AUSTRALIA Trends and Developments Contributed by: Peter Briggs, Christine Wong, Mark Smyth and Tom Dougherty, Herbert Smith Freehills
This framework comprises numerous pieces of legislation, regulations, guidelines and other instruments, creating a legal patchwork that businesses must safely navigate, particularly at the start of a crisis. Within this context, the Australian environmental regulatory enforcement landscape continues to see sustained action by state and territory agencies for environment- related issues, including: • a co-operative, multi-agency approach to the early investigation of issues relating to envi- ronmental incidents and non-compliances in key jurisdictions such as New South Wales (NSW) and Victoria; • an expansion of investigation and enforce- ment powers for EPAs, including harsher penalties for breaches of environmental laws; and • the pursuit of Australian and overseas-based corporate directors for breaches of environ- ment protection laws. Multi-agency approach to investigations Generally, statutory obligations require certain environmental issues to be reported to the EPA (or equivalent) in each state or territory jurisdic- tion, in addition to other government agencies (eg, health, fire and other emergency services). At a time of crisis, this type of legal reporting obligation ensures that there may be more than one government agency involved in the investi- gation of that issue – examples of which include the following. • A multi-agency investigation in NSW (which included the NSW EPA) was undertaken fol- lowing the significant discovery of asbestos in mulch in numerous public locations across Sydney, including schools, hospitals, and transportation facilities. The extensive inves- tigations resulted in several clean-up and
prevention notices being issued, as well as a suite of prosecutions against three corpora- tions and a director that are yet to be deter- mined. • The Victorian EPA led an unannounced multi- agency investigation into businesses in the meat and livestock industry in Echuca and, in 2024, the EPA was successful in the prosecu- tion of the director of a related corporation. These case studies show a willingness by EPAs to involve other agencies in responding to envi- ronmental issues, even if it is ultimately the EPA that will undertake the prosecution. This is increasingly playing out at an early investigation stage, as the relevant EPA and other agencies appear to take a co-ordinated approach to stat- utory requests for information, site inspections, interviews, and other preliminary steps. During an environmental crisis, a multi-agency regulatory approach can result in additional issues arising from the original environmental issue owing to the spotlight on different parts of a business by various regulators. Businesses must be mindful of this risk when responding to a crisis and be ready to address issues that may not appear to be at the core of the environmental issue, such as consumer, contractual and safety matters. The multi-agency approach also has a higher risk of increased regulatory burden after a crisis event. By way of example, a variation of existing environmental licence conditions is an approach that regulators typically adopt to impose new obligations requiring wide-ranging action by the licence holder (eg, mandatory audits). This potential post-crisis requirement also carries a material risk that other issues in the business will be identified and reported to the relevant regulator.
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