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Powers of Authorised Officers

A guide to your powers under

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DEC 2006/172
ISBN 1 74137 898 2

Powers of Authorised Officers
Glossary
Unless otherwise indicated, definitions are taken from the Dictionary of the Protection of the Environment Operations Act 1997 (POEO Act) and apply only in relation to that Act.

Appropriate regulatory authority—the appropriate regulatory authorities for particular activities are shown in the following table:

Protection of the Environment Operations Act 1997 1

Powers of Authorised Officers

authority.

2 Protection of the Environment Operations Act 1997

(b) the Lord Howe Island Board in relation to Lord Howe Island, or

(c) the Western Lands Commissioner in relation to the Western Division, except any part of the Western Division within the area of a local council, or

motor vehicle has the same meaning as in the Road Transport (General) Act 2005.

navigable waters means all waters that are from time to time capable of navigation and are open to or used by the public for navigation, whether on payment of a fee or otherwise, but does not include flood waters that have temporarily flowed over the established bank of a watercourse.

(b) that is of a level, nature, character or quality prescribed by the Regulations or that is made at a time, or in other circumstances, prescribed by the Regulations.

penalty unit—as at March 2006 the value of a penalty unit is $110—s 17 of the Crimes (Sentencing Procedure) Act 1999).

(c) a mobile plant, vehicle, vessel or aircraft.

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(c) a member of staff or other person who exercises functions on behalf of a public authority.

records include plans, specifications, maps, reports, books and other documents, whether in writing, in electronic form or otherwise. This definition also applies to records under s 4 of the Contaminated Land Management Act 1997.

Powers of Authorised Officers

1 Introduction

•  monitoring other activities an environment protection licence regulating water pollution is issued for.

In nearly all other cases, the appropriate regulatory authority is the relevant local council. A local council may exercise its powers under the POEO Act only in or in relation to the local council’s area. The glossary at the beginning of this guide includes a table providing more detailed information about who the appropriate regulatory authority is for particular activities and premises.

The environment protection legislation gives some powers specifically to individuals referred to in the legislation as ‘authorised officers’. However, the legislation also gives general powers to organisations such as the EPA and other regulatory authorities.

It is important that officers exercising powers under the environment protection legislation ensure they have the authority to do so. If you wish to exercise a power that may be exercised only by an authorised officer, you should make sure your appointment as an authorised officer includes the exercise of that power. If you wish to exercise a power on behalf of an organisation, you should make sure you have been delegated authority to exercise that power.

Unlike police officers, authorised officers have only limited powers of arrest under the environment protection legislation. Section 204(3) of the POEO Act allows authorised officers to arrest only people who refuse to state their names or residential addresses, or who provide names and addresses that in the opinion of the authorised officers are false.

Enforcement officers

The environment protection legislation

Environment protection legislation is defined in s 3(1) of the Protection of the Environment Administration Act 1991 as the following Acts (including any Regulations or other instruments made under these Acts):

•  Environmentally Hazardous Chemicals Act 1985

•  Ozone Protection Act 1989

•  Road and Rail Transport (Dangerous Goods) Act 1997

•  Waste Avoidance and Resource Recovery Act 2001.

The Director General (DG) of DEC has delegated to senior staff the authority to appoint authorised officers to exercise any or all of the powers and functions of an authorised officer under the above Acts and any Regulations made under those Acts.

The key sections and clauses of Acts relating to authorised officer powers are reproduced in chapter 6.

Councils are generally responsible for appointing their own officers and deciding which staff may exercise all or some of the powers of an authorised officer under the POEO Act. Section 187(2) of the Act allows councils to ‘appoint any officer or employee … (including a class of such officers or employees) as an authorised officer for the purposes of this Act’.

Appointments of authorised officers may be subject to conditions, limitations or restrictions, or given only for a limited purpose (s 188).

Statutory restrictions on council-appointed authorised officer powers

The POEO Act provides that, subject to any additional limitations imposed by the appointing council, an authorised officer appointed by a council is limited to matters concerning the functions of the council under the POEO Act (s 188(3)).

1.4 Identification card

Regulatory authorities are required to provide each authorised and enforcement officer they appoint under the POEO Act with an identification card (s 189(1)). There are no specific requirements in the POEO Act regarding the type or content of such a card. However, the EPA recommends that identification cards produced by other regulatory authorities should contain the name and photo of the officer and the name of the issuing authority, with the powers granted to the officer listed on the back.

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Powers of Authorised Officers

•  powers to question and identify persons (section 2.3)

•  powers to issue notices (section 2.4 and chapter 3).

2.1 Powers of entry and search

In gaining entry to a premises, an authorised officer may use reasonable force and enlist the aid of other authorised officers or police officers (s 196(3)). Any person may accompany an authorised officer and take all reasonable steps to help them exercise their functions under Part 7.4, if the authorised officer believes that the person can help them exercise those functions (s 199A). Authorised officers must do as little damage as possible while exercising their powers of entry and search (s 201). Regulatory authorities are liable to pay
compensation for any damage caused by their authorised officers in exercising a power of entering a premises unless the occupier has obstructed or hindered the authorised officers in gaining entry (s 202), but not for any damage cause by the exercise of any other power.

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(c) generally administering the POEO Act and protecting the environment.

Actions may include:

•  seizing anything connected with an offence or suspected offence.

Wilfully delaying or obstructing authorised officers during the exercise of any of their powers is an offence under s 211(3) that is subject to a penalty of up to:

An authorised officer has the power to turn off or otherwise disable a building intruder alarm or a motor vehicle intruder alarm that is or has been sounding in breach of the Act or the Regulations—s 198A(1). A ’motor vehicle intruder alarm’ is defined under s 198A(2) as:

a device that:
(a) incorporates or connects to a sounding device, and
(b) on being triggered, causes the sounding device to emit sound,
being a device that is attached to or forms part of the motor vehicle for use as an intruder alarm, whether or not the device is also designed to be used for any other purpose.

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Powers of Authorised Officers

The required warnings referred to below should also be given when questioning a person or requiring them to state their name and address.

Questioning representatives of corporations

•  notices to provide information and records

•  noise abatement directions

Only officers who have been appointed as ‘authorised officers’ for these purposes under the POEO Act, and where applicable enforcement officers carrying out these activities for the purpose of issuing a penalty notice, may issue notices to provide information and records, and noise abatement directions. Police officers can also issue noise abatement directions.

Smoke abatement notices can only be issued by authorised officers of local authorities.

Note that even when an individual does object to answering questions or providing
information, they are still required to provide the answers or information—s 212(2). Although answers and information may not be used against the individual, they may be used in proceedings against a corporation or other individuals, or used to obtain further information—s 212(5).

If the individual does object to answering questions or providing information, or was not warned that they may object on the ground that the information to be provided or the answer to be given might incriminate them, the answers or information that they provide at that time may not be used in criminal proceedings against them (except for proceedings for an offence under Chapter 7 of the POEO Act—s 212(3).

An authorised officer or police officer may issue noise abatement directions when they believe that offensive noise is being, or has at any time within the past seven days been, emitted from any premises (s 276). An officer or employee of the marine authority that has been authorised by the marine authority may issue a noise abatement direction if the offensive noise is being emitted from a vessel in navigable waters.

Also, only authorised officers of the EPA can issue noise abatement directions:

For the purposes of issuing a noise abatement direction, an authorised officer may require a person to state their name and residential address (see ‘Questioning individuals’ under section 2.3 above.)

Note that a noise abatement direction does not mean that all noise from the premises must cease—only offensive noise.

3 Penalty notices

Please note: penalty notices are also known as PINs.

•  number 1 means an officer or employee of a local authority (that is, a local council, the Lord Howe Island Board or the Western Lands Commissioner, as appropriate) or, in relation to penalty notices for offences alleged to have been committed in Kosciuszko National Park, an officer or employee of DEC

•  number 2 means an officer or employee of DEC

•  number 6 means an officer or employee of the Department of Primary Industries

•  number 7 means an officer or employee of the Sydney Harbour Foreshore Authority

For some offences, only one or two numbers appear in the ‘officer’ column. This means that only those classes of enforcement officer can issue penalty notices for those offences. For other more common offences, such as littering (s 145 of the POEO Act) or polluting waters (s 120 of the POEO Act), a wider range of enforcement officers may issue penalty notices, including those from councils, DEC, the Waterways Authority and the police.

3.2 When should penalty notices be issued?

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