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.