Prosecutions – EPBC Act
Under the Department of Environment's Compliance Auditing Plan, four compliance audits were completed by the Department during 2015 in relation to a range of projects, including LNG and dredging projects.
In its 2014-15 Annual Report, the Department reported that it had examined 275 incidents representing potential breaches of Part 3 of the EPBC Act. Australian enforcement authorities issued 858 seizure and caution notices in 2014-15 for the import and/or possession of suspected CITES specimens without permission under Part 13A of the EPBC Act.
AUSTRALIAN CAPITAL TERRITORY
ACT amends duty scheme rewarding purchasers of "green vehicles"
The ACT Government has implemented a new emissions reduction scheme under which duties payable by purchasers of new vehicles will be determined exclusively according to the amount of carbon dioxide that those vehicles will emit. Previously the duties scheme took into account other air pollutants in addition to carbon dioxide.
Under the new scheme, duties will only be payable on new vehicles which emit over 130g of carbon dioxide per kilometre. Duties range from 1-4% of the purchase price, with vehicles emitting over 220g per kilometre paying $4 to every $100 spent.
NEW SOUTH WALES
NSW EPA implements risk-based licensing regime
From July 2015, the NSW EPA's "risk-based" licensing regime has determined the terms of environmental licences, under which businesses that are good performers are eligible for less onerous licence conditions and potentially lower licence fees. In determining "risk ratings", the EPA will use a "risk assessment tool" to investigate the potential for environmental damage at any given site. This will be complemented with an assessment of the licensee's "environmental management", where the EPA will consider the licensee's compliance history, environmental management systems and improvement programs.
Businesses should be aware that those sites that are ranked as poor performers could face up to double the administrative fees from 1 July 2016. Unlike other States that have implemented risk-based licensing, the EPA will publish risk determinations on a public register.
The NSW EPA has maintained its strong focus on prosecution, recording 79 convictions in FY 2014-15 according to its Annual Report.
Environment Protection Authority v Riverina Australia Pty Ltd  NSWCCA 165
In this case, the NSW Court of Criminal Appeal determined that a summons issued by the EPA in an environmental prosecution was "duplicitous".
Riverina (Australia) Pty Ltd runs a stock feed manufacturing mill near Casino. The EPA charged Riverina with unlawfully disposing of waste material by sending it down stormwater drains and into drainage lines and waters. In its summons, the EPA alleged that Riverina disposed of a number of pollutants in a number of ways. Relevantly, the items on the lists were separated by the words "and/or".
At first instance, Justice Pepper found that the use of the words "and/or" suggested that the EPA was charging Riverina with multiple offences, but had not identified the facts leading to the alleged breaches. She stated that "a person prosecuted under section 120 is entitled to be provided with particulars of the alleged conduct – when, how and where – that is the time, manner and location of an alleged contravention" or the accused will not know with certainty the charge to be met. She ordered that the summons be amended or struck out and this decision was upheld on appeal.
Following this ruling, businesses should expect a greater degree of detail in EPA summons, and be aware of their options where it is considered that a summons is worded ambiguously.
Environment Protection Authority v Alcobell Pty Ltd, Environment Protection Authority v Campbell  NSWLEC 123
The NSW Land and Environment Court in this case found that companies and their directors may be liable for providing false and misleading information even where there was no intention to do so.
In this matter, the Court fined Alcobell Pty Ltd and its sole director Alistair Campbell close to $300,000 for the illegal dumping of 6,500 tonnes of waste containing asbestos at three sites close to Lithgow. The company had been paid to transport the waste from skip bins in Sydney.
Justice Pain accepted that the defendants had deposited the waste on the sites for the purposes of earthworks and roadworks and had not understood that the waste was not compliant with "resource recovery exemption" rules. The false and misleading information charge related to internal worksheets which were provided in the course of investigations but which had not been prepared with the intention of misleading a third party.
This case highlights the need for companies to maintain accurate internal records and stay up-to-date with the legislative requirements concerning waste disposal.
Newcastle Port Corporation trading as Port Authority of New South Wales v Dudgeon; Newcastle Port Corporation trading as Port Authority of New South Wales v Svitzer Australia Pty Limited  NSWLEC 139
The NSW Land and Environment Court has imposed fines of $600,000 on Svitzer Australia Pty Ltd and $81,000 on an engineer following a diesel spill from a boat in Newcastle Harbour. The boat's engineer had commenced a transfer of fuel oil but had forgotten to turn off the transfer pump before leaving the vessel, thereby disabling the alarms that would have otherwise sounded in the event of an overflow. Consequently, 8,000 litres of fuel flowed into the harbour.
Although the spill did not extend beyond the boat's berth or cause any environmental harm or damage, Acting Justice Moore found that "the absence of actual harm in this instance is not proof that there is no potentiality for harm". He took into account the quantity of the oil spilled and the fact that the clean-up had taken three days in concluding that there had been "a real and foreseeable potential" for harm. He also accepted that Svitzer had mandated procedures to avoid such a scenario but that these procedures had not been followed by its employee. Therefore, while the company was held vicariously liable for the engineer's actions, he found that the company's conduct had not given rise to "any general risk of harm to the environment" and reduced its penalty accordingly.
This case demonstrates that the potential for environmental harm will be treated very seriously, even if there is no actual environmental harm. Companies should also ensure that they have evidence of the procedures they have implemented to avoid potential environmental harm.
Krucible Metals Ltd v Department of Mines and Energy  NTSC 71
The NT Department of Mines and Energy had prosecuted Krucible Metals Ltd (now known as TopTung Ltd) for carrying out exploratory drilling on October 2014 without having obtained an authorisation or provided a mining security, resulting in the NT Chief Magistrate fining Krucible $300,000.
On appeal, Chief Justice Riley halved that penalty, describing the $300,000 fine as "manifestly excessive". However, the Chief Justice acknowledge that the offence was a "blatant breach" of section 35(4) of the Mining Management Act 2001 (NT) carried out under Krucible / TopTung's former management.
The Chief Justice noted the following:
- the offence had occurred when the company was under a management regime that had subsequently been replaced, "partially as a consequence of the offending";
- upon discovering the illegal conduct, the new management reported it, and voluntarily conducted remedial work "at significant cost to itself" and had entered an early guilty plea;
- the remedial work had been done to the satisfaction of the department and the landowner; and
- given the new management regime it was unlikely the company would reoffend.
While the Chief Justice halved the penalty imposed on the company, he did not accept the company's argument that a conviction should not be recorded against it.
Department of Environment and Heritage Protection compliance strategy
In June 2014, the Department of Environment and Heritage Protection (DEHP) released its updated Regulatory Strategy to reflect its commitment to the Government, the community and industry. The updated Regulatory Strategy also reflects a significant and fundamental shift in the way environmental and heritage regulatory activities will be undertaken by DEHP. Importantly, and as outlined in the Regulatory Strategy, DEHP has taken a greater focus on compliance activities, with enforcement actions becoming stronger, where required, and more consistent.
It has undertaken significant work to revitalise and reshape its proactive compliance methodology and framework to provide improved utilisation of compliance resources to target the highest risks to the environment and monitor performance of clients. DEHP has stated that it is moving away from annual compliance planning and reporting towards a new dynamic framework which will allow a more rapid and timely response to emerging trends or changes in risk. This new framework will continue to provide accountability and transparency with the added benefit of allowing greater flexibility to respond to changing risks to the environment and identify areas where immediate action is needed to address poor performance or mitigate environmenttal harm.
The key compliance tools which DEHP can use, and which have been bolstered recently, include:
- inspection powers;
- environmental evaluation and investigation;
- environmental audits;
- clean-up notices; and
- stronger penalties for non-compliance.
New enforceable undertakings regime
On 30 September 2015, the introduction of enforceable undertakings became an alternative to prosecution for environmental offences. Enforceable undertakings are binding agreements between the administering authority (usually the Department of Environment and Heritage Protection) and an alleged offender as a way to support the environmental outcomes in response to alleged contravention of the Environmental Protection Act 1994, which would generally be considered appropriate for prosecution.
Enforceable undertakings may be appropriate only in circumstances where the administering authority reasonably believes that the enforceable undertaking will secure compliance with the Act and enhance protection of the environment. Examples include:
- inadvertent or accidental acts;
- no serious prior non-compliance with environmental or similar legislation;
- remediation has been effective or partially effective, or a demonstrated genuine attempt at remediation has been made;
- there was no motivation or intention to derive financial or material benefit from the non-compliance;
- the impact or risk of impact resulting from the contravention was not reasonably foreseeable; or
- the impact or risk of impact was not prevented by high standards of operation.
The Department of Environment and Heritage Protection has provided a new guideline on enforceable undertakings, which offers guidance on how an enforceable undertaking should be drafted and what generally needs to be included. If accepted, the enforceable undertaking will be published on the Department's website.
Extended legal responsibility for environmental protection orders
The Environmental Protection Act 1994 has been amended to incorporate provisions which now empower the regulator, the Queensland Department of Environment and Heritage, the power to extend responsibility for clean-up, rehabilitation and associated costs to persons and companies who are related to a company that has been issued an Environmental Protection Order (EPO), exercise discretion to issue an EPO to a "related person" at the same time as the primary company and regardless of whether that entity has complied with the EPO and issue an EPO to a related person of a "high risk company" even if an EPO has not been issued to the high risk company. The amendments will allow the regulator to pursue companies and directors who seek to utilise insolvency or similar processes to avoid liability for clean-up, rehabilitation and associated costs, and many of the amendments will apply retrospectively.
The scope of the amendments to include a "related person" is perhaps the most notable aspect of the amendments as this category is so broad and drafted to capture:
- those persons or entities that can or have received a "significant financial benefit" (which is not defined) from the carrying out of the relevant activity; or
- the degree of influence over the company's conduct (such as a person who in the previous two years in a position to influence the company's conduct in relation to the way in which or extent to which the company complies with the Environmental Protection Act)
In making the determination on who is a related person, the Department must have regard to any relevant guidelines. These guidelines have not yet been developed but a working group of various industry stakeholders has been established to work with Government on development of the guideline, which is expected to be finalised by the end of 2016.
While noting that the "related person" provisions are only triggered where an EPO has been issued to the primary company (with the exception of high-risk companies) and that an EPO is one of a range of enforcement tools under the Environmental Protection Act issued to secure compliance with the Act, we are not aware of comparable provisions elsewhere in Australia that are drafted with such equivalent breadth. It is noted that Victoria is considering introducing similar law to deal with parent companies of coal mine operators who do not meet their rehabilitation obligations.
The Act also allows the Department to impose financial assurance conditions on the transfer of an environmental authority (for example a transfer between entities) and extends its cost recovery, investigation and enforcement powers. It is noted that an individual may no longer claim privilege against self-incrimination where the regulator questions an individual (including an executive officer) in relation to their involvement or knowledge of a breach of the Act.
ENVIRONMENTAL PROTECTION (CHAIN OF RESPONSIBILITY) AMENDMENT ACT (QLD)
The Queensland Department of Environment and Heritage (DEHP) commenced a number of compliance actions including prosecutions over the last 12 months.
Its 2014-15 Annual Report reports that it recovered approximately $430,000 in penalties and fines. Some of the more significant prosecutions included:
- The operator of an abandoned gold mine near Rockhampton has been found guilty of one offence of failing to comply with an Environmental Protection Order and fined $125,000. Its Managing Director was also fined $20,000 for failing to ensure the corporation complied with the Environmental Protection Act 1994. In delivering his sentence on 7 May 2015, the Magistrate said that the seepage of contaminated water into local waterways had become a chronic problem with grave concerns to all members of the Queensland community.
- The operator of a marine vessel refuelling facility has been fined $20,000 after pleading guilty to two offences under the Environmental Protection Act 1994, including material environmental harm and depositing prescribed water contaminant in waters. The offences relate to the discharge of 23,000 litres of diesel near the water's edge. The Magistrate said that the defendant had failed its obligations to repair and keep the facility in good repair.
- A major Queensland quarrying company was fined $250,000 in the Brisbane Magistrates Court after pleading guilty to nine offences under the Environmental Protection Act 1994, including serious environmental harm, providing a false Annual Return to DEHP and breach of permit offences about erosion and sediment control, recording complaints and failure to notify DEHP. The Magistrate said the defendant had a clear obligation to supervise and manage its employees and it was a significant concern that a company of the defendant's size could so profoundly fail to meets its obligations.
- A Queensland coal seam gas company has been fined $65,000 after pleading guilty to four charges of contravening conditions of its environmental authority by unlawfully constructing CSG wells and a dam in environmentally sensitive areas. The Magistrate also ordered the company to publish advertisements in three Queensland newspapers outlining the company's offences in order to educate both industry and the community about the requirements of the Environmental Protection Act 1994 and the protection of environmentally sensitive areas.
Circelli v The Corporation of the City of Adelaide (No 2)  SAERDC 52
In this matter the Environment, Resources and Development Court of South Australia found the City of Adelaide breached its environmental licence conditions for four consecutive years commencing in 31 October 2008. The licence related to a former waste landfill site at Wingfield Road, Dry Creek.
The licence conditions required the City of Adelaide to cap the former landfill site. The capping process manages landfill gas and minimise water infiltration, which are key concerns for landfill sites.
The Court found that the charges for breaches of the licence condition in 2008 and 2009 were out of time. The City of Adelaide was found guilty of the breaches of the condition in 2010 and 2011. According to section 45(5) of the Environment Protection Act 1993 (SA) a maximum fine of $120,000 can be imposed on a body corporate for breach of a licence condition.
The deadline for sentencing submissions was 25 February 2016.
Aldinga Aviation Pty Ltd v EPA  SAERDC 45
In this case the Environment, Resources and Development Court considered an appeal by an aviation company of the Environment Protection Authority's decision to impose conditions on its licence.
At the preliminary hearing the Court found that aviation activities such as take-off and landing of commercial or charter aircraft at the Aldinga aerodrome are of "environmental significance" and thus require environmental authorisation in the form of the licence under the Environment Protection Act 1993 (SA).
The substantive hearing will be heard in 2016. Companies conducting or planning to conduct similar aviation activities should take note that a licence under the Environment Protection Act is required.
SACAT opened in 2015
On 30 March 2015, the South Australian Civil and Administrative Tribunal (SACAT) opened to the public. The tribunal aims to increase accessibility and efficiency of the dispute resolution process in South Australia.
The Residential Tenancies Tribunal, the Guardianship Board, and the Housing Appeal Panel have been relocated to the tribunal. The SACAT will also hear land valuation matters which have previously been heard in the Supreme Court.
It is expected that approximately 120 Acts will move to the SACAT as it expands its role over time.
First EPA civil court action
In September 2015, the EPA reached a compliance agreement with the owner of Tomahawk Caravan Park in relation to a decommissioned underground petroleum storage system (UPS). The owner had failed to undertake a site assessment within four months of decommissioning the UPS as required by the Environmental Management and Pollution Control (Underground Petroleum Storage Systems) Regulations 2010. The EPA sought an Order to comply with the Regulations in the Resource Management and Planning Appeal Tribunal.
EPA Director Wes Ford said that it was the first time that the EPA used civil action to enforce environmental regulations, and commented that it was an effective means of achieving compliance in certain circumstances.
The case is a reminder of the importance of regulatory compliance, the potential liability associated with owning sites with UPSs, and the EPA's preparedness to use a range of enforcement options. It evidences regulatory authorities' increasing willingness to explore enforcement mechanisms other than straight prosecutions as a way to drive compliance outcomes, while avoiding the need to pursue prosecutions, which can be more costly to run with more unpredictable outcomes.
Independent Inquiry into EPA
On 16 May 2016 the Environment Minister released the Ministerial Advisory Committee report into the EPA following the public inquiry which commenced on 1 June 2015.
The Committee made 48 recommendations for Government to consider, including strengthening prosecutorial powers, significant changes to the legislative framework aimed at strengthening the EPA's role as a science-based regulator, and an increased role in government decision-making. If implemented, the changes will have a significant impact on infrastructure providers, businesses and developers. Its key recommendations are:
Reporting of Incidents: Introduction of a mandatory requirement for businesses to notify the EPA or local government of pollution incidents, with a state-wide network of environment protection officers within local government to assess and respond to smaller scale or localised incidents.
Enforcement: The report is critical of the EPA's riskaverse approach to prosecutions and recommends broader inspection powers for authorised officers, as well as an expansion of the range of available sanctions with increased severity.
The report also recommends legislative change introducing a general duty to take reasonable steps to minimise risks of harm from pollution and waste, as well as the right for third parties to seek a court order restraining or remedying breaches of environmental protection laws.
Land use planning: Introduction of a statutory trigger or Ministerial Direction under the Planning and Environment Act 1987 requiring responsible authorities to seek the EPA's advice in the early stages of planning processes such as rezoning or planning scheme amendments involving significant human health and environmental risks or developments in close proximity to licenced facilities.
Licensing: Numerous changes to licencing are recommended, including:
- introducing fixed terms for new licences;
- regular review of current licences to ensure compliance with environmental standards;
- expansion of the number of activities requiring licences to capture those having significant impacts on human health or the environment;
- requiring licence holders to develop and implement pollution incident plans and make emissions monitoring information available to the public; and
- broadening VCAT's jurisdiction to be able to review works approval and licencing decisions.
Following the report's publication, the Government has agreed to establish an interim board with a broad range of skills and experience to guide the EPA in the implementation of reforms, work with the Department of Health and Human Services to gradually shift environmental health functions to the EPA and employ a Chief Environmental Scientist to strengthen the EPA's focus on science. The formal response to the report and recommendations is expected to be released later in 2016.
EPA v Australian Tallow Producers Pty Ltd (24 November 2015)
On 24 November 2015, the Melbourne Magistrates Court found Australian Tallow Producers Pty Ltd (ATP) guilty of causing air pollution.
ATP operates from a site in Brooklyn that functions as a rendering facility, manufacturing tallow from abattoir material. After receiving numerous complaints on 22 June 2011, 23 June 2011 and 21 September 2011, the EPA investigated and an officer documented "a strong offensive odour comprising of a mixture of 'manure, blood, bone and tallow' coming from ATP's premises."
After proceedings that involved 11 witnesses, two expert witnesses and nine environment protection officers, the court convicted ATP and ordered it to pay Hobsons Bay City Council a fine of $200,000 for the purposes of carrying out an environmental project in fulfilment of Stage 3 of the 2010 Brooklyn Reserve Master Plan. The project will involve design and construction of a play space and informal recreation zone and tree planting.
EPA v Gippsland Waste Services Pty Ltd (21 December 2015)
On 21 December 2015, the Morwell Magistrates Court sentenced Gippsland Waste Services Pty Ltd (GWS), its directors, a general manager and a truck driver in relation to illegal dumping of tyres and industrial waste at landfill sites in Bairnsdale and Cann River.
Although both sites were nominated for dumping, GWS had not paid the fee for the Bairnsdale site and tyre dumping was illegal at the Cann River site. Relatively minor environmental damage was caused. However, the offences went beyond "mere fraud" because "they breached the principle of integration of economic, social and environment considerations provided for in section 1B [of the EP Act]."
Holding GWS primarily responsible, the court fined it $30,000. One director was found to have played a part in attempting to create false records and the other director to fail to demonstrate due diligence; each was fined $20,000. The general manager was found to have had an active role in supervising his employees and was also fined $20,000 while the truck driver was found to have had full knowledge of the offending and was fined $10,000. The EPA stated that the case highlighted its focus on the illegal dumping of industrial waste and the seriousness with which the court regards such offences.
Amendment to protest laws
On 25 February 2015, the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA) was introduced to the Legislative Council. The Bill introduces two new offences to the Criminal Code, targeting activists who use lock-on devices at site protests.
The second reading speech notes that recent development in lock-on devices has caused difficulty in removing the locks without a skilled technician. A standard feature of lock-on devices is that they cannot be unlocked by the protester themselves and removing these locks is often "extremely dangerous" and will cause some degree of injury to the protestor. The second reading speech notes that currently persons are able to carry such lock-on devices legally and thus enforcement authorities are unable to act until the device has been used.
One of the proposed offences makes it an offence to make or possess a lock-on device for the purpose of preventing work at a protest site, or have such a device in your possession while in the vicinity of a protest site.
The Bill was introduced to the Legislative Assembly on 23 February 2016.
Judicial review: Save Beeliar Wetlands v Jacob  WASC 482
The Supreme Court held that the Environmental Protection Authority was legally bound to take account of its relevant policies in relation to environmental impact assessment when making its recommendation to the Minister for Environment.
The case involved a judicial review of the Environmental Protection Authority's recommendation to the Minister for Environment to approve a proposal to extend Roe Highway subject to certain conditions. One of the grounds for review was whether three relevant statements of policy were taken into account by the Authority when making their recommendation.
The Supreme Court found the Authority had failed to "take account" of the three policies and accordingly the environmental impact assessment conducted by the Authority and its recommendations to the Minister were invalid. As the Minister's decision was based on an invalid recommendation, the Court found the Minister's decision was also invalid.
The State Government has appealed the decision to the Court of Appeal. The appeal was heard on 2 May 2016, where State Counsel argued there was no requirement for the three policies to be treated as mandatory considerations. Counsel for Save Beeliar Wetlands proposed that even if the policies were not a mandatory consideration, failing to take them into account amounted to an unreasonable process. The Court of Appeal handed down its decision on 15 July 2016, upholding the appeal. The Court found the policies were not mandatory relevant considerations.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.