Protection of the Environment Operations Act 1997

This table of maximum penalties is populated using Lawcodes data. For more information, see Changes to Specific Penalties and Orders at the end of the introduction.

Jurisdiction

Section 215(1): Proceedings for an offence arising under the Act or regulations (other than under Pt 5.2) may be dealt with summarily before the Local Court or summarily by the Land and Environment Court in its summary jurisdiction.

Section 215(2): If any such proceedings are brought in the Local Court, the maximum monetary penalty that the court may impose for the offence is 2000 pu, despite any other provision of the Act.

Note: The Local Court does not have jurisdiction to deal with offences under Pt 5.2, that is Tier 1 offences referred to in ss 115 to 117 inclusive: “Disposal of waste — harm to the environment”, “Leaks, spillages and other escapes” and “Emission of ozone depleting substances”. See s 114 for classification of offences. The Local Court does not have jurisdiction to deal with offences under ss 144AA(2) and 144AB: “False or misleading information about waste” and “Repeat waste offenders”.

Time for commencement

Section 216(1), (2): Generally, proceedings for an offence dealt with summarily under the Act may be commenced not later than 12 mths after the date on which the offence is alleged to have been committed or evidence of the alleged offence first came to the attention of any relevant authorised officer. For prescribed offences, proceedings may be commenced not later than 3 yrs after the date of the alleged offence or when the offence first came to the attention of any relevant authorised officer: see s 216(2)(a). “Prescribed offence” is defined in s 216(6).

Matters to be considered in imposing penalties

Section 241(1): The following matters should be considered in imposing a penalty for an offence against this Act or the regulations (so far as they are relevant):

(a): the extent of the harm caused or likely to be caused to the environment by the commission of the offence,
(b): the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(c): the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused to the environment by the commission of the offence,
(d): the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(e): whether, in committing the offence, the person was complying with orders from an employer or supervising employee,
(f): the presence of asbestos in the environment.

Section 241(2): The court may also take into consideration other matters that it considers relevant.

The Local Court may make additional orders on sentence under s 250(1)(a), (b), (f), (g), which relate to publicising the offence/undergoing training, but not under s 250(1)(c), (d), (e), (h), (1A).

Maximum penalty and continuing offences

Certain offences attract further penalties (in addition to the maximum penalty for the offence) if they are continuing offences. “Continuing offence” is defined in s 242. Offences under ss 47(1), 48(2), 49(2), 64(1), 86(3), 88(3), 91B, 97, 102, 112, 123, 132, 141, 142A(1), 143(1), 144(1), 144AAA(1), 144AAB, 144AA, 153A, 153B, 153D, 153E, 167(4), 177(1)–(5) and 211(1), (3), (4) have penalties of $240,000 per day for corporations and $120,000 per day for individuals for continuing offences.

Offences under ss 152, 153F, 211(3A) have continuing penalties of $480,000 for corporations and $240,000 for individuals. An offence under 265(2) has a continuing penalty of $6,000 for corporations and $600 for individuals.

Offences by corporations

Section 169(1): If a corporation contravenes, whether by act or omission, a provision of this Act attracting special executive liability, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision unless the person satisfies the court of certain matters.

Section 169(1A): Identifies ss 49(2), 64(1), 66(2) or (4), 102, 113, 115(1), 116(1) or (2), 117(1), 120(1), 124, 125, 126, 128, 142A(1), 143(1), 144(1), 144AAA(1), 144AAB, 152, 296(1) and 296E(1) as the provisions that attract special executive liability.

Liability of directors

Section 169A: If a corporation commits an “executive liability offence” a director involved in the management who is in a position to influence the corporation’s conduct, who knows or ought reasonably to know of the offence and fails to prevent or stop the commission of the executive liability offence is liable to the same penalty for the offence if committed by an individual.

Section 169B: If a corporation commits a “corporate offence” a director who aids, abets, induces, counsels or procures, conspires in the commission of the corporate offence is liable to the same penalty for the offence if committed by an individual.

Protection of the Environment Operations (Noise Control) Regulation 2017 No 449

Section 136 of the Act creates an offence of selling an article of a class prescribed by the regulations if, when in use or operation, the article emits noise in excess of a prescribed level.