Amendments to primary acts
Amendments to the Act in 2005-2006
The Environment Protection (Miscellaneous) Amendment Act 2005 was assented to on 9 June 2005, representing a significant strengthening of the Environment Protection Act 1993 (the Act). Most of the amendments to the Act came into operation on 1 July 2005, while implementation of the remaining provisions were delayed until 1 July 2006.
The Amendment Act implements recommendations from reviews by the former government and the Environment, Resources and Development Committee of Parliament into the adequacy of environment protection in this state.
The amendments fulfill the government's election commitment to introduce a system of civil penalties for less serious offences under the Act. Changes also include establishing a system to clarify local government involvement in the administration of environment protection legislation.
The Amendment Act offers opportunities for more effective administration of the Act and provides the EPA with a wider range of tools, which will lead to better environment protection.
The new civil penalty section of the Act, introduced on 1 July 2006, provides South Australia with an efficient system to deal with less serious environmental offences (see new section 104A).
The changes allow the EPA to negotiate a civil penalty, or apply to the Environment, Resources and Development Court for an order directing a person to pay an amount to the EPA as a civil penalty. If the EPA seeks to apply to the court for a civil penalty, the person may choose to be prosecuted rather than be heard in the civil jurisdiction of the court.
South Australia was the first in Australia to adopt the negotiated civil penalty tool for environment protection.
The EPA has developed a policy to guide penalty negotiations entitled the Civil penalty calculations policy. The policy has been developed to provide a structure for the EPA to calculate appropriate levels of monetary penalty through the negotiation process.
Amendments to several offences under the Act were passed to strengthen the power of the EPA, and administering agencies such as local councils, to protect the environment.
The offence of environmental nuisance has been changed to include a strict liability offence. This amendment, introduced on 1 July 2006, brings the level of proof required for environmental nuisance in line with the hierarchy of more serious environmental offences in the Act (see amendment to section 82).
The protection against self-incrimination for corporations that operate licensed activities is limited for most purposes in the Act. Information sought by and provided to the EPA from a licensed corporation may be admissible in evidence during proceedings for an offence under the Act. However, evidence obtained from an accredited licence under the Act remains protected (see new definition of prescribed person in section 3 and other references in the Amendment Act to 'prescribed person').
The amendment allows the EPA to continue controlling and supervising sites of environmental concern, even though the activities which require a licence are no longer taking place on that site (see amendment to section 43(6) and new section 93A).
Consistent with the recommendations from the Environment, Resources and Development Committee Parliamentary review, changes have been made to the process of making environment protection policies to streamline the process (see amendment to section 28).
A new division of the Act, 1A-Part 3, clarifies the role of local councils in administering the Act, providing better service to the community. Local councils will be able to volunteer as 'administering agencies' and enforce the Act for non-licensed activities (see new sections 18A to D). This legislative system has been developed as a result of an 18-month trial in 2001-02 on sharing of EPA environmental responsibilities with the Adelaide City Council, Adelaide Hills Council and City of Port Adelaide-Enfield.
New cost recovery tools are included in the Act to financially support councils who volunteer to become administering agencies (see amendment to section 135). The EPA developed a support package for councils as administering agencies to provide them with:
- technical support
- advice in using compliance and enforcement measures of the Act
- administrative tools
- training and awareness
- information technology support and equipment.
The Amendment Act includes a variety of changes to improve the efficiency and administration of environmental authorisations.
The EPA is now able to issue licences for longer periods, while still being able to annually vary licence conditions concerning testing, monitoring and auditing [see amendment to section 45(3)].
The EPA has broader powers to specify conditions of licence relating to the training and instruction of employees and agents, and requiring licensees to provide certificates of compliance (see new sections 54A and B). This will assist industry in minimising the risk of causing an offence under the Act.
Increased community consultation has been implemented from 1 July 2006, for the issuing of new environmental authorisations and for the relaxation of conditions required by authorisations (see amendment to sections 39 and 46).
The EPA is also able to require as a condition of licence that a licensee undertake public consultation when developing an environment improvement program (see amendment to section 54).
The Amendment Act contains a range of minor operational and technical changes to increase the EPA Board's efficiency (see amendment to sections 15 and 16).