AUSTRALIA Trends and Developments Contributed by: Peter Briggs, Christine Wong, Mark Smyth and Tom Dougherty, Herbert Smith Freehills
Expanded regulatory investigation and enforcement powers Various Australian jurisdictions have introduced reforms to strengthen investigation and enforce- ment powers of EPAs (or equivalent) and now impose higher penalties for environmental offences. Examples of such reforms include the following. • Major changes to the environment protection regime in NSW commenced in April 2024, doubling maximum penalties for environ- mental crime (with some maximum penal- ties now AUD10 million for corporations and AUD2 million for individuals) and substantially expanding the investigatory powers of the NSW EPA. New investigatory powers for the NSW EPA include the power to issue public “name and shame” warning statements about poor environmental practices and performers, as well as oral or written “preliminary inves- tigation notices” that require recipients to assist investigations by the NSW EPA at their own cost. Notably, the results of a prelimi- nary investigation could be used by the NSW EPA in prosecuting the person to whom it is issued. • New environmental laws in Queensland com- menced in June 2024, introducing a broader range of enforcement options for regulators, along with stronger penalties. The new laws include: (a) the power to issue “environmental enforcement orders” to compel improve- ments to on-site activities causing unac- ceptable environmental harm; and (b) “general environmental duty” (GED) that requires a person to take reasonably practicable action to prevent or minimise material or serious environmental harm (similar to the GED in Victoria).
Notably, NSW’s environment protection reforms were a direct response to a significant asbestos in mulch crisis in 2024, which saw various public locations in Sydney closed during the investiga- tion and remediation stages. More frequent investigations and prosecutions of local and overseas company directors Prosecution of corporate management under Australian environment protection legislation is not new. Each state and territory has some form of framework that allows for directors, officers and persons involved in the management of a corporation to be held liable for actions of the corporation. What is significant is that the frequency with which corporate management is prosecuted under these legislations has generally increased over time. This is particularly apparent in NSW and Victoria, which have comparably more active EPAs than other Australian jurisdictions. As indicated in the NSW EPA’s annual reports and in the Victorian EPA’s register of court pro- ceedings, the number of director prosecutions for environmental offences committed by a cor- poration has increased: • for NSW, from no prosecutions (financial year (FY) 2021–22) to six prosecutions (FY 2023– 24); and • for Victoria, from three prosecutions (FY 2021–22) to 12 prosecutions (FY 2023–24). Recently, the Victorian EPA has also attempted to investigate and serve overseas-based direc- tors in connection with a potential environmen- tal prosecution. While the charges against the corporation and its directors were ultimately not pursued, this demonstrates the regulator’s will- ingness to take extraterritorial action relating to
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