Hot on the heels of publishing its Compliance Plan for 2012-2013, the Victorian Environment Protection Authority (EPA) has published seven new policy documents1 to supplement its Compliance and Enforcement Policy, published 12 months earlier2.
Who should read this bulletin?
Everyone whose operations are regulated by the Victorian EPA.
In 2010-11 the Victorian EPA doubled the number of successful prosecutions, and increased the number of pollution abatement and cleanup notices it issued by more than 50%3. This trend is likely to continue for the year ahead, as the EPA has proposed a substantive program of unannounced inspections of licensed and non-licensed premises to respond to pollution incidents and complaints, and to check compliance with licences, remedial notices and regulatory programs, and the accuracy of Annual Performance Statements.
It is therefore more important than ever to be organised to manage and respond to EPA investigations, notices and prosecutions.
The EPA has issued seven new policy documents. These policy documents are key indicators of how the EPA will implement its prosecution policy.
The new policy documents set out the EPA’s approach to:
- legal professional privilege and the privilege against self-incrimination,
- investigating the complicity of all parties and choice of defendant,
- appeals against sentence,
- choice of jurisdiction for indictable offences that are triable summarily,
- submissions regarding imposing a conviction,
- enforcing and prosecuting government entities including local government, and
- using injunctions as an enforcement tool.
The supplementary policies are to be read in the context of, and subject to, the EPA’s Compliance and Enforcement Policy. As such, they generally clarify or expand upon earlier enforcement policy or existing guidelines. One exception is policy 1471 dealing with legal professional privilege and the privilege against self-incrimination. It is understood that this is the first publication to enunciate the EPA’s policy position on this issue.
Key points arising from the supplementary policies are described below.
The EPA acknowledges that any legal person (natural person or corporation) may be entitled to make a claim of legal professional privilege as an objection to complying with an EPA request to produce information. The EPA also acknowledges that any natural person (not a corporation) may be entitled to claim privilege against self-incrimination at the time of providing information, provided the privilege has not been specifically excluded or otherwise eroded by statute.
In either case:
- the onus is on the person concerned to claim (and maintain) privilege over the particular document(s) or in relation to particular information,
- the EPA will seek legal advice to determine if privilege has been properly claimed, and
- it is a matter for the relevant court to ultimately determine if the privilege has been properly claimed.
The EPA will investigate the complicity of all parties involved in significant environmental breaches, including company officers. The EPA may prosecute one, some or all parties involved provided there is sufficient evidence against each party that the EPA chooses to prosecute.
With respect to prosecution of a company officer, it is worth noting the EPA’s position in its Compliance and Enforcement Policy that it will consider:
- whether the person exercised due diligence,
- whether the officer failed to take reasonable steps,
- the degree of culpability, and
- past advice or warning provided to the officer.
When a licensed premises is involved in an environmental incident, the EPA will investigate compliance with each licence condition.
The EPA’s role in sentence appeals is limited to making recommendations to the Director of Public Prosecutions (DPP). Only the DPP may appeal against a sentence in the public interest, and its right to do so is limited by the Criminal Procedure Act 2009 (Vic). The DPP is also guided by its policy guidelines.
The EPA will only make a recommendation to the DPP to commence an appeal in the public interest if the EPA considers that the sentence imposed by the original court was so inadequate that it was outside the range of sentencing options available to that court. When assessing the inadequacy of a sentence, the EPA will consider, among other things, its consistency with other sentences.
Choice of jurisdiction
All indictable offences under legislation administered by the EPA can be dealt with by the Magistrates’ Court (which has a lower sentencing power than the County Court). It is EPA policy to consent to indictable matters being heard summarily in the Magistrates’ Court unless it is of the view that the matter is so serious that there is a real prospect that a properly informed court would impose a sentence beyond the Magistrates’ Court jurisdictional limit, which is presently $352,100.
Imposition of a conviction
In the event that a corporation is charged and decides to plead guilty to the offence, there is sometimes an opportunity to ask the EPA to submit to the court that a conviction should not be applied, or alternatively make no submission on whether a conviction should be recorded. A conviction against a company or individual may restrict it from undertaking certain activities including business and trade (tendering etc), employment, holding a public office or directorship, obtaining insurances, obtaining accreditations, and migration. Consequently, it is best to avoid conviction if possible.
The EPA has indicated that its general position is that environmental offences are serious matters and imposition of a conviction is warranted for all persons who commit an environmental offence. The exceptions to this general position will be made by the EPA when it considers:
- the nature of the offence,
- the nature and past history of the offender,
- the impact of recording a conviction on the offender’s economic or social well-being, or employment prospects,
- the nature of the impact to the environment and community,
- duration of the impact,
- level of co-operation of the offender with the EPA,
- prevalence of the offence, and
- the offender’s culpability (ie whether the offence was intentional, negligent or inadvertent).
The EPA will only seek an injunction (to restrain a person from doing or compelling them to do a certain thing) in exceptional circumstances (ie when it is of the view that there is an imminent danger to life or limb or to the environment and no other enforcement tools would be effective to manage that risk).
Prosecuting government entities
Government entities are subject to prosecution or other enforcement action for breaches of environmental laws, in the same manner as any other duty holder.