Posted on December 8, 2015 by

Councils’ new and powerful investigation tool – notices requesting information and records

The new s119J of the Environmental Planning and Assessment Act 1979 (EPA Act) gives council investigation officers powerful tools to obtain information and or records in respect of matters they are investigating. In this blog we look at this investigative power, outlining what can be requested under a s119J Notice and provide some tips on how it must be drafted to ensure it is valid.

Overview of s119J Notices

Section 119J of the EPA Act provides that:

‘(1) An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose.’

Section 119J Notices must be issued in ‘connection with an investigation purpose’, which includes a council investigation officer exercising its functions under the EPA Act, such as:

• gathering information which may lead to the issuing of orders under Division 2A of Part 6 of the EPA Act; or
• investigating potential breaches of the EPA Act which may lead to civil or criminal enforcement action being taken.

Section 119J Notices can be given to any person, including individuals or corporations and can be given to any person who the officer suspects  of committing an breach of the EPA Act, as well as an innocent third parties including contractors, suppliers or transporters who may hold relevant information or records.

A natural person must be warned that they can object to the provision of information on the basis that it will incriminate them. If the person objects, they are still required to provide the information but it is not admissible in evidence against them in criminal proceedings (s119S(3)). Any records provided are admissible in evidence.

Corporate entities do not have this same protection as they are not entitled to the privilege against self-incrimination (Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 118 ALR 392).

It is an offence for a person to fail to comply, without reasonable excuse, with a s119J Notice (s119M) and a notice must include that warning

‘Information’ and ‘records’ may be required

An investigation officer can require both information and records under a s119J Notice.

‘Records’ is defined under the EPA Act to include ‘plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise)’ (s119A). A person can only be required to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully (s119J(3)).

The types of records that may be requested are wide-ranging and may include business records, site plans and maps, internal investigations or risk-assessment reports, invoices and correspondence.

This power under s119J is extensive and requests for information and records provide council investigation officers with a convenient and effective power that allows the officer  to investigate a matter from the comfort of their office.

Council investigation officers can seek information and records  to establish the when, how and why of a contravention of the EPA Act. The information and records obtained can then be used to determine the strength of a case and the appropriate enforcement action to be taken, and (subject to the self-incrimination protections) can be used against the individual or corporation in criminal proceedings.

Ensuring validity of a s119J Notice  

A s119J Notice must be in written form and specify the information or records that must be provided, the manner in which they must be provided, and a reasonable time by which they must be provided (s119J(1) and (2)).

Defining the purpose for which a s119J Notice is issued

To ensure that a s119J Notice is valid it must also sufficiently specify the ‘investigation purpose’ for which it is issued.

This matter arose in D’Anastasi v the Environment Protection Authority and anor [2011] NSWCA 374, which considered the validity of a notice issued by the EPA under s193J of the POEO Act. This provision empowered the EPA to require a person to provide information and/or records in ‘connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer’.

The Court found that the EPA notice was invalid as it did not properly define the ‘matter’ for which it was issued. In making this finding it followed a long-applied standard for statutory notices that the notice must make it clear that the information or documents sought were information or documents “relating” to one or more “matters” of a kind described in the legislation about which the giver was entitled to serve the notice (at [42] – [43]).

This principle will apply to a s119J Notice, and to ensure it is valid it must clearly state the ‘investigation purpose‘ for which it is issued. This primarily should include a description of the acts or omissions that are being investigated, as well as the location and period in which the acts or omissions occurred.

Information and records must properly relate to the investigation purpose

Finally, the information and records that are sought must properly relate to the investigation purpose that is stated in the notice (D’Anastasi at [86]). Any fishing expeditions or general requests for information and records that do not relate to a function under the EPA Act may be challenged on the basis that the notice that is issued is beyond power.

Prepared by Carlo Zoppo and Anna Sinclair.