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National Environment Protection Measures (Implementation) Act 1998No. 129, 1998

In force

Superseded version

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C2004A00392

21 December 1998 - 23 May 2001

Table of contents

Part 1—Preliminary
Part 2—Implementation of NEPMs by extending the application of certain provisions of applied State laws to Commonwealth activities in Commonwealth places
Part 3—Implementation of NEPMs by extending the application of certain provisions of State or Territory laws to Commonwealth activities
Part 4—Implementation of NEPMs by the making of appropriate regulations
- 21 NEPMs may be implemented by regulations Circumstances to which Part applies (1) This Part applies for the purposes of the implementation of a NEPM in relation to an activity carried on by the Commonwealth or a Commonwealth authority if the Environment Minister becomes satisfied that: (a) the NEPM is relevant to the carrying on of the activity; and (b) the activity is carried on in a place (the relevant place) referred to in any of the following subparagraphs: (i) a Commonwealth place in which, in the Environment Minister’s opinion, the NEPM is not being implemented, or satisfactorily implemented, under an applied State law of the State in which the Commonwealth place is situated; (ii) a State or Territory, or the coastal waters of a State or Territory, in which, in the Environment Minister’s opinion, the NEPM is not being implemented, or satisfactorily implemented, under a law of the State or Territory; (iii) a Commonwealth place in a State, where a provision of a law of the State for the implementation of the NEPM that applies in the Commonwealth place under the Commonwealth Places (Application of Laws) Act 1970 is not, and is not to be, applied under Part 2 in relation to the carrying on of the activity; (iv) a State or Territory or the coastal waters of a State or Territory, where a provision of a law of the State or Territory for the implementation of the NEPM is not, and is not to be, applied under Part 3 in relation to the carrying on of the activity; (v) an external Territory to which this Act extends or its coastal waters; (vi) a part of the territorial sea of Australia that is not part of the coastal waters of a State or Territory; (vii) a part of the exclusive economic zone; (viii) a part of any area of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and (c) the NEPM is not, and is not to be, implemented in relation to the carrying on of the activity by another law of the Commonwealth in a way that the Environment Minister is satisfied will achieve appropriate environmental outcomes. Part may be excluded by regulation (2) This Part does not apply for the purposes of the implementation of a NEPM in relation to an activity if the activity is excluded, under the regulations, from the application of this Part for the purposes of the implementation of the NEPM. Period of exclusion (3) Regulations made for the purposes of subsection (2) may exclude an activity for the purposes of the application of a NEPM: (a) indefinitely or for a particular period; and (b) either wherever the activity is carried on or in a particular place where the activity is carried on. Exclusion only if required by matter of national interest (4) Regulations may only be made for the purposes of subsection (2) if the Environment Minister is satisfied that it is desirable to make the regulations because of considerations relating to a matter of national interest. Regulations may implement NEPM (5) The regulations may make provision for or in relation to the implementation of a NEPM in respect of the carrying on of an activity by the Commonwealth or a Commonwealth authority, including provision for penalties for offences against the regulations. Maximum penalty for contravention of regulations (6) The penalty for a contravention of the regulations must not exceed (except in the circumstances mentioned in subsection (9)): (a) if the contravention causes or is likely to cause, whether directly or indirectly, harm to the environment (irrespective of the duration of the harm): (i) in respect of a contravention by an individual—2,000 penalty units; or (ii) in respect of a contravention by a corporation—10,000 penalty units; or (b) otherwise: (i) in respect of a contravention by an individual—500 penalty units; or (ii) in respect of a contravention by a corporation—2,500 penalty units. When contravention is taken to harm the environment (7) If harm to the environment is caused, or is likely to be caused, by a combination of a contravention of the regulations and any other factor or factors, the harm is taken for the purposes of paragraph (6)(a) to be caused, or to be likely to be caused, as the case may be, by the contravention. Regulations implementing NEPM may apply State or Territory law (8) The provision for the implementation of a NEPM that may be made under subsection (5) in respect of an activity may include the application, with or without modifications, of provisions of a law of any State or Territory as in force at a particular time or as in force from time to time, even if the activity is not carried on in that State or Territory. Regulations applying State or Territory law may apply penalties (9) The provisions of a law of a State or Territory that may be applied by regulations as mentioned in subsection (8) may include provisions of that law imposing penalties for offences against the provisions so applied, but any modifications of those provisions made by the regulations must not increase those penalties. Part 5—Implementation of NEPMs by environmental audits and environment management plans Division 1—Preliminary 22 Meaning of environmental auditor In this Part: environmental auditor has the meaning given by section 26. 23 Activities in relation to which this Part applies Circumstances in which Part applies (1) Subject to this section, Divisions 2 and 3 apply for the purposes of the implementation of a NEPM in relation to an activity carried on by the Commonwealth or a Commonwealth authority if the Environment Minister becomes satisfied that: (a) the NEPM is relevant to the carrying on of the activity; and (b) the activity is carried on in a place (the relevant place) referred to in any of the following subparagraphs: (i) a Commonwealth place in which, in the Environment Minister’s opinion, the NEPM is not being implemented, or satisfactorily implemented, under an applied State law of the State in which the Commonwealth place is situated; (ii) a State or Territory, or the coastal waters of a State or Territory, in which, in the Environment Minister’s opinion, the NEPM is not being implemented, or satisfactorily implemented, under a law of the State or Territory; (iii) a Commonwealth place in a State, where a provision of a law of the State for the implementation of the NEPM that applies in the Commonwealth place under the Commonwealth Places (Application of Laws) Act 1970 is not, and is not to be, applied under Part 2 in relation to the carrying on of the activity; (iv) a State or Territory or the coastal waters of a State or Territory, where a provision of a law of the State or Territory for the implementation of the NEPM is not, and is not to be, applied under Part 3 in relation to the carrying on of the activity; (v) an external Territory to which this Act extends or its coastal waters; (vi) a part of the territorial sea of Australia that is not part of the coastal waters of a State or Territory; (vii) a part of the exclusive economic zone; (viii) a part of any area of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and (c) the NEPM is not, and is not to be, implemented in relation to the carrying on of the activity: (i) by regulations under Part 4; or (ii) by another law of the Commonwealth in a way that the Environment Minister is satisfied will achieve appropriate environmental outcomes. Provisions of Part may be excluded by regulation (2) Division 2 or 3, or a provision of Division 2 or 3, does not apply for the purposes of the implementation of a NEPM in relation to an activity if the activity is excluded, under the regulations, from the application of the Division or provision, as the case may be, for the purposes of the implementation of the NEPM. Period of exclusion (3) Regulations made for the purposes of subsection (2) may exclude an activity for the purposes of the implementation of a NEPM: (a) indefinitely or for a particular period; and (b) either wherever the activity is carried on or in a particular place where the activity is carried on. Exclusion only if required by matter of national interest (4) Regulations may only be made for the purposes of subsection (2) if the Environment Minister is satisfied that it is desirable to make the regulations because of considerations relating to a matter of national interest. Notice of application of provisions to be given to relevant Minister (5) If all or any of the provisions of Divisions 2 and 3 apply for the purposes of the implementation of a NEPM in relation to an activity carried on by the Commonwealth or a Commonwealth authority, the Environment Minister must notify the relevant Minister accordingly. Provisions to apply when notice received by relevant Minister (6) If the relevant Minister is so notified, those provisions (other than any provisions that afterwards cease to apply because of regulations made for the purposes of subsection (2) after the notification) have effect for the purposes of the implementation of the NEPM in relation to the activity. Division 2—Environmental audits 24 Relevant Minister to arrange for carrying out of environmental audit (1) The relevant Minister must arrange for an environmental audit to be carried out for the purposes of the implementation of the NEPM with respect to the carrying on by the Commonwealth or the Commonwealth authority of the activities. (2) The relevant Minister must ensure that the audit is begun within 90 days after he or she is told by the Environment Minister that this Division applies in relation to the activities for the purposes of the implementation of the NEPM. 25 Environmental auditors (1) Subject to sections 26 and 27, the relevant Minister may appoint any person (the environmental auditor) to carry out an environmental audit for the purposes of this Act. (2) The regulations may make provision for the accreditation of environmental auditors. 26 Environmental auditor not to be officer or employee of the relevant Minister’s Department or to be employed by the relevant Commonwealth authority The person (the environmental auditor) appointed to carry out the environmental audit must be a person who is not an officer of, or employed in, the Department administered by the relevant Minister or is not employed by the Commonwealth authority, as the case may be. 27 Environmental auditor to be a fit and proper person (1) A person must not be appointed as an environmental auditor unless the relevant Minister is satisfied that the person is a fit and proper person. (2) In deciding whether a person is a fit and proper person, the relevant Minister must have regard to: (a) any conviction of the person, or any body corporate of which the person is a director, for contravention of any Australian environment protection or related law; and (b) any suspension or revocation of any licence or other authority held by the person, or any body corporate of which the person is a director, under any Australian environment protection or related law. (3) A person’s appointment as an environmental auditor must be revoked if: (a) the person, or a body corporate of which the person is a director, is convicted for a contravention of any Australian environment protection or related law; or (b) any licence or authority held by the person, or a body corporate of which the person is a director, under any Australian environment protection or related law is suspended or revoked. 28 Nature of environmental audit (1) The environmental audit for the purposes of the implementation of the NEPM is to consist of: (a) an evaluation of the nature of the environment that is or will be affected by the activities; and (b) an assessment of the risks to the environment resulting from the activities; and (c) an assessment of the existing capacity of the Commonwealth or the Commonwealth authority to comply with the NEPM in carrying on the activities; and (d) an assessment of what the Commonwealth or the Commonwealth authority will need to do in order so to comply. (2) In carrying out the environmental audit, the environmental auditor may, if: (a) an environmental audit relating to the implementation of the NEPM was completed within the preceding 2 years; and (b) the environmental auditor is satisfied that the previous environmental audit is still relevant; have regard to the results of the previous audit. (3) If: (a) the environmental auditor is carrying out the environmental audit; and (b) in the course of carrying out the audit, the environmental auditor conceals, or fails to take into account, any information or document; and (c) the information or document is relevant to the audit; the environmental auditor is guilty of an offence punishable on conviction by imprisonment for not more than 6 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. 29 Report by environmental auditor (1) After completing the environmental audit, the environmental auditor must prepare, and give the relevant Minister and the Environment Minister, a written report setting out: (a) the auditor’s qualifications and experience; and (b) the results of the audit. (2) If: (a) the environmental auditor includes a statement in the report; and (b) the statement is false or misleading in a material particular; the environmental auditor is guilty of an offence punishable on conviction by imprisonment for not more than 6 months. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. Division 3—Environment management plans 30 Environment management plan (1) As soon as practicable after receiving the report of the environmental auditor, the relevant Minister must arrange for the Department or the Commonwealth authority that is carrying on, or proposes to carry on, activities relevant to the NEPM to cause an environment management plan to be prepared with respect to the carrying on of the activities. (2) The Secretary of that Department, or the chief executive officer of that authority, as the case may be, must appoint an officer of that Department, or a person employed by that authority, to be the environment manager for the purposes of the environment management plan. 31 Matters to be dealt with in environment management plan (1) An environment management plan in respect of activities relevant to the NEPM must include the matters set out in subsection (2) and must have regard to the objects of this Act and the National Environment Protection Council Act 1994. (2) The matters referred to in subsection (1) are as follows: (a) the objectives of the plan; (b) the activities to which the plan relates; (c) how the NEPM is to be implemented and a timetable for implementation; (d) if the NEPM relates to ambient environmental quality, how the activities will be carried on so as to give effect to the NEPM; (e) appropriate performance indicators at designated intervals; (f) appropriate provision for the participation of, and for consultation with, the community in the development of the plan; (g) provision for monitoring and reporting on the implementation of the plan; (h) provision for any necessary up-grading of the manner in which the activities are, or are to be, carried out, and the equipment used, or to be used, in the carrying out of the activities, for the purpose of meeting the objectives of the plan; (i) provision for action to be taken in a contingency or emergency. 32 Duties of environment manager (1) The duties of the environment manager in relation to an environment management plan are: (a) to cause a preliminary plan to be prepared; and (b) to give copies of the preliminary plan to the relevant Minister and the Environment Minister; and (c) if either of them gives the environment manager any comments on the preliminary plan within a reasonable period—to take the comments into account in the preparation of the final plan; and (d) to cause a final plan to be prepared and to give copies of it to the relevant Minister and the Environment Minister; and (e) to ensure, to the maximum extent practicable, that the plan is not contravened; and (f) unless the regulations otherwise provide, to cause copies of the plan to be made available for inspection, and for purchase at a reasonable price, by members of the public. (2) Regulations may only be made for the purposes of paragraph (1)(f) if the Environment Minister is satisfied that it is desirable to make the regulations because of considerations relating to a matter of national interest. (3) If: (a) after a final environment management plan has been prepared, a further NEPM comes into force; or (b) a period of 3 years has elapsed since a final environment management plan was prepared or last revised; the plan is to be revised for the purpose of giving effect to the NEPMs that apply to matters to which the plan relates. Part 6—Ensuring implementation of NEPMs under Parts 4 and 5 33 Relevant Minister responsible for adequate implementation of a NEPM in respect of an activity to which Part 4 or 5 applies (1) This section applies to activities carried on by the Commonwealth or a Commonwealth authority in respect of which: (a) a regulation made for the purposes of Part 4 applies; or (b) an environment management plan prepared under Part 5 applies; for the purpose of implementing a NEPM. (2) The relevant Minister must do everything necessary to ensure that the NEPM is adequately implemented in respect of the activities. (3) If: (a) the Environment Minister is not the relevant Minister; and (b) the Environment Minister forms the opinion that the NEPM is not being adequately implemented in respect of the activities; the Environment Minister may request the relevant Minister to give the Environment Minister a written report setting out: (c) the reasons (including any mitigating circumstances) for the inadequate implementation; and (d) the action that the relevant Minister intends to take to ensure adequate implementation; and (e) the period that the relevant Minister thinks necessary for the taking of the action. (4) If, after such period following the making of the request as the Environment Minister thinks reasonable, he or she is satisfied that the NEPM has not been adequately implemented in respect of the activities, he or she may make a written declaration to that effect. (5) If the Environment Minister makes such a declaration, he or she is to cause a copy of the declaration to be published in the Gazette. Part 7—Administrative and judicial review 34 Review of decisions by Administrative Appeals Tribunal (1) Application may be made to the Administrative Appeals Tribunal for review of any reviewable decision made under: (a) an applied provision of an applied State law; or (b) an applied provision of a law of a State or Territory; or (c) a provision of a regulation made for the purposes of Part 4; or (d) Part 5. (2) In subsection (1): reviewable decision, in relation to an applied provision referred to in paragraph (1)(a) or (b), a provision of a regulation referred to in paragraph (1)(c) or a provision of Part 5, means: (a) if the regulations provide that any decision made under the provision is a reviewable decision—any decision made under the provision; or (b) if the regulations provide that a decision of a kind described in the regulations that is made under the provision is a reviewable decision—any decision of that kind made under the provision. (3) This section has effect subject to the Administrative Appeals Tribunal Act 1975. 35 Civil jurisdiction of Federal Court (1) Jurisdiction is conferred on the Federal Court of Australia with respect to all civil matters arising under: (a) an applied provision of an applied State law; or (b) an applied provision of a law of a State or Territory; or (c) a regulation made for the purposes of Part 4; or (d) Part 5. (2) The jurisdiction of the Federal Court of Australia under subsection (1) is, subject to the Constitution and the Jurisdiction of Courts (Cross-vesting) Act 1987, exclusive of the jurisdiction of any other court. Part 8—Miscellaneous 36 Person entering or searching premises occupied by Commonwealth or Commonwealth authority not to disclose information obtained from entry or search Information not to be disclosed (1) If: (a) a person (the first person) enters or searches premises; and (b) the entry or search is made under a power that the first person has: (i) because of the operation of section 12 or 17; or (ii) because of regulations made under section 21; and (c) the first person discloses any information, directly or indirectly, to another person; and (d) the information was acquired by the first person as a result of the entry or search; the first person is guilty of an offence punishable on conviction by imprisonment for not more than 2 years. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. Exception (2) Subsection (1) does not apply to a disclosure made in the performance of duties under an applied provision of an applied State law, under an applied provision of a law of a State or Territory or under regulations made under section 21. Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code). Court not to require production of document or disclosure of information (3) A person who enters or searches premises under a power that the person has because of the operation of section 12 or 17 or because of regulations made under section 21 cannot, except for the purposes of an applied provision of an applied State law, an applied provision of a law of a State or Territory or a provision of the regulations, be required: (a) to produce in court any document that has come into his or her possession or under his or her control as a result of the entry or search; or (b) to disclose to a court any information acquired by the person as a result of the entry or search. Definitions (4) In this section: court includes a tribunal, authority or person having power to require the production of documents or the answering of questions. disclose, in relation to information, means give or communicate in any way. 37 Restriction of entry into or search of exempt premises Declaration of exempt premises (1) Subject to subsection (2), the regulations may declare premises described in the regulations to be exempt premises for the purposes of this section. National interest to be criterion for exemption (2) Regulations may only be made for the purposes of subsection (1) in relation to premises if the Environment Minister is satisfied that, because of a matter of national interest, it is desirable that entry into, or search of, the premises under an applied provision of an applied State law, an applied provision of a law of a State or Territory or a regulation made under section 21 be prohibited or restricted. Orders prohibiting entry into exempt premises (3) The Environment Minister may, by order published in the Gazette, prohibit or restrict, either absolutely or subject to conditions stated in the order, people who have the power to enter or search premises: (a) because of the operation of section 12 or 17; or (b) because of regulations made under section 21; from entering or searching exempt premises referred to in the order. Order to be disallowable (4) An order made under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Offence (5) If: (a) a person enters or searches premises; and (b) the entry or search is made under a power that the person has: (i) because of the operation of section 12 or 17; or (ii) because of regulations made under section 21; and (c) the premises are exempt premises; and (d) the entry or search contravenes: (i) an order in force under subsection (3); or (ii) a condition to which such an order is subject; the person is guilty of an offence punishable on conviction by imprisonment for not more than 2 years. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act. 38 Commonwealth or Commonwealth authority may pay certain fees and charges Fees or charges for carrying on activities in Commonwealth places (1) The Commonwealth or a Commonwealth authority may pay to a State, or to a State authority, a fee or charge which, if paragraph 13(1)(f) had not been enacted, would have been payable by the Commonwealth or the authority under an applied provision of an applied State law in respect of an application for, or a grant of, a licence, permit or other authorisation (however described) relating to an activity carried on, or to be carried on, by the Commonwealth or the authority in a Commonwealth place in the State. Fees or charges for carrying on activities in States or Territories (2) The Commonwealth or a Commonwealth authority may pay to a State or Territory, or to a State or Territory authority, a fee or charge which, if paragraph 18(1)(h) had not been enacted, would have been payable by the Commonwealth or the authority under an applied provision of a law of the State or Territory in respect of an application for, or a grant of, a licence, permit or other authorisation (however described) relating to an activity carried on, or to be carried on, by the Commonwealth or the authority in the State or Territory or in its coastal waters. 39 Arrangements with States and Territories (1) The Environment Minister may make an arrangement with: (a) an appropriate Minister of a State in relation to the exercise of a power or the performance of a duty or function by, or by an officer of, the State or an authority of the State under an applied provision of an applied State law or under an applied provision of a law of the State; or (b) an appropriate Minister of a Territory in relation to the exercise of a power or the performance of a duty or function by, or by an officer of, the Territory or an authority of the Territory under an applied provision of a law of the Territory. (2) If an arrangement is in force under subsection (1), the power, duty or function may be, or is to be, as the case may be, exercised or performed by the officer or authority accordingly. (3) The Environment Minister may make an arrangement (including a financial arrangement) with an appropriate Minister of a State or Territory with respect to any matter necessary or convenient for the purpose of carrying out or giving effect to this Act. (4) Without limiting the generality of subsections (1), (2) and (3), an arrangement may contain any supplementary or incidental provisions that the Environment Minister and the Minister of the State or Territory think necessary. (5) The Environment Minister may arrange with a Minister of a State or Territory with whom an arrangement is in force under this section for the variation or revocation of the arrangement. 40 Annual reports (1) If, in the year ending on 30 June 1998 or in a later year ending on 30 June, a Department or Commonwealth authority is responsible for the carrying on of an activity to which a NEPM applies, the Minister: (a) who administers the Department; or (b) who administers the enactment by or under which the authority is established or is otherwise administratively responsible for the actions of the authority; must prepare in respect of the year concerned, and give to the Environment Minister within one month after the end of that year, a report, in the prescribed form and containing the prescribed information, as to the implementation of NEPMs by the Department or authority. (2) The Environment Minister must, as soon as practicable after each 30 June, cause to be laid before each House of the Parliament a report as to the implementation of NEPMs by the Commonwealth and Commonwealth authorities in the year that ended on that 30 June. (3) The first report under subsection (2) is to relate to the year that ends on 30 June 1998. 41 Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences referred to in subsection 21(5) and all offences against Parts 5 and 8. 42 Regulations The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. 43 Review of operation of Act (1) The Environment Minister must cause an independent review of: (a) the operation of this Act; and (b) the extent to which the policy objectives of this Act remain valid; and (c) whether the provisions of this Act remain appropriate for the achievement of those policy objectives; to be undertaken as soon as possible after the fifth anniversary of the commencement of this Act. (2) A person who undertakes such a review must give the Minister a written report of the review. (3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 12 months after the fifth anniversary of the commencement of this Act. (4) In this section: independent review means a review undertaken by persons who: (a) in the Environment Minister’s opinion possess appropriate qualifications to undertake the review; and (b) include one or more persons who are not employed by the Commonwealth or a Commonwealth authority and have not, since the commencement of the Act, provided services to the Commonwealth or a Commonwealth authority under or in connection with a contract. [Minister’s second reading speech made in— Senate on 25 November 1998 House of Representatives on 10 December 1998] (186/98)
Part 5—Implementation of NEPMs by environmental audits and environment management plans
Part 6—Ensuring implementation of NEPMs under Parts 4 and 5
- 33 Relevant Minister responsible for adequate implementation of a NEPM in respect of an activity to which Part 4 or 5 applies
Part 7—Administrative and judicial review
- 34 Review of decisions by Administrative Appeals Tribunal
- 35 Civil jurisdiction of Federal Court
Part 8—Miscellaneous