Document ID: chunk:federal_register_of_legislation:C2021A00073:clause:4_38d
Version: federal_register_of_legislation:C2021A00073
Segment Type: clause
Provision Reference: sch 4 cl 38D
Character Range: 96906–98767

38D  Failure to deal with waste in contravention of order under section 34, 35 or 35A—injury or damage to human beings or the environment

Failure to deal with waste
 (1) A person contravenes this subsection if:
 (a) the person has been given an order under section 34, 35 or 35A requiring the person:
 (i) to deal with hazardous waste in a specified way; or
 (ii) to deal with hazardous waste by a specified time; and
 (b) the person does an act or omits to do an act; and
 (c) the act or omission contravenes the requirement; and
 (d) the non‑compliance with the requirement injures or damages human beings or the environment.
Note 1: The physical elements of an offence against subsection (2) are set out in this subsection (see section 58F).
Note 2: A requirement to deal with hazardous waste in a specified way includes a requirement to import or export the waste.

Fault‑based offence
 (2) A person commits an offence if the person contravenes subsection (1).
Penalty: Imprisonment for 8 years or 500 penalty units, or both.

Alternative verdict
 (3) In a trial for an offence against subsection (2), the trier of fact may find the defendant not guilty of that offence, but guilty of an offence against subsection 38C(2), if:
 (a) the trier of fact is not satisfied that the defendant is guilty of the offence against subsection (2) of this section; and
 (b) the trier of fact is satisfied that the defendant is guilty of the offence against subsection 38C(2); and
 (c) the defendant has been accorded procedural fairness in relation to that finding of guilt.

Strict liability offence
 (4) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.

Civil penalty provision
 (5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 1,000 penalty units.