Legislation

Main environmental regulations

What are the main statutes and regulations relating to the environment?

Australia is a federation of six states with two mainland territories. They are, in no order, New South Wales (NSW), Victoria, Queensland, South Australia, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory.

The Australian Constitution establishes Australia’s federation and divides the power to make laws between the Commonwealth and the states. Each level has a role in environmental regulation. This means that for a single project or development, a proponent may have to seek approvals from all three levels of government: the Commonwealth government department, the state authority and the relevant local government.

The Constitution does not contain an express power permitting the Commonwealth Parliament to make laws with respect to environment protection. Under the division of power, it is the states that have the primary responsibility for making these laws. Under section 109 of the Constitution, if any inconsistency arises between a law of the Commonwealth and a law of a state, the law of the Commonwealth prevails, and the state law is invalid to the extent of the inconsistency.

The Commonwealth’s power to make laws with respect to the environment is restricted to matters of national significance. This restriction is reflected in the structure and ambit of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), the primary environment protection legislation. The Minister for the Environment has no express power to intervene in decisions of state or local governments, nor is it possible to ‘appeal’ state or local government decisions to that Minister.

Each of the states and territories has its own environment protection laws, administered by different government departments. With very limited exceptions, the jurisdiction of a state ends at the state border.

Some laws are commonly classed as environment laws and others as planning laws, but the distinction is often arbitrary. In practice, planning laws in Australia also consider impacts on the environment. For this reason, environment and planning typically travel together as legal practice areas.

Many statutes not primarily concerned with environment protection nonetheless contain provisions associated with the issue. This is particularly true of those statutes that facilitate or regulate land use and development. An example of such a statute is each state’s mining and petroleum legislation.

Australia can be characterised as a regulated environment where the trend is towards increasing regulation.

The main statutes relating to the environment in Australia are set out in the following table.

Jurisdiction

Principal environment protection legislation

Cth

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

NSW

Protection of the Environment Operations Act 1997 (NSW)

Vic

Environment Protection Act 1970 (Vic)

Environment Protection Act 2017 (Vic)

Qld

Environmental Protection Act 1994 (Qld)

SA

Environmental Protection Act 1993 (SA)

WA

Environmental Protection Act 1986 (WA)

Tas

Environmental Management and Pollution Control Act 1994 (Tas)

NT

Environment Protection Act 2019 (NT)

ACT

Environment Protection Act 1997 (ACT)

 

Integrated pollution prevention and control

Is there a system of integrated control of pollution?

Each state and territory has an integrated system that regulates and controls pollution as a form of environmental impact, often both at a state and at a local government level. In general, pollution is not regulated directly at a Commonwealth level, but is regulated indirectly through national coordination on particular matters. For example, the setting of national guidelines and standards is a matter coordinated nationally, as is the regulation of pollution that affects matters of national environmental significance.

Soil pollution

What are the main characteristics of the rules applicable to soil pollution?

Each state and territory has a system that regulates and controls soil pollution. These systems often operate at both a state and a local government level.

Laws regulating soil pollution exist in generally two forms: provisions within general environment protection statutes; and statutes specifically regulating soil pollution.

First, the principal environment protection statutes at all levels often include an offence of ‘land pollution’ or similar.

Secondly, the states and territories can also have specific land contamination statutes. For example, in NSW there is the Contaminated Land Management Act 1997 (NSW). The objective of that statute is to establish a process for investigating and, where appropriate, remediating contaminated land.

In Victoria, the Environment Protection Amendment Act 2018 (Vic) recently amended the Environment Protection Act 2017 (Vic) introducing a new general environmental duty as well as a mandatory duty to report contamination above certain prescribed levels and significantly increased penalties. The changes came into effect on 1 July 2021.

In general, soil pollution is not regulated directly at a Commonwealth level but is regulated indirectly through national coordination on particular matters. For example, the setting of national guidelines and standards is a matter coordinated nationally, as is the regulation of pollution that affects matters of national environmental significance.

Regulation of waste

What types of waste are regulated and how?

Each state and territory has a system that regulates waste. These systems often operate at both a state and a local government level. In general, waste is not regulated directly by legislation at a Commonwealth level but is regulated indirectly through national coordination. See, for example, the National Waste Policy 2018 (the National Waste Policy) and the National Waste Policy Action Plan 2019, which presents targets and actions to implement the National Waste Policy. The Commonwealth has, however, recently enacted the Recycling and Waste Reduction Act 2020 (Cth), which deals with waste export bans and strengthens product stewardship.

The regulation of waste is increasingly linked to what is referred to as ‘resource recovery’, which includes recycling. This means that waste is regulated both under the environment protection statutes and by specific resource recovery legislation. Examples of specific resource recovery legislation include:

Regulation of air emissions

What are the main features of the rules governing air emissions?

All Australian states and territories have environment protection legislation that regulates air pollution. This occurs in the principal environment protection statutes.

The various state statutes require that licences, approvals or permits are obtained for certain prescribed or scheduled activities. In most jurisdictions, integrated licences replace the requirement to apply for separate licences relating to air, water and land pollution under varying procedures outlined in the relevant statutes.

The activities, thresholds and trigger values that are prescribed or scheduled for licensing purposes vary in each jurisdiction. But, in general, the prescribed or scheduled activities include any activity that has the potential to cause air pollution. Examples of such activities are chemical processing and waste treatment.

Greenhouse gas emissions are not regulated, but are subject to a national, incentive-based scheme. The scheme encourages farmers and foresters to carry out projects for carbon storage on their land. Under Commonwealth law, corporations that emit greenhouse gases beyond specified thresholds are required to report their levels of emissions (see National Greenhouse and Energy Reporting Act 2007 (Cth)).

Emissions from motor vehicles are regulated by specific provisions in the environment protection statutes and by particular regulations aimed at motor vehicle emissions (see, eg, Environmental Protection Act 1994 (Qld) Chapter 8 Parts 3E, 3F; Transport Operations (Road Use Management-Vehicle Standards and Safety) Regulation 2010 (Qld) Schedule 1 Part 9). In October 2020, the Department of Infrastructure, Transport, Regional Development and Communications released two draft Regulation Impact Statements for public consultation considering the case for mandating more stringent noxious emission standards in Australia, including Euro 6, for new light vehicles and Euro VI, for new heavy vehicles.

Each state or territory also sets its own standards for air emissions. Commonly regulated emissions include carbon monoxide, nitrogen dioxide, photochemical oxidants, sulphur dioxide and lead.

Protection of fresh water and seawater

How are fresh water and seawater, and their associated land, protected?

Water is managed both at a national and at a state and territory level. As with environmental laws generally, the majority of regulation occurs at the state and territory level. However, some regulation of water exists at a national level, in recognition of the fact that Australia is the driest inhabited continent in the world, and that water is therefore a scarce and precious national resource.

At a national level, water is regulated through the Department of Agriculture, Water and Environment.  This type of regulation means that matters of national environmental significance can be managed through the Environment Protection and Biodiversity Conservation Act 1999 (Cth). In addition, the Water Act 2007 (Cth) (the Water Act) permits the acquisition and management of water by the Australian government for environmental benefit. The Water Act also established the Murray Darling Basin Authority to manage the Murray Darling Basin, which is the largest river system in Australia and covers parts of Queensland, NSW, Victoria, the Australian Capital Territory and South Australia.

The state and territory environment protection statutes manage water pollution. In addition, the states and territories have specific water management legislation. For example, NSW has the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW), Queensland has the Water Act 2000 (Qld) and Victoria has the Water Act 1989 (Vic).

State legislation manages water in several ways. The legislation typically creates water entitlements based on the availability of water in a catchment. Water entitlements can often be traded. A water entitlement can be separate from the approval to use particular infrastructure to extract or capture the water. For example, you might have an approval to operate a bore, as opposed to an approval to build a dam. In addition, the use to which the water may be put is also regulated. This is to ensure that water, which is a scarce resource, is allocated appropriately. Aside from the capture and use of water, approvals can also be required for inhibiting or altering the natural flow and direction of water.

Protection of natural spaces and landscapes

What are the main features of the rules protecting natural spaces and landscapes?

Natural spaces and landscapes are protected in a variety of ways at the levels of Commonwealth, state and territory, and local government. No single piece of legislation regulates and protects an entire landscape. Instead, each landscape has layers of regulation that protect both the landscape as whole and its constituent parts.

The most common way of protecting natural landscapes is the declaration of national parks and marine parks. National parks can be declared both at the state and the Commonwealth level, and each level has specific legislation for that purpose (see, eg, National Parks and Wildlife Act 1974 (NSW); Nature Conservation Act 1992 (Qld)). At the Commonwealth level, a marine park, such as the Great Barrier Reef Marine Park, can be protected as a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Particular elements of the landscape can also be protected under state and Commonwealth legislation.

For example, flora, fauna, and indigenous and non-indigenous heritage within the national park can receive particular protection.

The declaration of a natural landscape as a national park also provides indirect protection. For example, only very limited forms of development are permitted in a national park.

Protection of flora and fauna species

What are the main features of the rules protecting flora and fauna species?

In Australia, both flora and fauna are protected at a state and territory, and Commonwealth level. For example, in NSW, flora and fauna are protected by the Biodiversity Conservation Act 2016 (NSW).

At a Commonwealth level, flora and fauna that are matters of national environmental significance are protected under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Noise, odours and vibrations

What are the main features of the rules governing noise, odours and vibrations?

State and territory environmental legislation regulates noise according to its location, nature, volume, duration and time of day. In all state and territories, environment protection legislation provides for the making of policies about noise. For example, in Victoria, state environment protection policies have been created under the Environment Protection Act 2017 (Vic) to regulate noise pollution. In all states and territories, noise can also be controlled when conditions relating to noise are applied to environmental permits, licences or approvals.

Odours fall within the category of environmental nuisances (see, eg, Environmental Protection Act 1994 (Qld) section 15(a)). As such, odours come within the scope of the general provisions that address causing environmental harm. In addition, town planning decisions about the uses of land normally consider odours.

In most jurisdictions, ‘noise’ includes vibration (see, eg, Environmental Protection Act 1994 (Qld) section 12). The only exception is the Australian Capital Territory legislation, which makes no direct reference to vibrations in the context of environment protection. In the Northern Territory, ‘noise’ is defined as a vibration of a frequency in the range of 0 to 20,000 hertz (see Waste Management and Pollution Control Act 1998 (NT) section 4(1)).

Liability for damage to the environment

Is there a general regime on liability for environmental damage?

At a Commonwealth level, the Department of Agriculture, Water and the Environment can take actions that enforce the environmental requirements contained in the Environment Protection and Biodiversity Conservation Act 1999 (Cth), including determinations that address environmental damage.

Each state and territory has a system that regulates and controls environmental impact. Within that framework there is no specific liability regime for environmental damage. The environment is protected against environment damage through a legislative system that prohibits activities that may damage the environment unless they occur in accordance with the prescribed approval. Where the prescribed approval is not held there are various sanctions including monetary penalties. These operate to both remediate the impact and deter further unlawful activities.

Environmental taxes

Is there any type of environmental tax?

Australia has a federated taxation system. Environmental taxes can be imposed in limited forms at a Commonwealth level and more generally at a state level. Most, if not all, Australian laws that require an approval or permit before an activity can be undertaken will as a general rule require an application fee as well as potentially a levy. The fee or levy can be fixed or relative to impact – for example, load-based fees for air pollution or waste disposal. Environmental taxes also exist in the form of energy taxes and transportation taxes. An example of energy taxes is the Commonwealth’s excise on crude oil, liquefied petroleum gas, and gas and petroleum products (see Excise Tariff Act 1921 (Cth)). An example of a transportation tax is the stamp duty imposed by states and territories on motor vehicles, which usually comprises a fixed-fee component and a component that increases with vehicle size (see, eg, Duties Act 2000 (Vic) section 214).

In 2011, Australia introduced a carbon-pricing mechanism, which has since been repealed. The Clean Energy Act 2011 (Cth) (no longer in force) was intended to control carbon dioxide emissions through a carbon-pricing mechanism. The Act was eventually repealed and ceased to have effect from 1 July 2014.

Environmental reporting

Are there any notable environmental reporting requirements (eg, regarding emissions, energy consumption or related environmental, social and governance (ESG) reporting obligations)?

Each state and territory has a system that regulates hazardous activities either directly or indirectly. The regulation extends to the activity as well as its component parts. This can occur at both a state and national level. For example, mining is a heavily regulated activity and both state and national approvals are typically required, including for the relevant mining lease, which permits the activity as whole. Approvals may also be required for various activities within the mine, such as the transport of process chemicals, storage of hazardous materials, power generation and blasting.

Government policy

How would you describe the general government policy for environmental issues? How are environmental policy objectives influencing the legislative agenda?

The overall trajectory of environmental management and protection in Australia at a federal and state level is both towards greater protection as well as specific or direct management of particular issues. In the last decade environmental policy has influenced the legislative agenda, particularly at the confluence of competing uses of agricultural land, energy and population growth. This is predicted to continue throughout 2021 and 2022 in the area of energy, particularly where further reform is required to accommodate renewable energy, new technology and complementary and new industries such as hydrogen.

Hazardous activities and substances

Regulation of hazardous activities

Are there specific rules governing hazardous activities?

Hazardous activities are strictly regulated in Australia. This occurs at all levels of the local, state and federal environment and planning and environment system. Hazardous activities (other than some resource activities) are managed through the planning system insofar as where they can be located and approved from a land use perspective. As a consented land use, hazardous activities are typically then managed at an environmental impact level through an activity-based licence. In Queensland, the Environmental Protection Act 1994 (Qld) manages ‘environmentally relevant activities’ and in New South Wales (NSW), the Protection of the Environment Operations Act 1997 (NSW) requires the licensing of ‘scheduled development work’ and ‘scheduled activities’.

Regulation of hazardous products and substances

What are the main features of the rules governing hazardous products and substances?

Dangerous goods (explosive, flammable, toxic, infectious, corrosive properties) are predominantly regulated at a state or territory level to national standards that are in part or in whole adopted by the relevant state or territory, for example, the Australian Code for the Transport of Dangerous Goods by Road and Rail.

At a Commonwealth level, a permit is required for the export, import or transit of hazardous waste as defined in the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) (the Hazardous Waste Act). The definition of hazardous waste encompasses industrial waste that is explosive, flammable, poisonous, corrosive or toxic, among other things. It also includes household waste and residues arising from the incineration of household waste. The Hazardous Waste Act gives effect to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

The Department of Agriculture, Water and the Environment is responsible for issuing permits for hazardous waste, and the type of permit required will depend on the country of destination (for exports) or the country of origin (for imports).

Industrial accidents

What are the regulatory requirements regarding the prevention of industrial accidents?

Safety is managed at both a Commonwealth and state level. Each of the states has comprehensive occupational health and safety (OH&S) laws that are separate and distinct from environment protection laws. These OH&S laws can apply equally to an industrial accident where both safety and environmental impact are of concern. Safe Work Australia is a statutory body jointly funded by the Commonwealth and states that develops national policy for OH&S and workers’ compensation. 

Prevention of industrial accidents more generally is achieved through Australia’s rigorous regulatory requirements for approving industrial activities. Approval for industrial activities extends to the design and impact of the activity with regulators mandating minimum design requirements and standards that must be achieved to be considered for approval. For example, major projects that have obtained environmental approvals will be subject to extensive conditions mandating further design and engineering approval as well as construction and operational management plans that relate to matters that include noise, dust, blasting, sediment control, water management, design standards and safety. Non-compliance with conditions of approvals is, in most cases, an offence as well as enabling the regulatory ability to issue stop-work and restitution-type orders.

Environmental aspects in transactions and public procurement

Environmental aspects in M&A transactions

What are the main environmental aspects to consider in M&A transactions?

In the context of Australian M&A transactions, environmental aspects are managed together with planning matters. They are referred to collectively as environment and planning (E&P).

There are broadly four E&P issues to be considered in an M&A transaction:

  • Are the requisite E&P approvals in place? Where the asset is in operation, this question becomes, ‘Are the approvals in place that permit the operation of the asset?’ Where the asset is yet to be constructed, the question becomes, ‘Are the approvals necessary to commence construction in place?’ Where approvals are not held, the activity may be unlawful and subject to penalties, including stop-work orders and remediation. These considerations are relevant in the context of both share acquisitions and assets sales.
  • Is there compliance with conditions in any approvals held? If conditions are not being complied with, the activity may be unlawful and subject to penalties, including stop-work orders and remediation. A history of non-compliance can impact the ability to procure future approvals. The issue of compliance with conditions can be more critical for share sales as opposed to asset sales where the corporate history is not acquired.
  • Social licence: in making decisions about licences to operate, decision makers are increasingly considering the company or asset’s past E&P performance. This factor is important for both share sales and asset sales, because assets often inherit the social licence of the former owner.
  • Regulatory requirements: the relevant E&P approvals might not be automatically transferable. Generally, planning approvals run with the land, but environmental approvals often do not. The transfer of certain approvals might require consent from a regulatory authority. In certain cases, a fresh approval might need to be acquired.

 

Each issue can be managed in a transaction through the pricing, structure of the transaction, warranties and guarantees that underpin the transaction.

Environmental aspects in other transactions

What are the main environmental aspects to consider in other transactions?

Other transactions, such as financing and initial public offerings, are not unlike M&A transactions in Australia. While the same questions arise, the emphasis can be slightly different. For example, a financing transaction might require security over the assets and accordingly the nature of the regulatory investigation will focus on what security may be possible.

Environmental aspects in public procurement

Is environmental protection taken into consideration by public procurement regulations?

The public procurement process has many elements. One element is the question of whether the procuring entity is a government or a state-owned corporation, or indeed whether the government has an interest in the relevant asset or business. The extent of government ownership can of itself affect the nature of the procurement process.

As a general rule, all public procurement carries with it a merits element that may either expressly or implicitly import a company’s history of compliance and performance. In addition, environmental compliance can be swept up in broader procurement commitments (eg, to comply with the law).

Environmental assessment

Activities subject to environmental assessment

Which types of activities are subject to environmental assessment?

In most states, it is either the relevant minister, department or regulatory authority or the operative statute that determines whether an environmental impact assessment (EIA) is required for a particular project. The kinds of activities that require EIAs differ between the various states and territories but as a general rule the higher the potential for impact to the environment, the greater the level of assessment that will be required.

Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), projects require approval if they have the potential to have a significant impact on a matter of ‘national environmental significance’ (such as world heritage properties and migratory species).

Environmental assessment process

What are the main steps of the environmental assessment process?

EIAs are one mechanism that regulators use to identify and evaluate the potential environmental impacts of proposed activities. The EIA process varies between the states and territories.

The process for securing an approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) requires the proponent to refer their project to the Department of Agriculture, Water and the Environment for assessment. The EPBC Act provides for five different levels of assessment. Which level of assessment a project will be subjected to depends on the significance of the project and how much information is already available.

The process of environmental assessment also varies between the various states and territories. However, as a general rule the process of applying for an environmental approval generally has four stages: application, information, notification and decision. In the application stage, the proponent lodges an application and the regulator determines if the application has enough information to meet the requirements of the relevant statute. In the information stage, regulator assesses the information contained in the application and may request further information from the proponent. In the notification stage, the regulator makes the application documents publicly available and people have an opportunity to make submissions or potentially object. At the final stage of the process, the regulator or decision maker decides either to approve the application with conditions or to refuse it.

Regulatory authorities

Regulatory authorities

Which authorities are responsible for the environment and what is the scope of each regulator’s authority?

Environmental regulatory authorities exist at both the Commonwealth level and the state and territory level. The Commonwealth Department of Agriculture Water and the Environment (DAWE) is responsible for conducting assessments and mandatory environmental audits, granting permits and licences, issuing infringement notices, civil and criminal prosecution and remediation orders or determinations which address environmental damage under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The scope of the DAWE is limited to Commonwealth legislation.

Most states and territories have an independent environment protection regulator. For example, South Australia’s Environment Protection Authority (EPA) is responsible for administering the Environment Protection Act 1993 (SA). In Queensland, the Department of Environment and Science is the environmental regulator with responsibility for administering the Environmental Protection Act 1994 (Qld). In New South Wales (NSW), the EPA is an independent authority and was established under the Protection of the Environment Administration Act 1991 (NSW).

Investigation

What are the typical steps in an investigation?

Australian environment protection legislation confers broad investigatory powers on regulators. Regulators have the power to enter and remain on property, to remove property for further investigation, to compel the production of documents and information and to interview persons.

Some states have dedicated bodies that are established to investigate and prosecute environment-based offences. For example, in NSW, the EPA is an independent authority that has these functions.

The nature of the investigatory steps depends on the nature of the non-compliance, but a formal investigation typically precedes prosecution for an environment-based offence.

Prosecutions and fines do not automatically follow the breach of an environmental law. In most cases in Australia, prosecutors have discretion in relation to fining or prosecuting someone for the breach of environmental legislation.

Administrative decisions

What is the procedure for making administrative decisions?

In most states and territories, two different procedures exist for making administrative decisions, one that requires the making of an application and another that does not.

First, for some administrative decisions, an application by a third party is not required. In this case, the administrative power is enlivened through the satisfaction of certain statutory preconditions. For example, a decision maker or regulator may have the power to amend the conditions of an approval unilaterally where the holder of the approval is in breach of the terms and conditions of approval.

Secondly, some administrative decisions require that an application be made before the power to make the decision is enlivened. In these cases, the decision maker is not itself allowed to make the application.

The procedure for the application and for the decision itself can, accordingly, vary considerably depending on the state and the nature of the application and decision. Where an application is required to be made, the relevant environmental legislation may prescribe its form, the information it must include and any assessment that must accompany it. In addition, many application processes require a public notification and consultation process.

Unless a court’s jurisdiction has been effectively ousted by the statute under which the administrative decision has been made, the administrative decision can typically be reviewed under common law principles (eg, a writ of mandamus) or under the relevant state or federal administrative review statute (see, eg, Judicial Review Act 1991 (Qld); Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth)).

Sanctions and remedies

What are the sanctions and remedies that may be imposed by the regulator for violations?

A broad range of compliance mechanisms are available to state and territory regulators. For example, the Queensland Department of Environment and Science has recourse to warning letters, infringement notices, civil proceedings for court orders, enforceable undertakings and prosecutions for serious contraventions.

At the Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) includes three main compliance mechanisms: civil or criminal penalties (eg, for providing false or misleading information to obtain approvals); remediation orders and determinations; and enforceable undertakings.

In all Australian jurisdictions, there are substantial monetary penalties and the potential for imprisonment for environment based offences. In the case of companies, directors and persons involved in the management of the company can also be liable for actions of the company and, therefore, face fines or prosecution.

Appeal of regulators’ decisions

To what extent may decisions of the regulators be appealed, and to whom?

There are two forms of review available in Australia for decisions of regulators.

Under certain environmental law statutes and planning laws, an affected person can request a ‘merits review’ of an administrative decision. A merits review is where the person conducting the review (often a member of a tribunal) effectively stands in the shoes of the original decision maker. The reviewer may ask for and hear additional information. In these cases, the decision of the tribunal member will replace the original decision. There is no general right for merits review at common law, and so a right to seek merits review must be specifically provided for by statute. In most cases, merits reviews are subject to strict deadlines before which the appeal must be made.

The common law and judicial review statutes also allow for the formal review of the lawfulness of decisions. An application for judicial review can be made under traditional grounds of review, such as ultra vires and failure to afford procedural fairness. Where this type of appeal is lodged, the body charged with the review (typically a court) does not stand in the shoes of the original decision maker and instead reviews only the lawfulness of the decision. In that regard, the relief typically sought is that the impugned decision was invalid and is set aside.

Where there is a formal judicial review statute, it typically codifies and expands on the traditional common law grounds of review (see, eg, Administrative Decisions (Judicial Review) Act 1977 (Cth); Judicial Review Act 1991 (Qld)).

Judicial proceedings

Judicial proceedings

Are environmental law proceedings in court civil, criminal or both?

Environmental law proceedings can be both civil and criminal. In most jurisdictions, specialist courts and tribunals have been established under enabling statutes to hear both civil and criminal matters.

Criminal matters in environmental law are typically associated with breaches of the law and prosecutions. Civil matters are associated with judicial review and merits appeals.

Examples of the specialist courts and tribunals include:

  • Queensland: Land Court and the Planning and Environment Court;
  • New South Wales (NSW): NSW Land and Environment Court; and
  • Victoria: Victorian Civil and Administrative Tribunal. 
Powers of courts

What are the powers of courts in relation to infringements of environmental law?

In Australia, the breach of an environmental law is usually a criminal offence. For example, it is generally an offence to carry out certain activities or developments without the requisite approval. In addition, it can also be an offence to carry out an approved activity otherwise than in accordance with the approval itself. It is also typically an offence to breach a condition of approval or a requirement of a statute that applies to an activity. 

The power of a court to hear proceedings for the infringements of environmental laws is largely conferred by the statute containing the relevant environmental law that has been breached. 

In some cases, the states and territories have established specialist courts and tribunals to hear both civil and criminal matters outside of the main criminal courts.  

Civil claims

Are civil claims allowed regarding infringements of environmental law?

Infringements of environmental laws in Australia are typically criminal matters (ie, subject to criminal prosecution rather than civil proceedings).

Civil claims, such as contractual claims, may arise from infringements of environmental laws. The breach of the statute is unlikely to provide a civil cause of action in itself. The availability of a cause of action will depend on the relationship between the parties and the loss suffered. For example, a contractual claim may only be available where there is a contractual relationship between the parties and a causal connection between breach and loss. It is not unusual for contracts to contain warranties requiring compliance with environmental laws. A breach of an environmental law may also result in damage to a third party and a claim may lie in nuisance.

Defences and indemnities

What defences or indemnities are available?

Australian environmental laws contain offences of strict liability as well as offences that have a knowledge element. As a general rule, strict liability offences are lesser in nature and involve a lesser degree of environmental harm. In contrast, the most serious environment offences are those where the offender has knowingly committed the offence.

The common law of Australia also recognises principles of vicarious liability and proportionate liability for criminal proceedings.

Each of the states has different environmental laws, which means the offences and available defences are also different. The existence and applicability of statutes of limitation also vary by jurisdiction.

The more common defences require the respondent to demonstrate that they took due care, reasonable steps or reasonable precautions to prevent the conduct of the impugned behaviour.

Directors’ or officers’ defences

Are there specific defences in the case of directors’ or officers’ liability?

The relevant state and territory environmental statutes contain specific defences. Defences typically require the director or executive officer to demonstrate one of the following.

First, it must be shown that the director or officer was not in a position to influence the conduct of the corporation in relation to the contravention of the relevant provision.

Alternatively, where the director or officer is in a position to influence the conduct of the corporation, it must be shown that they used all due care to prevent the corporation’s contravention. This can also be expressed such that the director or officer must show that they took all reasonable steps to ensure the corporation complied with the relevant provision.

Appeal process

What is the appeal process from trials?

Australia is a common law jurisdiction and has a hierarchy of appellate courts.

In both civil and criminal matters there are typically three levels of appeals. There can be more in environmental law, where the review of a decision can be undertaken by the administrative body making the decision. Likewise, a specialist court such as the NSW Land and Environment Court may allow an appeal from a commissioner to a judge. Equally too, the nature of the decision, the relief sought, and the cause of action will largely dictate the availability of an appeal and, if an appeal is available, the grounds on which it may be made.

An appeal from a trial judge is typically made to a superior court constituted by a single judge. In most cases, the superior court is the Supreme Court of the relevant state, or the Federal Court for Commonwealth statutes. An appeal from the decision of a superior court can be made to the corresponding appeal court (eg, the Full Court of the Federal Court or the NSW Court of Appeal), which can be constituted by three or more judges.

A final appeal may be made to the High Court of Australia. In most cases, an appeal to the High Court requires the grant of ‘special leave’ by the High Court. There are no further appeals from the High Court.

International treaties and institutions

International treaties

Is your country a contracting state to any international environmental treaties, or similar agreements?

Australia is a party to multiple international environmental treaties. The Department of Foreign Affairs and Trade maintains the Australian Treaties Database, a database of international treaties to which Australia is a party. The database lists 134 current treaties to which Australia is a party where ‘Environment and Resources’ is listed as a subject.

International treaties and regulatory policy

To what extent is regulatory policy affected by these treaties?

Although international treaties are not generally enforceable under Australian domestic law, they do have a substantial influence on the content and evolution of Australian environmental law.

The best example is the Environment Protection and Biodiversity Conservation Act 1999 (Cth). This Act provides a framework to implement a number of conventions and international agreements – for example, the Ramsar Convention, the World Heritage Convention, the Bonn Convention, the Japan–Australia Migratory Bird Agreement and the China–Australia Migratory Bird Agreement.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in environment law in your jurisdiction?

The first trend is our response to climate change. Australia does not have a carbon-pricing mechanism or carbon tax that directly operates to manage the reduction of emissions. Climate change and regulatory reform is a constantly evolving area of Australian environmental law. Touch points include water management (because water is a scarce resource in an arid country like Australia) and the regulation of large emitters of greenhouse gases.

The second trend is in land use. Australia has a large resources sector and a large agricultural sector, both of which are critical to the Australian economy. Environmental laws (in part) manage the interaction between the two sectors. There is continuing evolution of Australian environmental laws to manage the interactions between competing land uses and to protect the receiving environment.

The third trend is in the area of Commonwealth regulation. The Final Report of the Independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) was submitted to the Minister for the Environment on 30 October 2020 and publicly released on 28 January 2021. The Final Report’s central recommendation is the introduction of a new legally enforceable national environmental standards including standards for matters of national environmental significance and Indigenous engagement and participation which can be applied by the relevant regulatory bodies. The Final Report also recommended that the EPBC Act should be immediately amended to enable the development and implementation of these standards. The reform process for the EPBC Act is under way. The Environment Protection and Biodiversity Conservation Amendment (Standards and Assurance) Bill 2021 (Cth) is currently before the House of Representatives and if enacted, will establish a framework for the making, varying, revoking and application of national environmental standards. It will also establish a new statutory Environment Assurance Commissioner to undertake monitoring or auditing of the operation of bilateral agreements with states and territories and Commonwealth processes for making and enforcing approval decisions.

Separately, the Environment Protection and Biodiversity Conservation Amendment (Streamlining Environmental Approvals) Bill 2020 (Cth) was introduced to the House of Representatives on 27 August 2020, and to the Senate on 6 October 2020, and, if enacted, will establish the legal framework for streamlined approvals by allowing the Commonwealth to delegate environmental approval powers to the states and territories through bilateral agreements (to create ‘single touch’ environmental approvals).

Coronavirus

What emergency legislation, relief programmes and other initiatives specific to your practice area has your state implemented to address the pandemic? Have any existing government programmes, laws or regulations been amended to address these concerns? What best practices are advisable for clients?

In Australia, the nature and level of response to the covid-19 pandemic has varied between the states and territories, as well as between levels of government within each state and territory. Consequently, there is no single source of information or uniformity between jurisdictions. Good practice is to determine what the ‘normal’ process would be and then test whether that process has in anyway been modified or changed as a consequence of the pandemic. As a general rule, the regulatory response to the pandemic has taken three forms:

  • time frames in statutes have been extended in some cases, or there has been an ability to seek an extension or defer compliance for a period of time;
  • there has been economic support in the form of fee relief, deferrals of expenditure requirements and support packages. Each package of economic support varies depending on the state and industry; and
  • there has been a focus on economic recovery and, consequently, there is support for certain projects, including projects being fast-tracked to ensure earlier commencement.

 

As the response to the pandemic evolves, so too does the level and nature of support. The most up-to-date information can be accessed on the key government websites. The relevant departments are listed below.

 

 Government

Departments and divisions

Cth

Commonwealth

Department of Agriculture, Water and the Environment

Advice for EPBC Act Approval Holders, Department of Agriculture, Water and the Environment

Department of Industry, Science, Energy and Resources

NSWNew South Wales

Department of Planning, Industry and Environment

Environment Protection Authority

Mining, Exploration and Geoscience, Department of Industry

VicVictoria

Department of Environment, Land, Water and Planning

Environment Protection Authority

Earth Resources, Department of Jobs, Precincts and Regions

Qld

Queensland

Mining and resources, Department of Natural Resources, Mines and Energy

Department of State Development, Tourism and Innovation

Department of Environment and Science

SASouth Australia

Department for Energy and Mining

SA Planning Portal, Department of Planning, Transport and Infrastructure

Department for Environment and Water

Environment Protection Authority

WAWestern Australia

Department of Mines, Industry Regulation and Safety

Department of Agriculture, Water and the Environment

Department of Planning, Lands and Heritage

Tas

Tasmania

Department of Primary Industries, Parks, Water and Environment

Department of State Growth

NT

Northern Territory

Changes to Planning Rules, Northern Territory Government

Environment Protection Authority

ACT

Australian Capital Territory

N/A

 

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