2023 Trend: Stronger environment regulators
There is something of a trend underway towards strengthening the powers and independence of Australia’s environmental regulators. On 10 March 2023, I had the pleasure of briefing delegates at the Australian Environment Business Network (AEBN)’s Annual Conference on the key changes, both recent and proposed. It’s an important trend that is relevant for national businesses.
The current regime - snapshot
There are different environment regulators in each State and Territory, in addition to Federal agencies with a role in administration and enforcement of environmental issues nationally (such as the Department of Climate Change, Energy, the Environment and Water (DCCEEW); the Clean Energy Regulator, ACCC and ASIC).
Some States have independent government agencies that fulfil the environmental regulator role, often called Environment Protection Authorities (EPAs). EPA Vic, NSW EPA, and EPA SA are examples of this.
However, in some jurisdictions, enforcement of regulation and the role of “regulator” is undertaken by a State or Territory government department. The QLD Department of Environment and Science (DES) and WA Department of Water and Environmental Regulation (DEWR) are examples of this.
To confuse matters, the name “EPA” does not necessarily connote a “regulator” or enforcement role. For example, NT EPA is an independent statutory body established under the Northern Territory Environment Protection Authority Act 2012 whose function is to provide expert advice on environmental matters (not enforcement).
The key trend
In 2022 and 2023, a key emerging trend is the strengthening of the powers and independence of Australia’s environmental regulators.
Over the last 5 years there has been major reform in Victoria, culminating in new environmental laws and powers for Victoria’s environmental regulator (EPA Vic).
In Tasmania, in 2022 changes were enacted to strengthen the independence of EPA Tasmania by establishing it as an independent State Authority (as opposed to part of Department of Primary Industries, Parks, Water and Environment). Queensland has been consulting on plans to develop a fully independent environmental regulator and has made recent changes to environmental legislation to improve its effectiveness. In addition, in December 2022, the Federal Government announced the proposed creation of a new independent Federal Environmental Protection Agency (EPA).
These changes are obviously relevant to anyone operating in those jurisdictions. But it also speaks to a shift towards more sophisticated environmental regulation and enforcement around Australia.
Queensland
As noted above, the role of Queensland’s environmental regulator is currently undertaken by the Department of Environment and Science (DES). In 2022, DES consulted on the possible establishment of an independent environment regulator for Queensland. Click here for more information. It also follows Tasmania’s lead in 2021 of fully separating the Tasmanian EPA from State Government (discussed further below).
At the same time, there was an independent review of the Queensland Government’s powers and penalties, where it particularly relates to nuisance under the Environmental Protection Act 1994. The review, in relation to nuisance under the Environmental Protection Act 1994, will examine:
the adequacy of existing legislative powers
the suitability of the regulator’s present statutory tools
the adequacy of existing powers and tools in preventing and/or minimising environmental harm
investigative powers
the effectiveness and adequacy of existing penalties.
Irrespective of agency reform, in November 2022 the Environmental Protection and Other Legislation Amendment Bill 2022 (Qld) (Bill) was introduced into to Queensland’s Parliament to strengthen existing regulatory capabilities. The Bill amends the Environmental Protection Act 1994 (Qld), Waste Reduction and Recycling Act 2011 (Qld), Wet Tropics World Heritage Protection and Management Act 1993 (Qld) and Land Title Act 1994 (Qld). Whilst some of the changes impact the EIS process for new developments and post-closure mining operations, some proposed changes to the Environmental Protection Act will have broad relevance to business, including those operating licensed sites.
The key changes are:
Enhancing investigation powers by authorising DES officers to use body-worn cameras when exercising relevant powers under the EP Act and to use drones;
Clarification that executive officer liability applies to any officer that was in office at the date an act happened that eventually results in an offence (even if the offence only 'crystallises' after they leave office).
Increasing monetary thresholds for material environmental harm and serious environmental harm to $10,000 and $100,000 respectively. This doubles the current thresholds. The thresholds would then be adjusted annually by CPI;
Clarifying and improving the requirements and powers associated with court proceedings and orders, including providing for court orders to prohibit an offender from carrying out an activity to prevent further offences;
Providing for a short-term environmental authority (EA) to trial new and innovative approaches; and
Requiring public notification for all proposed major EA amendments for resource activities, giving the community a chance to have a say on significant changes.
The Bill was passed in March 2022 and the Environmental Protection and Other Legislation Amendment Act 2023 (the EPOLA Act 2023) commenced on 5 April 2023. Business operations in QLD should consider the impact of the EPOLA Act and update their environmental teams and EMS as necessary.
Tasmania
Similarly, Tasmania, is moving to a more independent EPA. EPA Tasmania was previously part of the Department of Primary Industries, Parks, Water and Environment. On 1 December 2021, the Environment Protection Authority became an independent State Authority. Following the change to administration, a draft Environmental Management and Pollution Control Amendment Bill 2022 proposes changes to the Environmental Management and Pollution Control Act 1994, Tasmania's principal environmental legislation. The changes in the Bill cover four areas:
Strengthening the independence of the EPA;
Expanding the powers of the Director of EPA, to make monitoring information available to the public;
Establishing processes for making Environmental Standards to manage activities that may affect the State's natural environment;
Establishing processes for making Technical Standards to help implement Environmental Standards, State Policies, Environment Protection Policies or National Environment Protection Measures.
Commonwealth developments - the creation of a new Federal EPA
In 2020, the Federal Government commissioned their decennial review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The review identified weaknesses in the current framework and made 38 recommendations to be implemented across 3 tranches of legislative and policy reform. Among the recommendations was a call for stronger compliance and regulation.
In December 2022, DCCEEW released its response to the review - the Nature Positive Plan: Better for the Environment, Better for Business. In the Plan, the Government announced its proposed creation of a new Federal EPA to have powers of EPBC Act administration, compliance and enforcement, planning approvals and project assessments, as well as other regulatory responsibilities under other Federal legislation.
Whilst the creation of a new statutory authority is arguably the centrepiece of the proposed reform, there are also to be other notable changes to standards that will substantially strengthen Australia’s Federal regulation. The establishment of an independent Federal EPA is not a new concept and is similar in many respects to Federal environmental regulation in the US.
What does it all mean?
A strengthening of Australia’s environment regulators should not be a surprise given rising community concern about climate change (see for example, the Lowy Institute Poll 2022), and environment protection and sustainability more broadly.
Given this trend and the renewed focus on sustainability reporting, astute environment managers, GMs, legal counsel and boards should revisit the legal compliance arrangements of their corporations with respect to environmental management. All Australian businesses (and those wishing to do business in Australia) should keep a watching brief on the Federal reforms in the environment space.
Whilst many businesses have invested in sustainability, environmental management in many organisations, has become separated from sustainability. Sometimes left behind. The shift towards greater independence and effectiveness of environment regulators ought shine a light on the need for greater investment in environmental compliance arrangements and the timeliness of joined up thinking. After all, you can’t easily present an innovative sustainability story if the regulator is taking enforcement action against you for legal compliance breaches.
If you need an independent senior lawyer to support you as you work through environmental compliance, sustainability or governance challenges in your organisation, please don’t hesitate to get in touch.
The legal stuff
This article is aimed to be high-level, practical and thought-provoking. It is not a detailed description of environmental law in any particular Australian State or Territory. All States and Territories have different environmental laws. You should always seek independent legal or other professional advice on specific cases and before acting or relying on any of the content.
All the information in this article and on this website and any downloads are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice or establish a lawyer - client relationship. Whilst attempts have been made to ensure that the content is current, Gabrielle Guthrie and Guthrie Legal do not guarantee its currency.
