requirements to hold and comply with an authorisation

42 Conducting prescribed classes of activities (1) A person must not conduct an activity listed in schedule 1 as a class A activity unless the person holds an environmental authorisation in relation to that activity. (2) A person must not conduct an activity listed in schedule 1 as a class B activity unless the person— (a) is a party to an environmental protection agreement that is in effect in relation to that activity; or (b) holds an environmental authorisation in relation to that activity.

43 Authority may require environmental authorisation (1) Subject to subsection (2), the authority may notify a person in writing that the person is not to conduct, or continue to conduct, a specified activity unless the person holds an environmental authorisation in relation to that activity.

Division 8.1 Requirements to hold and comply with an authorisation (2) The authority may notify a person under subsection (1) if the authority has reasonable grounds for believing— (a) that, in conducting the specified activity, the person has contravened, is contravening or is likely to contravene a (b) that, as a result, serious or material environmental harm has happened, is happening or is likely to happen. (3) A notice under subsection (1) must contain a statement to the effect that, if the person wishes to obtain an environmental authorisation in relation to the specified activity, the person must lodge an application under section 47 on or before the date specified in the notice (not less than 10 working days after the date of the notice). (4) The authority may, on application or on the authority’s own initiative, revoke a notice under subsection (1) by written notice specifying the date when the revocation takes effect.

44 Conducting activities other than prescribed activities (1) A person who is served with a notice under section 43 (1) must not conduct, or continue to conduct, the activity described in the notice unless the person holds an environmental authorisation in relation to that activity. (2) A person does not commit an offence against subsection (1)— (a) on or before the date specified in the notice by which an application for an environmental authorisation must be lodged; or (b) if the person lodges an application on or before that date—while a decision on the application is pending; or (c) if the notice is revoked—on or after the date of revocation.

45 Compliance with authorisation (1) A person must not contravene an environmental authorisation. (2) If— (a) a court finds a person guilty of an offence against subsection (1) the circumstances of which were— (i) that the person caused the entry into the environment of a measure of a pollutant in excess of the measure authorised by the environmental authorisation; and (ii) that, as a result, environmental harm was caused or likely to be caused; and (b) the court, in deciding the penalty (if any) to be imposed on the person, considers it relevant to have regard to the environmental harm caused, or likely to be caused, in the commission of the offence; the court must have regard to all the circumstances of the offence including— (c) the conditions of the environmental authorisation; and (d) the environmental harm caused by the excess pollutant. Division 8.2 Grant, variation, cancellation and suspension

46 Kinds of authorisation (1) The authority may, on application, grant— (a) a standard environmental authorisation in relation to any prescribed activity; or

(b) an accredited environmental authorisation in relation to a prescribed activity in relation to which effect has been given or is being given to an environmental improvement initiative; or (c) a special environmental authorisation in relation to a prescribed activity that is being conducted for the purposes of research and development, including for the purpose of trialling experimental equipment. environment improvement initiative means— (a) an environmental protection agreement that has as one of its terms a requirement that a party comply with a code of practice accredited under section 31; or (b) an environmental improvement plan accredited under section 72; or (c) a prescribed standard of the International Organization for Standardization; or (d) a prescribed initiative.

47 Application (1) A person who is conducting or proposing to conduct a prescribed activity may apply to the authority for an environmental authorisation in relation to that activity. (2) An application— (a) must specify the kind of environmental authorisation applied for; and (b) if that kind is an accredited or special environmental authorisation—may specify that in the alternative a standard environmental authorisation is applied for.

(3) If the applicant is not the lessee of the land (or for land under a land sublease, the sublessee) on which the activity is being conducted, or is proposed to be conducted, the application must be accompanied by the written consent to the making of the application of— (a) if the land is leased— (i) the lessee; or (ii) for land under a land sublease—the sublessee and sublessor; or Note A sublessor, under a land sublease, is the lessee under the Crown lease under which the sublease is granted. (b) if the land is unleased territory land—the Territory; or (c) if the land is unleased national land—the Commonwealth.

48 Consultation on application for environmental (1) If the authority receives an application under section 47 in relation to a prescribed activity (other than a prescribed activity to which a declaration under subsection (6) applies), the authority must prepare a notice— (a) containing a brief description of the prescribed activity and its location; and (b) indicating where copies of the application may be obtained; and (c) inviting anyone to make submissions about the application to the authority, at the place stated in the notice, no later than the date (the relevant date) stated in the notice. (2) The relevant date must be at least 15 working days after the day the notice is notified under the Legislation Act. (3) The notice is a notifiable instrument.

(4) Within 10 working days after the day the notice mentioned in subsection (1) is notified under the Legislation Act, the authority must give additional public notice of the notice. requirement in s (4) is in addition to the requirement for notification on (5) The Minister may declare that this section does not apply to a prescribed activity. (6) A declaration under subsection (5) is a disallowable instrument.

49 Grant (1) Subject to section 61, the authority must, within 20 working days of the receipt of an application under section 47, or within 20 working days of the date specified in a notice under section 48 (1) (c) and after taking into account any submissions received in response to that notice, as the case requires— (a) grant an environmental authorisation in relation to a specified activity, for the period and subject to the conditions (if any) specified in the authorisation; or (b) refuse to grant an environmental authorisation in relation to a specified activity; or (c) require the applicant to provide further specified information by a specified date, not earlier than 10 working days after the date of the notice; or (d) request the Minister under section 94 to direct that an EIS be prepared in relation to the possible environmental impact of a specified activity.

(2) If under subsection (1) (c) the authority requires the applicant to provide further information, the authority must within 10 working days after receiving the further information— or subsection (1) (b); or (c) make a request of the Minister under subsection (1) (d). (3) If within 20 working days after the authority makes a request under subsection (1) (d) or (2) (c) the Minister has not acceded to the request, the authority must— or subsection (1) (b); or (c) require further information under subsection (1) (c). (4) If under subsection (3) (c) the authority requires the applicant to provide further information, the authority must within 10 working days after receiving the further information— or subsection (1) (b). (5) Subsection (6) applies if— (a) before the authority makes a decision granting or refusing to grant an environmental authorisation under subsection (1), (2), (3) or (4), the Minister, on the Minister’s own initiative under section 94, directs that an EIS be prepared in relation to the possible environmental impact of the specified activity; or

(b) before the authority makes a decision granting or refusing to grant an environmental authorisation under subsection (3), the Minister agrees to a request under subsection (1) (d) or (2) (c). (6) The authority must, not later than 20 working days after the day the EIS is finalised— or subsection (1) (b). (7) The authority must give written notice of its decision to anyone who has made a submission in relation to the application under section 48 (1) (c). Note See s 136 for the requirement to notify other people. (8) In this section: finalised, for an EIS (other than a public health EIS), means the day the EIS is finalised under the Planning Act 2023, section 128 as applied by this Act, section 94A. public health EIS—see the Planning Act 2023, dictionary.

50 Notification of grant (1) The authority must notify the applicant of its decision under section 49 granting an environmental authorisation. (a) if the authorisation fee is payable by instalments— (i) specify the amount of each instalment or the rate at which, or the formula or other method by which, each instalment is to be calculated; and

(ii) specify the due date for each instalment; or (b) specify the amount of the authorisation fee and state that the fee is payable as a lump sum. (3) The authority must also prepare a notice stating that the authorisation— (a) has been granted; and (b) is available to the public under section 19 (Public access to documents). (4) The notice under subsection (3) is a notifiable instrument. (5) The notice must be notified under the Legislation Act within 10 working days after the day the decision is notified under subsection (1). (6) The Minister may declare that subsections (3) to (5) do not apply to an authorisation if satisfied that the activity authorised, if carried out in accordance with any conditions stated in the authorisation— (a) is not likely to cause environmental harm; or (b) is likely to cause environmental harm, but not material (7) A declaration under subsection (6) is a disallowable instrument.

51 Kinds of conditions Subject to section 61, the conditions that the authority may impose under section 49 (1) (a) or section 60 are— (a) conditions for the purposes of ensuring compliance with this Act and relevant best practice, including, for example— (i) that the applicant commission an environmental audit in relation to a specified matter and submit for consideration by the authority under section 77 a report of the audit; or

(ii) that the applicant prepare and submit to the authority for approval under section 71 a draft environmental improvement plan; or (iii) that the applicant prepare and submit to the authority for approval under section 84 a draft emergency plan; or (iv) that the applicant provide to the authority under section 85 a financial assurance of a specified kind and amount; or (v) that the applicant give to the authority specified information regarding the environmental impact of the activity at any specified time or times during the period of the environmental authorisation; or (vi) that the applicant conduct specified environmental monitoring or testing; or (vii) that the applicant comply with a specified provision of an industry standard or code of practice, that relates to minimising environmental harm or likely environmental harm; or (viii) that the applicant comply with specified prescribed standards; or (ix) that the applicant not begin the specified activity until the authority is satisfied of specified matters; and (b) any other conditions the authority considers necessary.

52 Period of authorisation (1) Environmental authorisations may be granted for the following periods: (a) for a standard environmental authorisation or an accredited (i) an unlimited period; or (ii) a specified period of not longer than 3 years; (b) for a special environmental authorisation—a specified period of not longer than 3 years. (2) A standard environmental authorisation or accredited environmental authorisation granted for an unlimited period— (a) takes effect on the day after the day when— (i) if the annual fee under section 53 for the first year of the authorisation is payable by instalments—the first instalment is paid; or (ii) if the annual fee under section 53 for the first year of the authorisation is payable as a lump sum—the fee is paid; and (b) has effect until— (i) the authorisation is cancelled under section 55 or section 63; or (ii) the authorisation is surrendered under section 66. (3) An environmental authorisation granted for a specified period— (a) takes effect on the day after the day when— (i) if the whole of period fee under section 53 for the authorisation is payable by instalments—the first instalment is paid; or

(ii) if the whole of period fee under section 53 for the authorisation is payable as a lump sum—the fee is paid; and (b) has effect until— (i) the end of the period specified in the authorisation; or (ii) the authorisation is cancelled under section 55 or section 63; or (iii) the authorisation is surrendered under section 66.

53 Authorisation fees (1) The holder of a standard environmental authorisation granted for an unlimited period is liable to pay an annual fee for each year or part of a year that the authorisation is in effect. (2) The holder of an environmental authorisation granted for a specified period is liable to pay a whole of period fee for the whole of the period for which the authorisation is granted. (3) The holder of an accredited or special environmental authorisation is entitled to a reduction in the whole of period fee that would have been payable if, instead of that kind of environmental authorisation, the holder had been granted a standard environmental authorisation.

55 Nonpayment of fees (1) If the holder of an environmental authorisation fails to pay an amount determined in relation to the authorisation when it is due, the authority must, by written notice to the holder— (a) require that the amount be paid by the day specified in the notice; and (b) advise the holder that, if the amount is not paid on or before that day, the authorisation will be cancelled.

(2) The authority must cancel an environmental authorisation if— (a) a notice under subsection (1) has been sent to the holder of the authorisation; and (b) the amount due has not been paid by the day specified in the notice.

57 Review of certain authorisations (1) The authority must review a standard environmental authorisation granted for an unlimited period at least once— (a) within 5 years after the day the authorisation first comes into effect; and (b) in each further 5-year period during which the authorisation continues to have effect. (2) The authority must review a special environmental authorisation granted for a specified period longer than 1 year annually. (3) The authority may also review a standard or special environmental authorisation at any time that the authorisation is in effect. (4) After conducting a review under this section, the authority may take action under this Act or decide not to do so. Note Section 61 requires the authority to take into account certain matters in making a decision under this section.

58 Review of accredited environmental authorisations (1) The authority must, at least once in every 3 years after the grant of an accredited environmental authorisation, review the accreditation. (2) After conducting a review, the authority may take action under this section or decide not to do so.

(3) If as a result of the review and after taking into account the matters mentioned in section 61, the authority is of the opinion that the activity conducted under the authorisation should not continue to be an accredited environmental authorisation, the authority must cancel the accredited environmental authorisation. (4) If the authority takes action under subsection (3), the authorisation is taken (in relation to activities conducted after the date of cancellation) to be a standard environmental authorisation and to have been granted under section 49 for the unexpired period of the former accredited

59 Notification of review of environmental authorisations (1) When a review under section 57 (1) or section 58 (1) is finished, the authority must prepare a notice— (a) stating the outcome of the review; and (b) indicating that a copy of the review is available to the public under section 19 (Public access to documents). (3) Within 10 working days after the day the notice mentioned in subsection (1) is notified under the Legislation Act, the authority must give additional public notice of the notice.

60 Variation (1) Subject to section 61 and section 62, the authority may vary an environmental authorisation by written notice to the holder of the authorisation— (a) on application by the holder; or (b) if this Act has been amended since the authorisation was granted; or (c) if the authority has reasonable grounds for believing— (i) that— (A) in conducting the authorised activity, the holder has contravened, is contravening or is likely to contravene the environmental authorisation, an environment protection order or a provision of this Act; and (B) as a result, serious or material environmental harm has happened, is happening or is likely to happen; or (ii) that the potential for the authorised activity to cause serious or material environmental harm has changed; or (iii) that the circumstances in which the environmental authorisation was granted or previously varied have changed in a material respect; or (iv) that the environmental authorisation was granted or previously varied on the basis of false or misleading information. (2) The authority may not vary the term of an environmental authorisation under this section.

61 Matters required to be taken into account for certain decisions under div 8.2 In making a decision under section 49 (1), section 51, section 57 or section 60 (1), the authority must take into account— (a) the potential for the activity to cause environmental harm, including the likelihood over time of that potential changing or that harm being serious or material environmental harm; and (b) the environmental record of the applicant; and (c) any relevant environment protection policy; and (d) the actual or potential economic, social and cultural benefits that are being or would be derived from the activity; and (e) for a decision under section 60— (i) the environmental record of the applicant since the environmental authorisation was granted or last varied, as the case may be; and (ii) any submissions made in response to an invitation under section 62 (1) (c); and (f) if the activity relates to a function of the director-general under the Water Resources Act 2007—any advice of the director-general in relation to the activity; and Note The director-general’s functions under the Water Resources Act 2007 are set out in that Act, s 64. (g) any other matters that the authority considers relevant.

62 Notice of intention to vary an authorisation (1) Subject to subsection (2), before acting under section 60, the authority must give the holder of the environmental authorisation a notice— (a) stating that the authority is proposing to vary the authorisation; and

(b) stating the nature of, and the reasons for, the proposed variation; and (c) inviting a written submission on the proposed variation on or before a specified date, being a date 10 working days after the date of the notice. (2) This section does not apply if— (a) the variation is for the sole purpose of correcting an error or omission of a formal nature and the holder of the authorisation has given written consent to the variation; or (b) the authority— (i) has reasonable grounds for believing that the authorised activity is causing, or in the immediate future will cause or is likely to cause, serious or material environmental harm; and (ii) is satisfied that the variation will assist in reducing or preventing that harm; or (c) the variation is in accordance with an application under section 60 (1) (a).

63 Suspension and cancellation (1) Subject to section 64, the authority may suspend or cancel an environmental authorisation by written notice to the holder of the authorisation if the authority has reasonable grounds for believing— (a) that— (i) in conducting the authorised activity, the holder has contravened or is contravening the environmental authorisation, an environment protection order or a (ii) as a result, serious or material environmental harm has happened, is happening or is likely to happen; or

(b) that the holder has ceased to conduct the authorised activity; or (c) that the environmental authorisation was granted or varied on the basis of false or misleading information. (2) An environmental authorisation may be suspended under subsection (1) until the authority is satisfied that specified conditions are fulfilled. (3) In making a decision under subsection (1), the authority must take into account— (a) the environmental record of the applicant since the environmental authorisation was granted or last varied, as the case requires; and (b) any submissions made in response to an invitation under section 64 (c).

64 Notice of intention to suspend or cancel an authorisation Before acting under section 58 or section 63, the authority must give the holder of the environmental authorisation a notice— (a) stating that the authority is— (i) under section 58—proposing to cancel the authorisation; or (ii) under section 63—proposing to suspend or cancel the authorisation, as the case may be; and (b) stating the reasons for the proposed suspension or cancellation; and (c) inviting a written submission on the proposed suspension or cancellation on or before a specified date, being a date 10 working days after the date of the notice.

65 Effect of suspension For this Act, if an environmental authorisation to conduct an activity is suspended, the conduct of the activity is taken not to be authorised during the period of the suspension.

66 Surrender of environmental authorisation The holder of an environmental authorisation may surrender the authorisation by written notice to the authority.

67 Notification of ceasing activity If the holder of an environmental authorisation ceases permanently to conduct the authorised activity, the holder must not fail, without reasonable excuse, to notify the authority in writing within 10 working days of that cessation. Maximum penalty: 10 penalty units.

67A Recognised environmental authorisations (1) The Minister may declare a licence, authorisation, permit, notice or approval issued, granted or given under a law of a State or another Territory to conduct a class of activity specified in schedule 1, section 1.2 to be a recognised environmental authorisation to which this division applies. (2) A declaration under subsection (1) is a disallowable instrument.

68 Contents of environmental improvement plan (1) For section 69, an environmental improvement plan in relation to an activity must, having regard to relevant best practice, specify— (a) the matters addressed by the plan; and (b) the ways in which the conduct of the activity will be altered— (i) to minimise or reduce the adverse environmental impact of the activity; and (ii) to ensure that the activity is conducted in accordance with this Act; and (c) a timetable for the implementation of each part of the plan. (2) An environmental improvement plan may include a requirement that specified monitoring or testing be conducted to assess the environmental impact of the activity.

69 Authority may require environmental improvement plan (1) The authority may by written notice require a person conducting, or proposing to conduct, an activity to prepare or cause to be prepared and to submit for approval to the authority a draft environmental improvement plan in relation to the activity if the authority— (a) has reasonable grounds for believing— (i) that, in conducting the activity, the person has contravened, is contravening or is likely to contravene an environmental authorisation, an environment protection order or a (ii) that, as a result, serious or material environmental harm has happened, is happening or is likely to happen; and

Environmental improvement plans Division 9.1 (b) is satisfied that changes in the method of conducting the activity would reduce the likelihood of that contravention or resultant (a) specify the grounds on which the draft environmental improvement plan is required; and (b) outline the facts and circumstances forming the basis for the grounds; and (c) specify any particular matters that must be addressed in the draft plan; and (d) specify a date, not earlier than 20 working days after the date of the notice, on or before which the person must submit the draft plan to the authority; and (e) specify— (i) the fee that must be paid when the draft plan is submitted; or (3) A person must not fail to comply with a notice under subsection (1).

71 Approval of environmental improvement plan (1) If the authority receives a draft environmental improvement plan submitted in compliance with— (a) a notice under section 69 (1); or

the authority must, within 20 working days of that receipt, by written notice— (c) approve the draft plan and require the person who submitted the plan to implement the plan as approved; or (d) reject the draft plan and require the person to— (i) amend the draft plan in accordance with any requirements specified in the notice; and (ii) resubmit the draft plan to the authority. (2) If the authority requires a person to resubmit a draft plan under subsection (1) (d), the authority must, by written notice to the person within 10 working days of receipt of the resubmitted draft plan— (a) approve the draft plan and require the person to implement the plan as approved; or (b) reject the draft plan. (3) A person must not fail to comply with— (a) a notice under subsection (1) (c) or (2) (a) requiring the person to implement the plan approved under that paragraph; or (b) a notice under subsection (1) (d) requiring the person to amend the draft plan and resubmit it to the authority.

72 Accreditation of voluntary improvement plans (1) A person who is conducting, or proposing to conduct, an activity may apply to the authority for accreditation of an environmental improvement plan in relation to the activity that the person has, on the person’s own initiative, prepared or caused to be prepared.

(2) An application must include— (a) a request that the plan be accredited under this section; and (b) a copy of the plan, specifying the period during which the plan is proposed to be implemented and the measures proposed to be taken under the plan to achieve the best environmental practice. (3) The authority may accredit an environmental improvement plan under this section if satisfied that, as a result of implementing the plan, over the specified period environmental harm would be reduced to the maximum extent reasonably possible. (4) In making a decision under subsection (3), the authority must take into account— (a) the extent to which the objects of this Act would be furthered by accrediting the plan; and (b) the nature of the activity, particularly the potential of the activity to cause serious or material environmental harm; and (c) the state of available technology.

73 Meaning of auditor for div 9.2 In this division: auditor, in relation to an environmental audit, means the person who conducts the audit.

74 Conduct of audits (1) For section 76 or section 78, an environmental audit is an assessment of an activity to decide— (a) the source, cause or extent of environmental harm being caused, or likely to be caused, by the activity; and

(b) the need for any alteration of management practices to reduce the environmental impact of the activity; and (c) the extent and nature of any contravention, or likely contravention, of an environmental authorisation, an environment protection order or a provision of this Act. (2) An environmental audit must consider— (b) the permitted and approved uses of the land to which the audit relates; and (c) any relevant environmental protection policies; and (d) any relevant national environment protection measures.

75 Certain auditors to be approved (1) An environmental audit for section 76 or section 78 must be conducted by a person approved by the authority to conduct the environmental audit. (2) The authority must not approve a person under subsection (1) unless satisfied that the person— (a) has appropriate qualifications and experience to enable the person to conduct the audit; and (b) meets the prescribed criteria. (3) For this section, the authority must prepare and maintain a list of approved auditors whom it is satisfied meet the requirements of subsection (2).

(4) The authority must remove the name of an auditor from the list maintained under subsection (3) if satisfied that the auditor no longer meets the prescribed criteria. (5) An auditor is taken to be on a list maintained for subsection (3) for so long as the name of the auditor appears on a list of auditors maintained under a corresponding law of a State or another Territory. (6) A condition applying to a person whose name appears on a list of auditors maintained under a corresponding law of a State or another Territory applies to that person when conducting an audit under this Act.

76 Authority may require environmental audit (1) The authority may by written notice require a person conducting, or proposing to conduct, an activity to commission an environmental audit of the activity and submit a report on the audit to the authority, if the authority has reasonable grounds for believing that— (a) in conducting the activity, the person— (i) has contravened, is contravening or is likely to contravene an environmental authorisation, an environment protection order or a provision of this Act; or (ii) has breached, is breaching or is likely to breach an environmental protection agreement; and (b) if the person were to conduct the proposed activity, the person may contravene an environmental authorisation, an environment protection order or a provision of this Act, or may breach an environmental protection agreement; and (c) as a result, serious or material environmental harm has happened, is happening or may happen. (2) The authority may, by written notice, require a person to commission an environmental audit of contaminated land.

(3) An auditor must not carry out an audit for subsection (2) if the auditor carried out an assessment or remediation of the land to which the audit relates. (4) A notice under subsection (1) or (2) must— (a) specify the grounds on which the audit is required; and (b) outline the facts and circumstances forming the basis for the grounds; and (c) specify any particular matters that must be addressed in the audit; and (d) specify a date, not earlier than 20 working days after the date of the notice, on or before which the person must submit the auditor’s report to the authority; and (e) specify— (i) the fee that must be paid when the auditor’s report is submitted; or (5) A person must not fail to comply with a notice under subsection (1) or (2). (6) A reference in subsection (1) to conducting an activity includes a reference to a variation or proposed variation of how the activity is conducted.

76A Requests for auditor’s statements (1) An auditor must, within 7 working days of receiving a request under this or another Act to carry out an audit of contaminated land, give to the authority a written notice specifying— (a) the name of the person making the request; and

(b) reasons for the person making the request; and (c) the location of the land to which the audit relates; and (d) an estimation of the time within which the audit will be completed. (2) An auditor must, within 15 working days after completing an audit, give to the authority a copy of the site audit statement.

76B Annual returns—auditors An auditor must, within 60 working days after the end of each financial year, give to the authority a report about each audit of contaminated land carried out under this Act or another Act during that year.

77 Authority’s response to environmental audit report (1) If the authority receives an environmental audit report submitted in compliance with— (a) a notice under section 76 (1); or the authority must, within 20 working days of that receipt, consider the report and by written notice— (c) require the person who submitted the report to provide further specified information by the specified date, not less than 10 working days after the date of the notice; or (d) advise the person that the authority intends to take specified action under this Act in relation to the activity assessed by the audit; or (e) advise the person that no further action will be taken by the authority in relation to the audit report.

(2) If the authority requires a person to provide further information under subsection (1) (c), the authority must take action under subsection (1) (d) or (e) by written notice to the person within 10 working days of— (a) receipt of the further information; or (b) the end of the date specified in the notice under subsection (1) (c); whichever happens first. (3) A person must not fail to comply with a notice under subsection (1) (c) requiring the person to provide further specified information by a specified date.

78 Protection for reports of voluntary audits (1) A person who is conducting, or proposing to conduct, an activity may apply to the authority to obtain the protection of this section in relation to an environmental audit of the activity that the person, on the person’s own initiative, proposes to commission. (2) An application must include— (a) a request that the applicant be granted protection under this section; and (b) a detailed outline of the matters to be addressed by the audit and how those matters will be addressed. (3) The authority may grant an applicant protection under this section in relation to a specified environmental audit if satisfied that the objects of this Act would be better furthered by granting protection than by not doing so.

(4) A grant under subsection (3) may be made subject to conditions, including— (a) that the report of the audit must address, and may only address, specified matters; and (b) that the report be prepared in a specified way. (5) A person who has been granted protection under this section in relation to an environmental audit must submit to the authority a copy of the auditor’s report within 20 working days after receiving the report. (6) Subject to compliance with the conditions (if any) of a grant of protection made under subsection (3), the environmental audit report specified in the grant is not admissible in evidence against the applicant in any proceedings for the enforcement of this Act. (7) This section does not affect— (a) the obligation of the holder of an environmental authorisation to comply with the conditions of the authorisation; or (b) the obligation of a person to notify the authority under section 23.

79 Protection does not extend to environment protection orders A grant of protection under section 78 does not prevent the authority from serving an environment protection order in relation to a matter addressed in the audit report.

80 Definitions for div 9.3 In this division: environmental emergency means a foreseeable occurrence that, if it occurred, would be likely to cause— (a) the entry into the environment of a measure of a pollutant that exceeds the measure authorised by or under this Act; and (b) as a result of the entry of that excess pollutant, serious or material environmental harm. preparation requirements means a course of action mentioned in section 81 (1) (b).

81 Contents of emergency plan (1) An emergency plan— (a) must specify a course of action to be undertaken by a person conducting an activity in the event of a specified kind of environmental emergency occurring in the conduct of that activity; and (b) may specify a course of action to be undertaken to prepare for the possible future occurrence of such an emergency; and (c) may specify a timetable for the implementation of any preparation requirements. (2) An emergency plan may address 1 or more environmental emergencies.

Emergency plans Division 9.3

82 Authority may require emergency plan (1) The authority may, by written notice require a person conducting, or proposing to conduct, an activity to prepare and submit for approval to the authority a draft emergency plan in relation to the activity, if the authority has reasonable grounds for believing that 1 or more specified environmental emergencies may occur during the conduct of that activity. (2) A notice under subsection (1)— (a) must specify the grounds on which the draft emergency plan is required; and (b) must outline the facts and circumstances forming the basis for the grounds; and (c) must specify the environmental emergencies that must be addressed in the draft plan; and (d) may specify that certain preparation requirements be included in the draft plan; and (e) may require that the draft plan be prepared on the person’s behalf by a person who holds specified qualifications; and (f) may require that specified inquiries be undertaken by that person before preparing the draft plan; and (g) must specify a date (not earlier than 20 working days after the date of the notice) on or before which the person must submit the draft plan to the authority; and (h) must specify— (i) the fee that must be paid when the draft plan is submitted; or

(3) A person must not fail to comply with a notice under subsection (1).

84 Approval of emergency plan (1) If the authority receives a draft emergency plan submitted in compliance with— (a) a notice under section 82 (1); or the authority must, within 20 working days of that receipt, by written notice— (c) approve the draft plan and require the person who submitted the plan to implement any preparation requirements included in the plan as approved; or (d) reject the draft plan and require the person to— (i) amend the draft plan in accordance with any requirements specified in the notice; and (ii) resubmit the draft plan to the authority. (2) If the authority requires a person to resubmit a draft plan under subsection (1) (d), the authority must, by written notice to the person within 10 working days of receipt of the resubmitted draft plan— (a) approve the draft plan and require the person to implement any preparation requirements included in the plan as approved; or (b) reject the draft plan. (3) A person must not fail to comply with— (a) a notice under subsection (1) (c) or (2) (a) requiring the person to implement the preparation requirements included in the plan approved under that paragraph; or

(b) a notice under subsection (1) (d) requiring the person to amend the draft plan and resubmit it to the authority.

85 Authority may require financial assurance (1) The authority may, as a condition of an environmental authorisation, require the holder of the authorisation to provide a financial assurance to the authority if satisfied that the condition is justified having regard to— (a) the likelihood that the authorised activity will cause serious or material environmental harm other than harm permitted by or under this Act; and (b) the likelihood that action will need to be taken in the future to remedy the environmental harm described in paragraph (a); and (c) the environmental record of the holder of the authorisation; and (d) any other matter the authority considers relevant. (2) A financial assurance must be in the form of— (a) a bank guarantee; or (b) a bond; or (c) an insurance policy; or (d) another form of security that the authority considers appropriate. (3) The authority must not require financial assurance of an amount greater than the total amount that the authority has reasonable grounds for believing is likely to be needed to remedy the foreseeable environmental harm that could result from the conduct of the authorised activity.

(4) A financial assurance must be provided— (a) for the period specified in the authorisation; or (b) if no period is so specified, until— (i) the authorisation is varied to remove the condition requiring the financial assurance; or (ii) the authorisation is cancelled under section 55 or section 63 or is surrendered under section 66.

86 Show cause why financial assurance should not be provided (1) If the authority proposes to grant an environmental authorisation subject to a condition requiring the provision of a financial assurance, the authority must give the applicant written notice of its intention to impose the condition. (a) specify the grounds on which the condition is proposed to be imposed; and (b) specify the amount and form of the financial assurance proposed to be required; and (c) invite the applicant to show cause why the condition should not be imposed; and (d) specify the date, not earlier than 20 working days after the date of the notice, on or before which any representations under paragraph (c) are to be made. (3) Within 20 working days after the end of the period allowed under subsection (2) (d) for representations, the authority must— (a) notify the applicant that the condition is or is not being imposed; and

(b) if it is being imposed—specify in the notice the date, not earlier than 10 working days after the date of the notice, on or before which the financial assurance must be provided.

87 Non-provision of financial assurance If a financial assurance required as a condition of an environmental authorisation is not provided on or before the due date, the authority must cancel the authorisation.

88 Claim on or realisation of financial assurance (1) This section applies if the authority incurs, or will incur, costs and expenses in taking action to remedy serious or material environmental harm— (a) that was caused, or likely to be caused, by an authorised activity in relation to which a financial assurance has been provided; and (b) that is within the class of harm in relation to which the financial assurance may be claimed or realised; and (c) that was not permitted by or under this Act. (2) The authority may recover the reasonable costs and expenses of taking the action by making a claim on or realising the financial assurance or part of it.

89 Notice before claim on or realisation of a financial assurance (1) Before acting under section 88, the authority must give to the holder of the environmental authorisation in relation to which the financial assurance was provided, a written notice— (a) specifying the environmental harm caused, or likely to be caused, by the authorised activity; and (b) giving details of the action taken, or to be taken, to remedy the environmental harm or likely environmental harm; and

(c) specifying the amount of the financial assurance to be claimed or realised; and (d) inviting the holder of the authorisation to make a written representation to the authority to show why the financial assurance should not be claimed or realised as proposed on or before a specified date (not earlier than 20 working days after the date of the notice). (2) The authority must, within 20 working days after the date specified in the invitation under subsection (1) (d) and taking into account any representations made in response to the invitation— (a) decide whether or not to make a claim on or realise the financial assurance or part of it; and (b) give the holder of the authorisation written notice of that decision.

90 Recovery of extra costs (1) If the amount recovered by the authority by a claim on or by realising a financial assurance (the realised assurance) is less than the reasonable costs and expenses that the authority incurred or will incur in taking action to remedy the environmental harm caused, or likely to be caused, by the authorised activity (the reasonable costs and expenses), the authority may give the holder of the environmental authorisation written notice requiring the holder to pay the specified amount, being the difference between the reasonable costs and expenses and the realised assurance. (2) The notice must specify the date, not earlier than 20 working days after the date of the notice, on or before which the specified amount is required to be paid. (3) If— (a) the authority has given a person a notice under subsection (1); and

(b) the holder of the environmental authorisation has failed to pay the specified amount on or before the specified date; so much of the specified amount as remains unpaid, together with interest on the unpaid amount, is a debt due to the Territory by the holder.

91 Money held by Territory as financial assurance If an amount of money is held by the Territory as a financial assurance or part of a financial assurance, the following provisions apply: (a) interest accrues on so much of that original amount as from time to time remains unclaimed by the authority under section 89; (b) for the purposes of any claim the authority may make under section 89, the financial assurance is taken to include any accrued interest other than interest to which the holder of the authorisation is entitled to be paid under paragraph (c); (c) during the period the financial assurance is required, on each anniversary of the payment of the original amount, the holder of the authorisation is entitled to be paid by the Territory so much of the interest that accrued during the year that ended on the day before that anniversary as remains unclaimed by the authority under section 89; (d) when— (i) the financial assurance is no longer required by the authority; or

(ii) the environmental authorisation is cancelled under section 55 or section 63 or is surrendered under section 66; so much of the original amount and accrued interest as remains unclaimed by the authority under section 89 must be paid by the Territory to the holder of the authorisation. Note A rate of interest may be determined under s 165 for par (a).

91A Definitions for div 9.5 (1) In this division: approved use, in relation to land, means use— (a) that is consistent with the national capital plan or the territory plan, as the case requires; and (b) for leased land—that is permitted by the lease. national environment protection measure means a national environment protection measure made under the National Environment Protection Council Act 1994, section 13 (1) as in force from time to time. substance includes matter or thing. (2) For this division, an environmental audit for assessment or remediation of contaminated land is an audit by an auditor— (a) that relates to an assessment or remediation carried out (whether under this Act or otherwise) in relation to actual or possible contamination of land; and (b) that is conducted for the purposes of deciding 1 or more of the (i) the nature and extent of the assessment or remediation undertaken;

(ii) the nature and extent of any contamination or remaining contamination of the land; (iii) if the land is suitable for a specified use or range of uses, having regard to any contamination or remaining contamination of the land; (iv) what further assessment or remediation is necessary before the land is suitable for any specified use or range of uses; (v) the appropriateness of any remediation plan, long-term management plan, assessment proposal or remediation proposal.

91B Assessment of risk of harm (1) For this division, to assess whether land is contaminated with 1 or more substances in such a way as to present, or to be likely to present a significant risk of harm to human health, or a risk of material environmental harm or serious environmental harm, the authority must include a consideration of all of the following matters in the assessment: (a) whether the contamination of the land has already caused harm; (b) whether the substances are toxic, persistent or bioaccumulative or are present in large quantities or high concentrations or occur in combinations; (c) whether there are routes by which the substances may proceed from the source of the contamination to human beings or other aspects of the environment; (d) whether the uses to which the land and land adjoining it are currently being put are such as to increase the risk of harm; (e) whether the use of the land and land adjoining it, being a use permitted by the lease to which the land is subject, is such as to increase the risk of harm;

(f) whether the substances have migrated or are likely to migrate from the land (whether because of the nature of the substances or the nature of the land); (g) any environment protection policy made by the authority on contamination and remediation; (h) any relevant national environment protection measure. (2) Subject to subsection (3), land may be regarded at any particular time as being contaminated in such a way as to present a significant risk of harm even if the harm could come into existence only in certain circumstances of occupation or use of the land and those circumstances do not exist at that time. (3) Land must be regarded in the way mentioned in subsection (2), if the circumstances are reasonably foreseeable, and consistent with the approved use of the land, at that time.

91C Order to assess whether land contaminated (1) If the authority has reasonable grounds for believing that land is contaminated in such a way as to cause, or be likely to cause, either a significant risk of harm to human health or a significant risk of material environmental harm or serious environmental harm, or both, the authority may— (a) by written notice served on the appropriate person, order the appropriate person to conduct an assessment of the land; or (b) itself conduct the assessment. (2) An order under subsection (1) must — (b) specify— (i) the person to whom the order relates; and

(ii) the land to which the order relates; and (iii) the period within which the assessment is to be conducted; and (iv) the nature of the contamination that the authority has reasonable grounds for believing is causing, or is likely to cause, a significant risk of harm to human health or a environmental harm; and (v) the action that the person subject to the order must take in assessing and reporting; and (vi) any other requirements the authority considers appropriate having regard to the nature and extent of the contamination and the physical attributes of the land. (3) The action that may be required to be taken under subsection (2) (b) (vi) includes, but is not limited to, the following: (a) that the person serve notice of the order on the occupiers of land access to which is necessary for the person to carry out the assessment and, if an occupier is not the lessee of that land, serve notice on the lessee; (b) that the person make progress reports to the authority on the assessment; (c) that the person advertise and conduct meetings to give progress reports to the public, and to receive public comment, on the assessment. (4) A person to whom an order is given under subsection (1) must— (a) conduct the assessment— (i) within the period specified in an order under

(ii) in accordance with the prescribed standards and procedures for carrying out an assessment, including standards and procedures specified in a relevant national environment protection measure; and (iii) otherwise in accordance with the terms of the order; and (b) commission an environmental audit of the assessment by an auditor approved under section 75. (5) In preparing a report of an audit for this section, the auditor commissioned to conduct the audit of the assessment must have regard to— (b) the permitted and approved uses of the land to which the assessment relates; and (c) the degree or extent of contamination; and (d) any relevant environmental protection policies; and (e) any relevant national environment protection measures. (6) For subsection (4) (b), the person to whom the order is given must submit the name of an auditor to the authority for approval within 10 working days of the date of the order. (7) Despite section 75, the authority must not approve an auditor for this section unless the auditor meets the prescribed criteria. (8) A person who, without reasonable excuse, contravenes subsection (4) commits an offence.

91D Order to remediate land (1) If the authority has reasonable grounds for believing that the land to which the audit relates is contaminated in such a way as to cause, or be likely to cause, either a significant risk of harm to human health or a significant risk of material environmental harm or serious environmental harm, or both, the authority may— (a) by written notice served on an appropriate person, order the appropriate person to remediate the land; or (b) itself conduct the remediation. (2) An order under subsection (1) must — (b) specify— (i) the person or people to whom the order relates; and (ii) the land to which the order relates; and (iii) the period within which the remediation is to be conducted; and (iv) the nature of the contamination that the authority has reasonable grounds for believing is causing, or is likely to cause, a significant risk of harm to human health or a environmental harm; and (v) the action that the person subject to the order must take in remediating and reporting; and (vi) any other requirements the authority considers appropriate having regard to the nature and extent of the contamination and the physical attributes of the land.

(3) The action that may be required to be taken under subsection (2) (b) (vi) includes, but is not limited to, the following actions: (a) that the person serve notice of the order on the occupiers of land access to which is necessary for the person to carry out the remediation and, if an occupier is not— (i) the lessee of the land—serve notice on the lessee; or (ii) for land under a land sublease, the sublessee—serve notice on the sublessee; (b) that the person make progress reports to the authority on the remediation; (c) that the person advertise and conduct meetings to give progress reports to the public, and to receive public comment, on the remediation. (4) A person to whom an order is given under subsection (1) must— (a) conduct the remediation— (i) within the period specified in an order under (ii) in accordance with the prescribed standards and procedures for carrying out remediation, including standards and procedures specified in a relevant national environment protection measure; and (iii) otherwise in accordance with the terms of the order; and (b) commission an environmental audit of the remediation by an auditor approved under section 75. (5) In preparing a report of an audit for this section, the auditor commissioned to conduct the audit of the remediation must have regard to—

(b) the permitted and approved uses of the land to which the remediation relates; and (c) the degree or extent of contamination; and (d) any relevant environmental protection policies; and (e) any relevant national environment protection measures. (6) For subsection (4) (b), the person to whom the order is given must submit the name of an auditor to the authority for approval within 10 working days of the date of the order. (7) Despite section 75, the authority must not approve an auditor for this section unless the auditor meets the prescribed criteria. (8) The lessee (or for land under a land sublease, the sublessee) of land to whom an order is given under subsection (1) must not, without the consent of the authority, transfer or sublet the land while the order is in force. (9) A person who, without reasonable excuse, contravenes subsection (4) commits an offence.

91E Notification of certain people about orders for assessment or remediation (1) The authority must, by written notice, notify the relevant person in relation to land adjacent to land to which section 91C (1) or section 91D (1) relates— (a) that notice of an assessment or remediation of the land has been given to the appropriate person; or (b) that the authority is carrying out the requirements of an assessment order or remediation order in relation to the land.

(a) invite the person to whom notice is given to make written submissions to the authority within 21 days beginning the day after the day the person received the notice; and (b) state the places where a copy of any of the following documents is available to the public: (i) a report of the outcome of an assessment under section 91C (1); (ii) a progress report on the assessment under section 91C (3); (iii) an assessment under section 91C (4) (a); (iv) an audit under section 91C (4) (b); (v) a report of the outcome of an assessment under section 91D (1); (vi) a progress report on the assessment under section 91D (3); (vii) an audit under section 91C (4) (b). (a) the occupier of the land; and (b) if the occupier is not the lessee—the lessee; and

91F Certain documents to be available free of charge The authority must— (a) make a document mentioned in section 91E (2) (b) available to the public without charge by— (i) making it accessible on an ACT government website, or by a link on an ACT government website; or (ii) making it available for inspection during ordinary business hours at an ACT government office; and (b) on request by a person, give the person a copy of the document without charge.

91G Extension of time (1) The authority may, on written application by a person on whom an order is served under section 91C (1) or section 91D (1) for an extension of the period within which the person must conduct an assessment or remediation— (a) extend or refuse to extend the period; or (b) extend the period for a period less than that applied for. (2) In deciding whether or not to extend the period, the authority must have regard to— (a) the period of extension for which application is made; and (b) whether the contamination is causing, or is likely to cause, a significant risk of harm to human health or a risk of material environmental harm or serious environmental harm.

91H Further information For section 91C and section 91D, the authority may, by written notice, require an auditor to give to the authority, either orally or in writing, the further information relating to an assessment or remediation that is specified in the notice.

91I Choice of appropriate person (1) For section 91C (1) and section 91D (1), an appropriate person must be chosen from among the following people in the following order: (a) a person who had principal responsibility for the contamination of the land with the substance (whether or not there were other people who had responsibility for the contamination of the land with the substance) or, if that is not practicable, the person referred to in paragraph (b); (b) either— (i) a lessee of the land (whether or not the person had any responsibility for the contamination of the land with the substance) or if that is not practicable, the person mentioned in paragraph (c); or (ii) if the land is land under a land sublease—the sublessee of the land (whether or not the person had any responsibility for the contamination of the land with the substance) or if that is not practicable, the following people in the following order: (A) the sublessor of the land (whether or not the person had any responsibility for the contamination of the land with the substance); (B) the person mentioned in paragraph (c); Note A sublessor, under a land sublease, is the lessee under the Crown lease under which the sublease is granted

(c) a notional lessee of the land (whether or not the person had any responsibility for the contamination of the land with the substance). (2) If there is more than 1 person in the category of appropriate person specified in subsection (1), the authority may, but is not required to, make more than 1 person in the category the subject of the order. (3) For this section, the choice of a person is to be regarded as not practicable if— (a) the authority cannot, after reasonable inquiry, ascertain the identity or location of the person; or (b) in the opinion of the authority, the person does not have the resources to comply with the order. (4) In this section: financial controller means a receiver, manager or other person who has possession or control of land for the purpose of realising part or all of the value of the land to discharge an obligation secured over the land. notional lessee, in relation to land— (a) means a person who has vested rights in relation to the land (i) carry an entitlement to have the lease (or land sublease) transferred to the person; or (ii) enable the person to dispose of or otherwise deal with the land; so that the person is able to benefit from the value of the lease (or land sublease), or a substantial part of it, by the transfer, disposal or dealing; and (b) includes a mortgagee in possession of the land the subject of the lease (or land sublease); but

(c) does not include— (i) a person having security over the lease (or land sublease); or (ii) a person who is a legal personal representative of a person who was the lessee (or for land under a land sublease, the sublessee) of the land immediately before the appointment of the representative took effect or who was a lessee (or sublessee) of the land immediately before the lessee’s (or sublessee’s) death; or (iii) the public trustee and guardian because of the operation of the Public Trustee and Guardian Act 1985, section 19; or (iv) a person who would otherwise be a notional lessee if— (A) the person has some security of the lease (or land sublease); and (B) the person, or a financial controller appointed by the person, has entered into a contract to sell the land for the purpose of realising all or part of the value of the land to discharge an obligation so secured.

91J Meaning of assessment order and remediation order— pt 9 assessment order means an order under section 91C (1). remediation order means an order under section 91D (1).

91K Recovery of costs associated with assessment or remediation (1) If the authority takes action under section 91C (1) (b) or section 91D (1) (b), the authority may, by written notice, require an appropriate person against whom an order under that section may be made, to pay to the authority the reasonable costs and expenses incurred by it in taking that action. (2) The notice must specify the date, not earlier than 20 working days after the date of the notice, on or before which the amount is to be paid. (3) If— (a) the authority has given a person a notice under subsection (2); and (b) the person has failed to pay the specified amount on or before the specified date; so much of the amount as remains unpaid, together with interest on the unpaid amount, is a debt due to the Territory by that person.

91L Priority for costs if owner insolvent If the authority carries out the requirements of an assessment order or remediation order in relation to land disclaimed (by a liquidator or trustee in bankruptcy) as onerous property in the course of proceedings for winding up or bankruptcy, the authority may recover the cost of carrying out the order together with a rate of interest and reasonable costs and expenses so incurred, in priority to any holder of security over the land. Note A rate of interest may be determined under s 165 for this section.

91M Recovery of costs—assessment and remediation (1) A person who carries out the requirements of an assessment or remediation under division 9.5 in relation to the contamination of land with a substance who was not responsible for the contamination, may recover in a court of competent jurisdiction a part of the person’s costs in carrying out those requirements from each person who did have the responsibility. (2) A person who carries out the requirements of an assessment or remediation under division 9.5 in relation to the contamination of land with a substance who was responsible for the contamination, may recover in a court of competent jurisdiction from each other person who had responsibility for the contamination a part of the first person’s costs in carrying out those requirements. (3) A reference in subsections (1) and (2) to the recovery of a part of a person’s costs is a reference to the recovery of a part of the costs that is just and reasonable in the circumstances including the following circumstances: (a) the proportion of responsibility of each person for the contamination; (b) the reasonable cost of the remediation (if any) carried out by each person in relation to the contamination.

91N Costs—person responsible for contamination In any proceedings under section 91M to recover from a person the cost of carrying out an assessment order or remediation order in relation to any land, the person is taken to have responsibility for contamination on that land, unless it is established that the contamination was not caused by the person, if— (a) the person carried on activities on the land; and

(b) activities of the kind carried on generate or consume the same substances as those that caused the contamination or generate or consume substances that may be converted by reacting with each other or by the action of natural processes on the land into substances that are the same as those that caused the contamination.

91O Liability for losses (1) A person who, with the permission of the occupier of land, enters any land, or does anything else on land, as required by an assessment order or remediation order, is liable to the occupier of the land for any loss suffered by the occupier as a result of the entry or other actions (including any loss suffered by the occupier because of the interruption to the occupier’s business on that land by that entry or those actions). (2) A person (other than the lessee of land) who, with the permission of the occupier, enters the land or does anything else on the land, as required by an assessment order or remediation order, is liable to the lessee of the land for any loss suffered by the lessee as a result of the entry or those actions or for any injury to the land caused by that person. (3) In addition to any liability that a person may have under subsection (1) or (2), the person has a duty to meet the reasonable costs and expenses of the lessee and the occupier of land, as the case requires, in providing access to that land as mentioned in this section. (4) A person has a duty— (a) to take reasonable steps— (i) to minimise the loss, and injury, mentioned in this section caused by the person’s actions; and (ii) toward restitution in relation to that loss or injury; and

(b) to compensate the party that suffered the loss, or injury, for which the person is liable to the extent that restitution is not practicable. (5) For this section, if land is land under a land sublease, lessee means the sublessor and sublessee. Note A sublessor, under a land sublease, is the lessee under the Crown lease under which the sublease is granted

91P Director of body corporate that is wound up (1) The Supreme Court may make an order under this section only if satisfied, on an application by the authority, that— management of, the body corporate at the time when the assessment order or remediation order was made; and (b) there is reason to believe that the body corporate was wound up as part of a scheme to avoid compliance with the assessment order or remediation order. (2) The Supreme Court may order a person to comply with an assessment order or remediation order at the person’s own expense if the person was a director of, or a person concerned in the management of, a body corporate that— (a) has been wound up within 2 years before the court’s order is (b) has failed to comply with the assessment order or remediation order. (3) There is reason for belief of the kind mentioned in subsection (1) (b) if— (a) the body corporate carried out 1 or more transactions— (i) that were voidable because of the Corporations Act, section 588FE; or

(ii) that were such that the liquidator of the body corporate had a right to recovery of cash under the Corporations Act, section 567; or (iii) by which the body corporate incurred a debt in relation to which a person contravened the Corporations Act, section 588G; and (b) there was (at the time or times when the body corporate entered those transactions or a substantial part of them) reason to believe that the land was contaminated; and (c) if a regulation made for this section applies—the prescribed conditions are satisfied. (4) The Supreme Court must not make an order under this section if the person against whom the order would be made satisfies the court (a) the person exercised due diligence to prevent the body corporate from avoiding compliance with the assessment order or (b) the person could not reasonably have been expected to be aware of a scheme to avoid compliance with the assessment order or (c) the person was not in a position to influence the conduct of the body corporate in relation to that scheme. (5) The fact that the relevant assessment order or remediation order was partially complied with by the body corporate does not exclude the possibility that there is reason to form the belief mentioned in subsection (3).

(6) For this section, the fact that steps are taken to windup a body corporate before the authority makes an assessment order or remediation order in relation to the body corporate does not preclude the Supreme Court from finding that there is reason to believe that the body corporate was wound up as part of a scheme to avoid compliance with the order.

91Q Director of body corporate that disposed of land (1) The Supreme Court may order a person to comply with an assessment order or remediation order at the person’s own expense if— management of, a body corporate that transferred land within 2 years before the court’s order is made; and (b) the transferee has failed to comply with the assessment order or remediation order in relation to the land. (2) The person must comply with the assessment order or remediation order, subject to any modification by the Supreme Court. (3) The Supreme Court may make an order under this section only if satisfied, on an application by the authority that— management of, the body corporate at the time of the transfer of the land or at the time when the assessment order or remediation order was made in relation to the transferee; and (b) there is reason to believe that the body corporate transferred the land as part of a scheme to avoid having itself to carry out assessment or remediation of the land (whether or not an assessment order or remediation order had been made in relation to the body corporate).

(4) There is reason for belief of the kind mentioned in subsection (3) (b) if, at the time or times when the body corporate entered into 1 or more transactions, or a substantial part of the transactions, for the transfer of the land— (a) there was reason to believe that the land was contaminated; and (b) the transferee was another body corporate that was related to the first body corporate (within the meaning of the Corporations Act); and (c) the first body corporate had reason to believe that the transferee was unable to pay its debts or would, if it took steps to remediate the land (to the extent that a reasonable person would have expected, at the time or times, would be necessary), become unable to pay its debts. (5) The Supreme Court must not make an order under this section if the person against whom the order would be made satisfies the court (a) the person exercised due diligence to prevent the body corporate from avoiding compliance with the assessment order or (b) the person could not reasonably have been expected to be aware of a scheme to avoid compliance with the assessment order or (c) the person was not in a position to influence the conduct of the body corporate in relation to that scheme. (6) The fact that the relevant order was partially complied with by the transferee does not exclude the possibility that there is reason to form the belief mentioned in subsection (3).

91R Holding company of body corporate that is wound up (1) The Supreme Court may order a corporation to comply with an assessment order or remediation order at the corporation’s own expense if the corporation was the holding company of a company (a) has been wound up within 2 years before the court’s order is (b) has failed to comply with the assessment order or remediation order. (2) The corporation must comply with the assessment order or remediation order, subject to any modification by the Supreme Court. (3) The Supreme Court may make an order under this section only if satisfied, on an application by the authority, that— (a) the corporation was the holding company of the other company at the time when the assessment order or remediation order was (b) there is reason to believe that the other company was wound up as part of a scheme to avoid compliance with the assessment order or remediation order. (4) There is reason for belief of the kind mentioned in subsection (3) (b) if— (a) the corporation contravened the Corporations Act, section 588V in relation to the other company; and (b) there was (at the time or times when the contravention happened) reason to believe that the land was contaminated; and (c) if a regulation made for this section applies—the prescribed conditions are satisfied.

(5) Despite subsection (4), there is reason for belief of the kind mentioned in subsection (3) (b) also if— (a) the other company carried out 1 or more transactions— (i) that were voidable because of the Corporations Act, section 588FE; or (ii) that were such that the liquidator of the other company had a right to recovery of cash under the Corporations Act, section 567; or (iii) by which the other company incurred a debt in relation to which a person contravened the Corporations Act, section 588G; and (b) there was (at the time or times when the other company entered those transactions or a substantial part of them) reason to believe that the land was contaminated. (6) The fact that the relevant assessment order or remediation order was partially complied with by the other company does not exclude the possibility that there is reason to form the belief mentioned in subsection (3). (7) For this section, the fact that steps are taken to wind up a company before the authority makes an assessment order or remediation order in relation to the company does not preclude the Supreme Court from finding that there is reason to believe that the company was wound up as part of a scheme to avoid compliance with the order.

92 Fuel sales—provision of information (1) The occupier of a service station (the occupier) must, not later than 30 September, give the director-general details (the fuel information) of the amount of each kind of liquid fuel sold at the service station in the year ending on the preceding 30 June. (2) The occupier must also give the director-general any further information reasonably required by the director-general to verify the fuel information. (3) If the occupier fails to comply with subsection (1) or (2), the director-general may, in writing, require the occupier to do so by a stated day. (4) The occupier commits an offence if the occupier fails to comply with a requirement under subsection (3). (5) An offence against subsection (4) is a strict liability offence. occupier, in relation to a service station, means a person who carries on the business of a service station. service station means any place where unpackaged liquid fuel is offered for sale by retail.

92A Confidential commercial information must not be disclosed (1) This section applies to information given to the director-general under section 92.

Fuel sales information Part 9A (2) A person commits an offence if— (a) the person discloses confidential commercial information that the person has only because of exercising a function under this Act; and (b) the person knows that the information is confidential commercial information; and (c) the disclosure is not— (i) to the Territory or a Territory agency; or (ii) by order of a court; or (iii) with the consent of each person to whom the information has a commercial or other value. (3) A person commits an offence if— (a) the person discloses confidential commercial information that the person has only because of a disclosure permitted under subsection (2); and (b) the person knows that the information is confidential commercial information; and (c) the disclosure is not— (i) to the Territory or a Territory agency; or (ii) by order of a court; or (iii) with the consent of each person to whom the information has a commercial or other value.

(4) In this section: confidential commercial information means— (a) information that has a commercial or other value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed; or (b) other information that— (i) concerns the lawful commercial or financial affairs of a person or undertaking; and (ii) if it were disclosed, could unreasonably affect the person or undertaking. court includes a tribunal, authority or person having power to require the production of documents or the answering of questions. Territory agency means— (a) a Minister; or (b) an administrative unit; or (c) a territory instrumentality; or (d) a corporation established for a public purpose under a Territory Act.

Functions of the Minister Part 10

92B Definitions—pt 10 environmental impact statement (or EIS)—see the Planning Act 2023, section 94 (c). inquiry—see the Planning Act 2023, dictionary.

93 Directions of Minister (1) The authority must exercise the functions of the authority in accordance with any directions of the Minister under this section. (2) The Minister must not give a direction to the authority in relation to a matter under— (a) part 11 (Powers of authorised officers); or (b) part 12 (Powers of analysts); or (c) part 13 (Enforcement); or (d) part 14 (Notification and review of decisions); or (e) part 14A (Enforceable undertakings). (3) A direction is a disallowable instrument.

94 Environmental impact statements and inquiries (1) This section applies in relation to an application for an environmental authorisation in relation to an activity. (2) At the authority’s request, or on the Minister’s own initiative, the Minister may— (a) direct that an EIS be prepared in relation to the possible environmental impact of the activity; and

(b) after the EIS is given to the Minister—establish a panel to conduct an inquiry into the activity. (3) For subsection (2)— (a) the Minister must not direct that an EIS be prepared or establish a panel unless satisfied that the activity is not the subject of a development application under the Planning Act 2023; and (b) the authority must not make a request unless the authority— (i) is satisfied that the activity is not the subject of a development application under the Planning Act 2023; and (ii) has reasonable grounds for believing the activity has the potential to cause serious or material environmental harm. (4) The Minister must give the authority a copy of— (a) any EIS prepared as directed under subsection (2) (a); and (b) the report of any inquiry panel established under subsection (2) (b).

94A Application of Planning Act 2023, pt 6.3 (1) The Planning Act 2023, part 6.3 applies to an EIS prepared in accordance with a direction under section 94 (2) (a) as if— (a) a reference to a development proposal were a reference to an activity; and (b) a reference to the Minister were a reference to the Minister administering section 94; and (c) a reference to the territory planning authority were a reference to the authority; and (d) any other necessary changes, and any change prescribed by regulation, were made.

Functions of the Minister Part 10 (2) The Planning Act 2023, division 6.3.9 applies to an inquiry panel established under section 94 (2) (b) as if— (a) a reference to the Minister were a reference to the Minister administering section 94; and (b) a reference to the territory planning authority were a reference to the authority; and (c) any other necessary changes, and any change prescribed by regulation, were made.

95 Definitions—pt 11 connected—a thing is connected with a particular offence if— (a) the offence has been committed in relation to it; or (b) it will afford evidence of the commission of the offence; or (c) it was used, is being used, or is intended to be used, for the purpose of committing the offence. enter includes board. offence includes an offence that there are reasonable grounds for believing has been, is being, or will be committed. premises includes vacant land, vehicles, vessels and aircraft. residential premises means premises used exclusively or primarily for residential purposes, and includes a private room in, but not any other part of, a motel, hotel, hostel or guesthouse.

96 Entry of premises—routine inspections (1) For the purposes of ascertaining whether this Act is being complied with, an authorised officer may enter— (a) premises (other than residential premises) at any reasonable time; or (b) any premises with the consent (obtained under section 103) of the occupier or a person apparently in charge of the premises.

(2) An authorised officer may enter premises under subsection (1) with the assistance that is necessary and reasonable.

97 Entry of premises—search warrants (1) If an authorised officer has reasonable grounds for suspecting that there may be on any premises a thing of a particular kind connected with a particular offence against this Act, the authorised officer may enter premises under a search warrant under section 104. (2) An authorised officer may enter premises under subsection (1) with the assistance and by the force that is necessary and reasonable. (3) A police officer may, if called on by an authorised officer to do so, assist the authorised officer in the execution of a search warrant.

98 Identity cards must be produced An authorised officer who enters premises under section 96 (1) or section 97 (1) is not authorised to remain on the premises if, on request by the occupier or a person apparently in charge of the premises, the officer does not produce the officer’s identity card.

99 Inspection of premises—routine inspections An authorised officer who enters premises under section 96 (1) may do any of the following in relation to the premises or anything on the premises: (a) inspect or examine; (b) take measurements or conduct tests; (c) take samples for analysis; (d) examine records or documents relating to the operation of equipment and the operational processes carried out on those premises; (e) take photographs, films, or audio, video or other recordings.

100 Inspection of premises—search warrant (1) Subject to section 101, an authorised officer who enters premises under section 97 (1) may do any of the following in relation to the premises or anything on the premises: (a) inspect or examine; (b) take measurements or conduct tests; (c) take samples for analysis; (d) take photographs, films, or audio, video or other recordings; (e) for a thing—subject to section 108, seize the thing; (f) if the thing is a document—take copies of, or extracts from, the document. (2) An authorised officer who enters premises under section 97 (1) may require the occupier or a person on the premises to do any of the (a) answer questions or give information; (b) make available any record or other document kept on the premises; (c) provide reasonable assistance to the officer in relation to the exercise of the officer’s powers under subsection (1).

101 Routine inspections—serious and urgent circumstances (1) An authorised officer who enters premises under section 96 (Entry of premises—routine inspections) may, if satisfied on reasonable grounds that it is necessary to do so because of urgent and serious circumstances, require the occupier or a person on the premises to do any of the following: (a) answer questions; (b) give information;

(c) make available to the authorised officer any record or document kept on the premises; (d) provide reasonable assistance to the authorised officer in relation to the exercise of the authorised officer’s functions. (2) The power to act under subsection (1)— (a) may be exercised even though the officer entered the premises without a warrant; and (b) is in addition to any other power of the officer.

103 Consent to entry (1) Before obtaining the consent of a person for section 96 (1) (b), an authorised officer must— (a) produce the officer’s identity card; and (b) inform the person that the person may refuse to give consent. (2) If an authorised officer obtains the consent of a person for section 96 (1) (b), the officer must ask the person to sign a written acknowledgment of— (a) the fact that the person has been informed that the person may refuse to give consent; and (b) the fact that the person has voluntarily given consent; and (c) the day and time when the consent was given. (3) An entry by an authorised officer because of a person’s consent is not lawful unless the consent was voluntary. (4) If— (a) it is material, in any proceedings, for a court to be satisfied that the consent of a person for section 96 (1) (b) was voluntary; and

(b) an acknowledgment, in accordance with subsection (2), signed by the person is not produced in evidence; the court must assume, unless the contrary intention is proved, that the consent was not voluntary.

104 Search warrants (1) If— (a) an information is laid before a magistrate alleging that an authorised officer has reasonable grounds for suspecting that there may be on any premises a thing of a particular kind connected with a particular offence against this Act; and (b) the information sets out those grounds; the magistrate may issue a search warrant authorising the authorised officer named in the warrant, with the assistance and by the force that is necessary and reasonable— (c) to enter the premises described in the warrant; and (d) to search the premises for things of the kind mentioned in paragraph (a); and (e) to exercise any of the powers listed in section 100 in relation to those things. (2) A magistrate must not issue a warrant unless— (a) the informant or another person has given the magistrate, either orally on oath or by affidavit, any further information that the magistrate requires about the grounds on which the issue of the warrant is being sought; and (b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

(3) A warrant must— (a) state the purpose for which it is issued, including a reference to the nature of the offence in relation to which the entry and search is authorised; and (b) state that the entry is authorised at any time of the day or night, or specify particular hours during which the entry is authorised; and (c) include a description of the kind of things in relation to which the powers listed in section 100 may be exercised; and (d) specify a date, not later than 1 month after the date the warrant is issued, when the warrant ceases to have effect. (4) If in the course of searching under a warrant for things of a particular kind connected with a particular offence, an authorised officer— (a) finds a thing that the officer has reasonable grounds for believing to be— (i) connected with the offence, although not a thing of the kind specified in the warrant; or (ii) connected with another offence against this Act; and (b) is satisfied that it is necessary to exercise any of the powers listed in section 100 in relation to the thing to prevent the committing, continuing or repeating of the offence or the other offence; the warrant must be taken to authorise the officer to exercise those powers in relation to that thing.

105 Emergency situations This division applies if an authorised officer— (a) has reasonable grounds for believing that serious or material environmental harm has been or is likely to be caused, other than harm permitted by or under this Act; and (b) is satisfied that it is necessary to take immediate action to prevent, minimise or remedy the harm (in this division called emergency action).

106 Taking or directing action (1) The authorised officer must, orally or in writing, direct another person who is present on the relevant premises to take emergency action if the authorised officer has reasonable grounds for believing that the person has the appropriate practical or technical knowledge and authority to take the action. (2) If the authorised officer does not have belief of the kind mentioned in subsection (1), the authorised officer may take emergency action. (3) The authorised officer must confirm an oral direction in writing as soon as practicable.

107 Entry and exercise of powers (1) The authorised officer may— (a) for the purposes of taking emergency action, enter any premises (other than residential premises) at any time of the day or night— (i) without a warrant; and (ii) with the assistance, and by the force, that is necessary and reasonable; and

Seizure, retention and disposal of things Division 11.4 (b) in the course of taking emergency action, exercise any of the powers listed in section 100. (2) An authorised officer who enters premises under subsection (1) (a) is not authorised to remain on the premises if, on request by the occupier or a person apparently in charge of the premises, the officer does not produce the officer’s identity card.

Division 11.4 Seizure, retention and disposal of things

108 Seizure (1) An authorised officer may seize anything under a power of seizure under this part if the officer has reasonable grounds for believing that it is connected with an offence against this Act and— (a) the seizure is necessary to prevent the thing being— (i) concealed, lost, damaged or destroyed; or (ii) used to commit the offence; or (b) the seizure is necessary to conduct tests for the purpose of adducing evidence in a prosecution for the offence. (2) A person must not, without the written consent of the authority— (a) interfere with or dispose of a thing seized under this part; or (b) remove the thing from the premises where it was seized or to which it was taken by the authorised officer who seized it. (3) If an authorised officer has seized a thing under this part, the officer must give a receipt for the thing to— (a) the occupier of the premises where it was seized; or

Division 11.4 Seizure, retention and disposal of things (b) the person who had possession, custody or control of the thing immediately before it was seized.

109 Retention to adduce evidence (1) The following provisions apply in relation to anything seized under this part: (a) the thing must be held by the authority for the purpose of adducing evidence in a prosecution for an offence against this Act, unless the authority authorises the release of the thing to its owner or the person who had possession, custody or control of the thing immediately before it was seized; (b) if a prosecution for an offence against this Act is instituted within the prescribed period and the defendant is found guilty— the court may order that— (i) the thing be forfeited to the authority; or (ii) the defendant pay to the authority an amount equal to the market value of the thing at the time of the seizure, being the value decided by the court; (c) if— (i) a prosecution for an offence against this Act is not instituted within the prescribed period; or (ii) on such a prosecution being instituted within that period, the defendant is found not guilty or the court does not make an order under paragraph (b); the authority must, subject to section 110, release the thing to its owner or the person who had possession, custody or control of the thing immediately before it was seized. prescribed period means the period of 6 months beginning on the day after the seizure.

Seizure, retention and disposal of things Division 11.4

110 Disposal (1) Instead of releasing a thing under section 109 (1) (c), the authority may give written notice to— (a) the owner of the thing; or (b) the person who had possession, custody or control of the thing immediately before it was seized; inviting the person to show why the thing should not be disposed of. (2) If a notice is given under subsection (1) the authority must, at the same time, give public notice that a person who has a legal or equitable interest in the thing to be disposed may tell the authority about why it should not be disposed of. newspaper circulating in the ACT (see Legislation Act, dict, pt 1). (3) A notice under subsection (1) or (2) must specify— (a) the grounds on which the authority bases the authority’s belief that the disposal of the thing is necessary; and (b) the period (not shorter than 20 working days after the day on which the notice was given) after which the authority may cause the thing to be disposed of under subsection (4). (4) The authority must— (a) after the period specified in a notice under subsection (1) or (2) has ended; and (b) after taking into account any representations made in response to the notice; dispose of the thing if satisfied that the disposal is necessary to prevent or minimise any environmental harm caused, or likely to be caused, by the thing.

(5) If the authority is not satisfied that it is necessary to dispose of a thing, the authority must release the thing to its owner or the person who had possession, custody or control of the thing immediately before it was seized. (6) If a thing is disposed of under subsection (4), the Territory must compensate the owner.

111 Power to require name and address (1) If an authorised officer— (a) finds a person committing an offence against this Act; or (b) has reasonable grounds for believing that a person has committed an offence against this Act; the officer— (c) may require the person to state the person’s name and address; and (d) in doing so, must — (i) inform the person of the reasons for the requirement; and (ii) as soon as practicable afterwards, record those reasons. (2) A person is not required to comply with a requirement under subsection (1) if, on request by the person, the authorised officer does not produce the officer’s identity card. (3) Subject to subsection (2), a person must not, without reasonable excuse, fail to comply with a requirement under subsection (1). Maximum penalty: 5 penalty units.

Powers of analysts Part 12

Part 12 Powers of analysts

112 Entry of premises (1) An analyst may accompany an authorised officer who has entered premises under a power of entry under part 11 to conduct the tests necessary to decide whether this Act is being complied with. (2) A person must not, without reasonable excuse, obstruct or hinder an analyst in the exercise of the analyst’s powers under subsection (1). (3) An analyst who enters premises under subsection (1) is not authorised to remain on the premises if, on request by the occupier or a person apparently in charge of the premises, the analyst does not produce the analyst’s identity card.

113 Evidence of analysis A certificate purporting to be signed by an analyst— (a) stating that they have analysed, or caused to be analysed, a sample from a sealed container to which was attached a label purporting to be signed by the authorised officer named in the certificate and bearing particulars of the date and time when, and the place where, the sample was taken by the authorised officer; and (b) describing the analysis to which the sample was subjected; and (c) setting out the results of the analysis; is evidence of the matters so stated.

125 Environment protection orders (1) If the authority has reasonable grounds for believing that a person has contravened or is contravening an environmental authorisation or a provision of this Act, the authority may serve an environment protection order on the person. (2) If the authority is satisfied that land is contaminated, but has reasonable grounds for believing that if the land were— (a) to continue to be used for its present use; or (b) to be used for a specified use, or a use in a specified class of uses, other than its present use; it would not cause, or would not be likely to cause, a significant risk of harm to human health or a significant risk of material environmental harm or serious environmental harm, the authority may serve an environment protection order on the relevant person in relation to the land. (3) If the authority is satisfied that land is contaminated but has reasonable grounds for believing that the contamination is not, or is not likely to, cause a significant risk of harm to human health or a environmental harm while measures for its containment continue, the authority may serve an environment protection order on the relevant person in relation to the land.

Environment protection orders Division 13.2 (4) An order must be in writing and must— (a) identify the person on whom the order is served; and (b) if the order is grounded on a contravention of this Act, specify— (i) the provision of this Act alleged to have been contravened; and (ii) the nature of, and the day, time and place of, the alleged contravention; and (c) if the order is grounded on a contravention of an environmental authorisation, specify— (i) the condition of the authorisation alleged to have been contravened; and (ii) the nature of, and the day, time and place of, the alleged contravention; and (d) if the order is served under subsection (2) or (3)— (i) the nature of the substances in, on or under the land the subject of the order; and (ii) the grounds on which the authority holds its belief; and (e) require that specified action be taken, stopped or not begun by the person; and (f) set out the maximum penalty, on conviction, for a failure to comply with the order. (5) An order may impose any requirement reasonably required for the purposes for which the order is served, including 1 or more of the (a) that the person stop or not begin a specified activity indefinitely or for a specified period;

(b) that the person undertake, within a specified period— (i) specified action to remedy specified environmental harm; and (ii) if appropriate, specified action to prevent or mitigate further environmental harm; (c) that the person undertake, within a specified period, specified action for the restoration of the environment in a public place or for the public benefit; (d) that the person undertake, within a specified period, any other specified action; (e) that the person not conduct a specified activity except during specified times or subject to specified conditions; (f) that the person provide specified information to the authority in relation to the environmental impact of an activity being conducted by the person. (6) In this section, a reference to a contravention of this Act includes a reference to a failure to comply with the general environmental duty. (7) In this section: (a) the occupier of the land; and (b) if the occupier is not the lessee—the lessee; and

Injunctive orders Division 13.3

126 Contravention of environment protection order A person must not contravene an environment protection order. Maximum penalty: (a) if the order was grounded on a contravention of this Act and this Act specifies a penalty for the contravention—that penalty; or (b) if the order was grounded on a contravention of an environmental authorisation and this Act specifies a penalty for the contravention—that penalty; or (c) in any other case—200 penalty units.

127 Application for order (1) An application for an order under section 128 may be made to the Supreme Court by— (a) the authority; or (b) any other person with leave of the court. (2) The court must not grant leave under subsection (1) (b) unless satisfied that— (a) the person has requested the authority to take action under the Act and the authority has failed, within a time that is reasonable in the circumstances, to notify the person in writing that it has taken any action that is appropriate in the circumstances; and (b) it is in the public interest that the proceedings should be brought.

128 Making of order (1) If the Supreme Court is satisfied— (a) that— (i) the respondent has contravened or is contravening; or

(ii) there is a significant likelihood that the respondent will contravene; an environmental authorisation, an environment protection order or a provision of this Act; and (b) that, as a result, serious or material environmental harm has happened, is happening or is likely to happen; the court may make— (c) an order requiring the respondent to remedy the contravention; or (d) an order restraining the respondent from continuing to commit the contravention; or (e) an order restraining the respondent from committing the threatened or anticipated contravention; and any other orders the court considers appropriate for the purpose of giving effect to that order. (2) An order under subsection (1) must specify the date on or before which the order is to be complied with. (3) The court may make an order under subsection (1) directing the respondent to stop doing a particular thing, whether or not— (a) it appears to the court that the respondent intends to do the thing or continue to do the thing; or (b) the respondent has previously done a thing of that kind; or (c) there is a potential for serious or material environmental harm to result if the respondent does the thing or continues to do the thing.

Injunctive orders Division 13.3 (4) The court may make an order under subsection (1) directing the respondent to do a particular thing, whether or not— (a) it appears to the court that the respondent does not intend to do the thing or continue to do the thing; or (b) the respondent has previously not done a thing of that kind; or (c) there is a potential for serious or material environmental harm to result if the respondent does not do the thing.

129 Interim order (1) If— (a) an application for an order under section 128 is pending; and (b) the Supreme Court is satisfied that there is a real or significant likelihood of serious or material environmental harm happening before the application is determined; the court may make an interim order of the kind described in section 128 (1) (c), (d) or (e) and any other orders the court considers appropriate. (2) An interim order under subsection (1) remains in force— (a) if a copy of the application has not been served on the respondent— (i) until the court otherwise orders; or (ii) for the period (not longer than 14 days) specified in the order; whichever happens first; or

(b) if a copy of the application has been served on the respondent— (i) until the court otherwise orders; or (ii) until the court decides the application; whichever happens first.

130 Costs—public interest In deciding the amount of costs to be awarded against a party to a proceeding under section 128 or section 129, the Supreme Court must take into account the nature of the public interest.

131 Security for costs etc The Supreme Court may order an applicant for an order under section 128— (a) to provide security for the payment of costs that may be awarded against the applicant if the application is subsequently dismissed; or (b) to give an undertaking about the payment of any amount that may be awarded against the applicant under section 132.

132 Compensation If, on an application for an order under section 128 alleging that there has been a contravention of an environmental authorisation, an environment protection order or a provision of this Act, the Supreme Court is satisfied that— (a) there has been no such contravention by the respondent; and (b) the respondent has suffered loss or damage as a result of the actions of the applicant in bringing the proceedings; and

Power to require information Division 13.4 (c) in the circumstances it is appropriate to make an order under this subsection; the court may, on the application of the respondent (and in addition to any order about costs), order the applicant to pay to the respondent an amount, decided by the court, to compensate the respondent for the loss or damage suffered by the respondent.

Division 13.4 Power to require information

133 Information discovery orders (1) If the authority has reasonable grounds for suspecting that a person— (a) has information reasonably required by the authority for the administration or enforcement of this Act; or (b) has possession or control of a document containing such information; the authority may serve on the person an information discovery order requiring the person to give the information or produce the document. (2) An order must be in writing and must — (a) identify the person on whom the order is served; and (b) specify why the information is required; and (c) specify the date on or before which the order must be complied with; and (d) set out the maximum penalty, on conviction, for a failure to comply with the order.

134 Contravention of information discovery order A person must not contravene an information discovery order.

Part 14 Notification and review of decisions

135 Definitions—pt 14 internally reviewable decision means a decision mentioned in schedule 3, column 3 under a provision of this Act mentioned in column 2 in relation to the decision. reviewable decision means— (a) a decision mentioned in schedule 3, column 3 under a provision of this Act mentioned in column 2 in relation to the decision; or (b) a decision made on internal review.

136 Internal review and reviewable decision notices (1) If the authority makes an internally reviewable decision, the authority must give an internal review notice to each entity mentioned in schedule 3, column 4 in relation to the decision. (2) If the authority makes a reviewable decision, the authority must give a reviewable decision notice to each entity mentioned in schedule 3, column 4 in relation to the decision. Note The authority must also take reasonable steps to give an internal review notice and a reviewable decision notice to anyone whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A and s 67B).

136A Applications for internal review (1) The following may apply to the authority for review of an internally reviewable decision: (a) an entity mentioned in schedule 3, column 4 in relation to the decision;

Notification and review of decisions Part 14 (b) any other person whose interests are affected by the decision. (2) The application must— (b) state the applicant’s name and address; and (c) set out the applicant’s reasons for making the application. (3) The application must be given to the authority within— (a) 14 days after the day the applicant is given the internal review notice for the decision; or (b) any longer period allowed by the authority before or after the end of the 14-day period.

136B Applications not stay internally reviewable decisions The making of an application for review of an internally reviewable decision does not affect the operation of the decision.

136C Review by authority (1) The authority must review the internally reviewable decision. (2) The review must happen within 28 days (the 28-day period) after the day the authority receives the application for review of the internally reviewable decision. (3) The authority must— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision. (4) If the decision is not varied or set aside within the 28-day period, the decision is taken to have been confirmed by the authority.

136D Applications for review The following may apply to the ACAT for review of a reviewable decision: (a) an entity mentioned in schedule 3, column 4 in relation to the decision; (b) any other person whose interests are affected by the decision.

Enforceable undertakings Part 14A

136E Definitions—pt 14A enforceable undertaking means an environmental undertaking that has been accepted under section 136G. environmental undertaking—see section 136F (2).

136F Making of environmental undertakings (1) This section applies if the authority alleges that a person has committed an offence against division 15.1 (Environmental offences). (2) The person may give the authority a written undertaking (an environmental undertaking) in relation to the offence. (3) The environmental undertaking must— (a) state that, on acceptance by the authority, it is an enforceable undertaking under this Act; and (b) acknowledge that the authority alleges that the person has committed an offence against a stated provision of this Act; and (c) identify the facts and circumstances of the alleged offence; and (d) include 1 or more undertakings relating to the alleged offence. Examples—undertakings 1 to stop certain conduct 2 to take particular action to compensate people adversely affected by an alleged offence committed against a stated provision of this Act 3 to take particular action to rectify a state of affairs that arose as a direct or indirect result of the alleged offence 4 to take particular action (including implementing particular systems) to prevent future offences against this Act 5 to implement publicity or education programs

136G Acceptance of environmental undertaking (1) The authority may accept an environmental undertaking by written notice given to the person who gave the undertaking. (2) On acceptance of the undertaking, the undertaking becomes an enforceable undertaking.

136H Withdrawal from or amendment of enforceable undertaking (1) The person who gave an enforceable undertaking may withdraw from or amend the undertaking only with the authority’s written agreement. (2) However, the undertaking may not be amended to provide for a different alleged offence.

136I Ending enforceable undertaking (1) The authority may end an enforceable undertaking by written notice to the person who gave the undertaking if satisfied that the undertaking is no longer necessary or desirable. (2) The authority may act under subsection (1) on the authority’s own initiative or on the application of the person who gave the undertaking. (3) The undertaking ends when the person who gave the undertaking receives the authority’s notice.

136J Undertaking not admission of fault etc (1) This section applies if a person gives the authority an environmental undertaking in relation to an alleged offence, whether or not the undertaking is accepted by the authority. (2) Giving the environmental undertaking is not— (a) an express or implied admission of fault or liability by the person in relation to the alleged offence; and

Enforceable undertakings Part 14A (b) relevant to deciding fault or liability in relation to the alleged

136K Contravention of enforceable undertakings (1) If the authority believes on reasonable grounds that an enforceable undertaking has been contravened by anyone, the authority may apply to the Magistrates Court for an order under subsection (2). (2) If the Magistrates Court is satisfied that the enforceable undertaking has been contravened, the court may make 1 or more of the following orders: (a) an order requiring the person who gave the undertaking to ensure that the undertaking is not contravened; (b) an order requiring the person who gave the undertaking to pay to the Territory the amount assessed by the court as the value of the benefits anyone derived, directly or indirectly, from the contravention of the undertaking; (c) an order that the court considers appropriate requiring the person who gave the undertaking to compensate someone who has suffered loss or damage because of the contravention of the undertaking; (d) any other order that the court considers appropriate. (3) A person commits an offence if the person fails to take all reasonable steps to comply with an order under subsection (2).

136L Effect of enforceable undertaking on other proceedings A proceeding may not be brought against a person for an alleged offence against division 15.1 (Environmental offences) if— (a) an enforceable undertaking is in force in relation to the alleged offence; or (b) the person has complied with an enforceable undertaking in relation to the alleged offence.

Environmental offences Division 15.1

Subdivision 15.1.1 General environmental offences