The Environment Protection Act 1993 (SA) provides that a person must not undertake a prescribed activity of environmental significance without an environmental authorisation in the form of a licence under the Act [see s 36].

Prescribed activities of environmental significance are listed in schedule 1 of the Act and include many forms of manufacturing, primary production and waste generation. Under the Act, three kinds of environmental authorisations are created. These are works approval, licences and exemptions, however licences are by far the most common. A works approval is required for the construction or alteration of a building to be used for a "prescribed activity of environmental significance" or the installation or alteration of equipment for such an activity. Approval will usually also be required under the Planning, Development and Infrastructure Act 2016 (SA).

An important regulatory mechanism under the Environment Protection Act 1993 (SA) is the creation of Environment Protection Policies (EPPs). These policies may be on any subject directed towards securing the objects of the Act. The current policies are set out below.

The particular forms of pollution and waste regulated by these policies are discussed in more detail in the following sections.

Under the Environment Protection Act 1993 (SA) the definition of "pollution" includes noise pollution. This means that a person producing excessive noise could be in breach of the general environment duty under section 25. This could result in the issue of an Environment Protection Order or civil enforcement proceedings against the person responsible for the noise emissions.

Noise pollution may also cause environmental harm in which case the criminal offence provisions could be applicable. The Environment Protection (Commercial and Industrial Noise) Policy 2023 (SA) provides more detail as to types and levels of noise that are acceptable under the Act. For further information on noise relating to domestic premises see Noise.

Air quality standards are set by the Environment Protection (Air Quality) Policy 2016.

Air pollution from industrial (i.e. non-residential) sources is regulated under the policy through the setting of maximum pollution levels for various types of air pollutants including particulate matter, heavy metals, oxides of nitrogen and sulphur and carbon monoxide. Any occupier of non-domestic premises (eg. factories) emitting levels greater than those set out in the policy is guilty of an offence.

Air pollution from domestic premises is also covered by the policy, see NEIGHBOURS, Air Pollution.

Emissions from motor vehicles are a significant source of air pollution. New private motor vehicles have to comply with exhaust emissions standards established by the Transport and Infrastructure Council (formerly the Australian Transport Council). The Council brings together Commonwealth, State and New Zealand Ministers responsible for transport and infrastructure, as well as the Australian Local Government Association. The standards are called Australian Design Rules and are available through the website of the Commonwealth Department of Infrastructure and Transport. For South Australian purposes they are set out in Part 3 of the Road Traffic (Light Vehicle Standards) Rules 2018 (SA).

Water pollution is covered by a number of Acts including the Environment Protection Act 1993 (SA) and the Landscape South Australia Act 2019 (SA).

Under the Environment Protection Act 1993 (SA), the sections relating to the protection of the environment (such as the General Environmental Duty [s 25] or the offence provisions) apply equally to air, water, noise or other types of pollution. The Act also makes special provision for protection of water quality in water protection areas. The Environment Protection (Water Quality) Policy 2015, made under the Act, aims to improve the quality of water and water usage through legislated standards, guidelines and practice codes.

The Landscape South Australia Act 2019 (SA) aims to promote sustainable and integrated management of the State's natural resources and to make provision for the protection of the State's natural resources. It provides for the protection and management of catchments and the sustainable use of water resources and seeks to try and restore degraded water resources. It is now one of the key pieces of legislation with regard to water pollution, setting out general rights in relation to water and the control of activities affecting water. It also provides for enforcement, such that any person guilty of a breach of the Act can be charged and face penalties in the criminal jurisdiction of the Environment, Resources and Development Court of South Australia [s 231, see also Landscape South Australia (General) Regulations 2020 SA]

The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) covers the global environmental problem of the thinning of the ozone layer caused by the use of various human-made chemicals such as chlorofluorocarbons. This Commonwealth law gives effect to Australia's international treaty obligations under the Vienna Convention and the Montreal Protocol.

Under the Act, the Commonwealth has provided for a system of licences and tradeable quotas for import and export of scheduled substances and controls their manufacture, use and disposal so as to limit their emission.

Scheduled substances include CFCs and halons as set out in schedule 1 of the Act.

The Environment Protection Act 1993 (SA) requires EPA licencing for waste depots, rubbish tips, recycling operations and waste transporters. As well as those actively engaged in the waste management business, EPA licences are also required by those operations which generate certain types of waste - (i.e. listed waste).

A list of the types of waste the generation of which require a licence is found in part B of schedule 1 of the Act and includes most chemicals and compounds likely to cause harm to the environment if not disposed of correctly. Listed waste produced from domestic premises and certain types of business (mainly small business) are not covered by these licensing requirements, however all waste must be disposed of so as not to cause environmental harm.

Domestic rubbish collection is the responsibility of local councils (in urban areas) or individual householders (in country areas). Any rubbish put out on the street for collection (including hard rubbish) becomes the property of the council under the Local Government Act 1999 (SA).

The Environment Protection Act 1993 (SA) also contains the laws relating to South Australia's beverage container deposit system. This is the system whereby deposits of five, ten or twenty cents are payable (and redeemable) on certain types of drink containers. Under the Act, it is an offence to sell a beverage in a container that is not marked in a manner approved by the Minister. It must clearly show the refund amount applicable. A retailer who sells beverages in glass containers of a particular description (that is, with a brand name or other product identification) is required to accept delivery of any containers of that particular description and pay the appropriate refund to the person delivering the container, unless the container is unclean.

For information about offences and penalties regarding litter control under the Local Nuisance and Litter Control Act 2016 (SA) see Litter Control.

Since 1 March 2021, the South Australian Government has been gradually phasing out the manufacture, sale, supply and distribution of certain single-use plastic products through the Single-use and Other Plastic Products (Waste Avoidance) Act 2020 (SA) and the Single-use and Other Plastic Products (Waste Avoidance) Regulations 2021 (SA).

The Act initially banned the sale and supply of single-use plastic drinking straws, cutlery and beverage stirrers [s 6]. Further bans were introduced from 1 March 2022, 1 September 2023 and 1 September 2024. Additional bans are scheduled to come into force on 1 September 2025. For more information about the different types of plastic products banned since 1 March 2021, visit the South Australian Government Replace the Waste website.

Application of the Act

Plastic is defined in the Act as a material made from, or comprising, organic polymers, whether plant extracts or of fossil fuel origin [s 3].

The Act does not apply to a container that is the subject of a beverage container approval under the Environment Protection Act 1993 (SA) [Single-use and Other Plastic Products (Waste Avoidance) Act 2020 (SA) s 4].

The South Australian Environment Protection Authority has produced a Single-use Plastics Guideline for assessing prohibited single-use plastic products under the Act.

Exemptions

The Act allows regulations to be made that exempt a person, or person of a class, or a product, or product of a class, from the operation of the Act [s 16].

The Single-use and Other Plastic Products (Waste Avoidance) Regulations 2021 (SA) currently permit the sale, supply and distribution of single-use plastic drinking straws to or for a person who needs a straw due to disability or for medical purposes.

The exemption allows:

A prescribed business means a pharmacy, local government office, charity, medical facility, dental facility, and care facility [reg 3].

A prescribed business may put single-use plastic drinking straws on public display or make them freely accessible [reg 6]. Single-use plastic drinking straws must not otherwise be on public display or freely accessible without the assistance of an employee of the business, but can be provided on request where a business chooses to maintain a supply for those with medical need [reg 5(1)(b)].

Proof of disability or medical need is not required to purchase or be supplied with a plastic straw for disability or medical need [regs 5(3), 6(2)].

For more information about current exemptions, including plastic spoons, visit the South Australian Government Replace the Waste website or read the Explanatory Information on the South Australian Government Green Industries SA website.

Offences

Sale, supply or distribution of prohibited plastic products

It is an offence to sell, supply or distribute a prohibited plastic product in the course of carrying on a business [s 7(1)].

The maximum penalty is $20,000 for a prescribed person (with an expiation fee of $1,000), or $5,000 for anyone else (with an expiation fee of $315).

A business includes an enterprise, association, organisation or other body, regardless of whether its activities are of a commercial, charitable, sporting, educational or community nature. The regulations may include or exclude certain businesses or classes of business [s 7(3)].

A prescribed person means [s 7(7)]:

The offence applies whether or not a fee is charged for the supply or distribution of the prohibited plastic product. It also applies even if the sale, supply or distribution of the prohibited plastic product is incidental to the sale, supply or distribution of other products [s 7(4)].

It is not an offence for a manufacturer or distributor to sell, supply or distribute a prohibited plastic product to a person outside of South Australia [s 7(2)].

It is a defence to a charge of an offence against s 7 if the person is not a prescribed person and proves that they believed on reasonable grounds that the product was not a prohibited plastic product [s 7(3)].

Representation that a product is not prohibited

It is an offence to sell, supply or distribute a prohibited plastic product having represented before or during the sale, supply or distribution, that the product is not a prohibited plastic product [s 8]. The maximum penalty is $20,000 (with an expiation fee of $1,000).

Manufacture or production of oxo-degradable plastic products

It is an offence to manufacture or produce a product comprised, in whole or in part, of oxo-degradable plastic in the course of carrying on a business [s 9]. The maximum penalty is $20,000 (with an expiation fee of $1,000).

Sell, supply or distribute oxo-degradable plastic products in course of carrying on a business

It is an offence for a person to sell, supply or distribute a product comprised, in whole or in part, of oxo-degradable plastic in the course of carrying on a business [s 10(1)]. The maximum penalty for a prescribed person is $20,000 (with an expiation fee of $1,000) and $5,000 for anyone else (with an expiation fee of $315).

A business includes an enterprise, association, organisation or other body regardless of whether the activities it carries on are of a commercial, charitable, sporting, educational or community nature. The regulations may include or exclude certain businesses or classes of business [s 10(5)].

A prescribed person, in relation to a product comprised, in whole or in part, of oxo-degradable plastic, means a person who is a manufacturer or producer of the product, or who sells, supplies or distributes the product in the course of carrying on a business as a wholesaler or distributor [s 10(6)].

It is a defence to a charge of an offence under s 10(1) if the person is not a prescribed person and proves that they believed on reasonable grounds that the product was not comprised, in whole or in part, of oxo-degradable plastic [s 10(2)].

Section 10 applies whether or not a fee is charged for the supply or distribution of the product. It also applies even if the sale, supply or distribution of the product is incidental to the sale, supply or distribution of other products [s 10(3)].

Manufacturer's or producer's certification as to oxo-degradable plastic content of plastic products

A person who, in the course of carrying on a business, manufactures or produces a plastic product, must, at the written request of an authorised officer, provide certification in accordance with s 11 as to whether or not the product contains oxo-degradable plastic, unless the person has a reasonable excuse for not doing so [s 11(1)]. The maximum penalty for breaching this is $20,000.

A person who, in the course of carrying on a business, distributes a plastic product or sells or supplies a plastic product by wholesale, must, at the written request of an authorised officer, provide, in accordance with s 11, certification of the manufacturer or producer of the product as to whether or not the product contains oxo-degradable plastic, unless the person has a reasonable excuse for not doing so [s 11(2)]. The maximum penalty for breaching this is $20,000.

Certification must be in the manner and form, and contain the information, determined by the Environment Protection Authority (EPA), and be provided to the EPA within 30 days of the request.

Representation that product is not comprised of oxo-degradable plastic

It is an offence to sell, supply or distribute a product that is comprised, in whole or in part, of oxo-degradable plastic, having represented before or during the sale, supply or distribution that it was not such a product. The seller, supplier or distributor must have known or ought reasonably to have known or suspected that it was such a product [s 12]. The maximum penalty is $30,000.

More detailed information can be found on the South Australian Government Replace the Waste website.

Support for affected businesses is available on the Replace the Waste website or by calling Green Industries SA on (08) 8204 2051.

Under the Environment Protection Act 1993 (SA), penalties for breaches of pollution and waste laws are severe. Undertaking a prescribed activity of environmental significance without a valid EPA licence or breaching a condition of a licence carries a maximum fine of $60 000 for a person or $120 000 for a body corporate [ss 35 and 36].

Where a person pollutes the environment (noise, air, water, waste) the penalty will depend on a variety of factors. A person who intentionally or recklessly causes (knowing that it will or may cause) serious environmental harm, may be fined up to $500 000 or jailed for four years (or both). A body corporate may be fined up to $2 000 000. Where there is no intention or recklessness, the maximum fine for a person is $250 000 and for a body corporate, $500 000 [see Environment Protection Act 1993 (SA) s 79]. Serious environmental harm occurs if:

A person who intentionally or recklessly causes (knowing that it will or may cause) material environmental harm may be fined up to $250 000 or be jailed for two years (or both) while a body corporate may be fined up to $500 000. If material damage is caused and there was no intention, a person may be fined up to $150 000 and a body corporate $250 000 [see Environment Protection Act 1993 (SA) s 80]. Material environmental harm occurs if:

People who intentionally pollute the environment or recklessly cause an environmental nuisance may be fined up to $30 000 [Environment Protection Act 1993 (SA) s 82]. An environmental nuisance includes:

This may include many common problems experienced by people in residential areas. Where a body corporate commits an offence, any officer of the body corporate who did not take all reasonable and practical prevention measures will be guilty of an offence and may receive the same fine as would be received by a person committing the offence, although they will not face imprisonment. The officer may be prosecuted even if the body corporate is not [see Environment Protection Act 1993 (SA) s 129].

Site contamination can occur as a result of the introduction of chemical substances that are above background concentrations to a site. If site contamination exists then it must be determined who is the appropriate person. The appropriate person has responsibility for implementing and funding the assessment and remediation of site contamination and, if necessary, independent auditing by a site contamination auditor. In certain circumstances the site owner rather than the actual person who caused the site contamination may be deemed to be the appropriate person.

Holders of EPA licences can transfer liability for site contamination if they are transferring their licence to another person [see Environment Protection Act 1993 (SA) ss 103A-103ZB].

A person selling their property has an obligation to inform prospective purchasers of any knowledge of site contamination and activities that may cause site contamination [see Land and Business (Sale and Conveyancing) Act 1994 (SA)].

The EPA has the power to issue an Environment Protection Order [EPO] where it considers it necessary to ensure compliance with the Act. The order will specify what actions need to be taken (or that need to be stopped) and a person who fails to comply with an order may be fined [see Environment Protection Act 1993 (SA) s 93]. In addition, the EPA may take whatever action is required in the order and recover the cost, from the person.

Where someone causes environmental harm, in addition to any other penalty that may be imposed, the EPA may be able to issue a Clean Up Order specifying what action needs to be taken. If the order is not complied with a person may be fined up to $60 000 while a body corporate may be fined up to $120 000. The EPA may also carry out the action specified on the order and recover the cost from the person [see Environment Protection Act 1993 (SA) ss 99-103].

A person served with an Environment Protection Order or a Clean Up Order has fourteen days to appeal to the Environment Resources and Development Court against the order.

Either the EPA, a person affected by the actions of another or any other person (with the permission of the court) may apply to the Environment Resources and Development Court for orders. The court may order a person who has breached the Act or caused environmental damage to:

In addition to the EPA’s power to issue an environmental protection order, officers from a local council, the EPA, or the police, may when urgent action is required to protect the environment, issue an emergency environmental protection order. Orders can be given orally or in writing and lapse after 72 hours, unless the EPA issues an environmental protection order in writing [see s 93(3)-(6)]. These emergency orders are most commonly used by the police to shut down noisy parties.

Civil penalties are a further regulatory tool for the EPA. They enable the EPA to respond to less serious contraventions of the Act and are imposed as an alternative to criminal prosecution for strict liability offences. The EPA is able to negotiate a civil penalty directly with a person who has committed an offence. Alternatively, the EPA can apply to the Environment Resources and Development Court for an order that the offender pay to the EPA an amount as a civil penalty [see Environment Protection Act 1993 (SA) s 104A].

It is important to note that this is a voluntary system. A person may choose not to negotiate a civil penalty with the EPA. If the EPA wishes to apply to the Court for a civil penalty a person may also elect to the prosecuted under the higher criminal burden of proof rather than be heard in the civil jurisdiction of the court.

The maximum amount which can be negotiated is the amount specified in the Act for the offence or $120 000 whichever is the lesser. The maximum amount which the court may impose as a civil penalty is the criminal penalty specified in the Act for the offence.

Importantly there is no criminal conviction of guilt where this system is used. The EPA has developed a policy for the calculation of civil penalties to guide negotiations in this area. The policy was last updated in May 2019.