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Explanatory Statement
LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY
MINISTER FOR ENVIRONMENT AND NATURAL RESOURCES
GENERAL
OUTLINE
This Bill establishes the
Environment Protection Act 2019, and repeals the Environmental
Assessment Act 1982 and the Environmental Assessment Amendment Act
1994.
The purpose of this Bill is to
support implementation of Government’s environmental regulatory reform
commitments by reforming the Territory’s environmental impact assessment
and approval process.
PART
1 INTRODUCTION
Division 1 Preliminary
matters Clause 1. Short title
This is a formal
clause which provides for the citation of the Act. When passed, the Act may be
referred to as the Environment Protection Act 2019.
This clause provides for the commencement of the Bill.
The Bill will commence on the day fixed by notice in the Government
Gazette.
This clause establishes the objects of the Bill
as:
• to protect the environment of the
Territory
• to promote ecologically
sustainable development so that the wellbeing of the people of the Territory is
maintained or improved without adverse impact on the environment of the
Territory
• to recognise the role of environmental impact
assessment and approval in promoting the protection and management of the
environment of the Territory
• to provide
for broad community involvement during the process of environmental impact
assessment and approval
• to recognise the role that Aboriginal people have
as stewards of their country as conferred under their traditions and recognised
in law, and the importance of participation by Aboriginal people and communities
in environmental decision- making.
This clause provides for a number of definitions which
are required to assist in the interpretation of the
Act.
The definitions are listed in alphabetical
order and include a wide range of necessary legal definitions, as well as
explanation of certain technical terms required by the Bill as part of the
environmental impact assessment and approval
system.
In particular, the clause includes a
definition of ‘proponent’ which is a term used throughout the Act to
refer to a person that intends to undertake an ‘action’ (defined in
clause 5) and ‘approval holder’ which is a person that holds an
environmental approval issued under the Act.
This Division defines important concepts that are used
throughout the Act and which need to be considered in applying the
Act.
This clause identifies the scope of the term
‘action’ which is used to identify the types of matters that need to
be considered as part of the Territory’s environmental impact assessment
and approval system.
It is designed to ensure
that individual or specific type actions are captured and require impact
assessment. The clause operates in conjunction with clause 13 which provides for
matters of a more strategic nature.
This clause defines the term ‘environment’
as it is used in the Act. Environment has a broad definition, and includes the
biophysical environment as well as social, cultural, health and economic issues.
This broad definition supports the concept of ecologically sustainable
development and ensures that decisions are made in consideration of economic,
cultural and social (including health) factors, and not just biophysical
ones.
This clause identifies how ‘environmental
harm’ should be judged when considering impacts on the
environment.
This clause identifies how ‘material
environmental harm’ is to be identified when considering impacts on the
environment.
This clause identifies how ‘significant
environmental harm’ should be judged when considering impacts on the
environment.
This clause identifies how ‘impacts’ are
to be judged when determining if an action has had an impact on the
environment.
This clause identifies how ‘significant
impacts’ are to be judged when determining if an action has had, or will
have, a significant impact on the
environment.
This judgement is an underlying
principle of the environmental impact assessment system.
This clause identifies how ‘significant
variations’ are to be judged when determining if the proposed changes to
an action are required to be considered under the environmental impact
assessment system.
This clause identifies the scope of the term
‘strategic proposal’ which is used to identify the types of matters
that can be considered for a strategic environmental impact assessment under the
environmental impact assessment and approval
system.
It is designed to capture matters of a
more strategic nature, such as groups of projects in a defined area or strategic
programs of works or strategic planning instruments. The clause operates in
conjunction with clause 5 which provides for matters of a more individualised or
specific nature.
This is a standard clause that provides that the Bill is
intended to apply to the Crown.
This clause identifies that civil rights and actions
are not affected by the Act, except where those rights are specifically provided
for in the Act. It also identifies that compliance with the Act is not itself
evidence that a common law duty of care has been
satisfied.
The clause enables members of the
community to pursue their own civil actions where they consider that there has
been a breach of the legislation that has affected them.
This clause provides that Part IIAA of the Criminal
Code applies to offences under the Act. Part IIAA of the Criminal Code states
the general principles of criminal responsibility, establishes general defences,
and deals with burden of proof. It also defines, or elaborates on, certain
concepts commonly used in the creation of offences.
This Part identifies a number of principles that
should be considered when decisions that have the potential to result in
environmental impact are made by decision-makers, including the Minister,
Northern Territory Environment Protection Authority (NT EPA) and Chief Executive
Officer (CEO), proponents and approval holders.
This clause sets out the principles of ecologically
sustainable development that a decision- maker must consider and apply when
making a decision under the Act. The articulation of the principles supports the
objects of the Act and is in keeping with contemporary environmental
legislation. A decision-maker is not required to specify how the principles have
been considered or applied when stating reasons for a decision.
This clause reiterates the meaning of
‘environment’ within decision-making processes and provides for the
consideration of the long-term and short-term environmental and equitable
implications of a decision. Where a decision will affect a community the
decision-making process should incorporate community involvement.
This clause ensures that decision-making processes
provide for the application of precautionary measures when making decisions
where the scientific understanding of complex environmental systems is
incomplete. The risk consequences of options being considered as part of the
decision-making process should be evaluated in order to avoid decisions that
could cause serious or irreversible damage to the environment.
This clause ensures that decisions are based on the
best available evidence that is relevant and reliable.
This clause states that present-day decisions should
not compromise environmental health, diversity or productivity for current or
future generations.
This clause supports decision-making about the use of
the Northern Territory’s natural resources, ensuring that decisions
examine whether the proposed use of the natural resource is sustainable,
prudent, rational, wise and appropriate.
This clause articulates an outcome of decision-making
under this Act, to conserve and maintain the Northern Territory’s
biological diversity and ecological integrity.
This clause ensures that the Northern
Territory’s accounting of its assets and services includes its
environment. This places an expectation on the person who generates pollution
and waste to bear the cost of its containment, avoidance and abatement while
recognising that users of a product or service should be paying prices which
reflect the cost of using natural resources and the cost of waste
disposal.
This clause supports the provision of
incentives, structures and mechanisms to minimise costs for proponents when
developing solutions and responses to environmental problems.
This clause sets out the purpose of the Division to put in
place hierarchies for environmental decision-making and waste
management.
This clause supports the objects of the Act by putting
in place the approach to be taken by decision-makers, proponents and approval
holders when making decisions in relation to actions that affect the
environment. It supports environmental decision-making about a proposed action
that not only seeks to minimise adverse impact on the environment, but also to
identify and put in place measures that enhance or restore environmental quality
where possible.
The clause establishes an
approach to environmental protection that recognises that the upfront design of
a proposed action is the best approach to minimising adverse impacts on the
environment. The reliance on mitigation and the use of environmental offsets are
to be secondary to project design when seeking to minimise adverse environmental
impacts.
This clause largely speaks to a proponent and places a
focus on a proposed action being designed, implemented and managed to minimise
waste creation and a pollution discharge to the environment. Avoiding production
of waste is to be the priority for a proponent. The least preferred approach to
be accepted by decision-makers is the reliance on waste disposal undertaken in
an environmentally sound manner. This clause therefore seeks to address the real
threat of waste disposal and discharge to the Northern Territory’s
environment.
Division 1 Declaration of environmental objectives
and referral triggers Clause 28. Declaration of environmental
objectives
This clause allows the Minister to
declare environmental objectives under the Act. These will serve to guide
decision-makers and provide a public statement of those priority environmental
matters to be considered in the environmental impact assessment
process.
The clause allows the Minister to initiate the process for
declaring an environmental objective or respond to a recommendation of the NT
EPA to declare environmental objectives. The process of declaring an
environmental objective will be set out in the Regulations. When the Minister
makes a declaration of environmental objectives it must be accompanied by a
statement of reasons.
This clause supports the environmental impact
assessment process by describing the purpose of a referral trigger. The clause
describes two types of referral triggers - an activity- based referral trigger
and a location-based referral trigger. This allows the Act to be responsive to
key matters of concern, ensuring that specific types of activities (identified
as an activity-based referral trigger) will be considered by the NT EPA as well
as activity within identified areas of environmental
significance.
The clause enables the Minister to declare the
referral triggers. The process of declaration will be established through the
Regulations. When the Minister declares referral triggers it must be accompanied
by a statement of reasons.
This clause allows the NT EPA to recommend
environmental objectives or referral triggers to the Minister. This can be done
on the NT EPA’s initiative or at the request of the
Minister.
This clause requires the review of the environmental
objectives and referral triggers at least every 10 years, however they can be
reviewed at any time. This ensures that the Act remains responsive and relevant
in achieving the protection of the Northern Territory’s
environment.
This clause allows the Minister to amend or revoke
either an environmental objective or a referral trigger. The process for
amending or revoking an objective or trigger will be established in the
Regulations. This ensures the objectives and triggers remain relevant and
responsive to the Northern Territory environment.
This clause establishes five offences associated with
undertaking an action where a referral trigger applies to the action where the
action is not authorised. It provides a standard approach to creating tiered
offences that reflect differing levels of environmental risk or consequence as a
result of the alleged breach and differing levels of culpability of an alleged
offender.
Subclause (1) establishes an offence
where a person intentionally engages in unauthorised conduct that is part of an
action, where a referral trigger applies, the conduct results in significant
environmental harm and the person is reckless. This offence contains strict
liability elements, and the penalty for this offence is an environmental offence
level 1 penalty.
Subclause (2) establishes an
offence where a person intentionally engages in unauthorised conduct that is
part of an action, where a referral trigger applies, the conduct results in
material environmental harm and the person is reckless. This offence contains
strict liability elements, and the penalty for this offence is an environmental
offence level 2 penalty.
Subclause (3) establishes an offence where a person
engages in unauthorised conduct that is part of an action, where a referral
trigger applies, and the conduct results in significant environmental harm. This
is a strict liability offence, and the penalty for this offence is an
environmental offence level 2
penalty.
Subclause (4) establishes an offence
where a person engages in unauthorised conduct that is part of an action, where
a referral trigger applies, and the conduct results in material environmental
harm. This is a strict liability offence, and the penalty for this offence is an
environmental offence level 3
penalty.
Subclause (5) establishes an offence
where a person engages in unauthorised conduct that is part of an action where a
referral trigger applies. This is a strict liability offence, and the penalty
for this offence is an environmental offence level 4
penalty.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
These offences are designed to promote
good environmental outcomes, and to minimise environmental impacts, by ensuring
that proponents refer their actions for impact assessment in accordance with the
Act.
This division establishes processes to enable the
Minister and Administrator to make declarations of protected environmental areas
and prohibited actions.
This clause allows the Minister to make a temporary
declaration of a protected environmental area. Before making the declaration the
Minister must believe on reasonable grounds that the declaration is necessary to
further the objects of the Act and protect the environment, or an aspect of the
environment.
A protected declaration is valid
for 12 months and cannot be extended. It can only be replaced if a period of at
least 3 months has passed since the expiry of the previous declaration. This
prohibition does not apply if different matters are being addressed under the
declaration.
For example, the Minister may make
a declaration of a protected environmental area between the NT mainland and
Bathurst Island. The declaration may prohibit all seabed mining activities in
this area. This would not prevent exploration for oil and gas in the same area.
If the declaration expired (and was not replaced with a permanent declaration),
the Minister could not make another declaration in the same area to prohibit
seabed mining activities. The Minister could however make a new declaration that
prohibited oil and gas exploration activities in that
area.
These limitations have been included
because a temporary declaration is designed to provide an urgent response that
may be replaced by a permanent declaration by the
Administrator.
The Minister is required to
consult with the NT EPA before making a temporary declaration. Further
consultation is not required due to the short term and, generally, urgent nature
of these declarations. The Minister is required to advise land owners and
occupiers of a declaration which affects their land and publish a statement of
reasons for making the declaration.
This clause allows the Administrator to make a
permanent declaration of a protected environmental area. Before making the
declaration the Administrator must be satisfied that the declaration is
necessary to further the objects of the Act and protect the environment, or an
aspect of the environment.
The regulations will
specify processes for making permanent declarations of protected environmental
areas, which will include requirements for public
consultation.
These declarations are designed
to provide additional protection for areas of particularly high environmental
value and give certainty to the community and proponents about the types of
activities that will be allowed in those areas.
This clause identifies the different ways in which a
declaration of an environmental protected area may be expressed. It allows
declarations to:
• prohibit all actions,
specific actions or classes of
actions
• prohibit certain actions or
classes of actions; for example, a declaration that prohibited all seabed mining
related activities would not have any impact on commercial fishing
activities
• permit certain actions or
classes of actions; for example a declaration that permitted commercial fishing
activities would mean that only those activities (and no other types of
activities like seabed mining or oil and gas exploration) can be undertaken in
the area
• specify thresholds for
actions; for example a declaration could cap tourist numbers to a particularly
sensitive area at 50 visitors per day.
The clause also identifies the matters that must be
included in a declaration. This includes a description of the area, the day on
and period for which the declaration has effect, and any actions permitted or
prohibited in the declared area.
This clause allows the Administrator to make a
declaration prohibiting certain actions or classes of actions from being
undertaken in the Territory. Before making the declaration the Administrator
must be satisfied that the declaration is necessary to further the objects of
the Act and protect the environment, or an aspect of the
environment.
The clause identifies matters that
must be included in the Administrators declaration, including a description of
the prohibited actions, the day on which the declaration has effect, and the
reason for the declaration.
These declarations
are designed to give certainty to the community and proponents about the types
of activities that will not be allowed in the
Territory.
The regulations will specify
processes for making these declarations.
This clause identifies that the Minister or
Administrator (as appropriate) may revoke all or part of a declaration of a
protected environmental area or prohibited action.
Before revoking a declaration the Minister and
Administrator must be satisfied that the declaration is no longer in the
interests of the Territory and that the revocation is not inconsistent with the
principles of ecologically sustainable development and will not significantly
undermine the objects of the Act.
The
regulations will specify processes for revoking declarations.
This clause establishes four offences associated with
undertaking unauthorised actions in protected environmental areas. It provides a
standard approach to creating tiered offences that reflect differing levels of
environmental risk or consequence as a result of the alleged breach and
differing levels of culpability of an alleged
offender.
Subclause (1) establishes an offence
where a person intentionally engages in conduct that is part of an action which
is prohibited under the protected environmental area, the conduct results in
significant environmental harm and the person is reckless. This offence contains
strict liability elements, and the penalty for this offence is an environmental
offence level 1 penalty.
Subclause (2)
establishes an offence where a person intentionally engages in conduct that is
part of an action which is prohibited under the protected environmental area,
the conduct results in material environmental harm and the person is reckless.
This offence contains strict liability elements, and the penalty for this
offence is an environmental offence level 2
penalty.
Subclause (3) establishes an offence
where a person engages in conduct that is part of an action which is prohibited
under the protected environmental area and the conduct results in significant
environmental harm. This is a strict liability offence, and the penalty for this
offence is an environmental offence level 2
penalty.
Subclause (4) establishes an offence
where a person engages in conduct that is part of an action which is prohibited
under the protected environmental area. This is a strict liability offence, and
the penalty for this offence is an environmental offence level 3
penalty.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
These offences are designed to promote
good environmental outcomes, and to minimise environmental impacts, by ensuring
that unauthorised actions are not undertaken in protected environmental
areas.
This clause establishes four offences associated with
undertaking actions that have been prohibited by a declaration under clause 38.
It provides a standard approach to creating tiered offences that reflect
differing levels of environmental risk or consequence as a result of the alleged
breach and differing levels of culpability of an alleged
offender.
Subclause (1) establishes an offence
where a person intentionally engages in conduct that is part of a prohibited
action, the conduct results in significant environmental harm and the person is
reckless. This offence contains strict liability elements, and the penalty for
this offence is an environmental offence level 1
penalty.
Subclause (2) establishes an offence
where a person intentionally engages in conduct that is part of a prohibited
action, the conduct results in material environmental harm and the
person is reckless. This offence contains strict liability
elements, and the penalty for this offence is an environmental offence level 2
penalty.
Subclause (3) establishes an offence
where a person engages in conduct that is part of a prohibited action and the
conduct results in significant environmental harm. This is a strict liability
offence, and the penalty for this offence is an environmental offence level 2
penalty.
Subclause (4) establishes an offence
where a person engages in conduct that is part of a prohibited action. This is a
strict liability offence, and the penalty for this offence is an environmental
offence level 3 penalty.
The clause contains
standard defences for offences of this nature, and requires the defendant to
establish the defence.
These offences are
designed to promote good environmental outcomes, and to minimise environmental
impacts, by ensuring that actions that are prohibited are not
undertaken.
This Part generally establishes requirements for the
Northern Territory’s environmental impact assessment process. It provides
for a number of general matters associated with the purpose of impact
assessments and role of proponents; the establishment of cooperative agreements
to streamline processes for proponents that are undertaking actions that affect
other jurisdictions; and the referral of actions, including significant
variations to actions, to the NT EPA.
Detailed
processes for impact assessment will be contained in supporting
Regulations.
This division establishes the general purpose of
impact assessment and the role of proponents in the process.
This clause identifies the purpose of environmental
impact assessment. It has been included for certainty and clarity about what is
expected of the assessment process.
This clause identifies the duties of proponents in the
impact assessment process, and when designing projects. It highlights the
proponent-responsibility approach of the Act.
This clause places a prohibition on the referral of
certain projects to the NT EPA by clarifying that projects cannot be referred if
they are a prohibited action (declared under clause 38) or the type of action
that is prohibited in a protected environmental area (Part 3, Division
2).
This division establishes a system for cooperative
assessments. It recognises that some actions may occur across, or have
environmental impacts across borders, and seeks to limit the impost on
proponents to undertake multiple assessment processes, without undermining
environmental outcomes in the Territory. It is designed to enable bilateral
agreements
between the Territory and states or trilateral agreements
with the Commonwealth, and is not a replacement of or alternative to bilateral
agreements established under the Environment Protection and Biodiversity
Conservation Act 1999 (Cth).
This clause establishes a power for the Minister to
enter into an agreement with another state and/or the Commonwealth to establish
a single assessment process for an action that may affect the other
jurisdiction.
It identifies that agreements
must identify a process that will meet the objectives of the Act, be
participatory, and result in the preparation of an assessment
report.
The Minister will enter into an
agreement on the advice of the NT EPA as the NT EPA is best positioned to
identify when an agreement may be of benefit to the Territory, proponent and
other jurisdiction.
This clause clarifies that the effect of an agreement
under clause 45 is that the proponent will only be required to undertake one
assessment process of the assessed action.
This
does not prevent the proponent from being required to have further assessments
if the action is significantly altered.
This clause is provided for certainty and identifies
that an action that is significantly varied, and thus requires additional or
further assessment, can be managed under the agreement established under clause
45. If that agreement has expired or been revoked then the variation must be
assessed in accordance with the Act. This ensures that significant variations
will be assessed, while recognising the value of a single assessment process to
the proponent and jurisdictions.
This division establishes referral process for
proposed actions.
Clause 48. Referral of proposed
action
This clause identifies that a
proposed action must be referred to the NT EPA where that action has the
potential for a significant impact on the environment or meets a referral
trigger as declared under clause 30.
This
places responsibility for making referrals on proponents, as part of the
proponent- responsibility approach of the Act. In making referrals, proponents
will be required to consider how significant impact is to be determined, as
identified in clause 11, and will be provided guidance by the NT
EPA.
This clause identifies that a person may refer a
strategic proposal. As identified in clause 13, strategic proposals are plans,
programs, policies or methodologies. They are something of a strategic
nature.
For example, a strategic assessment under this clause
could consider a plan for the development of a new port facility and all its
related infrastructure and would not focus on an individual component, like the
establishment of a ship lift facility (which would be assessed under clause 48);
or the development of a land use or development policy under the Planning Act
1999.
Unlike specific actions, there is no
obligation to refer a strategic proposal. The benefit of referring a strategic
proposal however is to limit the number of subsequently required referrals of
specific actions.
A strategic proposal may be
referred if the proposal will have the potential for a significant impact on the
environment or will meet a referral trigger as declared under clause
30.
This clause gives certain powers to statutory
decision-makers that may have been asked to approve a project. It allows those
decision-makers to refuse to consider an application if they consider the action
should have been referred to the NT EPA under this
Act.
The clause requires those decision-makers
to encourage the proponent to make the referral, and enables them to make a
referral on behalf of the proponent should they chose to do so. Consistent with
the proponent-responsibility approach of the Act, there is no obligation on
statutory decision-makers to make referrals on behalf of
proponents.
The clause operates to support
other statutory decision-makers whose legislation may not contain ‘stop
the clock’ provisions suitable to enable a decision to be deferred while
an impact assessment process is undertaken.
Clause 51. Proponent to notify NT EPA of
significant variation of proposed action or strategic
proposal
This clause requires a proponent
to refer to the NT EPA proposed significant variations to the action.
Significant variations can be referred to the NT EPA at any stage of the
assessment process.
This clause is intended to
capture large variations of projects that will have new or different
environmental impacts to those that are, or have been, considered during the
assessment process. It is not intended to prevent proponents from making minor
changes to project designs during assessment processes in response to feedback
from the community and NT EPA.
This clause requires an approval holder, i.e. a person
who has completed the assessment process and been issued with an environmental
approval, to refer to the NT EPA proposed significant variations to the
action.
This clause is intended to capture
large variations of projects that will have new or different environmental
impacts to those that were assessed and are being managed under the
environmental approval. It is not intended to prevent proponents from making
minor changes to project designs consistent with their environmental
approvals.
This clause provides the NT EPA with the power to
“call-in” an action that has not been referred to it. The call-in
power can be used when the NT EPA forms the reasonable belief that an action
should have been referred for assessment – this would be based on the
potential of the action to have a significant impact on the environment or
because it likely meets a referral trigger.
The
power applies to potential actions and to significant variations of actions, and
these notices can be issued to both proponents and approval holders. Notices can
be issued whether or not a statutory decision-maker has issued an authorisation
for the action.
The clause also contains a
requirement for the NT EPA to make reasonable efforts to seek the views of
statutory decision-makers that may hold views in relation to the matter. These
views should be sought before the call-in notice is
issued.
Call-in notices provide a necessary
safety net in the impact assessment process.
This clause establishes an offence if the proponent or
approval holder fails to comply with the call-in notice. It is a strict
liability offence and attracts a penalty of 100 penalty units. This offence
provides an incentive for the proponent or approval holder to comply with the
notice and is a necessary offence to assist in ensuring compliance with the
notice and the Act.
The clause contains
standard defences for offences of this nature, and requires the defendant to
establish the defence.
Clause 55. Process for considering referred
actions and strategic proposals
This clause
requires the NT EPA to consider and deal with any referrals of actions or
strategic proposals that it receives. The processes associated with dealing with
referrals will be specified in Regulations. It also identifies the matters that
can be included in regulations.
This clause requires the NT EPA to consider and deal
with any referrals of significant variations that it receives. The processes
associated with dealing with these variations will be specified in
Regulations.
The clause acknowledges that
significant variations may be submitted at various times during the assessment
process, including after the completion of the assessment report but before the
Minister issues an approval. If the NT EPA receives a significant variation at
that time, it may determine to prepare a revised assessment report, issue an
addendum to the report or prepare a new assessment
report.
An addendum to the report is expected
to be used where the NT EPA’s proposed existing conditions on a draft
approval are considered appropriate and adequate but there are matters that
would benefit from further clarification and consideration in the assessment
report. It may also be used where the NT EPA has prepared a statement of
unacceptable impact but does not consider any amendments to that statement are
required as a consequence of the variation.
A revised report or new report would be prepared where the
variation identified more significant issues and the NT EPA considered that its
proposed conditions of approval needed to be varied in order to ensure effective
and appropriate management of the action. It would also be used where the NT EPA
had prepared a statement of unacceptable impact that it considered needed to be
amended, or could be withdrawn and replaced with a recommendation that the
Minister grant an approval.
The Minister is
required to consider any revised or new assessment report, approval or statement
of unacceptable impact or addendum to an assessment report in their
considerations under Part 5 of the Act.
Clause 57. NT EPA to carry out environmental
impact assessments of referred actions or strategic
proposals
This clause identifies that the
NT EPA is required to conduct an impact assessment in accordance with the
Regulations. It also identifies the matters that can be included in
regulations.
Clause 58. Statutory authorisations and
environmental impact assessments
This
clause identifies that a statutory decision-maker may receive and consider
applications for statutory authorisations during the assessment process. This is
included for certainty and in recognition that concurrent processing of
applications can provide streamlining and reduce delays for
proponents.
However, the clause prohibits
statutory decision-makers from issuing authorisations until the assessment and
approvals processes are complete. This is to limit the potential for proponents
to receive authorisations containing inconsistent conditions regarding the
management of environmental impacts.
The clause
includes an exclusion that identifies that the prohibition does not apply to a
statutory authorisation that is required in order to obtain information to
inform the assessment process.
For example,
while the clause would prohibit a Mining Minister from issuing a mining
authorisation for a mining activity that was being considered in the impact
assessment process, it would not prohibit the Controller of Water Resources from
issuing a water investigation permit to identify potential water resources that
could be used for that mining activity. The results of the water investigation
would be used to inform the impact assessment process and could inform the
development of proposed conditions for an environmental approval.
This clause recognises that in some circumstances a
decision-maker may issue a statutory authorisation where an impact assessment is
required. The clause identifies that the statutory authorisation is of no effect
for the period during which the NT EPA is considering whether the action
requires assessment, and if so, during the assessment and approval process. The
authorisation is also not in effect if the NT EPA has issued a stop work notice
in relation to the action.
This circumstance is
most likely to arise where a matter has come to the attention of the NT EPA and
it has issued a call-in notice.
The clause includes an exclusion that identifies that it
does not apply to a statutory authorisation that is required in order to obtain
information to inform the assessment process.
This Part establishes an environmental approval that
may be granted by the Minister following completion of the environmental impact
assessment process. It addresses all matters associated with granting (or
refusing) the approval, amending, suspending or revoking, and transferring an
approval. It also specifies how the Minister is to deal with a ‘statement
of unacceptable impact’ which may be prepared by the NT EPA at the
completion of the assessment process.
This clause identifies the purpose of this Part of the
Act.
This clause identifies the purpose of introducing an
environmental approval process. The approval is to manage the potentially
significant environmental impacts of an action.
This clause provides information on what matters
should be considered when determining if the person is ‘fit and
proper’ to hold an environmental approval.
This division outlines processes associated with the
NT EPA providing the Minister with a report of the outcomes of the environmental
assessment process.
This clause identifies that the Division outlines the
obligations of the NT EPA at the completion of the impact assessment
process.
This clause identifies that the NT EPA must prepare an
assessment report at the completion of the environmental impact assessment
process.
Assessment reports provide information
about the project, the potentially significant environmental impacts associated
with the project, proposed processes to manage the significant impacts and other
information that the NT EPA considers appropriate to inform the Minister’s
decision to grant, or refuse, an environmental approval.
This clause identifies that it is the role of the NT
EPA to prepare a draft environmental approval at the completion of the
assessment process and provide this draft approval with its assessment report to
the Minister. The NT EPA is not required to prepare a draft approval if it
proposes to give the Minister a statement of unacceptable impact.
This clause acknowledges that there may be
circumstances where the NT EPA considers that the potentially significant
environmental impacts associated with an action cannot be appropriately avoided,
mitigated and managed, or offset. In those instances it may consider that the
Minister should not grant an approval due to the nature, context and extent of
the environmental impacts. The NT EPA may prepare a statement of unacceptable
impact specifying the nature of the potential impacts and why it is not
appropriate to grant an approval.
This clause requires the NT EPA to publish its
assessment report, draft approval or statement of unacceptable impact as soon as
practicable after providing the documents to the Minister. This clause has been
included to improve certainty for the NT EPA about when documents should be
published, and to improve transparency in the assessment
system.
This division outlines processes associated with the
Minister’s decision to grant an environmental approval.
This clause identifies that the division applies to a
draft environmental approval prepared by the NT EPA and given to the Minister
under Part 5, Division 2.
This clause identifies that the Minister may grant an
approval as provided by the NT EPA, amend the NT EPA’s proposed approval
and grant the amended approval or refuse to grant the approval.
This clause identifies that the Minister must consult
with the NT EPA and statutory decision- makers where the Minister proposes to
amend the draft approval. This ensures that all views are taken into
consideration in the amendment of an
approval.
The Minister is not required to
consult if the Minister intends to grant the approval. Consultation at this
stage is considered unnecessary as the regulations will require
the
NT EPA to consult with the proponent and other
decision-makers when preparing the draft approval. Further consultation by the
Minister would duplicate the earlier consultation and not reflect a streamlined
process.
This clause identifies that the Minister must consult
with the NT EPA and statutory decision- makers where the Minister proposes to
refuse to grant an environmental approval, where grant of the approval was
recommended by the NT EPA. This ensures that all views are taken into
consideration in the refusal of the
approval.
This clause operates in conjunction
with clause 72 which requires the Minister to give the proponent an opportunity
to make submissions to the Minister about a proposal to refuse to grant an
approval.
This clause establishes a ‘show cause’
process that the Minister must follow if they intend to refuse to grant an
environmental approval where the NT EPA has prepared a draft approval. The
process ensures that the proponent has had the opportunity to make submissions
to the Minister about why it would be appropriate to issue an approval in
accordance with the
NT EPA’s advice. It has
been included to ensure that the proponent receives natural justice in the
decision-making process.
This clause identifies the matters that the Minister
must consider when deciding whether to grant or refuse the environmental
approval. It includes the objects of the Act, the assessment report and whether
or not the proponent is a ‘fit and proper
person’.
In addition to identifying
matters that must be considered, the clause requires the Minister to be
satisfied about certain things, including that there has been consultation with
the affected communities, that the significant impacts have been avoided or can
be appropriately mitigated and managed or offset. It is expected that the
Minister would rely on the NT EPA’s assessment report in order to satisfy
themselves about these matters.
This clause identifies that the Minister must
determine to grant or refuse the environmental approval within 30 business days
of receiving the NT EPA’s assessment report and draft approval. If the
Minister does not make a decision in this timeframe, the approval is deemed to
have been granted, and the draft approval (including its conditions) prepared by
the NT EPA becomes the approval
instrument.
Division 5 specifies processes
associated with publishing the environmental approval and statements of reasons
for decisions.
This clause identifies that the division applies to a
statement of unacceptable impact prepared by the NT EPA and given to the
Minister under Part 5, Division 2.
This clause identifies that the Minister must consider
the NT EPA’s assessment report and statement of unacceptable impact, and
decide whether to accept the statement and refuse an environmental approval, or
not accept the statement and grant an
approval.
This clause also identifies the
matters that the Minister must consider when deciding whether to accept or not
accept the statement. It includes the objects of the Act and the assessment
report.
The Minister is required to consult
with other statutory decision-makers before deciding to accept a statement. This
clause operates in conjunction with clause 78 which requires the Minister to
give the proponent an opportunity to make submissions to the Minister about the
acceptance of a statement.
Although the NT EPA is expected to consult with the
proponent and other decision-makers in preparing a statement of unacceptable
impact, given that its acceptance results in the refusal of an environmental
approval, it is considered appropriate that the Minister conduct their own
consultation before accepting the statement.
If
the Minister decides not to accept a statement and instead to grant an approval,
the clause requires the Minister to be satisfied about certain things, including
that there has been consultation with the affected communities, that the
significant impacts have been avoided or can be appropriately mitigated and
managed or offset. As these matters would be contrary to the NT EPA’s
advice and assessment report, the Minister would be relying on external advice,
such as from the proponent, other experts or Government departments in order to
support this decision. The Minister must also be satisfied that the proponent is
a ‘fit and proper person’.
This clause identifies that the Minister must
determine to accept or refuse the statement of unacceptable impact within 30
business days of receiving the NT EPA’s assessment report and statement.
If the Minister does not make a decision in this timeframe, the Minister is
deemed to have accepted the statement and environmental approval of the action
is refused.
Division 5 specifies processes
associated with publishing the statement of unacceptable impact and statements
of reasons for decisions.
This clause establishes a ‘show cause’
process that the Minister must follow if they intend to accept a statement of
unacceptable impact and refuse to grant an environmental approval. The process
ensures that the proponent has had the opportunity to make submissions to the
Minister about why it would be appropriate to issue an approval despite the NT
EPA’s advice. It has been included to ensure that the proponent receives
natural justice in the decision-making
process.
The clause contains an exclusion for
judicial review of a decision to accept a statement of unacceptable impact where
the Minister was deemed to have accepted the statement under clause 77. This has
been included to avoid judicial reviews that result from a failure to comply
with this show cause requirement where the Minister failed to make a decision in
the required timeframe.
This clause provides certainty that if the Minister
accepts the statement of unacceptable impact then the Minister must refuse to
grant an environmental approval.
The clause
identifies that the Minister must prepare and publish a statement of reasons for
the decision to refuse the approval and give the statement to the NT EPA,
proponent and other decision-makers. The Minister’s reasons may adopt or
refer to the NT EPA’s statement of unacceptable impact. This allows the
Minister to rely on the statements made by, and reasoning of, the NT EPA in
making their decision.
This clause provides certainty that if the Minister
does not accept the statement of unacceptable impact then the Minister must
grant an environmental approval.
The clause specifies that the Minister must consult with
the NT EPA and other decision- makers in preparing an environmental approval. It
also requires the Minister to issue the approval within 60 business days of
refusing to accept the statement, providing certainty to proponents and the
community about the completion of the approval process.
This division specifies processes associated with
publishing the statement of unacceptable impact and statements of reasons for
decisions.
This clause identifies that the division applies to an
environmental approval granted under Part 5. It applies to all approvals that
are granted, whether or not the grant is consistent with the NT EPA’s
recommendations.
This clause identifies that the Minister is required
to publish an environmental approval as soon as practicable after it is granted.
Where an approval is deemed to be granted because the Minister has exceeded
their decision-making timeframe, the CEO is responsible for publishing the
approval.
The clause also identifies that the
Minister is required to publish a statement of reasons for their decision to
grant the approval. The statement of reasons must contain certain information
relating to the recommendations of the NT EPA and its draft approval or
statement of unacceptable impact.
If the
approval is deemed to have been granted the CEO will prepare a statement to that
effect and the Minister is not required to prepare a statement of reasons for
the decision.
A copy of the approval and
statement of reasons are to be given to the NT EPA, proponent and any statutory
decision-maker that was consulted as part of the approval
process.
This clause facilitates transparency
and provides certainty about when publication is required to
occur.
This division specifies a range of matters associated
with imposing conditions on environmental approvals.
This clause identifies that the division sets out
matters relating to conditions of environmental approval.
This clause establishes a general power to for the
Minister to impose conditions on an environmental approval. It also provides
that it is a condition of an approval that the person complies with the approval
and the Act, including its Regulations.
This clause identifies that conditions may be
expressed as continuing to comply after an action is ‘complete’. For
example, a condition on an environmental approval associated with the
establishment and operation of a landfill may require ongoing monitoring and
reporting of groundwater resources at the site even after the landfill stops
accepting waste, is capped and closed. It may also require particular
rehabilitation activities to continue to occur and be monitored at the
site.
The clause is included for
certainty.
This clause identifies that the approval can contain
conditions requiring the payment of environment bonds or levies (established
under Part 7, Divisions 1 and 2
respectively).
The clause is included for
certainty.
This clause identifies that the approval can contain
conditions requiring certain matters to be reported to the CEO and that the CEO
may require information to be published. These are measures to ensure
transparency in the environmental impacts and outcomes of
actions.
This clause has been written in a manner
that provides flexibility regarding reporting requirements, enabling these
requirements to reflect the level of disturbance occurring as part of an
approved action and the type and extent of environmental
impacts.
The clause is included for
certainty.
This clause is linked to the definition of
environment, which includes the natural environment as well as social, cultural
and economic matters (see clause 6).
It is
included for certainty and provides that an approval can contain conditions that
are designed to mitigate and manage potential health, social or cultural
impacts.
The clause identifies that a condition
must not be imposed if there is other legislation in the Territory which could
impose a similar condition through an authorisation (such has a licence). This
limitation recognises that there is other legislation and regulatory regimes
that may more appropriately manage health, social or cultural issues. For
example, in accordance with this clause, the environmental approval would not be
able to impose conditions associated with the management of sacred sites as this
is more appropriately addressed through the Northern Territory Aboriginal
Sacred Sites Act 1989. However, it would enable the approval to include a
condition requiring the development and implementation of a social impact
management plan as this is not a matter that is managed under other Territory
legislation.
This clause establishes four offences associated with
failing to comply with the conditions on the environmental approval. It provides
a standard approach to creating tiered offences that reflect differing levels of
environmental risk or consequence as a result of the alleged breach and
differing levels of culpability of an alleged
offender.
Subclause (1) establishes an offence
where an approval holder intentionally engages in conduct that contravenes a
condition of the approval, the contravention results in significant
environmental harm and the person is reckless. This
offence contains strict liability elements, and the penalty for this offence is
an environmental offence level 1
penalty.
Subclause (2) establishes an offence
where an approval holder intentionally engages in conduct that contravenes a
condition of the approval, the contravention results in material environmental
harm and the person is reckless. This offence contains strict liability
elements, and the penalty for this offence is an environmental offence level 2
penalty.
Subclause (3) establishes an offence
where an approval holder engages in conduct that contravenes a condition of the
approval and the contravention results in significant environmental harm. This
is a strict liability offence, and the penalty for this offence is an
environmental offence level 2
penalty.
Subclause (4) establishes an offence
where an approval holder engages in conduct that contravenes a condition of the
approval. This is a strict liability offence, and the penalty for this offence
is an environmental offence level 3
penalty.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
These offences are designed to promote
good environmental outcomes, and to minimise environmental impacts, by ensuring
that approval holders comply with the conditions of their
approvals.
This division specifies a range of matters associated
with the effect of an environmental approval on other statutory
instruments.
This clause identifies that the division sets out the
effect of an environmental approval.
This clause identifies that an environmental approval
authorises the approval holder to undertake the action in accordance with the
approval, its conditions and the requirements of the Act (which includes its
Regulations).
The clause clarifies that the
approval remains in force until it is revoked or expires, but is not considered
to be in force during any period of
suspension.
The clause is included for
clarity.
This clause establishes that the environmental
approval has primacy over other approvals that may contain conditions to manage
environmental impacts. It includes a prohibition on other statutory
decision-makers to prevent them from imposing conditions to manage environmental
impacts through their authorising instruments which is different to the
conditions of the approval. It also identifies that an authorisation that is
inconsistent with the environmental approval is of no effect to the extent of
the inconsistency.
These clauses are
particularly targeted at conditions that may relate to the natural environment,
and are required to provide certainty and to minimise impacts on
approval
holders from inadvertent inconsistencies that may arise
from the issue of multiple authorisation
instruments.
The clause specifically identifies
that a statutory decision-maker is not prevented from refusing a statutory
authorisation on the basis of a health, social or cultural
impact.
To provide certainty, the clause
identifies that a statutory authorisation is not inconsistent with the
environmental approval if it imposes conditions relating to the environment that
are more stringent than the matters contained in the approval or addresses
matters not contained in the approval. This is necessary because the approval is
designed to address significant environmental impacts, and other authorisations
may address less significant impacts. For example, the impact assessment of a
proposed landfill may have identified significant impacts associated with land
clearing and the approval may impose conditions relating to the clearing of the
land and the implementation of erosion and sediment controls. However, the
assessment may have considered impacts to surface water to have been not
significant and the approval may not impose any conditions relating to surface
water. This would not prevent the grant of a licence to extract surface water
for operations associated with the landfill.
This clause has been included for certainty. It
identifies that an environmental approval is not personal property for the
purposes of the Personal Property Securities Act 2009 (Commonwealth).
This will ensure that approval holders cannot use the environmental approval as
a form of security.
As a general principle, and in accordance with clause
91, it is anticipated that the environmental approval will remain in force until
the action is complete, unless it is revoked or suspended under Part 5, Division
10. This provides certainty to the approval holder that they will continue to be
able to undertake the action once it has been
commenced.
This clause identifies when this
general principle does not apply. It establishes that the approval is to
identify a time period during which the approval holder must take steps to
commence the action. It prevents an approval holder from obtaining and
‘banking’ an approval. It ensures that when actions are commenced
they are managed under the most practicable and leading conditions
possible.
The clause recognises that the
appropriateness of a time period is best determined with reference to the
particular action. The clause therefore identifies matters that the Minister
should consider in imposing a timeframe rather than specifying a particular time
period.
The clause allows the Minister to
extend the timeframe on application from an approval holder. However, at the
latest, an application must be made within 12 weeks of the expiration of the
approval. This is to ensure that approval holders are actively involved in
considering and applying the approval and prevents an application for the
‘reactivation’ of an approval with outdated management options and
conditions.
This clause identifies that an environmental approval
is considered revoked if an amended approval is granted. It is included for
certainty.
This division establishes and describes processes
associated with an approval notice. This is an instrument that enables a person
to operate under, and in accordance with, an environmental approval that has
been granted following the assessment of a strategic proposal.
This clause identifies when an approval notice
applies.
This clause identifies the purpose of an approval
notice. An approval notice is a specific type of approval that can be issued to
any person that is intending to undertake an action within an area that has been
assessed as part of a strategic proposal, provided that type of action was
considered in the assessment and the assessment resulted in the grant of an
environmental approval.
This clause identifies when an application can be
submitted for an approval notice. It requires
that:
• the proposed action has been
assessed as part of a strategic
assessment
• an environmental approval
has been granted on the basis of the strategic
assessment
• the action fall within the
scope of the actions that were assessed as part of the strategic
assessment.
This clause identifies that the Minister may request
additional information to assist in the assessment of an application for an
approval notice.
This clause identifies that before making a decision
to grant an approval notice the Minister is to consult with the NT EPA and other
statutory decision-makers.
This clause identifies that the Minister may approve
or refuse to grant an approval notice.
It also
identifies that the Minister must be satisfied about certain matters, including
that the action has been assessed as part of a strategic proposal and that the
person is a fit and proper person to be granted an approval
notice.
An approval notice cannot be granted if
the environmental approval for the strategic assessment has been revoked or
expired.
The Minister is required to make a
decision within 60 business days of receiving the application. This provides
certainty to the applicant.
This clause requires the Minister to advise the
applicant, NT EPA, approval holder for the strategic proposal and statutory
decision-makers of the decision to grant or refuse an application for an
approval notice. This provides certainty about the grant of the
notice.
This clause is provided for certainty. It identifies
that a person who holds an approval notice is taken to hold an environmental
approval for the purposes of undertaking the action approved by the
notice.
This clause is provided for certainty. It requires the
Minister to give an applicant for an approval notice a statement of reasons for
the decision.
This clause is provided for transparency and
certainty. It requires the Minister to publish any approval notice and
statements for reasons for issuing or refusing an approval notice. The documents
are to be published as soon as practicable after the decision has been
made.
This division specifies matters associated with
amending environmental approvals.
This clause specifies the circumstances in which the
Minister may amend an environmental
approval.
The Minister may make any amendments
to the approval at the request of the approval holder. The Minister may also
amend the approval on their own initiative in limited circumstances. These
limited circumstances create a balance between the need to provide approval
holders with certainty and the need to ensure that environmental impacts are
managed appropriately and the environment is protected to the extent
practicable.
The clause identifies that the
Minister is to respond to a request for an amendment from an approval holder
within 60 business days. This provides certainty to the approval holder that the
request will be actioned in a timely way, while ensuring the Minister is
provided with an appropriate opportunity to consider and receive advice in
relation to the request.
This clause identifies that the Minister must consult
with the NT EPA and other statutory decision-makers before amending an approval
at the request of the approval holder. If the Minister intends to amend the
approval on their own initiative, they must also consult the approval
holder.
By consulting with the NT EPA, the
Minister can be assured that the proposed amendment is not a significant
variation to the action. If in the opinion of the NT EPA, the amendment is
reflective of a significant variation, it has prior notice of the variation and
will be able to consult with the approval holder in more detail. If necessary,
it will be able to ‘call-in’ the proposed variation.
This clause identifies that the Minister must publish
an amended environmental approval and the statement of reasons for making the
amendment. Publication is to occur as soon as practicable after the approval is
amended.
This clause facilitates transparency
and provides certainty about when publication is required to occur and is
consistent with the Minister’s obligations to publish the original
approval.
This division specifies a range of matters associated
with the revocation and suspension of environmental approvals.
This clause specifies the circumstances in which the
Minister may revoke an environmental
approval.
The grounds for revocation are
limited in order to balance the need to provide approval holders with certainty
and the need to ensure that environmental impacts are managed appropriately and
the environment is protected to the extent
practicable.
Under this clause, revocation may
occur where:
• New information becomes
available that was not available at the time the Minister made the decision to
grant the approval and it would have resulted in the approval not being granted.
This is not intended to include information that was available but not brought
to the Minister’s attention, but rather new facts or information that is
of significance. For example, the reclassification of a species from threatened
to critically endangered.
• The Minister
forms the opinion that the person is no longer fit and proper to hold the
approval. This opinion must be based on the activities of the approval holder
and their compliance history.
• The
Minister forms a reasonable belief that the environmental impacts of the action
cannot be appropriately avoided, mitigated and managed, or offset. For example,
because the action cannot be redesigned in order to avoid or minimise the
impacts on the habitat of a species reclassified from threatened to critically
endangered.
The approval may also be revoked at
the request of the approval holder. This is most likely to occur when the
approval holder has determined not to proceed with the action or if the action
is complete.
This clause identifies that as an alternative to
revocation the Minister may suspend an environmental approval. Any suspension is
for the period that is specified by the Minister in a suspension
notice.
This clause establishes a show cause process that must
be followed before the Minister revokes or suspends an environmental approval.
It is a standard process that ensures the approval holder is provided with
procedural fairness in the decision-making process.
This clause requires the Minister to give statutory
decision-makers notice of the Minister’s intention to revoke or suspend an
approval, and also to give notice if the revocation or suspension
occurs.
This is included to ensure that other
decision-makers that have an interest in the action are aware of the
Minister’s proposed actions and for transparency. It is not consultation
on the exercise of the Minister’s powers.
This clause identifies that an approval holder is
obliged to continue to perform any obligations under an approval associated with
minimising environmental impacts, remediation or rehabilitation even where the
approval has been revoked or suspended. This obligation is to prevent additional
or further environmental impacts resulting from inaction by the approval holder
as a result the revocation or suspension.
The
Minister is able to waive the requirement for an approval holder to continue
their obligations if the Minister considers that it is appropriate to do so. For
example, the Minister may waive a requirement where the Minister considers that
any potential environmental impacts are negligible or where the Minister intends
to take action themselves to address the environmental impacts.
This clause specifies processes associated with
revocation of an approval at the request of the approval holder, including
requirements to consult with the NT EPA and other statutory
decision-makers.
It identifies the Minister may
revoke the approval if satisfied that it is no longer required because of the
remediation, rehabilitation and closure requirements of the site have been met.
The revocation does not prevent the Minister issuing a closure notice (under
Part 9, Division 4) in relation to the site.
This clause has been included to provide certainty to
persons that may be operating under an approval notice issued under Part 5,
Division 8. It provides that an environmental approval that was issued following
the assessment of a strategic assessment cannot be revoked unless all persons
operating under that approval, including the original approval holder and
approval notice holders, agree to the
revocation.
It ensures that the approval holder
and approval notice holders are not disadvantaged because of the actions of
other persons operating under the approval.
This clause operates in conjunction with clause 113.
It enables the Minister to take action against the approval holder of a
strategic proposal or a person that holds an approval notice where appropriate
without impacting other persons operating under the approval.
This clause establishes four offences associated with
failing to comply with their continuing obligations under an environmental
approval that has been revoked or suspended. It provides a standard approach to
creating tiered offences that reflect differing levels of environmental risk or
consequence as a result of the alleged breach and differing levels of
culpability of an alleged offender.
Subclause
(1) establishes an offence where the person intentionally engages in conduct
that contravenes their obligations, the contravention results in significant
environmental harm and the person is reckless. This offence contains strict
liability elements, and the penalty for this offence is an environmental offence
level 1 penalty.
Subclause (2) establishes an
offence where the person intentionally engages in conduct that contravenes their
obligations, the contravention results in material environmental harm and the
person is reckless. This offence contains strict liability elements, and the
penalty for this offence is an environmental offence level 2
penalty.
Subclause (3) establishes an offence
where the person engages in conduct that contravenes their obligations and the
contravention results in significant environmental harm. This is a strict
liability offence, and the penalty for this offence is an environmental offence
level 2 penalty.
Subclause (4) establishes an
offence where the person intentionally engages in conduct that contravenes their
obligations. This is a strict liability offence, and the penalty for this
offence is an environmental offence level 3
penalty.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
These offences are designed to promote
good environmental outcomes, and to minimise environmental impacts, by ensuring
that measures to manage impacts and to remediate and rehabilitate impacts are
undertaken.
This division specifies a range of matters associated
with transferring environmental approvals between original and subsequent
approval holders.
This clause establishes a power for the Minister to
transfer an environmental approval.
This clause identifies the matters that must be
included in an application to transfer an environmental
approval.
It is a condition of a transfer that
the proposed transferee agree to perform any obligation imposed on the approval
holder under the approval. This is to ensure that the transfer does not result
in reduced environmental outcomes.
This clause identifies that the Minister may request
additional information to assist in the assessment of the transfer
application.
This clause identifies the matters that the Minister
must consider when deciding whether to approve or refuse the transfer of the
environmental approval. It includes the objects of the Act and whether or not
the proposed transferee is a ‘fit and proper person’ to hold the
environmental approval.
This clause identifies that before making a decision
on a transfer the Minister is to consult with the NT EPA and other statutory
decision-makers.
Under this clause, the
Minister is also required to consult with the proposed transferee if the
Minister proposes to refuse the approval or amend the approval as part of the
transfer process.
This clause identifies that the Minister may approve
or refuse the proposed transfer. As part of approving a transfer, the Minister
may amend the approval and its conditions. For example, an amendment might
impose more stringent monitoring and reporting conditions based on a
consideration of the environmental compliance history of the
transferee.
The Minister is required to make a
decision within 30 business days of receiving the transfer application. This
provides certainty to the approval holder and proposed transferee about the
transfer process.
This clause is provided for transparency and
certainty. It requires the Minister to publish a decision and statements for
reasons for approving or refusing the transfer of an environmental approval. The
documents are to be published as soon as practicable after the decision has been
made.
Clause 125. Environmental offsets framework and
guidelines
This clause identifies that the
Minister may establish an environmental offsets framework. The framework can be
applied to actions approved under this Act, and may be extended to apply to
actions approved under other Acts (for example, the Planning Act) through the
Regulations.
The clause identifies that the
Minister’s framework can require different types of offsets, and offsets
for different classes of person or areas. The clause provides a broad power that
will be used to develop a framework which is consistent with the environmental
decision-making hierarchy of ‘avoid, mitigate,
offset’.
This clause requires the CEO to establish an
environmental offset register that identifies all offset measures approved under
this Act or another Act identified in the Regulations. The register will be made
publicly available.
Division 1 Environment protection bonds Clause 127.
Application of Division
This clause identifies
that the Division applies if a condition on an environmental approval (under
clause 86) requires a person to provide an environment protection
bond.
This clause identifies the purpose of environment
protection bonds. These bonds are used to secure compliance with the Act and an
environmental approval and to ensure that all appropriate remediation,
rehabilitation and monitoring costs can be met. These bonds are designed to
ensure that costs of environmental harm and impacts are borne by the approval
holder and not Territorians.
This clause specifies that the Minister must determine
the amount of the environment protection bond to be provided. The amount can be
specified as a particular sum or as a formula. It can also be recalculated at
different times to reflect changes in the implementation of the action, and
rehabilitation activities that have
occurred.
The clause identifies that a bond may
be provided in cash, by bank guarantee or by another form approved by the
Minister. This is intended to enable innovative suggestions for how a bond can
be provided, for example regular payments into an interest bearing fund
established to hold the bond.
This clause
identifies that the Minister cannot require a bond where a bond or other form of
financial security is required to be provided under another Act for the same or
substantially the same environmental impacts. This has been included in
recognition of the requirement for the mining industry to pay a mining security
under the Mining Management Act 2001. It is intended to protect the industry
from paying two bonds for the same environmental impacts arising from mining
activities, such as the establishment of tailings facilities. It does not
prevent the imposition of two bonds for different environmental impacts, such as
those that might be associated with the undertaking of a non-mining activity on
the mining site.
This clause establishes that the Minister is to hold
any bond that is provided in the form of cash or cheque in a trust account
established for that purpose. It limits payments from the trust account to those
required to refund the bond or in response to a claim on the bond under clause
131.
This clause specifies that the Minister or CEO may
make a claim on an environmental bond. The process for making a claim will be
specified in the regulations. The claim cannot exceed the reasonable costs and
expenses of the Minister or CEO incurred under clause 128, for example, those
associated with carrying out action to complete remediation or rehabilitation
activities or to undertake post closure rehabilitation
monitoring.
This clause identifies that a bond is to be refunded
once all remediation or rehabilitation requirements specified in the
environmental approval have been complied with. It provides that money can be
withheld from the bond if the approval holder has an outstanding debt
to
the Territory, for example, an outstanding order for
reimbursement of costs following proceedings under Parts 10 or
11.
This clause identifies that the Minister may establish
environment protection levies. Levies are taxes that are imposed to provide
funds for specific purposes.
The clause
identifies that a levy can be imposed for a number of purposes associated with
remediating and rehabilitating the environment, and limiting the impacts of
particular activities on the environment. Most commonly levies are used to raise
funds to manage historical environmental impacts or harms caused by particular
types of industry or activities, such as those associated with mining,
petroleum or waste (e.g. landfill
levies).
However, levies can also be used to
proactively provide funding to address future potential environmental impacts or
to limit potential future impacts. The clause therefore identifies that the levy
can be used for research purposes to assist industries to manage environmental
impacts where existing methodologies are inappropriate or substantially
ineffective.
This clause identifies that a person must pay an
environment protection levy is they are in the class of persons prescribed by
regulations to pay the levy.
It also identifies
that a levy cannot be imposed where another levy is charged under another Act
for the same or substantially the same environmental impacts. This has been
included in recognition of the requirement for the mining industry to pay a
mining levy under the Mining Management Act 2001. It is intended to
protect the industry from paying two levy amounts for the same environmental
impacts arising from mining activities, such as the establishment of tailings
facilities. It does not prevent the imposition of a levy associated with
non-mining activities that may occur on the mining site.
This clause identifies that the regulations can
specify a number of matters associated with the introduction of levies,
including how they are to be calculated and collected. A levy is not
refundable.
Clause 136. Minister may establish environment
protection funds
This clause identifies
that the Minister may establish one or more environment protection funds. These
funds are intended to hold money that can be used to undertake rehabilitation or
remediation work, research and other activities that enhance or protect the
environment.
This clause identifies the types of payments that can
be made into a fund established under clause 136. These include money raised
through levies, costs recovered through civil or criminal proceedings under Part
10 or Part 11, fees that may be charged under the Act and other costs that may
be paid to the CEO under the Act.
The clause identifies that the Treasurer is responsible
for approving investment proposals for the fund, and that money from investment
is to be paid into the fund. This will enable the funds to grow over time
providing further resources to undertake the activities for which the fund was
established.
This clause identifies that the Minister must, by
Gazette notice, identify the purposes for which money can be expended from a
particular environment protection fund. The purposes can only include matters
specified in clause 136(3), or for the reimbursement of any fee paid into the
fund, or the reimbursement of any amount paid into the fund in accordance with
an enforceable undertaking. This ensures that the money used in the fund is used
only for its intended purpose.
This clause identifies that a person can be required
to repay money into the fund if the fund was used to undertake activity to
remediate, rehabilitate or protect the environment or in an emergency. This
clause is intended to operate where a person has taken specific actions that
have resulted in unauthorised environmental impact and action by the CEO is
necessary to limit resulting environmental harm. It ensures that money taken
from the fund is reimbursed to the extent possible to enable the fund to be used
to address historical remediation or rehabilitation requirements.
This clause is not intended to provide an opportunity to recover
costs for activities for which a levy has also been
collected.
Any amount recovered as a debt to
the Territory must be repaid into the relevant fund.
Division 1 Preliminary
matters
Clause 140. Relationship of this
Part to other provisions
This clause has
been included to clarify that this Part does not affect the operation of any
conditions on an environmental approval that may relate to monitoring, testing
or reporting.
Environmental audits are used to assess impacts on the
environment.
This clause identifies the types
of audits that may be required under the Act. There are a number of different
matters that can be investigated as part of an audit. These include actual
environmental impacts of certain activities, through to the accuracy of
forecasts in an environmental impact assessment of the potential environmental
impacts of the action.
This Division establishes a system of environmental
audits. Audits are a mechanism to obtain information to improve the
understanding of the environmental impacts of specific actions.
This clause identifies that circumstances in which the
CEO may direct an approval holder to undertake an environmental audit. The
CEO’s powers to direct an audit are limited to where the CEO reasonably
believes or suspects that an approval holder has, or is likely to, contravene
the environmental approval. The costs of meeting the audit are the
responsibility of the approval holder.
This clause provides a broad power for the CEO to
appoint a person to undertake an audit.
The CEO
may exercise this power irrespective of whether they have formed a belief about
the actions of the approval holder. If the CEO uses this power, then costs
associated with an audit would be met by the CEO.
This clause identifies that audits must be completed
to the satisfaction of the CEO. This ensures that the CEO obtains the
information they were seeking from the audit, even where the audit was arranged
by the approval holder at the CEOs direction.
This clause creates an offence for failing to comply
with a direction to have an environmental audit completed. It is a strict
liability offence and attracts an environmental offence level 3 penalty. The
clause contains standard defences for this type of offence.
This clause establishes that is an offence for a
qualified person to conduct an audit if they have a conflict of interest. This
is important to ensure confidence in the auditing
process.
The offence attracts a penalty of 100
penalty units or 12 months imprisonment.
The
offence does not apply if the person was authorised to conduct the audit despite
the conflict of interest.
This clause enables the CEO to authorise a qualified
person to conduct an audit despite a conflict of interest. It recognises the
close relationships in the Territory and the difficulties that can be
experienced in accessing persons with specialist skill sets.
This clause identifies when a conflict of interest is
considered to arise for the purposes of conducting environmental audits. It
includes direct interests, whether monetary or professional, as well as
associated interests, such as relationships between corporate
entities.
This clause provides the person undertaking the audit
with powers to require information from the person being audited. It is
necessary to ensure that audits are informed by appropriate and relevant
information. It applies whether the approval holder has arranged the audit or
the CEO has appointed the person to conduct the audit.
This clause requires audit reports to be accompanied
by declarations by the approval holder and person who conducted the audit as to
the accuracy of the information contained in the report. It provides an
accountability measure regarding the statements contained in the report. It is a
standard clause of this nature in environmental legislation.
This clause establishes two offences for failing to
comply with a direction to provide information required for an audit under
clause 149. It provides a standard approach to creating tiered offences that
reflect differing levels of culpability of an alleged
offender.
Subclause (1) establishes an offence
where the person is reckless in their failure to comply with the direction. This
offence contains strict liability elements, and the penalty for this offence is
an environmental offence level 2
penalty.
Subclause (2) establishes an offence
where the person fails to comply with a direction. It is a strict liability
offence, and attracts an environmental offence level 3
penalty.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
These offences support the
environmental auditing provisions by creating an incentive for a person to
comply with a direction to provide information.
This clause establishes an offence associated with a
qualified person providing false or misleading information in an audit report.
The offence does not apply if the qualified person brought any false or
misleading aspects of the report to the CEOs attention when submitting the
report.
Due to the potentially serious
environmental consequences associated with providing false or misleading
reports, the offence attracts a penalty of 500 penalty units or 2 years
imprisonment.
This clause requires an approval holder to retain
audit documents for specified periods. This ensures that information relating to
the audit is kept by the approval holder and is available if required by the
CEO.
This clause establishes two offences for failing to
comply with a direction to provide audit information that was to be retained
under clause 153. It provides a standard approach to creating tiered offences
that reflect differing levels of culpability of an alleged
offender.
Subclause (1) establishes an offence
where the person is reckless in their failure to comply with the direction. This
offence contains strict liability elements, and the penalty for this offence is
an environmental offence level 2
penalty.
Subclause (2) establishes an offence
where the person fails to comply with the direction. It is a strict liability
offence, and attracts an environmental offence level 3 penalty.
The clause contains standard defences for offences of this
nature, and requires the defendant to establish the
defence.
These offences support the
environmental auditing provisions by creating an incentive for a person to
comply with a direction to retain audit documentation and provide that
documentation when directed to do so.
This Division establishes matters associated with the
registration of environmental auditors. Auditors are persons with appropriate
qualifications to assess environmental impacts and environmental harm. Auditors
work within a particular sphere of expertise; for example, assessment of
contaminated land, or identification of the impacts of pollutants being emitted
to air.
This clause specifies that it is an offence for a
person to represent that they are a registered environmental auditor. It imposes
a penalty of 100 penalty units or 12 months imprisonment.
This clause establishes a power for the Regulations to
create a registration scheme for environmental auditors. As part of this scheme,
it enables the adoption of a register or other form of record of environmental
auditors approved by another jurisdiction.
This Division establishes matters associated with the
registration of environmental practitioners. Practitioners are persons with
appropriate qualifications to collect information and data and assess particular
aspects of the environment. Practitioners are required to be certified to work
within their areas of expertise; for example, certain activities to identify and
classify soils can only be undertaken by certified soil
scientists.
This clause specifies that it is an offence for a
person to represent that they are a registered environmental practitioner. It
imposes a penalty of 100 penalty units or 12 months imprisonment.
This clause establishes a power for the Regulations to
create a registration scheme for environmental practitioners. As part of this
scheme, it enables the adoption of a register or record of environmental
practitioners approved or certified by another jurisdiction or
entity.
Division 1 Environmental
officers
Clause 159. Appointment or
authorisation of environmental
officers
This clause allows the CEO to
appoint a person to be an environmental officer. Environmental officers are
provided with a number of powers that enable them to investigate and enforce
potential breaches of the Act.
The clause
identifies that police officers are automatically identified as environmental
officers for the purposes of the Act.
This clause requires the CEO to issue appointed
environmental officers (which do not include police officers) with an identity
card.
The card provides evidence of the persons
appointment, providing members of the community and approval holders with
certainty about whether a person has the authority to be investigating an
alleged breach of the Act. The clause specifies that a card must include a
photograph of the officer, the card’s date of issue and be signed by the
officer.
An environmental officer is required
to show the identity card if requested to do so by a person who is affected by
the officers exercise of a power and performance of a function.
Environmental officers are required to surrender their
identity cards within 15 business days of ceasing to be an officer. This is a
strict liability offence which has a penalty of 20 penalty units.
This clause identifies that environmental officers may
do anything, or cause anything to be done, or take any action the officer
reasonably believes is necessary for the purpose of exercising a power or
function under the Act. This includes monitoring compliance with the Act and
investigating suspected breaches of the Act.
This clause identifies a number of specific powers
held by environmental officers in order to enable them to monitor compliance
with the Act and investigate suspected
breaches.
In addition to activities that
officers may do themselves, such as taking photographs or samples, the clause
allows an officer to authorise another person to assist them in exercising their
powers and functions. For example, an officer may engage a person to operate
equipment or machinery in order to investigate and sample an illegal waste
dump.
The clause also allows the officer to
require a person, such as an approval holder, to provide assistance, for example
by entering passwords in order to access material stored on a computer or in
‘the cloud’.
This clause identifies that an environmental officer
must seek the consent of an occupier before entering residential premises. This
limitation ensures that a persons’ private place of
residence is not subject to unreasonable interference. It
operates in conjunction with clause
170.
Residential premises is defined in clause
4 of the Act. This definition identifies that where premises are used for both
residential and non-residential purposes, only that part of the premises which
is used for residential purposes is to be considered as ‘residential
premises’. This provides clarity that an officer may enter and remain on
property and enter parts of buildings or other structures that may be associated
with residential premises in order to complete investigation and monitoring
activities.
This clause allows environmental officers to enter
Aboriginal land in order to exercise their powers and functions without a
requirement to hold a permit issued under the Aboriginal Land Act
1978.
This clause identifies that environmental officers
must take reasonable steps to minimise any disruption that may be caused from
entering land or premises for the purposes of exercising powers and functions,
and also to only remain on the land or premises for the period required to
fulfil powers and functions.
It recognises that
while environmental officers require access to land and premises in order to
fulfil their duties, they should be doing their best to minimise interference
caused to the owner or occupier of the land.
Under clause 163, an environmental officer may seize
items, such as computers, that are necessary in order to investigate suspected
breaches of the Act.
This clause imposes
requirements on the officer in dealing with those seized items, including that
the person is issued with a receipt in relation to the
seizure.
Seized items must be returned after 3
years (which is the period in which enforcement action for an alleged breach of
the Act can be commenced), or if enforcement action is commenced, 12 months
after the completion of all legal processes associated with that action.
Items must be returned if the officer no longer considers retention of the item
is necessary for evidentiary reasons.
An
officer may only permanently retain a seized item if they believe, on reasonable
grounds, that it is necessary to prevent the items use in committing an
offence.
This clause ensures that seized items
are returned to their owners as soon as reasonably practicable.
This clause provides the Court with powers to order
that seized items are forfeited to the Territory. It also allows the CEO to
destroy or otherwise dispose of the item that has been forfeited. The clause is
in addition to any other powers the court may have under this Act and other laws
relating to forfeiture of items.
This clause establishes an offence for failing to
comply with a requirement of an environmental officer under clause 163. This is
a strict liability offence, with a maximum penalty of 100 penalty
units.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
This clause operates in conjunction with clause 164.
It allows an environmental officer to apply to a justice of the peace for a
search warrant to enter land or premises, and is specifically included for the
purposes of authorising entry into residential
premises.
This clause acknowledges that
interference with a persons’ premises, including their residential
premises, should be limited but is necessary in some
circumstances.
This clause identifies that a search warrant remains
in force for 30 business days from its date of issue and confirms that the
effect of the warrant is to allow the environmental officer to enter the land or
premises specified in the warrant and to exercise their powers in relation to
that land or premises.
This clause gives an environmental officer the power
to issue directions to another person. Directions can be used as an alternative
to, or in addition to, the officer exercising powers under clause
163.
Directions can require the person to take,
or not take, specified actions in order to limit environmental harm and impacts
on the environment. Directions must not be inconsistent with an environmental
approval or the requirements of the Act.
This clause establishes an offence for failing to
comply with a direction given by an environmental officer. This is a strict
liability offence, with a maximum penalty of 100 penalty
units.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
This clause establishes an offence for intentionally
obstructing another person from complying with a direction given by an
authorised officer. The offence contains strict liability elements and attracts
a maximum penalty of 200 penalty units or 2 years imprisonment.
This clause identifies that a person is required to
comply with a requirement to provide information under clause 163 or 172(1) even
if providing the information may incriminate the person. It is an abrogation of
the right against self-incrimination which is necessary in order to effectively
investigate potential breaches of the Act and minimise environmental impact or
harm that can result from unauthorised activities.
The clause provides a protection for individuals who are
required to provide the information by identifying that any information that is
provided in response to the requirement cannot be used as evidence against the
individual for an offence or civil
penalty.
This does not prevent the use of
material that may be identified as a consequence of the information that was
provided from being used as evidence in criminal or civil proceedings. It also
does not prevent the use of the information that is provided by a body corporate
against that body corporate.
The clause does
not apply to any proceedings relating to false or misleading information as the
information supplied may form the basis of those proceedings.
This division establishes a system of environment
protection notices that can be issued by the CEO or an environmental officer to
ensure compliance with the Act or an environmental approval in order to minimise
unauthorised environmental impacts.
This clause establishes the purpose of environment
protection notices which is to secure compliance with an environmental approval
or another requirement which may be prescribed in the
Regulations.
This clause identifies the matters that must be
included in an environment protection notice, including the purpose of the
notice and the matters or conditions that must be complied with. The notice must
also advise the person issued with the notice that they can request the Northern
Territory Civil and Administrative Tribunal (NTCAT) review the decision to issue
the notice.
This clause identifies the types of requirements that
can be imposed under an environment protection notice. It includes a requirement
for a person to cease particular activities, or place controls on those
activities, or prepare plans to minimise and respond to environmental impacts.
The notice can also require specific monitoring and reporting be
undertaken.
This clause clarifies that an environment protection
notice may include a requirement that a person do something, or not do
something, that would otherwise be a contravention of the
Act.
This power would be used where the
environmental or human health impacts that may result from the action or
inaction are preferable to those that would occur if the person complied with
the Act.
A person is not liable for a penalty
if they comply with the environment protection notice.
This clause clarifies that a person is not required to
seek a separate statutory authorisation if they have been issued with an
environment protection notice requiring them to take certain action. This
ensures that environment protection notices can operate to minimise unauthorised
environmental impacts without delay.
A person
is not liable for a penalty if they comply with the environment protection
notice.
This clause operates in conjunction with clauses 179
and 180. It requires the CEO to advise a statutory decision-maker that the CEO
intends to issue an environment protection notice for an action that would
otherwise require approval from the statutory decision-maker. This ensures that
statutory decision-makers are aware of the environment protection notice and the
potential for actions to be taken to protect the
environment.
The clause requires the CEO to
give the statutory decision-maker 14 business days’ notice of the
intention to issue the environment protection notice, except where an emergency
environment protection notice has been
issued.
The CEO is not required to provide
notice in advance of issuing an emergency environment protection notice, however
must give the statutory decision-maker 24 hours notice if the CEO intends to
confirm an emergency notice.
This clause allows the CEO to issue emergency
environment protection notices in certain circumstances. Before issuing an
emergency notice, the CEO must reasonably believe that urgent action is required
to protect the environment from significant environmental harm and that there
are grounds for revocation of the environmental
approval.
The clause identifies that the notice
can include the requirements set out in clause 178. The notice must also advise
the person issued with the notice that they can request the Northern Territory
Civil and Administrative Tribunal (NTCAT) review the decision to issue the
notice.
Emergency environment protection
notices are time limited to a period of 10 business days, after which time they
cease unless action has commenced to revoke the environmental approval. If
action is taken to revoke the approval, the notice remains in force until
processes associated with the revocation are complete or the CEO determines to
revoke the notice.
These notices recognise that
urgent action may be required in some circumstances, but that the exercise of
powers to prevent the exercise of authorised activities should be strictly
controlled.
This clause allows an environmental officer to issue
an emergency environment protection notice where the officer reasonably believes
that urgent action is required to protect the
environment.
The clause identifies that the
notice can include the requirements set out in clause 178. The notice must also
advise the person issued with the notice that they can request the Northern
Territory Civil and Administrative Tribunal (NTCAT) review the decision to issue
the notice. Emergency notices can be issued verbally but must be confirmed in
writing.
Emergency environment protection notices issued by
environmental officers are time limited to a period of 72 hours, after which
time they cease unless the CEO has confirmed the notice in
writing.
These notices recognise that urgent
action may be required in some circumstances, but that the exercise of powers to
prevent the exercise of authorised activities should be strictly
controlled.
This clause clarifies that the CEO may vary or revoke
an environment protection notice. The CEO must advise each person that is bound
by the notice about any variation or its
revocation.
This allows notices to be amended
to ensure that they are practical and capable of ensuring the desired
environmental protection outcomes.
This clause allows the CEO to lodge a copy of an
environment protection notice with the Registrar-General and to have the notice
held against land title. This provides certainty for the land owner and future
land buyers about activities that have occurred on the land and any ongoing
obligations associated with those activities.
This clause clarifies that an environment protection
notice that is recorded on the land title applies to the owners and occupiers of
the land.
This clause requires the CEO to advise land owners and
occupiers about any environment protection notices that may be recorded on the
land title. The CEO is to give this advice as soon as practicable after the
notice is recorded.
This ensures that land
owners and occupiers are aware of the notice, and also of their obligations
under the notice.
The clause also identifies
that an owner or occupier may request the Northern Territory Civil and
Administrative Tribunal (NTCAT) review the decision to record the notice against
the land title.
This clause requires an owner or occupier to advise
the CEO if they sell or otherwise dispose of the land. This enables the CEO to
take steps to ensure that the new owner or occupier is aware of the environment
protection notice and their obligations in respect of the notice.
This clause establishes an offence if the owner or
occupier of land fails to give notice to the CEO about the sale or otherwise
disposal of the land. It is a strict liability offence and attracts a penalty of
100 penalty units. This provides an additional incentive for the owner or
occupier to comply with their notification obligations.
The clause contains standard defences for offences of this
nature, and requires the defendant to establish the defence.
This clause enables the CEO to apply to the
Registrar-General to cancel a recording of an environment protection notice, and
obliges the Registrar-General to effect the cancellation if an application is
received.
The clause also identifies the CEO
must apply to cancel a recording when the notice has been revoked, or fully
complied with, or in accordance with a direction from the NTCAT.
This clause establishes four offences for failing to
comply with an environment protection notice. It provides a standard approach to
creating tiered offences that reflect differing levels of environmental risk or
consequence as a result of the alleged breach and differing levels of
culpability of an alleged offender.
Subclause
(1) establishes an offence where a person has been issued with an environment
protection notice, the person is reckless in their failure to comply with the
notice, and the contravention results in significant environmental harm. This
offence contains strict liability elements, and the penalty for this offence is
an environmental offence level 1
penalty.
Subclause (2) establishes an offence
where a person has been issued with an environment protection notice, the person
is reckless in their failure to comply with the notice, and the contravention
results in material environmental harm. This offence contains strict liability
elements, and the penalty for this offence is an environmental offence level 2
penalty.
Subclause (3) establishes an offence
where a person has been issued with an environment protection notice, the person
fails to comply with the notice, and the contravention results in significant
environmental harm. This is a strict liability offence, and the penalty is an
environmental offence level 2
penalty.
Subclause (4) establishes an offence
where a person has been issued with an environment protection notice and fails
to comply with the notice. This is a strict liability offence, and the penalty
is an environmental offence level 3
penalty.
The clause contains standard defences
for offences of this nature, and requires the defendant to establish the
defence.
These offences are designed to promote
good environmental outcomes, to minimise environmental impacts and to minimise
the financial benefit of proponents by taking unauthorised
actions.
This clause establishes an offence for intentionally
obstructing another person from complying with an environment protection notice.
The penalty is an environmental offence level 2
penalty.
The clause contains standard defences
for an offence of this nature, and requires the defendant to establish the
defence.
This Division establishes a system of stop work
notices issued by the NT EPA. These notices are used to restrain a proponent
from undertaking work during the impact assessment and approval process. They
are a compliance measure to support the impact assessment and approval
system.
This clause establishes the purpose of stop work
notices which is to:
• prevent or
minimise environmental impacts
and
• minimise financial benefits that a
proponent may obtain by undertaking action prior to completing assessment and
approval processes.
This clause identifies that the NT EPA may issue a
stop work notice. The notice can be issued to a proponent or approval holder
that has referred an action or significant variation of an action, and also to a
proponent or approval holder that has been issued with a call-in
notice.
The notice can be issued at any stage
of the assessment and approval process if the NT EPA considers that it is
appropriate to issue the notice because of the actions of the
proponent.
This clause identifies that the NT EPA can impose
conditions on the notice to:
• prevent or
minimise environmental
impacts
• remediate environmental harm or
rehabilitate the site
• minimise
financial benefits that a proponent may obtain by undertaking action prior to
completing assessment and approval processes.
This clause clarifies the term of a stop work notice
where it has been issued in conjunction with a call-in
notice.
The clause identifies that the notice
remains in force until the proponent or approval holder complies with the
call-in notice, a decision on the requirement for impact assessment has been
made, or an environmental approval is granted, whichever is the
later.
This provides an additional incentive
for a proponent or approval holder to comply with a call-in
notice.
This clause identifies that a stop work notice may be
issued even if another statutory approval has been granted. This addresses those
situations where, in good faith, a statutory decision-maker has issued an
approval, but the NT EPA considers that the potential for significant impact
from the action is such that further investigation, and possibly impact
assessment and approval, is required.
This clause establishes four offences for failing to
comply with a stop work notice. It provides a standard approach to creating
tiered offences that reflect differing levels of environmental risk or
consequence as a result of the alleged breach and differing levels of
culpability of an alleged offender.
Subclause
(1) establishes an offence where a person has been issued with a stop work
notice, the person is reckless in their failure to comply with the notice, and
the contravention results in significant environmental harm. This offence
contains strict liability elements, and the penalty for this offence is an
environmental offence level 1
penalty.
Subclause (2) establishes an offence
where a person has been issued with a stop work notice, the person is reckless
in their failure to comply with the notice, and the contravention results in
material environmental harm. This offence contains strict liability elements,
and the penalty for this offence is an environmental offence level 2
penalty.
Subclause (3) establishes an offence
where a person has been issued with a stop work notice, the person fails to
comply with the notice, and the contravention results in significant
environmental harm. This is a strict liability offence, and the penalty is an
environmental offence level 2
penalty.
Subclause (4) establishes an offence
where a person has been issued with a stop work notice and fails to comply with
the notice. This is a strict liability offence, and the penalty is an
environmental offence level 3 penalty.
The
clause contains standard defences for offences of this nature, and requires the
defendant to establish the defence.
These
offences are designed to promote good environmental outcomes, to minimise
environmental impacts and to minimise the financial benefit of proponents by
taking unauthorised actions.
This division establishes a system of closure notices
that can be issued by the Minister for those sites that may require ongoing
monitoring or management after the expiration of an environmental approval. This
could apply, for example, to landfills which are full and are seeking to be
closed.
This clause establishes that the Minister may issue a
closure notice. Notices may be issued before an environmental approval expires
or after the expiration or revocation of an
approval.
To issue a notice, the Minister must
consider on reasonable grounds that ongoing monitoring or management is or will
be required following site closure due to the nature of the activities that had
occurred at the site.
The clause requires a
notice be given to the underlying land owner or occupier if they did not receive
a copy of the notice as the approval holder. This ensures that land owners and
occupiers are aware of continuing environmental obligations at the
site.
This clause identifies the types of actions that the
Minister may require the person issued with the closure notice to undertake.
This includes: monitoring and management actions, reporting of outcomes, and the
undertaking of environmental audits.
It also
identifies the matters that must be included in a closure notice, such as the
types of actions to be taken, the timeframe for taking actions, site details and
the reasons for issuing the notice.
This is a technical clause clarifying that each person
issued with a notice is required to comply with the notice.
This clause allows the Minister to lodge a copy of the
closure notice with the Registrar- General and to have the notice held against
land title. This provides certainty for the land owner and future land buyers
about previous activities that have occurred on the land and any ongoing
obligations associated with those previous activities.
This clause clarifies that a closure notice that is
recorded on the land title applies to the owners and occupiers of the
land.
This clause requires the CEO to advise land owners and
occupiers about any closure notices that may be recorded on the land title. The
CEO is to give this advice as soon as practicable after the notice is
recorded.
This ensures that land owners and
occupiers are aware of the notice, and also of their obligations under the
notice.
The clause also identifies that an
owner or occupier may request the Northern Territory Civil and Administrative
Tribunal (NTCAT) review the decision to record the notice against the land
title.
This clause requires an owner or occupier to advise
the CEO if they sell or otherwise dispose of the land. This enables the CEO to
take steps to ensure that the new owner or occupier is aware of the closure
notice and their obligations in respect of the notice.
This clause establishes an offence if the owner or
occupier of land failing to give notice to the CEO about the sale or otherwise
disposal of the land. It is a strict liability offence and attracts a penalty of
100 penalty units. This provides an additional incentive for the owner or
occupier to comply with their notification
obligations.
The clause contains standard
defences for offences of this nature, and requires the defendant to establish
the defence.
This clause enables the CEO to apply to the
Registrar-General to cancel a recording of a closure notice, and obliges the
Registrar-General to effect the cancellation if an application is
received.
The clause also identifies the CEO
must apply to cancel a recording when the notice has been revoked, or fully
complied with, or in accordance with a direction from the NTCAT.
This clause establishes an offence for failing to
comply with a closure notice. This is a strict liability offence, and the
penalty is an environmental offence level 3
penalty.
The clause contains standard defences
for an offence of this nature, and requires the defendant to establish the
defence.
This clause establishes an offence for intentionally
obstructing another person from complying with a closure notice. The penalty is
an environmental offence level 4 penalty.
The
clause contains standard defences for an offence of this nature, and requires
the defendant to establish the defence.
This clause allows the CEO to take the actions
specified in a closure notice where the person issued with the notice has not
complied with the notice. It also allows the CEO to take action to recover the
costs associated with taking the action.
This
ensures that any environmental impacts that may result from the person failure
to comply with the notice are minimised, while ensuring that the cost of the
action is not placed on Territorians.
This division establishes a system of closure
certificates that can be issued by the Minister to an approval holder once all
development, remediation and rehabilitation activities at a site are complete.
These certificates are a mechanism to acknowledge that the approval holder has
completed all of their environmental obligations associated with the site and
should no longer be liable for the site, even if there may be some residual
risks associated with the former use of the site, including structures on the
site. For example, these certificates could be issued to the operator of a fully
closed, remediated and rehabilitated landfill site.
This clause enables the Minister to identify criteria
that must be met before a closure certificate can be issued. The Minister may
identify different closure criteria for different classes of action; for
example, the criteria for a landfill would be significantly different to the
criteria for a mine site. Empowering the Minister to specify criteria by Gazette
notice provides flexibility and allows the Minister to be responsive to changing
technologies and community expectations.
The establishment of specific criteria for a class of
action does not prevent the Minister from imposing specific criteria at a
particular site. This ensures that closure criteria are risk based and
responsive to the specific needs of individual sites.
This clause identifies those matters that must be
included in an application for a closure
certificate.
A closure certificate can only be
issued where the approval holder intends to dispose of the land where the action
occurred. The approval holder may sell or transfer the land to another person,
or may be intending to give up a right to access the land, such as handing back
a mineral title, or may use another mechanism to transfer the land to the
Territory or a local government body.
This clause allows the Minister to issue a closure
certificate. Before issuing a certificate, the Minister must be satisfied that
all necessary remediation, rehabilitation and closure activities, which would
likely include monitoring for a defined period, have been completed in
accordance with the requirements of the approval, that the approval holder has
complied with any closure requirements specified under clause 212. The Minister
must also be satisfied that the approval holder intends to dispose of the
land.
It is not intended that closure
certificates would be issued immediately after activities at a site had been
completed. Rather, they would be issued some period, nominally a number of
years, after the site had been closed and in circumstances where regular and
ongoing monitoring had identified no environmental impacts or issues of concern
that can be attributed to the former use of the site. For example, a former
landfill site may require a number of years of monitoring to demonstrate that
there has been no deterioration of lining, that the capping and bunding of the
landfill is operating as expected, and that there is no evidence of leachate
runoff into ground or surface water.
This clause identifies that the effect of the closure
certificate is to remove any liability from the approval holder for any future
environmental impacts that may be associated with the former use of the land. It
transfers this liability to the Territory.
For
example, the issue of a closure certificate to the approval holder of a former
landfill site would transfer any liability for environmental impacts associated
with the landfill such as a lining failure that resulted in the release of
leachates to groundwater from the approval holder to the
Territory.
This Division establishes a process for the CEO
entering into enforceable undertakings with a person who is alleged to have
contravened the Act. The purpose of these undertakings is to facilitate better
environmental outcomes than can be achieved simply by taking criminal or civil
enforcement action.
This clause identifies that the CEO may accept an
enforceable undertaking from a proponent or approval holder to carry out
remediation or rehabilitation works to rectify environmental harms, or to
undertake other activities approved by the CEO. For example, if it would
be
inappropriate to require a person to rehabilitate an area
that has been cleared because it would require clearing in the future, the CEO
may instead agree for the person to rehabilitate a different area of
land.
The clause provides that undertakings
must be in writing, and they can require the proponent or approval holder to
publish the alleged contravention. An enforceable undertaking may be entered
into before or after criminal or civil proceedings have been
commenced.
This is a technical clause that enables the CEO to
apply to the court to enforce the undertaking if the person is not complying
with it.
The clause identifies that the court
may make a range of orders associated with the undertaking, including payment of
costs incurred by the CEO in taking action to minimise environmental harm
resulting from the contravention and compensation to a person who has suffered
loss or damage as a consequence of the
contravention.
The court may also revoke the
undertaking.
This clause allows the CEO to take any action that a
person has been ordered to take under clause 216 if the person does not take the
action.
The CEO may only take actions after
giving written notice to the proponent or approval holder and providing them
with an opportunity to rectify their failure to comply with the
order.
The CEO would take these actions where
the person failed to comply with the court order within a reasonable period of
time and where it was necessary to limit environmental impacts. The clause also
gives the CEO the power to recover the costs of taking the action through the
court.
The CEO may also authorise another
person to take an action on the CEO’s behalf.
This clause clarifies that enforceable undertakings
may be withdrawn or varied by a proponent or approval holder with the approval
of the CEO.
This clause identifies that the CEO may withdraw from
an enforceable undertaking if the CEO considers the undertaking is no longer in
the interests of the Territory. It identifies processes that the CEO must follow
in withdrawing from the undertaking, which includes providing written notice to
the proponent or approval holder and an opportunity for them to make
representations in relation to the proposed withdrawal.
This clause specifies that criminal proceedings cannot
be commenced against a proponent or approval holder while an enforceable
undertaking is in place. This provides an incentive for a person to enter into
an undertaking and to comply with its requirements.
This clause clarifies that criminal proceedings may be
commenced if an enforceable undertaking is withdrawn before the CEO is satisfied
that the requirements of the undertaking have been complied with.
This clause identifies that criminal proceedings may
not be commenced for an alleged breach of the Act that was the subject of an
enforceable undertaking if all the requirements of that undertaking have been
complied with.
This clause enables the CEO to authorise a person to take
actions during an emergency where those actions might otherwise breach the Act.
Before issuing an authorisation, the CEO needs to be satisfied that urgent
circumstances exist and that the action is justified by the need to protect the
environment or critical public infrastructure or otherwise in the
circumstances.
The clause is designed to be
responsive to truly emergency events, and not to provide for situations that
arise because an approval holder has not appropriately managed their site. For
example, an authorisation may be given to a dam operator to release water if
there has been excessive rainfall and the operator needs to release the water in
a staged way to prevent uncontrolled releases, thereby minimising the potential
impacts on nearby roads and bridges. In contrast, a request by a mining operator
to release contaminated water to protect buildings on the mining site where the
build up of water has resulted from a failure to appropriately manage water
storage capacity is unlikely to be authorised.
This Division establishes requirements for a person to
notify the CEO of certain incidents that may occur in relation to an action
which is regulated by an environmental approval or for an action which is
undergoing environmental impact assessment.
The
purpose of the Division is to ensure that appropriate incidents are reported in
a timely way in order that appropriate actions can be taken to minimise
subsequent environmental impacts.
This clause identifies when the Division applies. It
applies when an incident, which may cause material or serious environmental
harm, occurs at a site which is the subject of an environmental approval or
which is undergoing environmental impact assessment.
This clause identifies who is required to notify the
CEO of an incident referred to in clause
224.
It includes: the approval holder, a person
who is undertaking an environmental audit, and owners and occupiers.
This clause identifies that the reporting of an
incident must comply with the regulations. The regulations will specify the
minimum information requirements to be included in a notice given under this
section.
This clause clarifies that a person referred to in
clause 225 is not required to report an incident if they are aware the incident
has already come to the CEO’s
attention.
In effect it creates a hierarchy of
reporting by recognising that some persons, such as the approval holder, have a
higher moral obligation to report than other persons, such as a land owner, who
is not involved in the operation of the action that resulted in the incident
that requires reporting.
The clause also
acknowledges that some material or serious environmental harms may result from
ordinary, or day to day operations, depending on the nature of the action that
is being undertaken. These types of incidents do not need to be reported if they
are authorised by an environmental approval.
This clause establishes four offences for failing to
report an incident as required under clause 225. It provides a standard approach
to creating tiered offences that reflect differing levels of environmental risk
or consequence as a result of the alleged breach and differing levels of
culpability of an alleged offender.
Subclause
(1) establishes an offence where an incident results in significant
environmental harm and the person is reckless in their failure to report the
incident. This offence contains strict liability elements, and the penalty for
this offence is an environmental offence level 2
penalty.
Subclause (2) establishes an offence
where an incident results in material environmental harm and the person is
reckless in their failure to report the incident. This offence contains strict
liability elements, and the penalty for this offence is an environmental offence
level 3 penalty.
Subclause (3) establishes an
offence where an incident results in significant environmental harm and the
person fails to report the incident. This offence is an offence of strict
liability, and the penalty for this offence is an environmental offence level 3
penalty.
Subclause (4) establishes an offence
where an incident results in material environmental harm and the person fails to
report the incident. This offence is a offence of strict liability, and the
penalty for this offence is an environmental offence level 4
penalty.
Each offence applies to each person
that has the duty to provide a notification in accordance with clause 225. The
clause contains standard defences for offences of this nature, and requires the
defendant to establish the defence.
These
offences are designed to promote good environmental outcomes, and to minimise
environmental impacts, by ensuring that incidents are reported in a timely
way.
This clause identifies that a person is required to
make a notification under this Division even if the notification may incriminate
the person. It is an abrogation of the right against self-
incrimination which is necessary in order to minimise
environmental impact or harm that can result from unauthorised incidents
occurring.
The clause provides a protection for
the person who is required to provide the notification by identifying that any
information that is provided as part of a notification in accordance with the
minimum requirements specified in the regulations cannot be used as evidence
against the person for an offence or civil
penalty.
This does not prevent the use of
material that may be identified as a consequence of the information provided as
part of the notification from being used as evidence in criminal or civil
proceedings.
The clause does not apply to any
proceedings relating to false or misleading information or documents as the
information supplied as part of the notification may form the basis of those
proceedings. It also does not prevent the bringing of proceedings against a
person for failing to comply with their obligation to report an
incident.
Division 1 Injunctions and other orders Clause 230.
Who may bring proceeding
This clause clarifies
who may apply for an injunction or other civil proceedings order. It has been
included for certainty and identifies that a person who is affected by the
alleged act or omission that may comprise a breach of the Act may bring
proceedings.
This is a technical clause that states that a court
may grant an injunction restraining a person from undertaking certain activities
that would be in breach of the Act. The court may also require the person to
undertake certain activities.
This is a technical clause that states that a court
may grant an injunction requiring a person to undertake certain activities, if
the failure to do those activities would constitute a breach of the
Act.
This is a technical clause that states that the court
may grant interim injunctions prior to granting a prohibitory or mandatory
injunction. Interim injunctions may require a person to undertake an activity,
or preventing them from undertaking an activity.
This is a technical clause that provides that in
deciding whether or not to grant an injunction, the court is not required to
consider a person’s previous conduct and history, or the imminence of any
potential environmental harm. This is included to clarify that these types of
matters are not necessary for the court to issue an injunction if the court
considers the circumstances are appropriate.
This is a technical clause identifying that the court
may discharge any injunction that has been granted.
This is a technical clause that allows the court to
make a range of orders to address harms or impacts caused by a person breaching
the Act. These include orders to remediate or rehabilitate the environment,
repay costs incurred by the Minister or CEO in preventing or mitigating
environmental harm, and compensatory costs for a person who has suffered loss or
damage to property.
This is a technical clause identifying that the court
may revoke any order that it has previously made under clause
236.
This is a technical clause that states that the court
may require a person seeking an injunction or other order to pay a security for
costs and to give undertakings as to
damages.
It also states that the court may
determine not to require a security or other undertaking for injunctions and
orders that are sought in the public interest. Public interest is not defined
and would be determined by the court on the basis of the particular
circumstances and with regard to previous case law.
This is a technical clause that states that the court
may make any cost orders that it considers reasonable and
appropriate.
It also states that the court may
determine not to make a costs order for proceedings that are taken in the public
interest. Public interest is not defined and would be determined by the court on
the basis of the particular circumstances and with regard to previous case
law.
This is a technical clause that states that the court
may require a person to pay compensation to a respondent (the person who is
alleged to have breached the Act) if the court determines that the respondent
did not breach the Act, has suffered loss or damage as a result of the civil
proceedings, and in the circumstances compensation is
warranted.
Compensation is in addition to any costs
orders that may be made in favour of the respondent.
This clause provides that a person may commence
proceedings within 90 business days after the date of the alleged contravention
of the Act.
The clause allows the court to
extend the 90 day period where it considers that an extension is appropriate. It
provides certain matters that should be considered by the court in making this
decision.
This is a technical clause that confirms that the
powers given to the court under this Division are in addition to, and do not
limit, the powers that the court has under any other legislation or the common
law that may enable a person to bring civil proceedings.
This Division establishes a civil penalty regime. It
enables the CEO to seek civil penalties and orders as an alternative to criminal
proceedings.
This clause allows the CEO to make certain directions
to a person that the CEO is satisfied has committed a strict liability offence
as an alternative to taking criminal proceedings. The CEO may direct the person
to remediate environmental harm, or rehabilitate the environment and to
publicise the offence and the resulting environmental
impact.
These types of orders are designed to
facilitate better environmental outcomes than can be achieved simply by
prosecuting offenders.
This clause establishes that the CEO may apply to the
court for particular civil orders, including civil penalty orders and orders
under clause 248.
The clause uses the term
“court of competent jurisdiction” which allows the CEO to apply to
either the Local Court or the Supreme Court depending on the amount of penalty
that is sought by the CEO. If the penalty falls within the civil jurisdiction of
the Local Court (currently between $25 000 and $250 000) then the CEO can apply
to the Local Court, reducing costs for both the CEO and the alleged offender. If
the penalty sought by the CEO is higher than the Local Court’s
jurisdiction, then the CEO may apply to the Supreme
Court.
The CEO may only bring civil proceedings
for an alleged offence of strict liability. These are generally lower tier
offences, with penalties of environmental offence level 3 or 4. Offences that
contain strict liability elements,
This clause establishes the matters that the CEO must
have regard to when deciding whether to seek commence civil proceedings or give
a direction under this Division. This includes the seriousness of the alleged
contravention and the alleged offender’s history of compliance with the
Act.
This clause establishes processes associated with the
CEO seeking orders under the Division. It identifies that the CEO must give a
notice to the alleged offender about the CEO’s intention to apply for a
civil order, including the amount of any proposed penalty. The CEO must give at
least 21 business days’ notice of their intention to seek the
order.
As an alternative to the CEO taking
civil proceedings, the alleged offender may elect to be prosecuted for the
alleged offence.
This is a technical clause that identifies the types
of civil orders that the court may make. These include civil penalty orders, and
orders under clause 250. The court may also make any other order that it
considers appropriate.
The clause further
provides that the amount of a civil penalty order cannot exceed the maximum
amount that is payable as a criminal penalty for the offence. \
This is a technical clause that identifies the matters
the court must consider when setting a civil penalty. It includes the nature and
extent of the contravention, the environmental harm that resulted from the
contravention, the person’s previous environmental history, and the amount
of any financial benefit or saving that was (or could be) obtained by committing
the contravention.
This is a technical clause that allows the court to
make a range of orders to address harms or impacts caused by a person breaching
the Act. These include orders to ensure the contravention does not happen again,
to remediate or rehabilitate the environment, repay costs incurred by the
Minister or CEO in preventing or mitigating environmental harm, and compensatory
costs for a person who has suffered loss or damage to property. The court may
also require the person to publicise the offence and the resulting environmental
impact.
This clause allows the CEO to take any action that a
person has been ordered to take under clause 250 if the person does not take the
action. The CEO would take these actions where the person failed to comply with
the court order within a reasonable period of time and where it was necessary to
limit environmental impacts. The clause also gives the CEO the power to recover
the costs of taking the action through the court or by registration on land
title.
The CEO may also authorise another
person to take an action on the CEO’s behalf.
This is a technical clause that clarifies that the
court, when making orders under this Division, is using its civil
jurisdiction.
This is a technical clause that clarifies that a
person may be required to pay civil penalties for alleged breaches of multiple
sections of the Act, but cannot be required to pay more than one civil penalty
in relation to the same type of conduct.
This is a technical clause that provides that any
civil proceedings taken under the Division are stayed if criminal proceedings
are commenced for substantially the same conduct. Civil proceedings may only be
resumed if the criminal proceedings do not result in a finding of guilt against
the person.
This clause specifies that evidence that was provided
for the purpose of civil proceedings cannot be used as evidence in criminal
proceedings for a substantially similar offence. It
does not prevent the use of material that may be
identified as a consequence of the material provided for the civil
proceedings.
The clause does not apply to any
proceedings relating to false or misleading information or documents as the
supplied material may form the basis of those proceedings.
This is a technical clause that states that the court
may make any cost orders that it considers reasonable and appropriate. This
includes costs incurred by the CEO in investigating the alleged
offence.
This is a technical clause that states that any amount
to be paid to the Territory as part of an order under this Division (including a
civil penalty order, costs order, or order in compensation or reimbursement
etc.) can be recovered by the Territory as a judgement debt.
This is a technical clause that provides that a person
may commence proceedings within 3 years after the date of the alleged
contravention of the Act.
This period aligns
with the period for bringing criminal proceedings for alleged offences against
the Act.
This is a technical clause to clarify that the
bringing of civil proceedings does not have any effect on an environment
protection notice that may have been issued in relation to the alleged
contravention, either before, during or after the civil proceedings commenced.
This ensures that environmental impacts are appropriately managed during any
civil proceedings.
Division
1 Offences
Clause 260. Offence to
provide false or misleading
information
This clause contains two
offence associated with providing false or misleading
information.
Subclause (1) identifies that it
is an offence to provide false or misleading information while subclause (2)
identifies that it is an offence to provide a document that contains false or
misleading information. Offences are not committed if in giving the information
or document, that person points out any misleading aspect and, as far as
reasonably possible, assists in remedying the misleading aspect or
aspects
These offences are standard offences of
this nature and both offences contain penalties of 200 penalty units or 2 years
imprisonment (for an individual). The offences also contain standard defences
for offences of this nature.
These offences are
designed to promote good environmental decision-making by ensuring the accuracy
of the information on which decisions are based.
This clause provides for two offences associated with
failing to comply with court orders.
The
offences are strict liability offences and the defendant has the onus of proof
to establish a defence to a prosecution of the
offence.
These offences are necessary to ensure
the effectiveness of the compliance and enforcement provisions of the Act. They
ensure that defendants cannot fail to comply with a court order without
penalty.
This clause establishes ‘continuing
offences’. Continuing offences are offences that are considered to be
ongoing until the defendant takes the necessary action to take, or stop taking,
certain activities that constitute the
offence.
This clause allows the Court to impose
additional penalties for each day that the offence continued after the person
was charged, and for each day it continued after the offender was first found
guilty.
These are standard clauses in
environmental legislation that recognise the potential environmental impacts
that can, and continue to occur, if a person fails to take the required
action.
This clause establishes that occupiers of land must
take reasonable steps and exercise due diligence to prevent offences occurring
on their land.
It establishes that an occupier
that has not taken reasonable steps or exercised due diligence can be taken to
be guilty of an environmental offence.
The
defendant has the onus of proof to establish a defence to a prosecution of the
offence.
This clause identifies when the owner of land is not
considered to be the occupier of land for the purposes of the offence in clause
263. The defendant has the onus of proof to establish that they were not the
occupier of the land.
This clause identifies when the executive officer of a
body corporate that is considered to have committed an offence under the Act may
also be considered to have committed that offence. An executive officer is a
director or other person that is concerned with or takes part in the management
of the body corporate.
The clause specifies the
matters that should be considered by the Court in determining whether or not to
impose liability on the executive officer. These include the actions of the
executive officer to ensure that an offence did not occur and the actions taken
once the executive officer became aware of the commissioning of the
offence.
The clause also identifies that a body
corporate does not have to be charged with an offence for the provision to
apply, and identifies that any defence available to the body corporate is also
available to the executive officer. Proceedings under this clause do not affect
proceedings against the body corporate.
The maximum penalty that may be imposed is the maximum
penalty that could be imposed for an offence of that nature on an
individual.
The clause is included as a
deterrent to executive officers failing to comply with their duties to prevent
and minimise environmental harms or impacts.
This clause identifies when a partner in a partnership
arrangement, or the officers of an unincorporated association, that is
considered to have committed an offence under the Act may also be considered to
have committed that offence.
The clause
specifies defences to these charges. These include that the partner or officer
did not authorise, permit or consent to the offence; the extent to which the
partner or officer could have known the offence was likely to occur and the
steps they took to prevent the occurrence of the offence; and the extent to
which the partner or officer could have prevented the commission of the
offence.
The clause also identifies that the
other partner or other officer do not have to be charged with an offence for the
provision to apply, and identifies that any defence available to the other
partner or other officer is also available to the partner or officer that is
charged under this provision
The maximum
penalty that may be imposed is the maximum penalty that could be imposed for an
offence of that nature on an individual, however a period of imprisonment cannot
be imposed.
The clause is included as a
deterrent to partners and officers of unincorporated associations from failing
to comply with their duties to prevent and minimise environmental harms or
impacts from activities that they are involved in.
This clause identifies when employees and agents may
be considered to have committed an offence.
The
clause specifies defences to these charges. These include that the employee or
agent did not authorise, permit or consent to the offence; the extent to which
the employee or agent could have known the offence was likely to occur and the
steps they took to prevent the occurrence of the offence; and the extent to
which the employee or agent could have prevented the commission of the
offence.
The clause also identifies that the
employer does not have to be charged with an offence for the provision to apply,
and identifies that any defence available to the employer is also available to
the employee or agent that is charged under this
provision
The maximum penalty that may be
imposed is the maximum penalty that could be imposed for an offence of that
nature on an individual, however a period of imprisonment cannot be
imposed.
The clause is included as a deterrent
to employees and agents from failing to comply with their duties to prevent and
minimise environmental harms or impacts from activities that they are involved
in.
This clause identifies that the court may, in addition
to any other order it may make under the Act or under the Sentencing Act 1995,
make orders requiring a person found guilty of an offence under the Act to pay
the investigation costs and expenses incurred by the CEO.
This clause identifies that the Court may find a
person guilty of different offence to the offence that was charged. The
alternative offences that are available are those which have a lower penalty and
have resulted in less severe environmental harm. This is a standard approach in
legislation that contains tiered offences such as those contained in this
Act.
Clause 270. Principles to be applied in imposing a
penalty for specified environmental
offences
This clause specifies the matters
the court should consider when imposing a penalty for specified environmental
offences. Specified environmental offences are identified in clause 4 and are
generally those offences where there is, or is likely to be, an environmental
harm resulting from the offence.
The matters to
be considered include:
• the benefit or
likely benefit obtained from committing the offence and the desirability of
fixing a penalty that outweighs that benefit
• the extent and nature of the environmental harm
caused by the offence
• the need to deter
cumulative impacts of conduct of the nature of the
offender
• the offender’s efforts
to minimise or remediate environmental
harm
• the offender’s efforts to
comply with the environmental
approval
• the offender’s
compliance history
• whether the offender
deliberately concealed the conduct or the illegal nature of the
conduct.
This clause identifies a range of court orders that
the court may impose on a person found guilty of a specified environmental
offence.
These include orders
to:
• take action to prevent the offence
from reoccurring and remediate harm caused by the
offence
• undertake activities to enhance
the environment in an area for public benefit. This type of order is likely to
be sought where it would be inappropriate to seek to have the area remediated or
rehabilitated; e.g. an area which has been cleared but for which clearing would
have been authorised had the offender sought the appropriate approval
• compensate the CEO for costs associated with
taking remedial and preventative action to address environmental
harm
• pay to the CEO an amount that is
estimated to not exceed the amount of benefit, financial, monetary or economic,
the person received from failing to comply with their
obligations
• pay compensation
costs
• publicise the offence and its
environmental consequences.
This clause allows the CEO to take any action that a
person who has been found guilty of an offence has been ordered to take by the
court. The CEO would take these actions where the person failed to comply with
the court order. The clause also gives the CEO the power to recover the costs of
taking the action through the court or by registration on land
title.
The CEO may also authorise another
person to take an action on the CEO’s behalf.
Clause 273. Who can commence
proceedings
This clause specifies that the
CEO, an environmental officer, or another person authorised by the CEO can bring
commence proceedings for an alleged offence against the
Act.
It further identifies that the CEO or NT
EPA (as relevant) must give their consent before an environmental officer, other
than a police officer, brings proceedings under the Act. This is to ensure that
the person with authority for the relevant provisions of the Act (either the CEO
or NT EPA) has considered the alleged offence and approved the enforcement
action.
This clause provides that proceedings for an offence
against the Act can be brought three years from the date the offence was
committed, or the date the offence came to the attention of the CEO or NT EPA
(as relevant), whichever is the later.
This clause identifies the CEO and the NT EPA as
enforcement agencies for the purposes of the Fines and Penalties (Recovery)
Act 2001. This will enable those bodies to use the powers under the Act in
the enforcement of infringement notices issued under the Act.
Clause 276. Standing for judicial
review
This clause identifies that
decisions made by the Minister, NT EPA and CEO are subject to judicial
review.
It alters the common law position on
standing for judicial review by limiting standing to defined persons
being:
• A proponent of an action to
which the decision relates.
• An applicant for the decision, for example, an
applicant for a transfer of an environmental
approval.
• A person directly affected by
the decision, such as Traditional Owners of land where an action is occurring or
a neighbouring land owner.
• A person who made a genuine and valid submission
during the assessment and approval process. This clause explicitly excludes
persons who submit form letters or sign petitions. While form letters and
petitions provide good information about community interest and sentiment about
a particular issue, participation at this level is not considered to be
sufficient to create right of review.
A person
who makes a submission after the closing period specified by the decision-maker
for receiving submissions are also excluded from seeking a review, unless the
Court determines otherwise. This gives the court the necessary flexibility to
consider why the submission was made after the period and the potential
detriment if the person was not provided with the opportunity to seek the
review.
This clause provides that certain decisions made by
the CEO can be reviewed by the Northern Territory Civil and Administrative
Tribunal (NTCAT). The Schedule identifies the reviewable decisions and who may
seek the review. In general terms, reviews are limited to the person who is
directly affected by the decision.
Division
1 Delegation
Clause 278. Delegation by
Minister
Clause (1) allows the Minister to
delegate any of their powers and functions to the CEO or another person. This
will enable administrative efficiencies and streamline
decision-making.
Clause (2) allows a delegation
of the Minister’s powers to vary environmental approvals and their
conditions to the NT EPA or a member of the NT EPA. This limited delegation will
facilitate administrative efficiencies in the consideration of requests to amend
environmental approvals where these amendments will not result in any additional
or different environmental risks.
This clause allows the CEO to delegate any of their
powers and functions to another person. This will enable administrative
efficiencies and streamline decision-making.
Clause 280.
Service
This clause identifies that any
document that needs to be given to another person under the Act, such as an
environment protection notice, can be given electronically by
email.
This clause provides certainty and is
required because the Electronic Transactions (Northern Territory) Act 2000
only allows electronic service where the person receiving the electronic
notice consents to receiving it electronically.
The inclusion of the clause will provide administrative
efficiencies under the Act and reflects a modern approach to
correspondence.
This clause recognises that some information that is
required to inform environmental decision-making may be
confidential.
It allows the person submitting
the information to request that the confidential information is not released to
the public. As part of the request, the person will be required to identify why
the information should be confidential and not released consistent with the
generally transparent approach to decision-making under the Act.
This clause provides the power for the Minister or NT
EPA to withhold confidential information in accordance with the
applicant’s request.
It places a
limitation on when the Minister and NT EPA can withhold commercially
confidential information to limit broad claims that material is commercially
confidential.
This clause provides that if the Minister or NT EPA
decide that confidential information can be withheld from publication, the
information is still required to be provided – so that decision-making is
informed to the greatest extent possible – and allows the information to
be provided to other relevant
decision-makers.
It also places a prohibition
on the publication of information if the Minister or NT EPA have determined that
it is confidential.
This clause establishes that the CEO must maintain a
public register of certain documents and decisions made under the Act. This
provision is included for transparency and to improve confidence in the
environmental management system.
This Division provides an improved mechanism for the
Minister to collect and manage information about the Territory’s
environment, in order to improve environmental decision- making.
Under this clause, the Minister may, by Gazette
notice, direct proponents and approval holders to provide certain information,
including data.
The clause specifies the circumstances in which a
direction notice can be issued and the matters that must be included in the
notice.
It also provides that different
directions can be made in relation to different classes of proponents or
approval holders, types of actions or parts of the Territory. This provides
flexibility in the application of these provisions.
This clause specifies that the Minister, NT EPA or CEO
can determine the methodologies for information to be provided in accordance
with the direction notice. This will improve consistency in the collection and
aggregation of data which in turn will improve the nature of the data on which
environmental decisions are based.
This clause provides an offence for a proponent or
approval holder to fail to comply with a direction notice.
This clause identifies that a proponent or approval
holder may seek an exemption from the requirement to comply with the direction
notice. It acknowledges that some information or data may be sensitive or
confidential, or that there may be other practical reasons that the notice
cannot be complied with.
This clause provides a power for the Minister or CEO
to publish information that is provided by a proponent or approval holder under
the Division. This is intended to avoid conflicts between the person providing
the information and the Minister about whether the Government has the right to
publish the information.
Clause 290. CEO to report on enforcement and
compliance
This clause requires the CEO to
provide a report, at least annually, on the enforcement and compliance measures
taken under the Act. This provision is included for transparency and to improve
confidence in the environmental management system.
This is a clarification clause that provides certainty
that the Minister, NT EPA and CEO have powers to publish guidance material for
the purposes of the Act.
This clause allows the CEO to prepare and approve
forms that may be required for the efficient operation of the Act.
Clause 293.
Regulations
This is a standard clause that
identifies that the Administrator may make Regulations for the purposes of the
Act. It provides a number of examples of the types of matters that may be the
subject of Regulations.
Division 1 Acts repealed Clause 294. Acts
repealed
This clause identifies that the
Environmental Assessment Act 1982 and the Environmental Assessment
Amendment Act 1994 are formally repealed by this new Act.
This Division provides for a number of transitional
matters that are required as a consequence of repealing the Environmental
Assessment Act 1982 and the commencement of this Act.
This clause provides a number of definitions to assist
in the interpretation of the transitional
provisions.
In particular, it identifies that
for the purposes of the Division, a prescribed Act is
the:
• Mining Management Act 2001,
or
• Planning Act 1999,
or
• Petroleum Act 1984,
or
• Waste Management and Pollution
Control Act 1998.
This clause identifies that any assessment process
commenced under the Environmental Assessment Act 1982 but not completed
at the commencement of this Act continues to be subject to the Environmental
Assessment Administrative Procedures 1984 (Administrative Procedures) as if
this Act had not commenced.
It then provides
for a number of changes to the Administrative Procedures to increase
transparency in the impact assessment process and to provide better alignment
with the proposed processes for environmental impact assessment that will be
established through Regulations under this Act.
This clause provides a mechanism for the NT EPA to
terminate assessment processes that were commenced under the Environmental
Assessment Act 1982 in certain circumstances. The clause will generally
apply where a proponent has not taken action in relation to the
impact assessment process, such as preparing assessment
documentation for a number of years. The clause requires the NT EPA to provide a
proponent notice of its intention to terminate the assessment process and to
advise any Responsible Minister within the meaning of the Environmental
Assessment Act 1982.
This clause clarifies that the new provisions of Part
8, Divisions 1 and 2 and Part 9 Divisions 1 and 3 of this Act can be applied to
any actions that were assessed under the Environmental Assessment Act
1982.
This allows the NT EPA and CEO to
learn from the outcomes of previous assessment processes, and to take action
where previously assessed actions are having unacceptable impacts on the
environment.
This clause identifies that any assessment report
prepared under the Environmental Assessment Act 1982 continues to apply
for the purposes of this Act. This is necessary as some proponents may wish to
submit a significant variation to an action that has previously been assessed
and it will enable the NT EPA to have regard to that previous
assessment.
This clause specifies what happens in circumstances
where an assessment report was completed under the Environmental Assessment
Act 1982 but an approval to conduct the action has not been
granted.
If an approval is required under a
prescribed Act, then an environmental approval is not required to be granted
under this Act.
If an approval is not required
under a prescribed Act, then an environmental approval granted under this Act
will be required.
This ensures that those
actions that have the potential to have significant impacts on the environment
will receive a form of approval to manage those environmental
impacts.
This clause specifies that if an assessment report is
completed under the Environmental Assessment Act 1982 after the
commencement of this Act, then an environmental approval granted under this Act
is required.
This ensures that those actions
that have the potential to have significant impacts on the environment will
receive an environmental approval to manage those environmental
impacts.
This clause establishes how an environmental approval
is to be developed, if it is required under clause 300 or clause
301.
This is a standard clause where a new Act is replacing
an existing Act. It identifies that regulations may provide for matters of a
transitional nature. It enables the development of regulations in circumstances
where difficulties or gaps are identified with the transitional
provisions.
This Part identifies a number of consequential
amendments to other legislation that are required as a result of repealing the
Environmental Assessment Act 1982.
This clause identifies that the Geothermal Energy Act
2009 is amended.
This clause omits an existing reference to an
environmental assessment under the Environmental Assessment Act 1982. It
replaces the reference with a prohibition on the approval of a geothermal
operations plan until processes under this Act have been considered and
completed.
This clause identifies that the Meat Industries Act
1996 is amended.
This clause omits an existing reference to the
Environmental Assessment Act 1982 and replaces it with a reference to
this Act.
This clause identifies that the Mining Management Act
2001 is amended.
This clause inserts a new requirement that places a
prohibition on the approval of a mining management plan and grant of an
authorisation until processes under this Act have been considered and
completed.
Clause 310. Section 37 amended
(Duration and conditions of Authorisation) This clause omits existing
references to the Environmental Assessment Act 1982. Clause 311.
Section 82 amended (Protection of
environment)
This clause omits an existing
reference to an environmental assessment under
the
Environmental Assessment Act 1982 and
replaces it with a reference to this Act.
This clause inserts a new Part 13 into the Mining
Management Act 2001. This new Part is associated with clause 298 which
provides that an environmental approval is not required to be granted if an
assessment report is completed under the Environmental Assessment Act 1982
before the commencement of this Act. The new part operates to ensure that an
authorisation can be granted, and a mining management plan approved, under the
Mining Management Act 2001, notwithstanding the amendments to section 36
of that Act under these transitional arrangements.
This clause identifies that the Northern Territory
Environment Protection Authority Act 2012
is
amended.
This clause omits a definition of principles of
ecologically sustainable development and the articulation of those principles
from the Northern Territory Environment Protection Authority Act 2012 and
replaces them with references to the definition and principles contained in this
Act. This will ensure consistency between these pieces of
legislation.
This clause removes section 25AA(2). These principles
are now contained in this Act.
This clause identifies that the Petroleum Act 1984
is amended.
This clause omits an existing reference to the
Environmental Assessment Act 1982 and replaces it with a reference to
this Act.
This clause identifies that the Planning Act 1999
is amended.
This clause omits references to environmental impact
assessment processes under the Environmental Assessment Act 1982. It
replaces these references with comparable obligations under this Act.
This clause omits an existing reference to
environmental assessment processes under the Environmental Assessment Act
1982. It replaces the reference with a prohibition on the making of a
preliminary decision regarding a development proposal until processes under this
Act have been considered and completed.
This clause omits an existing reference to
environmental assessment processes under the Environmental Assessment Act
1982. It replaces the reference with a prohibition on the making of a
decision regarding an amendment proposal until processes under this Act have
been considered and completed.
This clause omits an existing reference to
environmental assessment processes under the Environmental Assessment Act
1982. It replaces the reference with a prohibition on the making of a
decision regarding a proposal until processes under this Act have been
considered and completed.
This clause omits references to environmental impact
assessment processes under the Environmental Assessment Act 1982. It
replaces these references with comparable obligations under this
Act.
This clause omits an existing reference to
environmental assessment processes under the Environmental Assessment Act
1982. It replaces the reference with a prohibition on the making of a
decision regarding a development proposal until processes under this Act have
been considered and completed.
This clause omits an existing reference to
environmental assessment processes under
the
Environmental Assessment Act
1982.
This clause inserts a new Part 12, Division 6 into the
Planning Act 1999. This new Part is associated with clause 300 which
provides that an environmental approval is not required to be granted if an
assessment report is completed under the Environmental Assessment Act 1982
before the commencement of this Act. The new part operates to ensure that
relevant development approvals can be granted under the Planning Act
1999, notwithstanding the amendments to that Act under these transitional
arrangements.
This clause identifies that the Waste Management and
Pollution Control Act 1998 is amended.
This clause omits an existing reference to
environmental impact assessment processes under the Environmental Assessment
Act 1982. It replaces the reference with a prohibition on the grant of
approvals and licences until processes under this Act have been considered and
completed.
This clause inserts a new Part 16 into the Waste
Management and Pollution Control Act 1998. This new Part is associated with
clause 300 which provides that an environmental approval is not required to be
granted if an assessment report is completed under the Environmental
Assessment Act 1982 before the commencement of this Act. The new part
operates to ensure that approvals and licences can be granted under the Waste
Management and Pollution Control Act 1998, notwithstanding the amendments to
section 32 of that Act under these transitional arrangements.
This clause identifies that the Environmental Offences
and Penalties Regulations 2011 are amended.
This clause amends the Schedule to the
Environmental Offences and Penalties Regulations 2011 by inserting a
reference to this Act.
This clause identifies that the Fines and Penalties
(Recovery) Regulations 2001 are amended.
This clause amends Schedule 1 to the Fines and
Penalties (Recovery) Regulations 2001 by inserting a reference to this
Act.
This clause identifies that the Northern Territory
Aboriginal Sacred Sites Regulations 2004
are
amended.
This clause omits an existing reference to
environmental impact assessment processes under the Environmental Assessment
Act 1982 and replaces it with a reference to this Act.
This clause identifies that the Petroleum (Environment)
Regulations 2016 are amended.
This clause omits certain definitions related to the
environmental impact assessment process which make reference to the
Environmental Assessment Act 1982.
This clause omits a reference to environmental impact
assessment processes under the Environmental Assessment Act 1982 and
replaces it with a prohibition on the approval of an environment management plan
until processes under this Act have been considered and completed. It also makes
other minor drafting amendments that are required to the regulation as a
consequence of these changes.
This clause omits references to obligations of the
Minister which are associated with the outcomes of environmental impact
assessment processes. These are no longer required as a consequence of the
amendments to regulation 9.
This clause omits references to obligations of the
Minister which are associated with the outcomes of environmental impact
assessment processes. These are no longer required as a consequence of the
amendments to regulation 9.
This clause inserts a new Part 5 into the Petroleum
(Environment) Regulations 2016. This new Part is associated with clause 300
which provides that an environmental approval is not required to be granted if
an assessment report is completed under the Environmental Assessment Act 1982
before the commencement of this Act. The new part operates to ensure that
environmental management plans can be approved under the Petroleum
(Environment) Regulations 2016, notwithstanding the amendments to those
Regulations under these transitional arrangements.
This is a technical clause that identifies that Part
15 is repealed on the day after the part commences. It is a standard provision
for principal legislation containing consequential
amendments.
This establishes the Schedule. The Schedule identifies
what types of decisions can be reviewed by the Northern Territory Civil and
Administrative Tribunal (NTCAT) and the person that can seek the
review.