ENVIRONMENT PROTECTION (SITE CONTAMINATION) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 16 October 2007. Page 1042.)

Clauses 2 and 3 passed.

Clause 4.

The Hon. I.F. EVANS: My understanding of the committee is that we get the chance to speak as well as to ask questions.

The CHAIR: For a maximum of 15 minutes.

The Hon. I.F. EVANS: I want to make some comments in relation to clause 4, which amends the interpretation of divisions in the original act (the Environment Protection Act), because we are talking about contamination by a chemical substance. The way I read it, 'chemical substance' will be defined in the amending bill as meaning:

...any organic or inorganic substance, whether a solid, liquid or gas...and includes waste;

In the main bill, 'waste' essentially means:

(a) any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separation operation from that which produced the matter; or

(b) anything declared by regulation...

So, 'chemical substance' really means anything at all, because you could basically put anything into that waste category. Unfortunately, I have to leave at a quarter to seven, so the minister will be pleased to know that I will not take as long as I might have. There are other provisions later in the bill that talk about human safety. So, all the recycling depots and those sort of things suddenly come under this because 'waste' is defined as recycling, 'chemical substance' includes waste, and 'contamination' talks about human safety; so, they are linked through. I have no questions in relation to that; I just wanted to raise the matter so that the committee is absolutely crystal clear and will know what it is voting for. I think the bill is far broader than it needs to be and far broader than the committee thinks it is.

Another issue I raise for the interest of the committee is that, under clause 4, which amends section 3 of the original act, is a definition of `remediate'. In the definition, 'remediate' also means to prevent. So, all of these powers are not only about rehabilitating sites but they are also about prevention. The prevention of contamination by a chemical substance also (and the officer is shaking his head) says 'eliminate or prevent actual or potential harm'. So, it does have a prevention element, which I do not think has been explored in great detail.

The other issue I bring to the attention of the committee is that we are now introducing another form of harm. Under the provision I am talking about, under 'remediate' it talks about 'prevent actual or potential harm' and in (b)(ii) it then it talks about environmental harm. Under the EPA Act—

The Hon. J.D. Hill interjecting:

The Hon. I.F. EVANS: Yes. Clause 4, on page 4, under the heading 'remediate', it talks about environmental harm. In the main bill, there are two types of harm: material harm and another one that escapes me. So, the government is actually introducing a third concept of harm, which remains undefined. It is unclear to me what is not already covered under the two definitions of harm in the original EPA Act, and I would have explored that in great detail if I were to be here for the full committee. In clause 4 under 'sensitive use' what other uses is the minister considering by regulation? What is envisaged? The other issue to bring to the attention of the committee is that 'the site' means an area of land. If you go back to the Environment Protection Act, 'area of land' includes land under water. So, you are talking about everything within the state borders, whether it be under the ocean, under the reservoir, or under any land. It is not land in the physical sense as we would know it; it is also under water. I want to make sure that the committee is crystal clear about what it is voting on.

In relation to the same clause, page 5 of the bill, under 'water', I do not understand why you need the new definition, given the existing definition in the act, which provides that water includes 'water under the ground'. The new bill provides that water means 'water occurring naturally above or under the ground'—where else could it occur?—or 'water introduced to an aquifer or other area under the ground'. If it is in an aquifer, it is already under the ground. The original act states that 'water includes water under the ground'. So, I do not quite know why we need water in the aquifer; I think that it is already in the bill. I do not quite understand what is intended in paragraph (c), which provides that water means 'an artificially created body of water or stream that is for public use or enjoyment.'

I assume that you are taking about private pools or public pools. I assume that the clause will also cover stormwater. But is that not already covered under the act? Why do you need a new definition of water? What is not already caught by water, including water underground, I am not sure. That is a very quick synopsis of clause 4. I have a couple of questions for the minister, but I just wanted to bring to the committee's attention just how broad this is, because I think that too many people are focused on the bill and not the definitions in the main act. When they are combined together, I think they will be quite surprised at how broad this is.

The Hon. J.D. HILL: I thank the member for Davenport for that series of questions. I will try to go through the items that he raised. If I miss out something, I am sure that he will remind me. The first point in the definition was the notion of 'chemical substance'. It is a very broad definition; it covers pretty well anything, and it is deliberately meant to broad. The emphasis is not on the notion of chemical substance; it is about what a chemical substance can do. Its use is contained in section 5B on page 5. It really provides that site contamination exists at the site if a chemical substance—you could have said X matter, or some other way of describing virtually anything—does something which then causes an actual or a potential harm.

Would it matter if it was a load of bricks or a pool of petrol, or a whole range of things? If it could cause the harms that are described in that section, for the purposes of the act, it is defined. We wanted a broad definition. I am not suggesting that a pile of bricks would cause the harm; I am just saying that it could be any matter. The definition by its very nature is very broad. I am getting agreement that that is what it is about. The definition is used to describe an effect on a particular property, because we are trying to stop a negative impact on the property.

The next issue was one of remediation and the notion of potential harm. I think you have to read that in the context in which it is used. Remediation means things that you do to a site in order to cause a particular impact. The impacts are the elimination of something or the prevention of something. For example, if you had a site—I will get direction if I am wrong—under which there is, say, a chemical plume which is heading towards a river, if you remediate that site by removing that chemical it may not necessarily do anything in the short term—It may just clean up the site—but it stops the potential of that plume going into the river, so that it prevents another harm. So I think it is in that context that the potential notion is used.

In regard to sensitive use and the other definitions that might be included in the regulations, we have no particular views about that. There is no list of ideas. If we had a list I guess they would have been put into the legislation. But, for example, there may be some activity which would involve children. A council might decide to set up a garden for children to learn about vegetables associated with a farmers' market. If you were planning to do that on the site, clearly that is something you would want to prescribe by legislation because it is analogous to the other uses that are included under 'sensitive use'.

The other matter was to do with the word 'site'. 'Site' means an area of land. I am not entirely sure what concern the member had with that.

The Hon. I.F. Evans: Just to bring it to the attention of the house.

The Hon. J.D. HILL: I understand the definition of 'land' does mean a piece of turf with water above or below it, and 'site' is just another way of expressing the same idea. We could have used 'area of land', but saying 'site' means an area of land so, for the purposes of the legislation, the word 'site' is being used.

In relation to water, I think the point the member was making is included in this definition. There might be some redundancies in that the matters are covered in another place. The advice I have is that the legislation deliberately tries to cover every possible scenario in which water could be found.

In relation to the artificially created body of water or stream that is for public use or enjoyment, for example, in the South-East there are a whole lot of water bodies—drains, for example—that have been created which are artificial streams that could be considered to be for public use, although not necessarily for public enjoyment. There would be a whole range of water bodies that have been created for a whole range of purposes and it would cover those. It is also to cover the introduction of something into an acquifer, I am advised.

Mr VENNING: I have a question that I want clarified, because I have been reading the bill while I have been sitting here and now I quite understand. I had some experience with this in relation to the Gilles Street Primary School and contamination. I understand that a site is not deemed to be contaminated unless the use is quite clearly explained, and that is quite clear in the bill. So, what happens if a site is deemed not to be contaminated because it has a certain use? Does that endorsement stay on the title of the land so that, if in 25 or 30 years' time someone wants to change the land use, the caveat is on the title so that people are protected? Is that guaranteed?

The CHAIR: We are dealing with clause 4 at the moment?

Mr VENNING: Yes.

The Hon. J.D. HILL: The short answer is yes, the information will be maintained in relation to the title. For example, clause 7 I think is the notification of any particular matters that would be brought to attention, it will also be in the Land Titles Office, and a register will be created. The public register of the EPA will have all that information.

Mr Venning interjecting:

The Hon. J.D. HILL: Absolutely. To give an example that was put to me, someone might buy a piece of land and want to build a house on it, but in the back corner there may have been some activity to do with chemicals.

Mr Venning interjecting:

The Hon. J.D. HILL: Whatever. They might build a garage over that site which constrains and contains the site and it is fine, but if in 30 or 40 years' time someone else wants to bowl it over and put something else there you need to know that that is where the sheep dip was. So that becomes a permanent record.

The CHAIR: Member for Schubert, just looking more closely at the clauses, I am confident that your question related to clause 5 and we need to distinguish that for the record.

The Hon. I.F. EVANS: Under the definition of 'remediate', new section 3(1)(a) talks about 'taking into account current or proposed land use'. At what point is the land use proposed? In other words, if it is deferred urban, does that then attract a higher level of consideration by the EPA because it is deferred urban, or is it only when it is rezoned urban, or is it only when there is an application to build? At what point does the proposed land use kick in? There is no definition in the bill and so it is open to interpretation as to what the proposed land use is.

The Hon. J.D. HILL: I am advised that it 'kicks in' (as you put it) at the time the development application is brought forward.

Clause passed.

Clause 5.

The Hon. J.D. HILL: I move:

Page 5, lines 28 to 37—Delete subsection (1) and substitute:

(1) For the purposes of this act, site contamination exists at a site if—

(a) chemical substances are present on or below the surface of the site in concentrations above the background concentrations (if any); and

(b) the chemical substances have, at least in part, come to be present there as a result of an activity at the site or elsewhere; and

(c) the presence of the chemical substances in those concentrations has resulted in—

(i) actual or potential harm to the health or safety of human beings that is not trivial, taking into account current or proposed land uses; or

(ii) actual or potential harm to water that is not trivial; or

(iii) other actual or potential environmental harm that is not trivial, taking into account current or proposed land uses.

I gave some information about the amendment last night. I can give some further information tonight. The amendment is not a departure from the meaning of 'concept of site contamination', rather it is to clarify an aspect that has resulted from an amendment in the other place that was consequential to the main amendment under new section 103C(1)(b) moved by the Hon. Mark Parnell.

A major part of bill is the concept that site contamination can exist at the site where the original activity took place, and also elsewhere, as a result of the migration of chemicals by, for example, groundwater. The government had an amendment in the other place to change a note in the previous bill to a subclause to this effect. This amendment inadvertently was dropped following the amendments moved by the Hon. Mark Parnell. Advice received recently from parliamentary counsel was that there may be some legal uncertainty that this aspect of the bill remained under the original definition. An amendment is being made to avoid any possible legal questions as to interpretation. That is, for site contamination to exist, chemical substances must have been directly introduced by human activity to the particular site contaminated.

By removing the words 'introduced to the site' and by the addition of proposed new subsection (1)(b), it will be clear that site contamination will exist regardless of whether the chemical substances have been directly introduced to the site, introduced at another site, or migrated to the site in underground water or otherwise. I repeat: this amendment is necessary as a result of the amendments to new sections 103C and 103D in the other place which resulted in the removal of an explanatory note to the same general effect.

The Hon. I.F. EVANS: I understand the opposition is supporting the amendment. Some constituents of mine have raised some interesting points. They would argue that the bill in its current form makes it clear that the contamination had to be introduced. Even if it comes from downstream—arsenic into a creek and onto the land—that has still been introduced. By taking out the word 'introduced', I think my constituents think the parliament is opening the bill up to be interpreted that the contamination does not have to be introduced.

The Hon. J.D. Hill interjecting:

The Hon. I.F. EVANS: No, I understand. I have read the bill; I know there is an issue about 'natural'. How else can the natural state of the land be contaminated other than by the contamination being introduced? By taking out 'introduced to the site', we are giving an indication to a future court that it is open to the question of whether we should deal with contamination that is natural, if you like. The point is that, if it is natural, if the arsenic levels are high, then the obligation on previous owners to clear up the site becomes an interesting question. The only way contamination can be on a site is if it is introduced by human activity. The minister says that they want to take out that provision. If you take out the introduction of contamination by human activity, the only other way it can be contaminated is by nature. If it is there by nature, why is the owner required under the act to clean it up? I understand why my constituents argue that the current wording is a better protection for the land owner, because it makes crystal clear that it must be introduced.

The Hon. J.D. HILL: I can only repeat what I have told the committee on two occasions: that this is to clarify what the intention has always been. I am at a loss to see how else I can say it, other than to say that it is exactly what has been proposed.

Mr VENNING: On behalf of the member for Goyder, we support the amendment. As the minister said, it defines what the site contamination is and is a result of the clarification required by the amendments of the Hon. Mark Parnell in another place.

The Hon. I.F. EVANS: I refer to the issues of potential harm and environmental harm in the drafting of the minister's amendment and the bill. Under the EPA Act there are two types of environmental harm: material environmental harm and serious environmental harm. The bill and the amendment talk about harm that is not trivial. Under the main act's definition of environmental harm, only material environmental harm has the words 'not trivial'. Why have we not used the words 'material environmental harm' to make crystal clear that we are talking about that type of environmental harm, or are we now introducing a definition of 'serious environmental harm' that is also not trivial? That is the point I made earlier about having three types of environmental harm with the way the bill is drafted.

The Hon. J.D. HILL: The advice I have is that the environmental harm definition in the EPA legislation is a much broader set of definitions and relationships with other factors. It may be better to focus on what is in this legislation, where we are talking about environmental harm that would be sufficient to cause the legislation to come into play. The definitions here cause that to happen. I am advised that the notion of material environmental harm is too broad a definition to use in this context.

The Hon. I.F. EVANS: I will not argue with the minister, but I invite him to reread the words in the bill, which are clear: 'environmental harm'. If we go to the Environment Protection Act it talks about what environmental harm is. There are two types; material environmental harm is the only one that has the same words 'not being trivial'. This is the point. It does open it up very broadly. Enough said on that one.

The Hon. J.D. HILL: There is more I can say. If one refers to page 6 of the act, section 5B(3) provides:

For the purpose of this act the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm if—

(a) environmental harm is to be treated as material environmental harm if—

And there are three different points. The point that is applicable to the site contamination legislation is the second. The first talks about an environmental nuisance of a high impact on a wider scale which, I am advised, does not apply and nor does the third definition. It is really that limiting of the definition to that which involves actual or potential harm to the health, safety and so on that is not trivial, and the word 'trivial' comes in there as well. I hope that helps.

Amendment carried; clause as amended passed.

Clause 6 passed.

Clause 7.

The Hon. I.F. EVANS: I want to make sure that my understanding is correct. This clause deals with section 83A, 'Notification of site contamination of underground water', and part 2 provides:

A person to whom this section applies must notify the authority in writing as soon as reasonably practical after becoming aware of the existence of site contamination at the site...

Given that it is under the heading of 'Notification of site contamination of underground water', I assume that we are dealing only with underground water. The provision says that you must notify the authority as soon as you are aware of the existence of site contamination. Now, site contamination exists under the minister's amendment (which we have just passed) if a chemical substance is present below the surface of the site in concentrations above the background level, that the chemical substances have, at least in part, come to be present there as a result of activity on the site and that the presence of the chemical substance in those concentrations has resulted in the various types of harm. How does any mug punter know? My point is that I do not think you will be able to prosecute anyone under that clause because they will not actually know that contamination exists. They will suspect.

To prove that site contamination exists they would have to know each of those three clauses under the definition of 'site contamination', and therefore I think that piece of the legislation is probably flawed. It probably needs to say 'where you suspect site contamination then you have an obligation'. This says 'after becoming aware of'. The only time you become aware is once you have satisfied yourself that chemical substances actually caused it, that they are over and above what is naturally occurring and that they will actually cause harm. The average punter will not know that about underground water. I raise it now. It is too late to amend it. The reality is that that clause should have been worded 'when you have a suspicion of contamination you have an obligation to report' rather than when you actually know. I do not think you will get a prosecution under that clause.

The Hon. J.D. HILL: I thank the honourable member for his exploration of that clause. I guess what he would be suggesting is a broader clause which would potentially capture more people. The advice I have is that this is designed deliberately to constrain the application to a particular class of people; and also, of course, to the auditors. You must think of the practical circumstances in which this would apply. If somebody owns a parcel of land, and they are planning to subdivide it for housing, a child-care centre or something like that, under the provisions we now have we will have to make a determination about whether there is any site contamination.

So, if it was going to be a sensitive use, the owner of the land would need to get an audit done of that land, and the auditor, in the exploration of the site, would discover whether or not there was site contamination. There is then a responsibility not only on the owner but also on that individual, the auditor, to draw that to attention. So, it is early advice, and we are particularly concerned about that in relation to water contamination because, as you know, water travels and, if it is not dealt with soon, it may affect somebody else's property.

I guess the issue it is trying to address is where somebody might have an idea about selling a piece of land for development; they get an auditor in to check it and discover there is a problem there and then say, 'I'm not going to do that now. I'm going to do something else with it which means that I don't have to notify the auditor. I might cover it with concrete and turn it into a car park or something.' What we want to know is that if the auditor, in particular, discovers this, they have a duty to pass it on. I think that the legislation is not trying to say that there would be an onerous responsibility on anybody who has just a mild suggestion that there might be a problem if they did not report a suspicion or a suggestion. It is about an actual understanding of pollution on that site that might threaten some other site. If you look at the penalty, it is particularly severe. I do not think you would want that penalty to apply in a broader context.

The Hon. I.F. EVANS: Who is responsible for notifying on government land? What penalty applies if they do not? If the department of forests is using poisons, does it notify? Who is ultimately responsible?

The Hon. J.D. HILL: The owner of the land or the auditor is responsible. So, if it were a government agency—for example, in the case of the new hospital site at the railway yards (and we know it already)—if we thought there were no problems there, and I became the owner of the site and the property were transferred from the Minister for Transport to me, I guess he would have to notify the registrar at that point of transfer or, if I were already the owner of the site, once we did the testing and became aware of problems, I would have to notify the agency. So, the government would be responsible, and I guess ultimately the minister is always the owner of the land, so it would be the minister. It would be the Crown in a general sense.

Clause passed.

Clause 8 passed.

Clause 9.

The Hon. I.F. EVANS: I wish the member for Stuart were here. Powers of authorised officers—I cannot believe he has missed the debate about these 'Sir Humphreys'. I just want to check, minister, why you need clause 9 at all given that, under the existing act, the officers can request any document they want anyway. I wonder why you need this provision at all.

The Hon. J.D. HILL: I am advised that this is the power of entry provision, which is a necessary provision for someone to assess the existence of causes.

The Hon. I.F. EVANS: Think about that. They want to enter a house or a car (they can enter anywhere else, essentially) for what purpose? They will not find contamination there; it will be in the paddock. They can already ask for documents under the existing provisions, so I am intrigued as to why they need to enter a house. Clause 10 provides 'that site contamination may exist in a place or something a be found in a place that constitutes evidence of a cause of site contamination'. Minister, what do you think will be in a house that will cause site contamination? What do you think will be in a car? I understand why you need access to documents. We have had this argument on environment legislation and the officers are familiar with it, but I cannot understand what evidence you think you would need within a home to constitute contamination of underground water or land.

The Hon. J.D. HILL: This is business premises, not houses or cars. The point is the word 'reasonably'. I cannot tell you what might be reasonably required for the purpose of assessing, but it may be a report that is on the property. There might be something in the business. It could be a factory, for example, which is broken and which is spewing chemicals down the drain. Who can say? It is whatever is reasonably required to be done.

The Hon. I.F. EVANS: Where are houses exempt under that provision?

The Hon. J.D. HILL: Section 87(2) of the EPA act provides:

(2) An authorised officer may not exercise the power of entry under this section in respect of premises except where:

(a) the premises are business premises being used at the time in the course of business; or

(b) the authorised officer reasonably suspects that—

(i) a contravention of this act has been, is being, or is about to be, committed in the premises; or

(ii) something may be found in the premises that has been used in, or constitutes evidence of, a contravention of this act.

I will clarify my advice. The member is right in that paragraph (a) refers to business premises and then there is an 'or'. If there had been an 'and' what I said would be correct. Paragraph (c) of the bill provides, 'the exercise of the power is reasonably required for the purposes of assessing the existence'.

I withdraw the comment I made about business premises and I apologise to the committee for that. The general point I make is that this is a power that would be used only when it is reasonably required. The examples I gave would still be the same. For example, if documentation was required or something was actually happening in the premises, most likely industrial premises but it could be a house, where something was causing pollution—some chemical was leaving the house or business premises—and being got rid of through the drainage system. That would be the most logical example I can think of.

Clause passed.

Clause 10 passed.

Clause 11.

The Hon. I.F. EVANS: Will the minister give the committee some guidance as to what is intended by clause 11, which deals with the insertion of part 10A. It provides:

(b) if, in accordance with the regulations, a person of a particular kind is to be taken to be an occupier of the land in the circumstances of the case—includes a person of that kind.

I do not quite understand what is intended by that provision at all.

The Hon. J.D. HILL: It might include, for example, people who are franchisees; it might include people who illegally entered onto the land and dumped stuff there. That might happen reasonably commonly in rural settings where a property might be out of the way and people in the local community might regularly go and dump stuff there and then, some time later, it is discovered. It might be those kind of circumstances.

The Hon. I.F. EVANS: You might have answered the next question, which is a different clause, but since you have raised it, it might be easier to deal with it now. Who then is deemed to have caused the contamination in the circumstances where someone was dumping on someone else's property without permission?

The Hon. J.D. HILL: The general hierarchy of responsibility is the polluter. The first one you go to is the polluter. If you cannot find the polluter because you do not know who did it or the person has died or disappeared or has been bankrupted, or whatever the circumstances are—

The Hon. I.F. EVANS: I understand that. I have read the Hansard from the upper house overnight. Under new section 103D it says the person who is taken to have caused the site contamination is the occupier of the land. What I am saying is that if the occupier of the land did not put the contamination there, where in this bill does it deal with the person who dumped it? If I am the occupier of the land and the member for Hammond comes and dumps something on my property that contaminates it, where in this bill does it say that he is the contaminator and not me? Under section 103D it says that I am the occupier and I caused the contamination. What I am saying is that I have not caused it and I want to know where in the bill it covers the circumstance that I have not caused it, because new section 103D(1) clearly states:

For the purposes of this act a person is taken to have caused the site contamination if the person was the occupier of the land.

The Hon. J.D. HILL: That was the point of your former question. Under the regulations that class of people can be deemed to be the occupiers at the time. New section 103D says an occupier is responsible for contamination but, if somebody else was occupying the premises temporarily by illegally dumping, then by regulation they can be defined as 'occupiers' and they are then caught.

The Hon. I.F. EVANS: My layman's understanding is that if you dump stuff on someone else's property you are the person who is deemed to have caused; if the occupier themselves have done it, they are deemed. If the person who dumps cannot be found who then becomes liable? Is it the occupier or the owner?

The Hon. J.D. HILL: It is the owner of the property.

The Hon. I.F. EVANS: I want to run through this so that I understand it. Some of my constituents have concerns about the retrospective nature of this. The way I understand it is that if there is contamination that is not naturally occurring on any land, then the occupier is responsible for cleaning it up if it is going to cause environmental harm as defined, or contamination as defined. There is a series of steps they have to go through before that is the case.

If the owner of the land decides to rezone the land, that may trigger a decision that contamination exists because of the new use and, therefore, the new owner who triggers the rezoning is responsible for the clean-up. If I had land that I sold 20 years ago, the new owner has the land now and has not rezoned it and the EPA decides that there is a risk, I understand that, as the previous owner, I am responsible for cleaning it up.

The Hon. J.D. HILL: I will say what I think the case is, and I will seek correction, because I understand that this is a complex area. It is only at the DA stage that the site contamination issue comes to the fore. So, if what was done on the land 20 years ago was consistent with what the land was used for then, as I understand it, it would not now be considered to be site contamination by that previous person. However, the owner of the land now wishing to re-zone it into something else would be responsible for clearing it up.

The Hon. I.F. EVANS: Take out the rezoning. I have simply passed the land through to a new owner; there is no rezoning. If site contamination is then found on it, is it the new owner or the old owner who cleans it up?

The Hon. J.D. HILL: Put simply, if there is site contamination found on it, under the circumstances, a person would only become aware of that if they were thinking about rezoning it, I would have thought.

The Hon. I.F. EVANS: No, they might be ploughing the paddock and come across it, or something like that.

The Hon. J.D. HILL: Let me just obtain advice: I think I understand this. I think this is what the member for Davenport is saying. I am a farmer and I own a piece of land. I have done things which are consistent with farming, which might be having a dump somewhere of chemicals or machinery, or whatever farmers did 20 years ago. I sell my farm to another person, who continues to farm it. In the course of farming, he uncovers the dump: 'Hello, this is site contamination: I have to notify the EPA of this.' Who then is responsible: was that, essentially, the question?

The Hon. I.F. EVANS: Who is responsible for cleaning it up; which owner?

The Hon. J.D. HILL: Yes. It is what I said before. If you are a farmer for 20 years, you are treating your land at the standard that would have applied at the time, in terms of use of the land. So, you dump whatever you dump. You have a landfill where you dump stuff from your kitchen; you have cars somewhere else and all the rest of it—whatever was consistent—and 20 years later that is discovered. That would not be considered to be site contamination where an offence or a responsibility would apply to the original owner. The current owner could just manage that site as any farmer currently would. If it is escaping, it becomes a slightly different issue, but if it is not escaping that is fine. However, if they were trying to re-zone the site for some other purpose, the burden would fall on the current owner. However, if 20 years ago the farmer did things which were inconsistent with that—for example, he might have dumped some plutonium there, hypothetically, however he would get it—

Mr Williams: Farmers have stopped using it.

The Hon. J.D. HILL: Yes, that is right. It could be DDT, I do not know, but the point is he could have dumped something there which was incredibly toxic and then it was discovered and it was inconsistent with the current occupation of farming so it made the site contaminated; then the original polluter would be the responsible person.

The Hon. I.F. EVANS: The way I understand it is that, forget farming, because it could be builders’ yards or all sorts of things, as long as they have adopted normal practice, which was unspecified 20 years ago or prior to this act coming into place, they are going to be protected. If a farmer had put plutonium in the back paddock—and given your previous answer that, if someone else had dumped it there and that person could not be found, it is the owner who takes responsibility—wouldn’t any owner of land who is subject to an investigation who might have acted outside the normal practice simply say, ‘It wasn’t me. It was some rogue visitor’ and, therefore, the previous owner will escape the provision and it will transfer to the new owner.

What I cannot understand with this bill is why it is simply not the new owner of the property who is required to clean it up in any circumstance because, if you were the previous owner of land and the EPA knocked on your door and said, 'How did the plutonium get in the back paddock?' and you had read the Hansard, you would say, 'I was the occupier at the time and someone (I cannot remember who) put it there.' Under the act, it goes straight to the new owner, so isn’t that the out clause for every past owner?

The Hon. J.D. HILL: It all becomes a matter of evidence in a court. This is setting up a set of principles and guidelines, and then courts would work this through. That is the trouble with hypothetical situations because they are not based in substance. I am making the general point that it is to do with evidence. If somebody was going to try to get somebody for doing something 25 years ago, they would need very good evidence. However, for example, in a situation where somebody ran a garage or something of that nature and there is a whole lot of pollution on that site as a result of running the garage and it was managed in a way that was inappropriate, then you would think that there would be some evidence that connected the operator with that. There might be witnesses around, they might be—

The Hon. I.F. Evans: Don’t you think the new owner would know he was buying a garage?

The Hon. J.D. HILL: That is true, and all of this is subject to whatever contractual arrangements there were between the parties. One would hope in most cases that the contract would make it plain that the responsibilities would carry over. I guess where this is really important is in how we manage these sites into the future when they are being transferred from existing operations to something which is sensitive use, particularly housing—

The Hon. I.F. Evans interjecting:

The Hon. J.D. HILL: No; but we have seen many examples over recent years where housing has been discovered on properties which had been polluted. Who is responsible in that situation? First we go to the original polluter, if we can find them, and then we go to the owner of the land—

The Hon. I.F. Evans interjecting:

The Hon. J.D. HILL: And we can do both.

Progress reported; committee to sit again.