Australia: Removal of enforcement gaps over the suite of NSW environment legislation, increasing penalties and broadening enforcement powers

Last Updated: 22 September 2014
Article by Jacinta Studdert and Noni Shannon


The NSW Environment Minister Rob Stokes has introduced the Protection of the Environment Legislation Amendment Bill 2014 (the Bill) in NSW Parliament. The Bill was introduced into the Legislative Assembly and received its second reading speech on 12 August 2014. While the Bill has not yet commenced, it intends to amend the following legislation:

  • Contaminated Land Management Act 1997 (the CLM Act)
  • Protection of the Environment Operations Act 1997 (the POEO Act)
  • Radiation Control Act 1990

The changes to the 3 Acts essentially create a stricter compliance regime for contaminated sites, increase penalty amounts and will strengthen enforcement measures under the POEO Act. The Bill reflects the policy trend of the current Government to align and strengthen environmental penalties across all of its pollution laws, further empower the Environment Protection Authority (EPA) and target repeat polluters and rogue operators. Aligning the penalties across the enforcement regimes means that both historical contamination regulated under the CLM Act, and pollution from current activities regulated under the POEO Act, are now dealt with similarly.

Before the amendments commence, it is important for industry and businesses to ensure their environmental compliance regime is in order. This will include being aware of the environmental impact of activities at current sites that are owned and occupied and having effective systems in place to identify and manage any hiorical contamination at previous and existing sites.

Key changes to the Contaminated Land Management Act
The key changes to the CLM Act include the following:

  1. Increases in the penalties for certain offences in order to align with the POEO Act. This includes $1 million penalties for:
    • Failure to comply with the duty to report under sections 60 and 89 (currently the penalty is $165,000 and $137,500 for corporations and individuals respectively);
    • failure to comply with a management directive (currently the penalty is $137,500); and
    • providing misleading information in relation to contamination (currently the penalty is $137,500).
  1. If a person is subject to a management order, the EPA may require financial assurance that funding will be available if remediation of the site is not completed according to the management order. The financial assurance will be calculated based on the total likely costs and expenses to be incurred if the person subject to the management order completes the remediation, the EPA supervises the remediation or the EPA takes over remediation.
  2. Enable the regulations to prescribe different amounts of penalties for a penalty notice based on the number of times the offender has been convicted of the same offence within a five year period.
  3. Enable court orders to be made for restorative justice activities, discussed further below.

Key changes to the Protection of the Environment Operations Act
The key changes to the POEO Act include the following:

  1. Enable clean-up notices to be given to owners of premises as well as occupiers.
  2. A new requirement to prevent or minimise fugitive air emissions. The Bill expands section 128 in relation to preventing or minimising air pollution to also cover non-point sources. Under the Bill, occupiers of premises emitting non-point source emissions must employ "practicable means" to prevent or minimise air pollution.
  3. Enable court orders to be made for restorative justice activities. The EPA may also accept a written undertaking to carry out restorative justice activities.
  4. Enable the EPA to require persons who transport waste to install, use and maintain GPS tracking devices on motor vehicles used to transport waste.
  5. The lodging of an appeal against a decision to suspend or revoke a licence will not allow a licence to continue to operate until the Court makes a final decision. Instead, the decision to suspend or revoke a licence will continue to apply unless an alternative decision is enforced by the Court.
  6. Remove the requirement for the EPA to provide a person with a notice of intention to suspend or revoke a licence. Instead, the EPA can immediately revoke a licence in certain circumstances. This is an environment protection measure to ensure that offensive behaviour will be brought to an immediate end.

Key changes to the Radiation Control Act
The key changes to the Radiation Control Act include the following:

  1. Enabling the regulations to prescribe different amounts of penalties for a penalty notice based on the number of times the offender has been convicted of the same offence within a five year period.
  2. Enabling court orders to be made for restorative justice activities.
  3. Enabling anyone to bring Supreme Court proceedings for an order to remedy or restrain a breach of the Act, bringing this Act into line with the similar mechanisms in the POEO Act, CLM Act and the Environmental Planning and Assessment Act 1979.

New Restorative Justice Orders
All 3 Acts will allow the Land and Environment Court to make a restorative justice order. These orders require offenders to undertake actions that are not restricted to restoring or benefiting the environment. Such orders may also include social or community actions to directly benefit those impacted by the offence. The decision to make such orders will be at the discretion of the Court.

Restorative justice orders broaden the powers of the Land and Environment Court by providing a greater range of responses to address the harm caused to the community and the environment through legislative breaches. Such orders may have a greater consequence for businesses in terms of the cost of the required remediation in comparison to penalties for offences and potentially greater impact on reputation.

The orders also allow for the EPA to accept and enforce a written undertaking given by a person, including undertakings to carry out restorative justice activities. This increases the consequences for director and manager individual liability by requiring management to personally ensure the business's behaviour changes and focuses on compliance.

Future penalty increases
The second reading speech also noted the Government intends to amend the regulations under the POEO Act to increase the penalty notice amounts of the 10 most serious environmental offences to $15,000. Other penalty notice amounts will be increased to reflect the consumer price index. These increases will become effective at the beginning of September 2014.

The combination of increased penalties, restorative justice orders, and written undertakings adds an extra layer of compliance measures to environmental laws. Aligning environmental laws also reduces the gaps in enforcement of the law. As a result, businesses should apply scrutiny over their overall compliance before the amendments commence.

A copy of the Protection of the Environment Legislation Amendment Bill 2014 may be found here.

Please contact us for specific advice on the relevance of the proposed changes to your business.

The author gratefully acknowledges the assistance of co-author Nicole Woods in the preparation of this article.

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Jacinta Studdert
Noni Shannon
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