Australia’s strongest environmental laws have commenced in NSW with significant changes to EPA powers and penalties for environmental offences

The Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (the Amendment Act) has now commenced, which introduces into NSW the strongest environmental laws in Australia.  The overhaul has occurred at the same time as the NSW Environment Protection Authority (EPA) has carried out criminal investigations into the asbestos-contaminated mulch, which emphasised the need to strengthen environmental legislation.

Key Takeaway

The changes made by the Amendment Act include amending the Protection of the Environment Operations Act 1997 (POEO Act) to strengthen the EPA’s powers and protections for the environment.

These amendments result in NSW now having the strongest environmental laws in Australia and the EPA having more powers to investigate environmental crime with significant new penalties where an individual or corporation harms the environment.  Some of these amendments also apply retrospectively.   Therefore, you should be aware of your environmental law obligations and have appropriate environmental management systems in place to ensure ongoing compliance with environmental legislation such as the POEO Act.

We have summarised the amendments to the POEO Act below:

Significant increases to penalties

• Maximum penalties for offences under the POEO Act have been doubled, with Tier 1 offences for a company increased to $10 million (if committed wilfully) and $4 million (if committed negligently); and for an individual increased to $2 million together with up to 7 years’ imprisonment (if committed wilfully) and $500,000 with up to 4 years’ imprisonment (if committed negligently).
• Maximum penalties for asbestos waste offences have increased for a company to $4 million and, for a continuing offence, a further penalty of $240,000 for each day the offence continues; and for an individual $1 million and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.
• Maximum penalties that may be imposed for proceedings brought in the Local Court have also been doubled to $220,000.

New powers for EPA to issue Preliminary Investigation Notices

• A Preliminary Investigation Notice issued by the EPA may require the person to whom it is issued to assist the EPA to investigate whether the relevant circumstances exist, and if the relevant circumstances exist—determine the nature and extent of the relevant circumstances, including the nature and extent of any harm or risk of harm to human health or the environment arising from the relevant circumstances. This could include requiring the person to collect samples of a substance and have the samples tested and analysed; provide a report about the testing or analysis to the EPA, and preserve or prevent the disturbance of a specified substance or location at the premises for a period of time specified in the preliminary investigation notice.
• The EPA may issue a Preliminary Investigation Notice if it reasonably suspects “relevant circumstances” may exist or have existed at premises.  This includes circumstances that may pose a potential risk of harm to human health or the environment from a substance, or the deposit of waste or substances suspected of being waste, or a pollution incident.
• Maximum penalties for failing to comply with a Preliminary Investigation Notice for a company is $2 million and, for a continuing offence, a further penalty of $240,000 for each day the offence continues; and for an individual $500,000 and, for a continuing offence, a further penalty of $120,000 for each day the offence continues.

New power for the EPA to suspend or revoke a licence, and new fit and proper person test

• The EPA may now suspend or revoke a licence if the holder has contravened the POEO Act or regulations.
• The considerations that the EPA may now take into consideration in determining whether a person to hold an Environment Protection Licence is a fit and proper person has also been expanded.

New powers for EPA to issue Recall Notices

• The EPA may, with the approval of the Minister, issue a Recall Notice if, in the EPA’s opinion, a substance poses a potential risk of harm to human health or the environment, or a particular use of, or activity involving, the substance poses a potential risk of harm to human health or the environment; a substance is required by environment protection legislation or a national environment protection measure to comply with a prescribed standard or other specific requirements, and does not comply with the standard or other requirements; environment protection legislation has been contravened.
• A Recall Notice may require a supply chain participant who is subject to the notice to do certain things such as stop supplying the substance, take action to recover and return the substance, give information and records to the EPA, publish warnings, control the movement of the substances at premises used or controlled by the supply chain participant, and not produce the substance for a specified period.

New power of authorised officers

• Further powers are given to an authorised officer to seize anything the authorised officer reasonably suspects is connected with an offence, or may present a risk of harm to human health or the environment.

New legislative provision that may displace common law rule against duplicitous charges for offences

• Two or more contraventions of a provision of environment protection legislation by a person that arise out of, the same factual circumstances or the same activity being carried on at the same premises, may now be charged as a single offence or as separate offences.
• The new provision seems to in part displace the common law rule that has been applied by the Courts against duplicitous charges, which is that a Prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law.
• This may allow a Prosecutor such as the EPA to avoid the rule against duplicity.  For example, multiple contraventions of the same provision of the POEO Act by a person that arise out of, the same factual circumstances or the same activity being carried on at the same premises, may now be charged as a single offence.

New provision for a Prosecutor to give the Court a reasonable estimate of monetary benefits, and recovery from related persons

• The Land and Environment Court currently has the power to order an offender to pay, as part of the penalty for committing the offence, an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence. This amount is not subject to the maximum amount of penalty specified for the offence.
• The new provision will allow the Prosecutor to give to the Court a reasonable estimate of the amount of monetary benefits acquired by, or accrued or accruing to, a person as a result of the commission of the offence, to be calculated in accordance with a prescribed protocol or using another method, formula or approach the Prosecutor considers appropriate.
• If a Court convicts a corporation of an offence, a Prosecutor may apply to the Court for a Monetary Benefits Order that related persons pay an amount representing the amount of monetary benefits acquired by the person, or accrued or accruing to the person, as a result of the commission of the offence by the corporation.  This has now been extended from a “related body corporate” to a “related entity”.

New power for Court to order a person to be prohibited from holding a licence

• A Court may now make orders prohibiting a person from either, being involved in scheduled activities, applying for or holding a licence, for an indefinite period or a period specified in the order; or make another order the court considers appropriate.

New power for Court to make prohibition orders

• If the EPA considers a relevant person is likely to engage again, or continue to engage, in unlawful conduct, or is not a fit and proper person to hold, or continue to hold, an environment protection licence, the EPA may apply to the Land and Environment Court for an order prohibiting the relevant person from, being involved in scheduled activities, applying for or holding a licence, or another order the Court considers appropriate, for an indefinite period or a period specified in the order.

New power for EPA to make public warning statements

• The EPA may now make or issue a public statement identifying, and giving warnings or information about, substances or activities the EPA reasonably suspects of contributing to a pollution incident, or an activity the EPA reasonably suspects is being carried out in an environmentally unsatisfactory way, or an activity/person/substance/other matter that in the EPA’s opinion is of environmental concern, or regulatory action taken against a person and if the person is a corporation identifying the directors of the corporation and any related body corporate, or complaints received by the EPA under environment protection legislation in relation to a matter.

If you have any concerns about enforcement action by a regulator such as the EPA or a local council, please contact Ben Swain or a member of our team.

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Authored by:
Ben Swain, Special Counsel