Earlier this month, I addressed the Governance Institute of Australia on the essentials of environmental management and governance. It got me thinking about how my network would feel if asked about the status of their organisation’s environmental compliance right now. It’s a big question and there are a range of scenarios that might apply:
- some may feel quietly confident, others might describe their organisation as being on a compliance “journey”,
- some might feel a little uncomfortable, perhaps issues have been identified, but in today’s pressurised environment, they don’t have the time or headspace to address them, or
- some may be new to an organisation or their role, or have inherited a legacy, or have been the subject of M&A changes.
Whatever your position, let’s get clarity and confidence on what's needed.
First off, compliance should be prioritised. Right now matters because if you are unlucky enough to experience an incident or non-compliance or regulatory enforcement, the law will look at what is in place right now.
There is nothing like hindsight to help identify the defects in your EMS. But nobody actually wants to read an account of their failings in a court’s judgment. The close (and preferable) second is evaluating your compliance approach with an expert and taking prompt, efficient compliance actions to immediately improve your risk profile.
Second, caselaw and regulatory guidance place paramount importance on the identification of risk and legal requirements and actual implementation of risk management strategies, particularly training.
The judgement in the influential 1999 case of Environment Protection Authority v Great Southern Energy from the NSW Land and Environment Court remains relevant nearly 20 years on. There’s been heaps of caselaw since then, but it still offers a cautionary lesson in the need to address both compliance and sustainability in a meaningful way. Specific not general or “off the shelf” compliance approaches are needed. Reliance purely on accredited systems is not sufficient if the compliance actions aren’t tailored (see excerpt from the judgment opposite).
Some of the basic components that I talk to all my clients about (from small organisations to large corporations) are shown in my conceptual model below. These critical areas seem obvious but court cases and regulatory guidance on due diligence tell us that it’s often the basics that let people down.
Environmental laws and their interpretation by the courts change periodically.