Bills

Environment Protection (Waste Reform) Amendment Bill

Introduction and First Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (18:12): Obtained leave and introduced a bill for an act to amend the Environment Protection Act 1993; and to make a consequential amendment to the Motor Vehicles Act 1959. Read a first time.

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (18:14): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

South Australia enjoys a national and an international reputation as a clean, green and beautiful State.

This hasn't come about by accident.

It has happened because of our commitment to protecting the environment while also growing our economy.

A commitment that has led to our establishing South Australia as one of the world's best recyclers.

Promoted by policy settings that have encouraged resource recovery over the past decade, the State's waste and resource recovery sector has grown into a significant part of our economy, comprising a $1 billion industry and employing nearly 5,000 people.

Further growth, including significant job creation, has been identified as possible with the next series of modernised regulatory and policy settings.

The South Australian Government is pursuing a broad waste reform program for the confident operation and expansion of this sector.

The Environment Protection (Waste Reform) Amendment Bill 2017 proposes amendments to the Environment Protection Act 1993 to support the South Australian Government in continuing to lead the way in waste management and resource recovery.

The Bill will provide the necessary underpinning to enable the Environment Protection Authority to implement important waste reforms.

These further steps include a suite of staged measures that will enhance competition, provide stability to the waste and resource recovery sector, facilitate the sector's expansion, and encourage innovation.

This Bill supports economic, environmental and health benefits for South Australia.

Being able to improve recycling rates and improve resource recovery also helps to reduce water and energy use, cut greenhouse gas emissions, conserve natural resources and create new jobs.

As well setting up the architecture to enable the EPA to undertake further reforms, the Bill also provides improved tools for dealing with excessive stockpiling, waste levy avoidance, illegal dumping and contraventions of the Environment Protection Act.

These changes will increase justice and fairness for legitimate operators who are unfairly impacted by the economic gains obtained by those who avoid or delay the costs involved in the safe and lawful disposal or recovery of waste through excessive stockpiling, misclassifying material or illegal dumping.

The Bill upholds the polluter pays principle, holding relevant operators responsible for costs arising from their operations rather than either: State or local governments or innocent land owners bearing these; or, communities suffering the health, amenity and environmental consequences of non-action.

The Bill strengthens the tools available for enforcement and prosecution of illegal dumping. In doing so, it provides further deterrence for those that might contemplate such action.

It is important to acknowledge that the waste levy does not create an incentive for illegal dumping. Illegal dumping still occurs where the costs of disposing are low or even free. For example, in Queensland, there is no waste levy, and yet they report cases of illegal dumping in their community.

Indeed, a 2012 review by KPMG of the New South Wales Waste Levy concluded 'illegal dumping is not due to pricing signals, but rather a convenience factor'.

By improving the illegal dumping provisions, it is hoped that illegal dumping across the State will reduce and deliver improved community benefit.

Consultation

This Bill is part of a broader reform package initiated by this Government in 2015 in close consultation with the industry and broader sector.

Consultation to develop the Bill has been extensive and I would like to thank all organisations, agencies and individuals who provided feedback in the development of the key reforms and priorities that informed the preparation of the draft Bill and submissions made during the public consultation on the draft Bill.

Consultation on the proposals in the Bill first occurred between August and October 2015 through the discussion paper, Reforming waste management – Creating certainty for an industry to grow, which identified key areas of reform necessary for the waste industry to prosper. Submissions received informed the drafting of the Bill.

A draft of this Bill, supported by an explanatory paper, subsequently underwent consultation in September November 2016. Submissions from consultation on the draft Bill also informed the form of the Bill presented to you here.

The strategic direction of waste reforms and their prioritisation has also been informed by regular meetings of the EPA's high-level advisory group, comprising industry, local government, non-government organisation and community representatives.

Key industry stakeholders have shown a strong degree of support for the rapid pursuit of the Bill and subsequent key reforms.

Key features

Before I close, I want to draw all Honourable Members' attention to key aspects of this Bill.

For example, explicit powers to enable the regulation of material flow and stockpiling through amendments to the objects of the Environment Protection Act and new powers regarding stockpiling conditions to support the legitimate resource recovery sector.

These changes are also supported by improved and proportionate powers for tackling breaches of licence conditions and expansion of the circumstances when financial assurances can be used (including insurance) to protect against environmental, abandonment and distortion risks in the waste sector while supporting innovation.

Additionally, the Bill will introduce a process enabling assessment of materials as approved recovered resources and changed evidentiary requirements about waste to support innovative and safe resource recovery.

As I have mentioned before, the Bill also strengthen the EPA's ability to prosecute illegal dumping strengthening car owners' responsibilities for dumping from their vehicle, enabling the use of tracking devices, expanding EPA authorised officer powers to enter certain premises and mark materials that are likely to be illegally dumped and improving monitoring of waste and related material movements.

The state government wants to unlock future potential and drive innovation in the sector with targeted and effective changes to the Environment Protection Act 1993.

We seek to continue to lead the way in demonstrating that we can both protect our environment and support business and job growth.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Environment Protection Act 1993

4—Amendment of section 3—Interpretation

This clause amends section 3 of the Act in a number of ways, by introducing several new terms that are key to the measure, including approved recovered resource, resource recovery and unauthorised stockpiling, and by clarifying other definitions, including pollutant, waste and vehicle. The definition of the waste management hierarchy is brought into the Act, reflecting the frequent reference to this principle in statutory instruments made under the Act.

The clarification of terms in new subsections (4) and (5) reflects existing provisions that are brought up to the level of the Act from the Environment Protection (Waste to Resources) Policy 2010. These are key concepts that have broad application.

5—Insertion of sections 4 to 4B

New sections 4, 4A and 4B are inserted. They are headed, respectively: Waste, Approved recovered resources and Waste management hierarchy.

New section 4 (Waste) gives the term a section of its own and it is here that we find a key concept of this measure, namely that of approved recovered resources that allows the argument of whether or not matter constitutes waste to be determined on a case by case basis. A reference to the term waste (when used in the Act or in the regulations or environment protection policies made under the Act) will not include an approved recovered resource whilst it is being dealt with in accordance with the declaration of that resource under section 4A.

New section 4A (Approved recovered resources) is a regulation-making power enabling a scheme to be set out by regulation under which declarations of approved recovered resources may be made by the Authority by Gazette notice.

New section 4B (Waste management hierarchy) sets out the principle of the waste management hierarchy, discussed above.

6—Amendment and redesignation of section 4—Responsibility for pollution

Section 4 is amended by including the term 'dispose of', thereby ensuring that disposal comprised of stockpiling or abandoning a pollutant (see new section 3(4)(a)) will be brought within the concept of responsibility for pollution.

This clause also redesignates the section as section 5C so that it is in a more logical position in the Act.

7—Amendment of section 5—Environmental harm

This section is amended to clarify that declarations, in subordinate instruments made under the Act (ie the regulations or environment protection policies), of environmental harm will have effect for the purposes of the Act (and not merely for the purposes of the instrument in which the declaration is made). It also brings the wording of section 5A of the Act into section 5 itself, enabling section 5A to be repealed. (Similar changes are also made to the definitions of pollutant and waste.)

8—Insertion of section 5D

New section 5D (Liability for certain offences from vehicles) is inserted. This section presumes an owner of a vehicle to have committed an offence if an activity is carried on in, at, from, or in connection with the use of, the vehicle, resulting in a principal offence. A principal offence is defined as an offence against Part 8 Division 2 or Part 9 of the Act or an offence prescribed by regulation. An owner of a vehicle is defined—

(a) in the case of a vessel within the meaning of the Harbors and Navigation Act 1993—as having the same meaning as in section 4(1) of that Act, and as including the operator of the vessel within the meaning of that Act; and

(b) in the case of a vehicle within the meaning of the Road Traffic Act 1961—as having the same meaning as in section 5(1) of that Act, and as including the operator of the vehicle within the meaning of that Act.

Safeguards for owners and alleged principal offenders are provided for in this deeming provision as are evidentiary provisions in order to maximise prospects of a successful enforcement regime under the Act whilst ensuring that the risk of convicting the wrong person is avoided. Precedents for this provision are to be found in the Road Traffic Act 1961, the Local Nuisance and Litter Control Act 2016 and the National Parks and Wildlife Act 1972.

The new section does not apply to the disposal of waste or other matter by a passenger of a taxi or a train, tram, bus, ferry, passenger ship, or other public transport vehicle, that was being used for a public purpose at the time.

9—Repeal of section 5A

Section 5A is repealed as its contents have been incorporated elsewhere in the Act, namely in the definitions of pollutant, waste and environmental harm.

10—Amendment of section 10—Objects of Act

The objects of the Act are amended to expressly broaden the preconditions for taking measures under the Act. The objects, which the Minister, the Authority and all other administering agencies and persons involved in the administration of the Act must have regard to and seek to further, will now also include resource recovery aims, the application of the waste management hierarchy, promoting the circulation of materials through the waste management process and supporting strong markets for recovered resources.

11—Amendment of section 13—Functions of Authority

This amendment makes a minor adjustment to the list of functions of the Authority so that the investigation function relates also to conditions of other authorisations under the Act, for example, declarations of approved recovered resources.

12—Amendment of section 27—Nature and contents of environment protection policies

This clause makes amendments of a clarifying nature.

Codes are added to the list of documents that may be referred to or incorporated by an environment protection policy.

Discretionary powers may be given, in policies, to authorised officers and prescribed persons or bodies. These powers are similar to regulation making powers.

Subclause (4) gives legal effect to codes, standards or other documents that are referred to in a policy. In addition, the contents of section 33 of the Act are moved to the foot of section 27.

13—Amendment of section 28—Normal procedure for making policies

This amendment makes a minor typographical correction to section 28.

14—Amendment of section 32—Certain amendments may be made by Gazette notice only

This amendment adds to the list of reasons for amending environment protection policies via the fast-track method (ie by Gazette notice), where the Minister considers it necessary to amend an environment protection policy in consequence of—

an amendment to the Act or the making, variation or revocation of regulations under this Act or the making, amendment or revocation of another environment protection policy; or

the commencement or amendment of a prescribed Act.

This amendment brings this provision into line with similar provisions in the Aquaculture Act 2001 for policies made under that Act. The amendment reflects the fact that there may be new Acts or amendments that need to be reflected or addressed in an environment protection policy, and for which the lengthy consultation process is not appropriate.

15—Repeal of section 33

Section 33 is repealed as its contents have been moved to section 27(6) and (7) (see clause 12).

16—Amendment of section 42—Time limit for determination of applications

This amendment is consequential on new section 51 of the Act (see clause 19 below). It clarifies that if a person applies for a licence or other environmental authorisation for an activity for which a financial assurance is required, the time period within which the Authority must advise the applicant of its decision on the application runs from the time that the Authority receives the details prescribed by regulation in relation to that financial assurance.

17—Amendment of section 45—Conditions

The Authority is given the power to impose or vary a maximum allowable stockpile limit at any time if the Authority considers it necessary to promote the circulation of materials through the waste management process. This power complements amendments to sections 3 and 10 of the Act that deal with unauthorised stockpiling.

Further amendments are made to section 45 to fine-tune the penalty system around breaches of conditions of environmental authorisations. These amendments involve the introduction of expiation fees and default penalties. The amendments also reflect the proposed abandonment of divisional penalties under the Act and resumption of monetary penalties.

The new expiation fee structure provides that, for a particular condition prescribed by regulation, the expiation fee will be the corresponding expiation fee prescribed for that condition. For any other condition other than a reporting-deadline condition, the expiation fee will be $1,000. For a breach of a reporting-deadline condition, a default penalty of an amount prescribed by regulation may be imposed. A reporting-deadline condition is defined as a condition of a kind referred to in section 52(1)(a) of the Act requiring a specified report on the results of tests or monitoring to be made to the Authority before a specified date.

The interaction between legislation and environmental authorisations is clarified by new subsection (8). Where the Act or a statutory instrument made under the Act (eg a regulation or environment protection policy) relates to activities carried on by a person under a licence or other environmental authorisation, the Act or statutory instrument will prevail over the conditions of the licence in the event of an inconsistency in the terms, unless the Act or statutory instrument provides otherwise. This will be the case regardless of whether the licence was granted before or after the commencement of the statutory provision.

18—Amendment of section 47—Criteria for grant and conditions of environmental authorisations

These amendments give the Authority the power to refuse an application for a licence or other environmental authorisation in cases where a financial assurance under section 51 has been required by the Authority but the prescribed details in relation to that financial assurance have not yet been provided by the applicant.

19—Substitution of section 51

Section 51 is repealed and replaced with a new section (Conditions requiring financial assurance). The new section is modelled on the previous section but contains additional provisions. It gives the Authority the power to require an applicant for a licence or other environmental authorisation to provide the Authority with a financial assurance in the form of—

a bond;

a specified pecuniary sum;

a policy of insurance;

a letter of credit or a guarantee given by a bank;

any other form of security approved by the Authority.

The financial assurance may be used, realised or claimed against by the Authority for costs or expenses, or for loss or damage, incurred or suffered by the Authority or any other person in the event of—

the holder of the authorisation contravening a requirement imposed by or under this Act; or

a failure by the holder of the authorisation to take specified action within a specified period to achieve compliance with this Act.

There are several things the Authority is required to have regard to when determining whether to impose or vary a condition under this section or the nature, term or any other particulars of, a financial assurance. These are—

if there is a risk of—

environmental harm; or

unauthorised stockpiling or abandonment of waste or other matter,

associated with the activity authorised under the environmental authorisation or any activity previously undertaken at the place to which the authorisation relates—the degree of that risk;

the likelihood of action being required to make good any resulting environmental damage, to decommission, dismantle or remove stockpiled or abandoned plant or equipment or to deal with any other stockpiled or abandoned waste or other matter;

the nature and cost of such action and the length of time such action is likely to take (including following cessation of the activity so authorised);

whether the holder of the authorisation has previously contravened this Act (whether or not in connection with the activity authorised under the environmental authorisation) and if so, the nature, number and frequency of the contraventions;

the Authority's reasonable estimate of the total of the likely amounts involved in satisfaction of the purposes for which the financial assurance is required;

the depreciation of the value of the financial assurance over time;

any other matters considered relevant by the Authority or prescribed by regulation.

A financial assurance may extend to such time as the Authority is satisfied that no clean up or remediation will be required as a result of the activity (including following cessation of the activity).

The amendments detail further procedural matters relating specifically to bonds or pecuniary sums and policies of insurance.

20—Amendment of section 52A—Conditions requiring closure and post-closure plans

Dealing with stockpiled or abandoned waste or other matter is added as a reason for enabling the Authority to require, by condition of a licence, closure or post-closure plans.

21—Amendment of section 65—Interpretation

This amendment makes a minor spelling correction.

22—Amendment of section 66—Division not to apply to certain containers

This amendment makes the same spelling correction as in the previous clause.

23—Amendment of section 72—Certain containers prohibited

This amendment updates the terms 'recovery, recycling, reprocessing or reuse' in section 72 with the more widely used collective term 'resource recovery'.

24—Insertion of section 85A

New section 85A (Senior authorised officers) is inserted, providing for the appointment by the Authority of senior authorised officers for the purposes of new section 88A.

25—Amendment of section 87—Powers of authorised officers

An additional power of entry under section 87 is given to authorised officers, namely where construction, demolition, excavation or other earthworks, or any activity carried out in preparation for construction, demolition, excavation or other earthworks, is being or has been carried on at the premises and—

the works or activity has or may have disturbed, uncovered or produced waste or pollutants of a kind prescribed by regulation; or

a potentially contaminating activity of a kind prescribed by regulation has previously taken place there.

Construction is defined as including alteration or refurbishment.

26—Amendment of section 88—Warrants other than special powers warrants

This clause updates references in current section 88 from 'justice' to 'magistrate'. New subsection (9) clarifies that section 88 does not apply in relation to a special powers warrant issued under section 88A.

27—Insertion of section 88A

New section 88A (Powers of senior authorised officers to investigate illegal dumping etc) is inserted.

Senior authorised officers appointed under section 85A may obtain a special powers warrant in order to exercise certain new powers to investigate illegal dumping and other waste-related contraventions. These very specific warrants are to be issued by a judge of the Supreme Court, who will be familiar with issuing these types of warrants under current section 6 of the Listening and Surveillance Devices Act 1972 (soon to be replaced by Part 3 of the Surveillance Devices Act 2016).

A judge may only issue a special powers warrant if satisfied that—

there are reasonable grounds to believe that—

a contravention of the principal Act has been, is being, or is about to be, committed in or in relation to premises or a vehicle in relation to the handling, storage, treatment, transfer, transportation, receipt or disposal of waste or other matter; or

something may be found in premises or in or on a vehicle that constitutes or may constitute, or will or may give rise to, evidence of such a contravention; and

there are reasonable grounds for issuing the warrant, taking into account—

the extent to which the privacy of a person would be likely to be interfered with by the use of powers under the warrant; and

the gravity of the criminal conduct to which the investigation relates; and

the significance to the investigation of the information sought to be obtained; and

the likely effectiveness of the use of the powers authorised by the warrant in obtaining the information sought; and

the availability of alternative means of obtaining the information; and

any other warrants under the principal Act applied for or issued in relation to the same matter; and

any other matter that the judge considers relevant.

A special powers warrant may authorise any 1 or more of the following powers (as specified in the warrant):

the power to mark waste or other matter found in specified premises or in or on a specified vehicle or class of vehicle by—

spraying or brushing paint or any other identifying substance onto the waste or matter; or

spraying, brushing or placing microdots or similar identifying objects onto or with the waste or matter; or

placing any other identifying objects with the waste or matter,

(to enable the subsequent identification of the waste or matter at another place following its movement there); or

the power to install a camera in, on or in relation to, specified premises or a specified vehicle or class of vehicle or thing and use or maintain it or cause it to be used or maintained as so installed for a specified period; or

the power to install a GPS device in, on or in relation to a specified vehicle or class of vehicle or specified waste or matter or a specified class of waste or matter and use or maintain it or cause it to be used or maintained as so installed for a specified period; or

the power to retrieve a substance, object or equipment placed or installed, or any waste or matter marked, under a previous subparagraph.

Subject to any conditions or limitations specified in a special powers warrant—

the warrant will be taken to authorise the senior authorised officer to enter or interfere with any premises, vehicle or thing as reasonably required to exercise the powers specified in the warrant; and

the authority under the warrant to enter or interfere with any premises, vehicle or thing will be taken to include the authority—

to use reasonable force or subterfuge for that purpose; and

to take any action reasonably required in respect of the premises, vehicle or thing for the purpose of placing, installing, using, maintaining or retrieving a substance, object or equipment to which the warrant relates; and

to extract and use electricity for taking that action or for the use of the substance, object or equipment; and

the authority under the warrant to enter specified premises will be taken to include the authority—

to exercise any of the powers in sections 87(1)(c) to (m) (inclusive) and 87(6) of the principal Act in relation to the premises, vehicle or thing (subject to the requirement in section 87(7) of the principal Act); and

to exercise non-forcible passage through adjoining or nearby premises (but not through the interior of any building or structure) as reasonably required for the purpose of gaining entry to those specified premises; and

the powers conferred by the warrant may be exercised by the senior authorised officer at any time and with such assistants as the officer considers necessary.

A special powers warrant may, in urgent circumstances, be obtained by phone, fax, email or other electronic means. Considerable restrictions and procedural safeguards are included for such circumstances.

A special powers warrant may not be in force for longer than 90 days, it may be subject to such other conditions or limitations that the issuing judge thinks fit, and it may be varied or renewed on application by a senior authorised officer.

The term microdots is defined to mean identification tags etched, coded or marked with unique identifiers (including identifiers that are discernible only on viewing under magnification). The inclusion of this term in the principal Act reflects the expected use of this technology in tracking the movement of waste and other matter.

28—Amendment of section 93—Environment protection orders

These amendments complement the amendments of section 45 (see clause 17) by applying a default penalty for continuing breaches of licence conditions (or conditions of other environmental authorisations). Where a person has expiated an offence under section 93(8) of failing to comply with an environment protection order that imposes a requirement to secure compliance with a condition of the licence or other environmental authorisation, but the act or omission continues after that expiation, a default penalty of one-fifth of the expiation fee is payable for each day on which the act or omission continues.

29—Amendment of section 93A—Environment protection orders relating to cessation of activity

These amendments complement the amendments to section 52A. Dealing with stockpiled or abandoned waste or other matter is added as a reason for enabling the Authority to issue environment protection orders after a licensed activity has ceased.

30—Amendment of section 119—False or misleading information

These amendments insert a higher offence for making a false or misleading statement knowing it was false or misleading.

31—Amendment of section 139—Evidentiary

These amendments include evidentiary provisions to facilitate proof of offences.

32—Amendment of section 140—Regulations

These amendments clarify and bolster various regulation making powers. The maximum penalties and expiation fees set by regulation are increased, namely to $10,000 and $1,000 respectively.

The power to incorporate or refer to codes, standards or other documents in regulations is included. Legal effect is given to codes, standards or other documents that are referred to in the regulations.

Discretionary powers may be given, in the regulations, to authorised officers and prescribed persons or bodies. These powers are similar to the provisions in section 27 of the Act for environment protection policies and are standard provisions in regulation-making powers in many other Acts across the statute book.

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Motor Vehicles Act 1959

2—Amendment of section 139D—Confidentiality

This clause makes a consequential amendment to the Motor Vehicles Act 1959.

Schedule 2—Further amendment of Environment Protection Act 1993—penalty provisions

This Schedule converts the divisional penalties in the Act to monetary penalties.

Debate adjourned on motion of Hon. D.W. Ridgway.