24 May 2024The recent discovery of asbestos-contaminated mulch across Sydney has highlighted the fact that NSW’s existing environmental laws do little to protect our surroundings from environmental crime and fail to deter would-be offenders and polluters.
New legislation increases penalties for environmental crime
Put simply, the existing penalties for committing an environmental crime in NSW were shamefully inadequate.
The latest tool to strengthen NSW’s environmental protection laws is the introduction of the NSW Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Act 2024 (EPLA Act), which increases existing penalties for those found guilty of environmental crime and pollution offences in the state and introduces a wide raft of other changes that now ensure NSW has the toughest anti-pollution laws anywhere in Australia.
The EPLA Act came into force in April 2024. Among other things, it doubles the maximum court-imposed penalties, to $10 million for the most serious pollution offences committed by companies and $2 million for individuals.
Fines relating to offences that involve asbestos waste have also jumped from a measly $44,000 to $4 million for corporations. (Please see Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Bill 2024, First Reading.)
Clearly, the EPLA Act gives the Environment Protection Authority much-needed power and the teeth to fight environmental crime head-on.
Major impacts of the EPLA Act for environmental crime
The EPLA Act is the largest amendment to the state’s environmental protection laws since 1991. It has the following effects.
- Increases to the maximum penalties for Tier 1 serious offences, to $10 million for companies and $2 million for individuals.
- Doubling of maximum penalties for Tier 2 asbestos-related offences to $4 million for companies and $1 million for individuals.
- Increases for on-the-spot fines for Tier 3 offences like licence breaches and water pollution.
- Increases to maximum penalties for breaching resource recovery orders and exemptions from $44,000 to $2 million, or $4 million for offences by corporations involving asbestos waste.
- Strengthening of investigative powers, introduction of investigation notices, and improvement and expansion of clean-up notice controls.
- Increases to the jurisdictional limit of the NSW Local Court, even for summary offences.
- New powers for the NSW Land and Environment Court to stop serial and serious offenders from applying for Environment Protection Licences.
- New powers introduced to recall products that may have been contaminated with harmful substances.
- Establishment of a public “name and shame” process to issue public warnings about poor environmental performers and substandard practices.
- New framework to assist with accurate waste assessment and disposal to strengthen recycling operations.
(For more information please see Biggest boost to environmental regulation in 3 decades, NSW Government media release, 14 March 2024.)
In addition, the EPLA Act clarifies the Environment Protection Authority’s statutory duties to take climate change into account and reflects the recent court decision in Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92.
Tiered regime for environmental crimes and offences
These sweeping reforms are designed to improve the protection of human health, the environment and the community. Those caught doing the wrong thing will no longer receive a slap on the wrist. Instead, penalties will reflect the risk of harm and disruption to the environment and community.
NSW has a three-tier regime of environmental offences:
- Tier 1 offence – An offence that wilfully or negligently harms the environment from the disposal of waste, or causing any substance to leak, spill or escape will attract the largest penalty. These are the most serious offences.
- Tier 2 offence – The most serious Tier 2 offence is land-based pollution that involves asbestos waste. Tier 2 offences also cover all pollution (land, water, air and noise) offences that fall under the NSW Protection of the Environment Operations Act 1997 but aren’t classed as a Tier 1 offence (or don’t involve asbestos), including failing to comply with licence conditions or a clean-up notice.
- Tier 3 offences – An environmental offence which incurs an on-the-spot fine. The amount of the penalty is set by the Regulations and may not exceed the maximum penalty that a court can impose for the offence.
The new “name and shame” power is also used to bring attention to the poor behaviour of people or companies that are subject to complaints or have been involved in pollution incidents.
This power also ensures that the majority of businesses and operators who do the right thing are not subjected to undeserved bad publicity.
Stronger powers to issue clean-up notices
The EPLA Act gives the EPA new and stronger powers to issue clean-up notices in response to suspected pollution incidents, including the following.
- Issuing clean-up notices for littering and illegal dumping of materials and waste.
- Requiring an offender to restore the environment to a state that is as close as possible to the state of the surrounding environment immediately before the offending.
- Requiring testing and monitoring to be carried out and the results to be provided to the EPA.
- Including a directive to remove chemicals and products containing certain chemicals in a clean-up notice – not only waste materials.
Under the old laws, development consent or approval was often required under the NSW Environmental Planning and Assessment Act 1979 to conduct clean-up actions required by a clean-up notice.
The new laws allow the EPA to override the state’s planning laws and force a regulated entity to take action in response to a pollution incident without needing development consent, ensuring a quicker response in cleaning up after pollution events.
New laws do not apply retrospectively for environmental crime
This new law and the increased penalties are just the start of a continuing crackdown on polluters across the state in the wake of asbestos-contaminated mulch being found in many Sydney parks.
Simply blaming contractors or employees for actions like illegal dumping will probably not be an escape for companies and their directors or managers under these new regulations.
However, the transitional operation of the new laws means the new offences and increased financial penalties only apply to incidents that have happened since the introduction of the Act in April 2024.
Similarly, the new powers of the courts only apply to new proceedings, and those that are yet to be determined. Put simply, the new environmental protection laws will generally not apply retrospectively.
The state government has indicated that this is just the start of tougher moves on crimes that harm the environment, and companies will need to ensure their governance and risk management are ready to meet these new laws.
Any company involved in construction, demolishing buildings, providing mulch or soil, or moving waste material should seek legal advice on what these new regulations mean for them.
