Environment Protection (Sea Dumping) Regulations 1983

The Regulations rely heavily on defined terms in the parent Act. They do not define "controlled material", "dumping", "incineration at sea", "artificial reef placement", "vessel", "aircraft", or "platform". Those meanings are supplied by the Act and ultimately by the London Convention and Protocol to which the Act gives domestic effect. The Regulations do create a concept of "prescribed information" for a report of relevant conduct. That report must contain the name and address of the person giving the report, the date and Eastern Standard Time of the conduct, the depth of water, the site coordinates using Geocentric Datum of Australia (degrees, minutes, seconds), the identifying marks of the vessel, aircraft or platform, the names of the owner and person in charge, the names of the persons whose conduct constituted the relevant conduct, the method used, the reason for the conduct, and if controlled material (other than a vessel/aircraft/platform) was dumped, incinerated, loaded or placed as an artificial reef, then a general description, chemical composition, form, volume or mass, and method of packaging. If a vessel, aircraft or platform itself was dumped, incinerated, loaded or placed, then the report must give whether it was a vessel, aircraft or platform, its name and registration, its dimensions including mass, and packaging. This is an exhaustive list. Another key concept is the fee schedule for different permit categories. The Regulations distinguish between dredged or excavated material (with a volume threshold of 100,000 cubic metres separating the $23,500 and $10,000 fees), vessel dumping, platform dumping, artificial reef permits, a residual category for any controlled material not otherwise specified ($5,000), and burial at sea permits ($1,675). There is also a fixed fee of $860 for an application to vary a permit. The concept of "prescribed court" is given meaning by Schedule 1, which lists each state or territory and its corresponding superior court. For New South Wales it is the Land and Environment Court; for all others it is the Supreme Court. The concept of "service" is also spelled out: notices under ss 18(3), 20(1) or 21(2) of the Act must be served by post to the address on the application or to an alternative address notified in writing. The transitional concept in SLI 2009 No. 57, reg 4, preserves the former fees for applications made before 17 April 2009, so that the new fee schedule does not apply retrospectively to pending applications.

The Regulations affect several groups. First and most directly, any person or corporation that applies for a permit under the Act. This includes entities that want to dump dredged or excavated material (typically port authorities, infrastructure companies, and mining operators), those who want to dump vessels or platforms (shipping companies, offshore oil and gas operators, decommissioning contractors), those who want to place an artificial reef (often fisheries departments, recreational fishing groups, or local councils), those who want to dump any other controlled material (waste management firms, laboratories, government agencies disposing of contaminated material), and those who want to bury a person at sea (typically families of deceased persons with a connection to the sea). Each of these applicants must pay a prescribed fee within 30 days and before the permit is granted. The Regulations impose a cash flow cost on applicants and create a financial barrier, especially for small entities or individuals seeking a burial at sea permit (though $1,675 is modest). Second, the Regulations affect persons who make a report of relevant conduct under s 15(3)(d) of the Act. These are likely to be employees of the permit holder, competitors, environmental groups, or members of the public who witness or suspect unlawful dumping. The reporting person must provide a detailed set of information including technical data such as chemical composition and Geocentric Datum coordinates. This creates a compliance burden on the reporter, who may not have ready access to such information. It may also increase the cost of reporting and reduce the willingness of informants to come forward, which could weaken enforcement against illegal dumping. Third, the Regulations affect the designated courts. The Land and Environment Court of New South Wales and the Supreme Courts of Victoria, Queensland, South Australia, Western Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island, and the Cocos (Keeling) Islands are prescribed as the only courts that can exercise jurisdiction in criminal or civil proceedings under the Act. This restricts the venue for enforcement and may increase costs for litigants, who cannot bring proceedings in local magistrates courts. Fourth, the Regulations affect the Minister and the Department administering the Act, who must process applications, collect fees, and issue notices in compliance with the service rules. Fifth, they affect the permit holder if the Minister wishes to vary or cancel a permit; the holder is entitled to receive notice by post at the address provided. Sixth, the Regulations indirectly affect the public and the environment because the fee schedule may influence the number and type of permit applications (higher fees may reduce demand, lower real fees may increase it) and the reporting information may assist in detecting non-compliance.

The Regulations impose several duties and confer several rights. The primary duty on an applicant for a permit is to pay the prescribed fee within a specified time. Regulation 5B provides that the fee must be paid not later than 30 days after the application is made but before the permit or variation is granted. This creates a strict temporal duty. If the applicant fails to pay within 30 days, the Minister is not obliged to grant the permit, and arguably the application could lapse or be refused for non-payment. The duty is on the applicant to initiate payment; the regulations do not specify a refund mechanism if the application is refused after payment. A second duty is on persons giving a report of relevant conduct: they must include the prescribed information set out in reg 3. While the Act may not require the report to be in any particular form, if the report does not contain all the listed information, it may not satisfy the requirements of s 15(3)(d) and thus may not trigger any procedural protections or obligations that rely on a compliant report. The reporter does not have a duty to report; that duty arises under the Act if at all. But if they choose to report, they must provide that detailed information. A third duty is on the Minister or their delegate to serve notices under ss 18(3), 20(1) and 21(2) of the Act by post to the address on the application or to a notified alternative address. The Minister does not have discretion to serve by other means unless the recipient has agreed. This gives the applicant or permit holder a right to receive notices by that method. The applicant also has a right to apply for a permit or a variation (subject to the Act's provisions) and to have that application processed in accordance with the Act and Regulations. The Regulations do not prescribe any time limits for processing; that is left to the Act or administrative law. The applicant has a right to a prescribed court if the Minister or other party commences proceedings against them. The designated courts are specified, so a defendant knows that prosecution will occur in the Supreme Court or Land and Environment Court, which have higher procedural standards and usually legal representation. The applicant also has a right to know the fees upfront because the Regulations make them explicit. There is no explicit right to a refund if an application is withdrawn or refused, but the Regulations are silent on that point; presumably the fee is non-refundable as it is described as a fee for an application, not a fee for a grant. The permit holder has a right to notice before the Minister varies or cancels the permit (ss 20(1) and 21(2) of the Act) and that notice must be served in accordance with reg 6.

The Regulations themselves do not create any penalties. The Act contains the offences for unlawful dumping, incineration, loading for dumping, and failing to comply with permit conditions. The Regulations support enforcement in two ways. First, by prescribing the information that must be included in a report of relevant conduct, they provide a standard for what constitutes a proper report. If a report meets that standard, it may be used as evidence or to trigger an investigation. If a report is incomplete, enforcement authorities may still act but the reporter may not have discharged any duty that the Act imposes on them (if any) to provide information. Second, by designating prescribed courts, the Regulations determine where enforcement proceedings can be brought. A prosecution or civil penalty proceeding under the Act can only be brought in the superior court listed in Schedule 1 for the relevant state or territory. This is a restriction on the enforcement machinery. It ensures that environmental matters of this kind are heard by judges rather than magistrates, but it also raises the cost of enforcement. The government must commit more resources to bring a case. This may lead to fewer prosecutions, especially for smaller infractions. Conversely, it provides defendants with the procedural protections and appeal rights of superior courts. The Regulations also indirectly affect enforcement through the fee structure. High fees may reduce the number of permit applications, potentially increasing illegal dumping if operators choose to avoid the cost. But the enforcement risk is that deliberate dumpers may simply not apply. The Regulations do not provide for any compliance audits or inspections; those are matters for the administering agency under the Act. The fee for a variation of a permit ($860) is relatively low, so it does not create a strong disincentive to seek amendments to ensure compliance. The reporting information is quite detailed and may assist enforcement by providing a clear record of where and what was dumped. However, the burden of collecting that information may deter reports. In terms of enforcement against the reporter, if a person gives a report that is false or misleading, they may be liable under general criminal law, but the Regulations do not create a specific offence for incorrect reporting.

The Regulations are made under the Environment Protection (Sea Dumping) Act 1981 and must be read as subordinate legislation to that Act. The Act provides the substantive prohibitions and the regulatory framework; the Regulations fill in the details. For example, s 40 of the Act allows the regulations to prescribe fees; reg 5 does so. Section 33 allows the regulations to prescribe courts; reg 4 and Schedule 1 do so. Section 15(3)(d) allows the regulations to prescribe the information to be included in a report; reg 3 does so. The Regulations cannot expand the scope of the Act or create new offences. They are limited to procedural, administrative and fee matters. The Regulations also interact with state and territory laws through the designation of courts. For New South Wales, the Land and Environment Court is a specialist environmental court with jurisdiction under various state laws. Using that court for federal sea dumping matters may allow for some consistency with state environmental enforcement, but the Regulations do not create any direct interaction with state pollution laws. The burial at sea permit fee ($1,675) interacts with state laws governing burials and the disposal of human remains. State health and environment regulations may also apply, but the Regulations do not address that. The reporting requirements, especially the requirement to use Geocentric Datum of Australia coordinates, interact with mapping and surveying standards. Persons reporting must use that datum rather than older datums. This is a technical interaction with geospatial standards. The Regulations are silent on the interaction with the Navigation Act 2012, the Seas and Submerged Lands Act 1973, or the Environment Protection and Biodiversity Conservation Act 1999. Those Acts may also regulate sea dumping or other marine activities. An operator may need multiple permits; the Regulations do not provide for any coordination or streamlining. The fee schedule interacts with commercial contracts for dredging, decommissioning, or artificial reef construction. The cost of a permit application is a fixed cost that a contractor must factor into bids. The volume threshold of 100,000 cubic metres for dredged material creates a sharp step in costs: a small increase from 99,999 to 100,001 cubic metres more than doubles the fee from $10,000 to $23,500. This creates an artificial incentive to stay just below the threshold or to split a dredging project into separate smaller applications to avoid the higher fee. The Regulations do not address anti-avoidance. The transitional provisions in SLI 2009 No. 57, reg 4, preserve the old fees for applications made before 17 April 2009, so there is an interaction between the amending instrument and existing applications.

The Regulations were first made in 1983 as Statutory Rules 1983 No. 8 and commenced on 6 March 1984. The first amendment was in 1984 (No. 423) which added regulation 2A, later repealed in 2001. The next amendment was in 2001 (No. 199), which made substantial changes: it repealed and substituted regulation 1 (name of regulations), repealed and substituted regulation 3 (reports of relevant conduct), amended regulation 4 (prescribed courts) to update the list of courts, repealed and substituted regulation 5 (fees for applications) with a new fee schedule, added regulation 5A (fee for inspection?) (later repealed in 2009), added regulation 5B (time for payment of fees), and amended the heading to Schedule 1 and replaced its contents. The 2001 amendment also added Schedule 2, which was later repealed in 2009. The most recent amendment was in 2009 (SLI 2009 No. 57), which substituted regulation 5 with new fee amounts (generally increasing them), repealed regulation 5A entirely, amended regulation 5B to reflect the new numbering and removed reference to the repealed regulation 5A, and repealed Schedule 2. The 2009 amendment also included transitional provisions (reg 4 of the amending instrument) preserving the old fees for applications made before the commencement of the amending regulations (17 April 2009). The Regulations as compiled reflect these changes up to 2009. There have been no further amendments since. This is significant because the fee amounts have not been updated for over 15 years as at 2025. Inflation has eroded the real value of the fees. For example, a burial at sea permit fee of $1,675 in 2009 dollars is roughly $2,500 in 2025 dollars. The $23,500 fee for large dredging is now substantially lower in real terms. This means the cost burden on applicants has decreased relative to other costs of doing business, which may reduce the deterrent effect of the fee as a regulatory tool. The prescribed courts list has not been updated; it still includes Norfolk Island, Christmas Island and Cocos (Keeling) Islands as separate jurisdictions, which is correct under the Act.

The Regulations themselves are rarely the subject of litigation. They are administrative in nature and provide the framework for fees and reporting. No cases are cited in the source. In practice, litigation under the Act tends to focus on the meaning of "dumping", "controlled material", or the validity of permits, rather than on the regulations. However, the regulations could be challenged in judicial review proceedings. For example, the fee amounts could be challenged as not reasonably related to the cost of processing an application, but such a challenge would need to be based on constitutional limits (e.g., a fee that is really a tax) or on the scope of the regulation-making power under s 40 of the Act. The courts have not ruled on this under these Regulations. The reporting requirements could be challenged as being too onerous or as exceeding the power under s 15(3)(d). But there is no recorded case. The designation of prescribed courts could be the subject of a constitutional challenge if a state court refused jurisdiction, but again no case is known. The Regulations have been stable for a long time, suggesting they are uncontroversial in practice. The lack of litigation may indicate that the Regulations are straightforward and that disputes are resolved at the administrative level. But it may also indicate that the low real fees and limited reporting lead to under-enforcement.

Several aspects of the Regulations can trap the unwary. The first is the strict 30-day deadline for payment of fees. Regulation 5B says the fee must be paid not later than 30 days after the application is made but before the permit or variation is granted. If the applicant does not pay within 30 days, the Minister has no obligation to grant the permit. There is no provision for extension or late payment. An applicant who misses the deadline may have to reapply and pay again. This is a trap for businesses that are slow to process invoices. The second trap is the use of Eastern Standard Time in reporting. Regulation 3(b) requires the time of the relevant conduct to be given in Eastern Standard Time, regardless of where the conduct occurred. If the conduct took place off Western Australia, the reporter must convert to Australian Eastern Standard Time (AEST). A mistake in time zone conversion could make the report inaccurate. The third trap is the coordinate requirement. The coordinates must be specified in degrees, minutes and seconds of latitude and longitude as determined by reference to the Geocentric Datum of Australia (GDA). Many mariners still use older datums such as AGD66 or AGD84. If a report uses a different datum, the coordinates may be off by about 200 metres. That could be enough to mislead investigators. The regulation requires the coordinates to be "worked out as accurately as possible in the particular case", so using the wrong datum may still be acceptable if that was the best available, but a cautious reporter should note the datum used. The fourth trap is that the fee for a variation of a permit is $860, which is a fixed fee regardless of the significance of the variation. An applicant might think that a minor variation should be free, but it is not. The fifth trap is that the Regulations do not provide for any reduction or waiver of fees for hardship, public interest, or government bodies. A state government department applying for a dredging permit must pay the same fee as a private company. The sixth trap is that the fee for burial at sea is $1,675, which might be an unexpected cost for grieving families. The seventh trap is that the reporting information includes the names of persons whose conduct constituted the relevant conduct. This may be self-incriminating if the reporter was involved. A whistleblower who was also a participant may unintentionally provide evidence against themselves. The eighth trap is that service of notices by post is deemed effective under reg 6 even if the applicant or holder does not receive it, as long as it was sent to the address on file. A permit holder who changes address and fails to notify the Minister may miss a notice of variation or cancellation. The ninth trap is that the Regulations are as compiled to 2009; subsequent amendments to the Act or new regulations may have changed definitions, but the Regulations themselves have not been updated. There is no indexation mechanism for fees. This creates uncertainty about whether the listed fees remain in force or have been impliedly repealed by later instruments. The transitional provisions in the 2009 amendment apply only to earlier applications, not to future ones.

Compliance with the Regulations is a matter of form, timing, and accuracy. For an applicant for a permit, the first step is to ensure the correct application form is used under the Act. The Regulations do not prescribe the form of the application; that is likely under the Act. The applicant must identify the type of permit sought and calculate the correct fee from reg 5. For dredged or excavated material, the volume must be known: if over 100,000 cubic metres, the fee is $23,500; if equal to or less than 100,000 cubic metres, $10,000. The applicant must pay that fee not later than 30 days after making the application. Payment must be made before the permit is granted. The Regulations do not specify method of payment; presumably cheque, electronic transfer, or cash is acceptable if the Department processes it. The applicant should keep proof of payment. If the application is for a variation, the fee is $860. The applicant should also ensure that the Minister has the correct address for service. If the applicant changes address after lodging the application, they should notify the Minister in writing of an alternative address for service. This is important because notices under ss 18(3), 20(1) or 21(2) will be served by post to the address on the application or the notified alternative. If the applicant fails to update the address, they may miss a notice. For a person who wishes to report relevant conduct under s 15(3)(d) of the Act, compliance means providing all the information listed in reg 3. The report should include: the reporter's name and address; the date and Eastern Standard Time of the conduct; the depth of water; the coordinates in degrees, minutes, seconds using Geocentric Datum of Australia; the name and registration/identifying marks of the vessel, aircraft or platform; the owner and person in charge; the persons whose conduct facilitated, caused or constituted the conduct; a description of the method; the reason for the conduct; and, if controlled material (other than a vessel/aircraft/platform) was involved, the general description, chemical composition, form, volume/mass, and packaging. If a vessel, aircraft or platform was the subject of the conduct, then type, name, registration, dimensions including mass, and packaging. The reporter should note that the coordinates and mass must be "worked out as accurately as possible". This allows some leeway, but the reporter should use the best available information. If the reporter lacks some technical data, they should state that it is unavailable. The report should be in writing and likely sent to the Department administering the Act. For the Minister and Department, compliance means serving any notice under the Act by post to the address on the application or notified alternative. The Minister cannot validly serve by email unless the recipient has agreed. The Minister must also accept the fee and not grant a permit before payment. For persons involved in the disposal of a vessel or platform as an artificial reef, the applicant must apply for the correct permit type. An artificial reef permit has a fee of $10,000; that is separate from a vessel-dumping permit ($12,700). The applicant must choose the correct category to avoid overpayment or rejection. All permit holders should maintain accurate contact details with the Department to ensure they receive any notices of variation or cancellation. Finally, any business that regularly applies for sea dumping permits should factor in the real cost of fees and the 30-day payment window into its cash flow and project timelines. Because fees have not been indexed to inflation, the real cost is falling, but the compliance burden of detailed reporting remains fixed and may increase with new technology or standards (e.g., mandatory use of GDA).