Posted on March 10, 2022 by Adriana Kleiss and Anna Sinclair 16

Environmental Law Reforms – New Offences, Powers and Penalties

The Environmental Legislation Amendment Act 2022 (Amendment Act) has come into force, making significant amendments to environmental protection legislation in NSW.

This is our second blog on the Amendment Act. We previously discussed the imposition of new liabilities on current and former directors of a company, and any related corporate body for environmental offences here.

In this blog we discuss key amendments to the Protection of the Environment Operations Act 1997 (POEO Act) and Contaminated Land Management Act 1997 (CLM Act) designed to ensure cooperation with regulatory authorities during investigation processes, deter criminal behavior, and ensure the ongoing compliance with EPA licences. The amendments include:

• the introduction of new and expanded offences under the POEO Act,
• the ability of the EPA to impose restrictions and covenants on land to ensure compliance with the conditions of an EPA licence, and
• increased penalties under the POEO Act and CLM Act.

The Investigation Process

The Amendment Act introduces two new offences to facilitate the investigation of environmental offences under the POEO Act.

1. Providing false and misleading information

The Second Reading Speech for the Amendment Act notes that the EPA has seen increasing instances where individuals or corporations provide false or misleading information to avoid enforcement action or delay an investigation.

The POEO Act currently makes it an offence to provide false or misleading information in reports lodged with a regulatory authority (s113) or about dealings with waste (s144AA), or to represent that a product or service is approved, recommended or provided by the EPA.

The Amendment Act introduces new section 167A, which provides that it is an offence to give information to the EPA which is false or misleading in a material respect. The offence is one of strict liability, meaning that a person can be guilty notwithstanding that they did not know the information provided was false. This places a positive obligation on corporations and individuals to verify information before providing it to the EPA. The offence only applies to information provided to the EPA, not to local councils.

The new offence attracts a maximum penalty of up to $500,000 for a corporation or $250,000 for an individual, and directors and other persons involved in the management of a defendant corporation may also be liable.

2. Delaying, obstructing, assaulting or intimidating an authorised officer

Investigating environmental offences can be a dangerous occupation. The Second Reading Speech for the Amendment Act notes an increasing number of incidents where EPA officers have been threatened on the job.

The POEO Act currently makes it an offence to willfully delay or obstruct an authorised officer in specific circumstances (s112). The Amendment Act significantly expands that provision by making it an offence for a person to delay, obstruct, assault, threaten or intimidate an authorised officer in the exercise of the authorised officer’s powers.

The offence is one of strict liability, meaning that there is no need to prove that the action was willful. However, if it can be proved that the action was willful, the maximum penalty is doubled ($2,000,000 for a corporation with an extra $240,000 for each day the offence continues).

Waste offences

The Amendment Act introduces an amendment to section 143 of the POEO Act that will enable regulatory authorities to prosecute the owner of a vehicle used to unlawfully transport or deposit waste.

Currently, regulatory authorities can only take regulatory action against drivers of vehicles used for illegal waste disposal, not the vehicle owner. However, proving who was driving that vehicle at the time can be challenging.

This amendment will enable regulatory authorities to prosecute owners of vehicles used to illegally transport and dump waste. It will likely make it easier to prosecute these offences, as a regulatory authority will be able to identify the owner of a vehicle by using the number plate, and it will not have to establish who was driving the vehicle at the time of the offence. The offence is one of strict liability, so it will not be necessary to prove that the owner knew the vehicle in question was being used to unlawfully transport or deposit waste.

It is expected that the amendment will operate to dissuade companies from engaging in unlawful waste disposal for financial gain, and also encourage vehicle hire companies to vet potential licensees.

Ongoing management of contaminated land

The Amendment Act introduces new Part 4A of the POEO Act which allows the EPA to impose restrictions on the use of, or public positive covenants on land under s88E of the Conveyancing Act 1919 for the purpose of enforcing a condition of an EPA licence, or a condition of the suspension, revocation or surrender of an EPA licence.

A restriction or covenant imposed by the EPA may require the owner of the land to do one or more of the following:

• to inform the EPA of a change in the ownership or occupancy of the land, to the extent that the person is aware of the change,
• to not carry out, and to not allow other persons to carry out, specified activities on the land,
• to not use, and to not allow other persons to use, the land for specified purposes,
• to otherwise do, or not do, a thing that may be required to be done, or that must not be done, under a condition of the EPA licence, or the suspension, revocation or surrender of the license.

The EPA may enforce the restriction or covenant against an owner, lessee or mortgagee of the land.

This amendment aims to ensure that landowners, lessees or mortgagees who seek to avoid responsibility for the ongoing management of the site can be subject to enforcement or clean-up action where they fail to monitor and maintain legacy contamination.

Increased penalties for environmental offences

In order to increase consistency in maximum penalties for comparable offences across the POEO Act and further deter environmental crime, the Amendment Act increases the maximum penalties for a range of offences under the POEO Act including the following:

1. providing false or misleading information about waste under s144AA(1) from $250,000 to $500,000 (corporation); and $120,000 to $250,000 (individual),
2. knowingly providing false or misleading information about waste under s144AA(2) from $500,000 to $1,000,000 (corporation); and $240,000 to $500,000 or imprisonment for 18 months (or both) (individual), and
3. attempting to comply with a requirement under Chapter 7 (e.g. providing information or records) by false/​misleading means under s211(2) now allows a penalty of imprisonment for 18 months to be imposed on an individual.

The maximum penalty amounts in the CLM Act have not changed since that Act was introduced in 1997, and the Amendment Act also seeks to increase the maximum penalties across the CLM Act to align them with equivalent offences in the POEO Act, including the following offences:

1. the offence under s14 for failing to comply with a direction or other requirement under a management order on a continuing basis from $66,000 to $120,000 for each day the offence continues (corporation), and from $33,000 to $60,000 (individual)
2. the offence under s28 for failing to comply with an ongoing maintenance order to $1,000,000 (corporation) or $250,000 (individual) and makes the offence a continuing offence.

These increases in penalties confirm the seriousness in which Parliament views environmental offences and will result in an increase in the penalties that courts impose for these offences.

The full Amendment Act can be accessed here.

If you have any questions about this blog, please contact Anna Sinclair at anna.sinclair@lindsaytaylorlawyers.com.au or on 8235 9713 or Adriana Kleiss at adriana.kleiss@lindsaytaylorlawyers.com.au or on 8235 9718.