Dams Safety Act 2015 (NSW)

Dams Safety Act 2015 No 26 An Act to constitute Dams Safety NSW and to confer functions on it relating to the safety of dams; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Dams Safety Act 2015. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) Clause 5 of Schedule 2 commences on the date of assent to this Act. 3 Objects of Act The objects of this Act are as follows— (a) to ensure that any risks that may arise in relation to dams (including any risks to public safety and to environmental and economic assets) are of a level that is acceptable to the community, (b) to promote transparency in regulating dams safety, (c) to encourage proper and efficient management in matters relating to dams safety, (d) to encourage the application of risk management and the principles of cost benefit analysis in relation to dams safety. 4 Definitions (1) In this Act— authorised officer means a person appointed as an authorised officer under Part 4. Chief Executive Officer means the Chief Executive Officer of Dams Safety NSW. Dams Safety NSW means Dams Safety NSW constituted under this Act. dams safety standards means the standards prescribed by the regulations under section 14. declared dam means a dam or proposed dam that is declared by order under section 5. Department means the Department of Industry, Skills and Regional Development. function includes a power, authority or duty, and exercise a function includes perform a duty. owner, in relation to a dam, means any person or public authority who, whether solely or with some other person or public authority, owns, controls, operates, manages or maintains the dam and includes, in relation to a proposed dam, any person or public authority who, whether solely or with some other person or public authority, proposes to build the dam. premises includes— (a) a building or structure, and (b) land or a place (whether built on or not). public authority means any of the following— (a) a Minister, (b) a Public Service agency within the meaning of the Government Sector Employment Act 2013, (c) a statutory body representing the Crown, (d) a statutory State owned corporation (or any of its subsidiaries) within the meaning of the State Owned Corporations Act 1989, (e) a local council, a county council or a joint organisation within the meaning of the Local Government Act 1993, but does not include Dams Safety NSW or any person or body declared by the regulations not to be a public authority for the purposes of this definition. Secretary means the Secretary of the Department. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5 Declaration of dams (1) Dams Safety NSW may, by order published in the Gazette, declare a dam or proposed dam to be a declared dam for the purposes of this Act. (2) A dam or proposed dam may not be declared under this section unless it is of a type or class of dam prescribed by the regulations. The regulations may provide for dams to be classified into different categories for the purposes of this Act (including the dams safety standards). (3) An order under this section is to specify the name and location of the dam or proposed dam to which the order relates. (4) Dams Safety NSW is to publish on its public website (or, if no such website is available, the public website of the Department) an up-to-date list of declared dams. Part 2 Dams Safety NSW 6 Constitution of Dams Safety NSW (1) There is constituted by this Act a body corporate with the corporate name of Dams Safety NSW. (2) Dams Safety NSW is, for the purposes of any Act, a NSW Government agency. Note— See section 13A of the Interpretation Act 1987. 7 Members of Dams Safety NSW (1) Dams Safety NSW consists of the following members— (a) at least 5 members appointed by the Minister (the appointed members), (b) the Chief Executive Officer. (2) The appointed members are to be persons who together have professional expertise, qualifications or experience in dam engineering, mine engineering, emergency management, dam operations and management, public safety risk analysis and best practice regulation (including cost benefit analysis and business case development). (3) Of the appointed members, one is to be appointed as the Chairperson of Dams Safety NSW and another is to be appointed as the Deputy Chairperson of Dams Safety NSW, whether in and by the relevant instrument of appointment as a member or in and by some other instrument executed by the Minister. (4) A person who is the owner of a declared dam is not eligible to be appointed or hold office as a member of Dams Safety NSW. However, an employee of any such owner may be appointed if otherwise eligible for appointment. (5) Schedule 1 contains provisions relating to the members and procedure of Dams Safety NSW. 8 Ministerial control of Dams Safety NSW Dams Safety NSW is, in the exercise of its functions, subject to the control and direction of the Minister, except in relation to the following— (a) the contents of any advice, report or recommendation made by Dams Safety NSW to the Minister or any other person, (b) any decision that relates to proceedings for offences under this Act or the regulations. 9 Functions of Dams Safety NSW (1) Dams Safety NSW has the following functions— (a) to provide advice or make recommendations to the Minister on the types and classes of dams that may be the subject of regulations under section 5, (b) to provide advice or make recommendations to the Minister on the development, implementation and modification of the dams safety standards, (c) to keep the owners of declared dams and the public informed about the dams safety standards and to regulate compliance with those standards, (d) to audit compliance by the owners of declared dams with operations and maintenance plans under section 16 and emergency plans under section 17, (e) to provide guidance to owners of declared dams in complying with the requirements of this Act relating to the safety, operation and maintenance of dams (including guidance in applying total risk management and the principles of cost benefit analysis for that purpose), (f) to formulate measures (including the development of guidelines) to ensure the safety of dams, (g) to collect information, carry out research and keep records on matters relating to dams safety, (h) to enter into arrangements with any person or body with respect to the conduct of any study or research that may be necessary or desirable for the purposes of this Act, (i) to make such other reports or recommendations to the Minister or any other person in relation to the safety of dams as Dams Safety NSW considers necessary or appropriate. (2) Dams Safety NSW has such other functions as are conferred or imposed on it by or under this or any other Act. (3) In exercising its functions, Dams Safety NSW is— (a) to have regard to the objects of this Act, and (b) to apply, as far as is reasonably practicable, best practice regulatory principles (including cost benefit analysis) in regulating dams safety. 10 Chief Executive Officer (1) The Chief Executive Officer of Dams Safety NSW is the person employed in the Department as the Chief Executive Officer. (2) The Chief Executive Officer is responsible for the day to day management of the operations of Dams Safety NSW in accordance with any directions of Dams Safety NSW. 11 Staff of Dams Safety NSW Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable Dams Safety NSW to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services Dams Safety NSW makes use of) may be referred to as officers or employees, or members of staff, of Dams Safety NSW. Section 47A of the Constitution Act 1902 precludes Dams Safety NSW from employing staff. 12 Committees (1) Dams Safety NSW may— (a) establish committees for the purpose of advising Dams Safety NSW in the exercise of its functions under this Act, and (b) appoint as a member of any such committee any person who, in the opinion of Dams Safety NSW, appears to be qualified to be a member of that committee. (2) It does not matter that any or all of the members of a committee are not members of Dams Safety NSW. (3) The procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be determined by Dams Safety NSW or (subject to any determination of Dams Safety NSW) by the committee. 13 Delegation of functions (1) Dams Safety NSW may delegate to an authorised person or body any of its functions, other than this power of delegation. (2) A delegate may sub-delegate to another authorised person or body any function delegated by Dams Safety NSW if the delegate is authorised in writing to do so by Dams Safety NSW. (3) The following functions of Dams Safety NSW may not be delegated under this section— (a) declaring a dam to be a declared dam, (b) making recommendations to the Minister on the development, implementation and modification of the dams safety standards. (4) The function of Dams Safety NSW to make an emergency order under section 21 may not be delegated or subdelegated to an authorised person unless that person is the Chief Executive Officer. (5) In this section, authorised person or body means any of the following— (a) a member of Dams Safety NSW (including the Chief Executive Officer), (b) a committee of Dams Safety NSW or a member of a committee, (c) a member of staff of Dams Safety NSW, (d) an authorised officer, (e) a person, or person of a class, prescribed by the regulations. Part 3 Safety of declared dams Division 1 Safety standards, reports and plans 14 Dams safety standards (1) The regulations may prescribe standards for or with respect to any matter relating to the safety, operation or maintenance of declared dams. (2) Before any such regulation is made, the Minister is to ensure— (a) that a cost benefit analysis of the proposed regulation is carried out, and (b) that, as far as is reasonably practicable, consultation takes place with those persons or bodies likely to be affected by the proposed regulation. (3) The owner of a declared dam must comply with the requirements of the dams safety standards that apply to the dam. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. (4) The owner of a declared dam is to publish on an annual basis a report demonstrating the owner's compliance with the dams safety standards. Any such report is to be made publicly available at the main office of the owner and on the owner's public website (if any). 15 Reports and records relating to declared dams (1) Dams Safety NSW may, by notice in writing, require the owner of a declared dam to report to Dams Safety NSW, within the time specified in the notice, on such matters relating to the safety, operation or maintenance of the dam as are specified in the notice. (2) The owner of a declared dam must comply with the requirements of any such notice. Maximum penalty—2,500 penalty units in the case of a corporation or 500 penalty units in the case of an individual. (3) The owner of a declared dam must keep such records on matters relating to the safety, operation or maintenance of the dam as may be prescribed by the regulations. Maximum penalty—2,500 penalty units in the case of a corporation or 500 penalty units in the case of an individual. 16 Operations and maintenance plans for declared dams (1) The owner of a declared dam must prepare and implement an operations and maintenance plan for the dam that complies with the requirements specified in the regulations. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. (2) A copy of the plan is to be provided to Dams Safety NSW and may be audited by Dams Safety NSW. (3) The operations and maintenance plan for a declared dam must be updated by the owner of the dam on an annual basis or at such other intervals as may be required by the regulations. 17 Emergency plans for declared dams (1) The owner of a declared dam must prepare and implement an emergency plan for the dam that complies with the requirements specified in the regulations. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. (2) A copy of the plan is to be provided to Dams Safety NSW and may be audited by Dams Safety NSW. (3) The emergency plan for a declared dam must be updated by the owner of the dam on an annual basis or at such other intervals as may be required by the regulations. (4) In auditing compliance by the owner of a declared dam with the emergency plan for the dam, Dams Safety NSW may obtain the advice of the State Emergency Service. 18 Compliance notices (1) Dams Safety NSW may, if of the opinion that the owner of a declared dam has failed to comply with any requirement under this Division (whether or not the failure to comply constitutes an offence), give the owner a notice in writing (a compliance notice) requiring the owner to take such action as is specified in the notice. (2) Without limiting subsection (1), a compliance notice may— (a) require the owner to remedy the consequences of the failure to comply, and (b) include monitoring and reporting requirements to ensure that the notice is complied with. (3) The owner of a declared dam who is given a compliance notice must comply with the requirements of the notice. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. (4) If the owner of a declared dam fails to take the action specified in a compliance notice given to the owner, Dams Safety NSW may take that action and recover from the owner as a debt in any court of competent jurisdiction the costs and expenses incurred by it in taking that action. Division 2 Directions and emergency orders 19 Directions by Dams Safety NSW to ensure safety of declared dams (1) If Dams Safety NSW is of the opinion that a declared dam is unsafe or is in danger of becoming unsafe, Dams Safety NSW may, by order in writing given to the owner of the dam, direct the owner to do such things as are specified or described in the order as may be reasonably necessary to ensure the safety and proper maintenance and operation of the dam. (2) If Dams Safety NSW is of the opinion that anything done or proposed to be done by a person to or in relation to a declared dam (including the water or other material impounded by the dam) or in the vicinity of a declared dam may endanger the safety of the dam, Dams Safety NSW may, by order in writing given to the person, direct the person to do such things as are specified or described in the order as may be reasonably necessary to ensure the safety of the dam. (3) A person who does not comply with a direction under this section is guilty of an offence. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. (4) If the owner of a declared dam does not comply with a direction under this section, Dams Safety NSW may do all such things as may be necessary to give effect to the direction and recover the costs and expenses incurred in doing any such thing from the owner of the dam as a debt in any court of competent jurisdiction. 20 "Stop work" directions (1) If Dams Safety NSW is of the opinion that anything being done or proposed to be done to or in relation to a declared dam or in the vicinity of a declared dam by any person may endanger the safety of the dam, Dams Safety NSW may, by order in writing given to the person, direct the person to cease or refrain from doing the thing. (2) A person who does not comply with a direction under this section is guilty of an offence. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. 21 Emergency orders (1) Dams Safety NSW may, by order in writing (an emergency order), declare that an emergency exists in respect of a declared dam if— (a) the dam has collapsed or failed in whole or in part, or (b) Dams Safety NSW is of the opinion that— (i) the dam is liable to collapse or fail in whole or in part, or (ii) an emergency exists that constitutes an immediate threat to public health or public safety or that is causing or is likely to cause damage to property. (2) An emergency order has effect on and from the date specified in the order. (3) Unless it is sooner revoked, an emergency order continues in force for such period as is specified in the order. (4) An emergency order must be published in the Gazette as soon as practicable after it is made. (5) If an emergency order is in force in relation to a declared dam, Dams Safety NSW may do any one or more of the following things in relation to the dam— (a) take full charge and control of the dam, the area under, over and surrounding the dam and the water or other material impounded by the dam, (b) release or discharge the whole or such part as Dams Safety NSW thinks fit of the water or other material impounded by the dam, (c) carry out all such works and do all such things as, in the opinion of Dams Safety NSW, are necessary to make the dam safe, (d) demolish or remove the whole or any part of the dam or any work or structure on the dam, the water or other material impounded by the dam or the area under, over or surrounding the dam, (e) direct the owner of the dam, by order in writing, to take such measures as may be specified in the direction, (f) take such other measures as Dams Safety NSW thinks fit. (6) The owner of a declared dam who does not comply with a direction under subsection (5)(e) is guilty of an offence. Maximum penalty— (a) in the case of a corporation—10,000 penalty units and, in the case of a continuing offence, a further penalty of 1,200 penalty units for each day the offence continues, or (b) in the case of an individual—2,250 penalty units and, in the case of a continuing offence, a further penalty of 600 penalty units for each day the offence continues. (7) If the owner of a declared dam does not comply with a direction under subsection (5)(e), Dams Safety NSW or a person authorised by Dams Safety NSW may do all such things as may be necessary to give effect to the direction. (8) Dams Safety NSW may recover the costs and expenses incurred by it in the exercise of its functions under this section in respect of a declared dam from the owner of the declared dam as a debt in any court of competent jurisdiction. Division 3 General 22 Appeals to Land and Environment Court (1) A person given a compliance notice under section 18 or a direction under section 19 or 20 may, within 28 days (or such other period as is prescribed instead by the regulations) after being given the notice or direction, appeal to the Land and Environment Court against the notice or direction. (2) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the notice or direction appealed against. 23 Provisions relating to directions A direction given by order under section 19 or 20— (a) takes effect on the day on which the order is given to the person or on such later date (following the date on which the order is given to the person) as may be specified in the order, and (b) is subject to such conditions as Dams Safety NSW may specify in the order, and (c) remains in force until whichever of the following happens first— (i) the order is revoked by Dams Safety NSW, (ii) the period (if any) for which the direction is expressed in the order to be in force ends. Part 4 Investigation and enforcement powers 24 Purposes for which powers under Part may be exercised Powers may be exercised under this Part for the following purposes— (a) for determining whether there has been compliance with or a contravention of this Act or the regulations, (b) for obtaining information or records for purposes connected with the administration of this Act, (c) in connection with exercising the functions of an authorised officer under this Act. 25 Appointment and identification of authorised officers (1) Dams Safety NSW may appoint any of the following persons as an authorised officer for the purposes of this Act— (a) a member of Dams Safety NSW, (b) a member of staff of Dams Safety NSW or any other Public Service employee, (c) a person of a class prescribed by the regulations. (2) Every authorised officer is to be provided by Dams Safety NSW with an identification card. (3) The identification card must— (a) state that it is issued under this Act, and (b) give the name of the person to whom it is issued and include a photograph of that person, and (c) state any conditions, limitations or restrictions on the authorised officer's functions, and (d) state the date (if any) on which it expires, and (e) include the signature of the person who issued the card and state the capacity in which the person is acting in issuing the card. (4) A power conferred on an authorised officer under this Part to enter premises, or to search or take other action on premises, may not be exercised unless the authorised officer proposing to exercise the power is in possession of the identification card issued to the authorised officer and produces the identification card if required to do so by the occupier of the premises. 26 Scope of authority (1) An authorisation of a person as an authorised officer can be given generally, or subject to conditions, limitations or restrictions or only for limited purposes. (2) The authority of an authorised officer may be limited by the relevant instrument of appointment to the functions specified in the instrument of appointment. (3) If such authorisation is given subject to conditions, limitations or restrictions or only for limited purposes, nothing in this Act authorises or requires the authorised officer to act in contravention of the conditions, limitations or restrictions or for other purposes. 27 Power to enter premises (1) An authorised officer may enter any premises. (2) The authorised officer may enter the premises with such assistants (including police officers) as may reasonably be required. In the case of premises comprising a mine or petroleum site within the meaning of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, the authorised officer may be accompanied by a person nominated by the regulator within the meaning of that Act. (3) The authorised officer must notify the occupier of the premises before entering the premises unless— (a) the entry is made with the permission of the occupier, or (b) the entry is made to a part of the premises open to the public, or (c) notifying the occupier would defeat the purpose for which the premises were entered or would unreasonably delay the authorised officer in a case of urgency. (4) Entry under the power conferred by this section may only be made at a reasonable time. This subsection does not apply to a power conferred by a search warrant. (5) The powers of entry conferred by this Part are not exercisable in relation to any part of premises used only for residential purposes except— (a) with the permission of the occupier of the premises, or (b) under the authority conferred by a search warrant. 28 Search warrants (1) An authorised officer under this Act may apply to an issuing officer for a search warrant if the authorised officer has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened in or about any premises. (2) An issuing officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer named in the warrant, and any other person named in the warrant— (a) to enter the premises concerned, and (b) to exercise any function of an authorised officer under this Part. (3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section. (4) In this section— issuing officer means an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002. premises includes a vehicle. 29 Powers to inspect and seize things (1) An authorised officer may, on any premises lawfully entered, do anything that, in the opinion of the officer, is necessary to be done for the purposes of this Part, including (but not limited to) the following— (a) examine and inspect any part of the premises or any article or thing on the premises, (b) take and remove samples, (c) make such examinations, inquiries, tests and surveys as the officer considers necessary, (d) take such photographs, films, audio, video and other recordings as the authorised officer considers necessary, (e) require records to be produced for inspection, (f) examine and inspect any records, (g) copy any records, (h) seize anything that the officer has reasonable grounds for believing is connected with an offence under this Act or the regulations, (i) do any other thing that the officer is empowered to do under this Part. (2) If the authorised officer takes any document or thing under this section, the authorised officer must— (a) give notice of the taking of the document or thing to the person apparently in charge of it or to a manager of the premises, and (b) return the document or thing to that person or the premises within 7 days after taking it. (3) A person may accompany an authorised officer and take all reasonable steps to assist an authorised officer in the exercise of the authorised officer's functions under this section if the authorised officer is of the opinion that the person is capable of providing assistance to the authorised officer in the exercise of those functions. (4) For the purpose of enabling an authorised officer to exercise any of the functions of an authorised officer under this section in connection with any premises, Dams Safety NSW may, by notice in writing given to the owner or occupier of the premises, require the owner or occupier to provide such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner. 30 Powers to require information and records (1) An authorised officer may, by notice in writing given to the owner of a declared dam, require the owner to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter arising under or in connection with this Act. (2) Any such notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished. (3) A notice under this section may only require the owner of a declared dam to furnish records that are in the owner's possession or that are within the owner's power to obtain lawfully. (4) The authorised officer to whom any record is furnished under this section may take copies of it. (5) If any record required to be furnished under this section is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides. (6) This section applies whether or not a power of entry under this Part is being or has been exercised. 31 Powers of authorised officers to require answers An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of any matter in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to that matter. 32 Powers of authorised officers to require surveys and assessments An authorised officer may, by notice in writing given to the owner of a declared dam, require the owner to carry out such surveys and assessments, at the expense of the owner, in relation to the dam as are required by the authorised officer. 33 Offences A person who— (a) prevents an authorised officer from exercising the authorised officer's functions under this Act, or (b) hinders, obstructs, threatens or assaults an authorised officer in the exercise of such a function, or (c) without lawful excuse, fails to comply with a requirement made of the person under this Part, or (d) provides an authorised officer with a document or information knowing that it is false or misleading in a material particular, or (e) impersonates an authorised officer or falsely represents that the person is an authorised officer, is guilty of an offence. Maximum penalty—100 penalty units. 34 Provisions relating to requirements to provide information or records or answer questions (1) A person is not guilty of an offence