New South Wales Consolidated Acts

PROTECTION OF THE ENVIRONMENT ADMINISTRATION ACT 1991 - SECT 17

17 Environmental Counsel to Board

(1) An Environmental Counsel to the Board is to be engaged by the Authority.

(2) The Environmental Counsel is to be a practising barrister approved by the Minister and engaged for a period determined by the Minister.

(3) The Environmental Counsel may advise the Board on any matter (whether or not in connection with the institution of criminal or related proceedings) referred to the Environmental Counsel.

(4) The Board may not determine that the Authority institute proceedings for a serious environment protection offence unless the Environmental Counsel has advised the Board that (on the evidence disclosed in the brief to Counsel) there is evidence capable of establishing the commission of the offence.
The Authority is to ensure that any such brief to the Environmental Counsel contains all relevant evidence available to the Authority.

(5) Nothing in this section prevents the Board from obtaining legal advice from any person. In particular, the Board may, if there is any dispute about the advice of the Environmental Counsel, obtain advice from the Attorney General and act on that advice for the purposes of subsection (4).

(6) The determination of whether the Authority should institute proceedings for serious environment protection offences may not be delegated under this Act.

(7) Criminal or related proceedings may not be challenged on the ground that they were instituted in contravention of this section.

(8) In this section,
"serious environment protection offence" means--

(a) a tier 1 offence (being an offence created by Part 5.2 of the Protection of the Environment Operations Act 1997 ), or

(b) a tier 2 offence (being any other offence created by that Act) which is designated as a serious environment protection offence for the purposes of this section by the prosecution guidelines developed by the Board under this Division, or

(c) an offence under Division 1 of Part 2 of the Pesticides Act 1999 , or

(d) an offence under section 60ZZA of the Local Land Services Act 2013 , or under section 69SA of the Forestry Act 2012 , that was committed intentionally and that caused or was likely to cause significant harm to the environment.

For the purposes of this definition, an offence created by section 144AA (2) or 144AB of the Protection of the Environment Operations Act 1997 is taken to be a tier 1 offence under that Act.