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National Environment Protection Measures (Implementation) Bill 1998

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1998

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

 

 

 

 

National Environment Protection Measures (Implementation) Bill 1998

 

 

(Amendments to be moved by Senator Allison for the Australian Democrats in committee of the whole)

 

(1)     Clause 3, page 2 (lines 7 to 11), omit the clause, substitute:

3  Objects of Act

             (1)  The objects of this Act are:

                     (a)  to make provision for the implementation of national environment protection measures in respect of certain activities carried on by or on behalf of the Commonwealth and Commonwealth authorities; and

                     (b)  to protect, restore and enhance the quality of the environment in Australia, having regard to the need to maintain ecologically sustainable development; and

                     (c)  to ensure that the community has access to relevant and meaningful information about pollution; and

                     (d)  to rationalise, simplify and strengthen the regulatory framework for environment protection; and

                     (e)  to improve the efficiency of administration of environment protection laws.

             (2)  For the purposes of this Act, ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes, through the implementation of the following principles and programs:

                     (a)  the precautionary principle, namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measuring to prevent environmental degradation;

                     (b)  inter-generational equity, namely, 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;

                     (c)  conservation of biological diversity and ecological integrity;

                     (d)  improved valuation and pricing of environmental resources.

(2)     Clause 5, page 3 (lines 15 to 20), omit the colon and paragraphs (a) and (b) of the definition of activity , substitute “the formulation of policy”.

(3)     Clause 5, page 7 (lines 16 to 18), omit:

               ; or (c)  any other matter agreed between the Commonwealth, the States and the Territories”.

(4)     Clause 10, page 10 (lines 14 to 16), omit subclause (2).

(5)     Clause 10, page 11 (line 23), after “must”, insert “, within 28 days”.

(6)     Clause 10, page 12 (line 12), omit “may”, substitute “must, within 28 days”.

(7)     Clause 10, page 12 (line 26), after “Environment Minister”, insert “within 28 days of receiving the recommendation”.

(8)     Clause 10, page 12 (line 28), omit “(if any)”.

(9)     Clause 10, page 12 (after line 32), at the end of the clause, add:

             (8)  Within 15 sitting days after receiving a report under subsection (7), the Environment Minister must cause a copy of the report to be tabled in each House of the Parliament.

(10)   Clause 11, page 13 (line 17), omit “appropriate”, substitute “improved”.

(11)   Clause 11, page 13 (line 22), at the end of subparagraph (ii), add “, having regard to the objects of this Act, the National Environment Protection Council Act 1994 and the principles of ecologically sustainable development, as outlined in section 3.

(12)   Clause 13, page 15 (lines 18 to 29), omit paragraphs (c), (d) and (e).

(13)   Clause 13, page 16 (lines 3 to 26), omit subclauses (3), (4) and (5).

(14)   Clause 23, page 31 (line 4), omit “indefinitely or”.

(15)   Clause 23, page 31 (line 5), omit “either wherever the activity is carried on or”.

(16)   Page 32 (after line 12), after clause 24, insert:

24A  Environmental auditors

             (1)  Subject to sections 25 and 25A, the relevant Minister may appoint any person (the environmental auditor ) to carry out an environmental audit for the purposes of this Act.

             (2)  The regulations may make provision for the accreditation of environmental auditors.

(17)   Page 32 (after line 20), after clause 25, insert:

25A  Environmental auditor to be a fit and proper person

             (1)  A person must not be appointed as an environmental auditor unless the relevant Minister is satisfied that the person is a fit and proper person.

             (2)  In deciding whether a person is a fit and proper person, the relevant Minister must have regard to:

                     (a)  any conviction of the person, or any body corporate of which the person is a director, for contravention of any Australian environment protection or related law; and

                     (b)  any suspension or revocation of any licence or other authority held by the person, or any body corporate of which the person is a director, under any Australian environment protection or related law.

             (3)  A person’s appointment as an environmental auditor must be revoked if:

                     (a)  the person, or a body corporate of which the person is a director, is convicted for a contravention of any Australian environment protection or related law; or

                     (b)  any licence or authority held by the person, or a body corporate of which the person is a director, under any Australian environment protection or related law is suspended or revoked.

(18)   Clause 26, page 32 (line 22) to page 33 (line 6), omit subclause (1), substitute:

             (1)  The environmental audit for the purposes of the implementation of the NEPM is to consist of a periodic, documented evaluation of an activity or activities (including an evaluation of management practices, systems and plant) for either or both of the following purposes:

                     (a)  to provide information to the person managing the activity or activities about compliance with legal requirements, codes of practice and relevant policies relating to the protection of the environment;

                     (b)  to enable the person to determine whether the way the activity is carried on can be improved in order to protect the environment and to minimise waste.

(19)   Clause 26, page 33 (after line 22), at the end of the clause (but before the note), add:

             (4)  A person who provides information to an environmental auditor in connection with an environmental audit, knowing the information to be false or misleading in a material respect, is guilty of an offence punishable on conviction by imprisonment for not more than 6 months.

             (5)  A person who refuses or fails to provide information or to produce a document to an environmental auditor in connection with an environmental audit without reasonable excuse is guilty of an offence punishable on conviction by imprisonment for not more than 6 months.

Self-incrimination

             (6)  For the purposes of subsection (5), it is not a reasonable excuse for a person to refuse or fail:

                     (a)  to give information; or

                     (b)  to produce a document;

in accordance with a requirement made of the person by the environmental auditor, on the ground that the information or production of the document, as the case may be, might tend to incriminate the person or make the person liable to a penalty. However:

                     (c)  giving the information or producing the document; or

                     (d)  any information, document or thing obtained as a direct or indirect consequence of the giving of the information or producing the document;

is not admissible in evidence against the person in any criminal proceedings, other than proceedings for an offence against, or arising out of, subsection (4) or (5).

(20)   Clause 27, page 34 (line 6), at the end of subclause (1), add:

             ; and (c)  a declaration signed by the Secretary of the relevant Department or the Chief Executive Officer of the relevant Commonwealth authority, as the case requires, certifying that officers of the Department or authority, as the case may be:

                              (i)  have not knowingly provided any false or misleading information; and

                             (ii)  have provided all relevant information;

                            to the environmental auditor.

(21)   Clause 28, page 34 (lines 22 to 32), TO BE OPPOSED .

(22)   Clause 30, page 35 (line 17), at the end of subclause (1), add “and must have regard to the objects of this Act and the National Environment Protection Council Act 1994 ”.

(23)   Clause 30, page 36 (lines 1 and 2), omit “the implementation of”, substitute “compliance with”.

(24)   Clause 32, page 39 (after line 4), at the end of the clause, add:

             (6)  For the purposes of this section, the Environment Minister may, after consultation with the Secretary of the relevant Department or the Chief Executive Officer of the relevant Commonwealth authority, direct any Department or Commonwealth authority:

                     (a)  to do anything within the powers of the Department or Commonwealth authority which will, in the opinion of the Environment Minister, contribute to environment protection; or

                     (b)  to cease doing anything which, in the opinion of the Environment Minister, is adversely affecting environment protection.

(25)   Page 39 (after line 4), after Part 6, insert:

Part 6A—Offences

32A  Offence of aggravated pollution

                   A person to whom this Act applies who intentionally, recklessly or negligently pollutes the environment or intentionally, recklessly or negligently causes or permits an environmental hazard which results in:

                     (a)  serious damage to the environment; or

                     (b)  a serious threat to public health; or

                     (c)  a substantial risk of serious damage to the environment; or

                     (d)  a substantial risk of a serious threat to public health;

is guilty of an indictable offence

Maximum penalty:    2000 penalty units

Note:          Subsection 4B(3) of the Crimes act 1914 provides that where a body corporate is convicted of an offence, the court may impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of maximum pecuniary penalty that could be imposed on a natural person convicted of the same offence.

(26)   Page 46 (after line 27), after clause 38, insert:

38A  Performance targets

             (1)  If, in a year ending on 30 June, a Department or Commonwealth authority is responsible for the carrying on of an activity to which a NEPM applies, the Secretary of the Department or the Chief Executive Officer of the authority, as the case may be, must devise annual performance targets for the implementation of the NEPM and provide a copy of them to the relevant Minister by the 30 September preceding the 30 June on which the year ends.

             (2)  Within 7 sitting days after receiving a copy of performance targets under subsection (1), the relevant Minister must cause a copy of the performance targets to be tabled in each House of the Parliament.

             (3)  If, by 30 September in any year, the Secretary of a Department or the Chief Executive Officer of a Commonwealth authority responsible for the carrying on of an activity to which a NEPM applies has not provided a copy of the annual performance targets to the relevant Minister, the relevant Minister must prescribe the performance targets for the Department or authority for that year, by no later than 1 November of that year.

(27)   Clause 39, page 47 (after line 14), after subclause (1), insert:

          (1A)  A report under subsection (1) must include a report on the achievement of performance targets set under section 38A.

(28)   Page 47 (after line 29), at the end of the Bill, add:

42  Review of operation of Act

             (1)  The Environment Minister must cause an independent review of:

                     (a)  the operation of this Act; and

                     (b)  the extent to which the policy objectives of this Act remain valid; and

                     (c)  whether the provisions of this Act remain appropriate for the achievement of those policy objectives;

to be undertaken as soon as possible after the fifth anniversary of the commencement of this Act.

             (2)  A person who undertakes such a review must give the Minister a written report of the review.

             (3)  The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 12 months after the fifth anniversary of the commencement of this Act.

             (4)  In this section:

independent review means a review undertaken by persons who:

                     (a)  in the Environment Minister’s opinion possess appropriate qualifications to undertake the review; and

                     (b)  include one or more persons who are not employed by the Commonwealth or a Commonwealth authority and have not, since the commencement of the Act, provided services to the Commonwealth or a Commonwealth authority under or in connection with a contract.