Part IV of the Environment Act 2000 creates the instruments through which environmental objectives are set. Section 6(2)(a) describes the purpose: to determine environmental objectives by researching the state of the environment and identifying the beneficial values that matter to the community and require protection.
Section 30 — who makes an Environment Policy
(1) The Minister, acting on the recommendation of the Council, may recommend Environment Policies to the National Executive Council.
(2) The National Executive Council, after considering the Minister’s recommendation, may make Environment Policies, in accordance with the procedures in this Part.
Three steps, and each is a check on the next: the Environment Council recommends to the Minister, the Minister recommends to the NEC, and the NEC makes the Policy. Section 33 sets the procedure for making Policies, section 34 a simplified procedure for certain Policies, and section 35 allows the Minister to make an interim Policy.
Sections 31 and 32 — subject matter and contents
(a) a contaminant; (b) an industry or activity; (c) a technology or process; (d) a beneficial value; (e) loss of a beneficial value; (f) waste management or minimisation; (g) contamination control practice; (h) land, air or water quality; (i) noise; (j) litter; (k) management of surface and underground water; and (l) decommissioning and rehabilitation requirements.
(a) state whether it applies to the environment generally or to a section 31 matter;
(b) specify the persons to whom it applies;
(c) identify the boundaries of any area affected; and
(d) identify and declare the beneficial values and uses to be enhanced or protected under it.
A Policy declares the beneficial values to be protected. Those values then feed into: the definition of environmental harm, which is a change with a detrimental effect on a beneficial value; the criteria for a permit in section 65(3)(l), which requires regard to the character, resilience and beneficial values of the receiving environment; and the Council’s recommendation criteria in section 58(2)(i).
Section 36 — the binding effect on other authorities
On approval of an Environment Policy, all governmental authorities which may be required to issue approvals relating to a use of the environment, or an element or segment of it, which is affected by the policy, must give effect to the Policy.
This is a strong provision. It reaches beyond the Director and the Council to every authority issuing approvals — mining, forestry, fisheries, planning, provincial and local government. Read with section 46, which restrains other authorities from issuing permits for level 2 or 3 activities before an environment permit is granted and requires applications to be referred to the Director, Part IV makes environmental objectives binding across the regulatory system.
Compliance with a Policy also features in the permit tests: the Director must be satisfied under section 65(1)(a) that the activity will be carried out consistently with all relevant Environment Policies, and section 66(2) requires the permit to require compliance with them — subject only to the environmental improvement plan pathway for existing activities.
Section 37 — amendment and variation
| Change | Procedure |
|---|---|
| Amendment | The full section 33 procedure for preparation and approval |
| Variation to correct an error | Minister, by National Gazette notice, without the section 33 procedure |
| Change of form not involving a change of substance | As above |
| A variation of a type the Policy or the Regulation allows | As above |
An amendment or variation takes effect on the day fixed in the notice, and the Minister shall give public notice in a national newspaper distributed regularly throughout the country (s 37(3), (4)).
Section 38 — Environmental Codes of Practice
(1) The Minister or Director, after consultation with relevant parties, may issue an Environmental Code of Practice stating ways of achieving compliance with the general environmental duty, or with any activity that causes or is likely to cause environmental harm.
(2) Compliance with a Code is voluntary — except to the extent that compliance has been made part of the conditions of an environment permit.
Under section 10(1), an act causing environmental harm is unlawful unless it is caused in the course of complying with an Environmental Code of Practice or otherwise permitted. And under section 10(2)(b), the defence to a harm charge requires the person to have complied with the general environmental duty either by complying with the relevant Code or in some other way.
So following a Code is the safest route to lawfulness, and departing from it means proving compliance with the duty another way. Where a Code is written into a permit condition, breaching it is also an offence under section 73(2) and a ground for cancellation.
Section 6(2)(b) confirms the role of Codes: they are how environmental objectives are applied to level 1 activities, which need no permit.
Section 39 — Provincial Environment Policies
(a) noise; (b) litter, hygiene and sanitation; (c) other matters within the law-making capacity of Provincial Governments under the Organic Law on Provincial Governments and Local-level Governments; or (d) other prescribed matters.
- Section 39(2) — a provincial law may provide the process for making one, and it shall incorporate consultation with persons likely to be affected.
- Section 39(3) — before making one, the Provincial Government shall consult with the Environment Council.
To the extent that a Provincial Environment Policy (a) is inconsistent with this Act; (b) is inconsistent with an Environment Policy or the Regulation; or (c) provides for less stringent standards on matters covered by a Regulation or an Environment Policy, it is invalid.
Note paragraph (c): a province may set more stringent standards, but not less. The national scheme is a floor.
Provincial Environment Committees are established under section 29, and the Director must refer an impact statement to the relevant committee for comment before completing an assessment (s 54(5)).
Section 40 — Warning Notices
Section 40 provides for a Warning Notice. It sits at the informal end of the compliance scale, before the enforcement instruments in Part IX — the Environment Protection Order, the Clean-up Order and the Emergency Direction.
How to use Part IV
- Find the Policies that apply to your activity, contaminant or area — a Policy must specify the persons it applies to and the boundaries of the area.
- Read the declared beneficial values; they define what counts as harm in that area.
- Check for an applicable Code of Practice, and either follow it or document how the duty is met another way.
- Check the permit — a Code written into a condition is no longer voluntary.
- Check for a Provincial Environment Policy, and whether it sets stricter standards on noise, litter, hygiene or sanitation.
- Watch for gazetted variations and newspaper notices under section 37(4).
- Take part in consultation — section 33 requires it, section 4(i) requires open and transparent regulation, and the Environment Consultative Group advises the Council on policy-making under section 27(a).
Sources
- Environment Act 2000 — ss 4, 6, 10, 27, 29, 30–40, 46, 54, 58, 65, 66, 73; Part IV
- Conservation and Environment Protection Authority Act 2014
- Organic Law on Provincial Governments and Local-level Governments
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.