The Environmental Protection and Other Legislation Amendment Bill 2014 (EPOLA Bill), introduced to Parliament on 28 August 2014 is the State Government’s second round of Greentape Reduction reforms. The EPOLA Bill proposes a number of amendments to the Environmental Protection Act 1994 (EP Act), including with respect to contaminated land provisions and environmental offences and enforcement.
In this Alert, Partner Sarah Macoun and Associate Olivia Williamson outline the changes proposed by the EPOLA Bill in relation to the contaminated land provisions, the amended maximum penalties for offences and the new regulatory mechanism of enforceable undertakings.
The EPOLA Bill’s amendments to the Environmental Offset Act 2014 are discussed in our separate alert.
The key reforms introduced by the EPOLA Bill include:
- Increased maximum penalties for EP Act offences;
- The introduction of enforceable undertaking as a mechanism for persons who have contravened (or who have allegedly contravened) the EP Act, other than indictable offences; and
- Restructure of the contaminated land provisions.
Changes to maximum penalties for offences
The EPOLA Bill proposes to increase the uppermost maximum penalty as follows:
Click here to view the table.
The offences that will attract this new maximum penalty are the following offences committed wilfully:
- Section 357 –contravention of an order of the Court made pending the Court’s decision of an application made by the administering authority to set aside the immunity from prosecution after receipt of a program notice;
- Section 357I –failure to comply with conditions of a temporary emission licence;
- Section 361 – contravention an environmental protection order;
- Section 363I – failure to comply with a clean-up notice;
- Section 430- contravention of a condition of an environmental authority;
- Section 432- contravention of a requirement of a transitional environmental program;
- Section 432A – contravention of a condition of an approval of a transitional environmental program;
- Section 434 – contravention of a site management plan;
- Section 437 – causing serious environmental harm; and
- Section 478 – failure to comply with an authorised person’s direction in an emergency.
It is important to note three things in relation to the proposed change of the uppermost maximum penalty:
- The number of offences which will attract the uppermost maximum penalty will increase from one to ten;
- the increase from two to five years imprisonment elevates the relevant offences from a misdemeanour to a crime; and
- the maximum monetary penalty for a corporation will now exceed $3.5 million.
The prescribed maximum penalties for a number of other offences have also increased (and in some instances, split to distinguish between a wilful breach and a non-wilful breach), including:
- Section 363E – failure to comply with a direction notice;
- Section 430 – carrying out an Environmentally Relevant Activity without an environmental authority;
- Section 438 – causing material environmental harm;
- Section 440 – causing environmental nuisance;
- Section 440Q – contravening a noise standard;
- Section 440ZG – depositing prescribed water contaminants in waters and related matters;
- Section 443 – placing a contaminant where serious or material environmental harm may be caused;
- Section 443A – placing a contaminant where environmental nuisance may be caused;
- Section 480 – giving false or misleading documents ;
- Section 480A – giving incomplete documents; and
- Section 481 – stating false or misleading information to an authorised person.
Introduction of enforceable undertakings
The EPOLA Bill inserts a series of new provisions relating to enforceable undertakings. These provisions allow a person to apply for, and an administering authority to accept, an enforceable undertaking in the approved form if there is a breach or alleged breach of the EP Act (except in the case where the breach relates to an indictable offence – that is, an offence with a maximum penalty of imprisonment of two years or more).
An enforceable undertaking is a binding agreement whereby the applicant agrees to undertake specific actions in return for the administering authority agreeing to not prosecute. While it is likely that enforceable undertakings will be used as an alternative to prosecution, the provisions allow an administering authority to accept an enforceable undertaking while related Court proceedings are on foot (so long as the proceeding has not been finalised).
As drafted, the administering authority’s decision whether or not to accept an enforceable undertaking will not be a reviewable or appealable decision. Enforceable undertakings once accepted, must be published on the administering authority’s website.
If there is non-compliance with the requirements of an undertaking, the provisions allow for the administering authority to:
- commence a prosecution for the contravention or alleged contravention of the EP Act; and/or
- apply to the Magistrates Court for the undertaking to be enforced. The powers of the Court on any such application are broad, including the ability to order a person to pay the State’s costs.
The draft provisions provide that the making of an enforceable undertaking does not constitute an admission of guilt by the person making the undertaking. However, the making of an enforceable undertaking in the approved form and any documents submitted with it are not privileged. As such, they may be admissible in evidence against the person in a prosecution. As drafted, there is no equivalent provision to section 351 of the EP Act (which attaches a privilege to the making of a transitional program notice) and without a similar provision, it is possible that the administering authority may reject the enforceable undertaking and rely on the evidence set out in the making of the enforceable undertaking in a prosecution. The draft provisions should be amended to address this issue.
Enforceable undertakings may be withdrawn or varied, but not varied to include a different alleged contravention of the EP Act. In circumstances where there has been another contravention, the person would have to make a new application for another enforceable undertaking. Variations and withdrawals of enforceable undertakings will also be published on the administering authority’s website.
To compliment the enforceable undertaking provisions, other parts of the EP Act will be amended to allow for:
- an environmental protection order to also be issued to secure compliance with an enforceable undertaking;
- an authorised person to enter a place to monitor compliance with an enforceable undertaking; and
- the time for starting summary proceedings to be extended where an enforceable undertaking has been entered into but not complied with. Where an enforceable undertaking has been entered into, the timeframe for prosecuting the original offence is extended to within one year after the enforceable undertaking is contravened or the administering authority becomes aware that the enforceable undertaking has been contravened or the administering authority has agreed to withdrawal of the enforceable undertaking.
The EPOLA Bill proposes that the chief executive may make guidelines about when an administering agency may accept enforceable undertakings. It is hoped that such a guideline will outline when enforceable undertakings will be appropriate, how an application for an enforceable undertaking will be assessed and also include examples of acceptable and unacceptable terms in enforceable undertakings (such as whether enforceable undertakings can require payment of security to the regulator or others) and also the circumstances and criteria relevant to a regulator considering a request to vary or withdraw an enforceable undertaking. The importance of such a guideline and other explanatory materials is reinforced due to the absence of any appeal or review rights in relation to a decision made by the administering authority to refuse an enforceable undertaking.
Amendments to Contaminated Land Provisions
The EPOLA Bill proposes to restructure Chapter 7, Part 8 of the EP Act. While most provisions reflect their existing equivalent provision in the EP Act, four key differences are noteworthy:
- The EPOLA Bill introduces a new requirement for a show cause notice to be issued to the owner of land prior to its inclusion in the Environmental Management Register or the Contaminated Land Register A show cause notice process is also proposed prior to a notice requiring a site management plan being issued.
- A new collective term, “contaminated land investigation documents” is used to refer to site investigation reports, validation reports and draft site management plans. The content requirements for such documents are changed and include the requirement for there to be mandatory certification of such documents by an approved auditor prior to submission of the document to the administering authority.
- The duties on owners and occupiers and a local government to notify in circumstances of a notifiable activity and contamination are modified and moved to Chapter 7, Part 1 of the EP Act where the other duties to notify are set out. Currently one of the triggers to notify in respect of contaminated land relates to becoming aware that the land has been, or is being, contaminated by a contaminant known to be a hazardous contaminant.
The EPOLA Bill proposes to amend that trigger so that the duty to notify arises on becoming aware of the happening of an event, or a change in the condition of contaminated land, that is causing, or is reasonably likely to cause, serious or material environmental harm.
It is noted that this change reflects the ‘event based’ general duty to notify of environmental harm contained in section 320A(1)(a) of the EP Act.
The amendments also extend the duty to notify in relation to contaminated land to approved auditors.
- If an owner fails to give a proposed purchaser written notice of the listing of the land on either the environmental management register or the contaminated land register, the EPOLA Bill contemplates that an owner may give written notice after the contract of sale is signed if the notice:
- states the purchaser’s rights (including the right to rescind and have any amounts paid under the agreement refunded – there is no change in these obligations currently set out in section 421 of the EP Act); and
- states that the buyer may act within 21 business days after receiving the notice.
Changes are also proposed to the rights of a seller, with a general deeming provision to the effect that if a buyer does not rescind an agreement within 21 business days after receiving written notice about the land (either before or after the contract is signed), the buyer is taken to have waived their right to rescind the agreement.
Further Noteworthy Amendments
- The provisions of the EP Act relating to temporary emissions licences are clarified to confirm that a temporary emissions licence can override the conditions of a transitional environmental program.
- Chapter 8, Part 3D of the EP Act which currently prescribes offences relating to releases from boats into non-coastal waters is earmarked for deletion. The Explanatory Notes to the EPOLA Bill indicate that such offences are already captured by section 440ZG of the EP Act.
- Finally, the timeframe for the return of seized evidence is proposed to be extended from 6 months to 12 months. This 12 month period reflects the 12 month limitation on time for starting summary proceedings.
Submissions on the EPOLA Bill closed on 29 September 2014. The Agriculture, Resources and Environment Committee is to report to Parliament by 22 October 2014.