Government moves quickly on proposed amendments to the Environmental Protection Act 1986

As foreshadowed in our Alert of 30 May 2006, Western Australia's Minister for the Environment, Mark McGowan, proposes to institute significantly higher penalties for causing pollution, a civil penalty regime, and a greenhouse emission reporting requirement (amongst other changes). He has now released a public discussion paper on the full range of proposed amendments.

The paper is open for public comment until 18 August 2006.

Increased penalties

A corporation convicted of the most serious offences (causing pollution or serious environmental harm intentionally or with criminal negligence) could face fines of up to $5 million. Individuals convicted of one of these offences could face fines of up to $1 million and/or 5 years imprisonment. A corporation that allows pollution or serious environmental harm to occur unintentionally and without criminal negligence could face a penalty of up to $2.5 million. Individuals could face a penalty of up to $500,000.

Importantly, the proposed amendments also include the introduction of mandatory minimum penalties (for the most serious environmental offences) for both corporations and individuals. The minimum penalties will be 10 percent of the maximum penalty. The introduction of minimum penalties removes a court's discretion when imposing sentences.

The maximum penalty for a corporation breaching an Environmental Protection Act licence will be increased from $125,000 to $1 million with a daily penalty of $200,000 (previously $25,000). An individual will face a maximum penalty of $200,000 and a daily penalty of $40,000.

Introduction of civil penalties

The reforms propose the introduction of civil penalties for certain serious offences (excluding those involving intention or recklessness) by giving the government the option of choosing to pursue a civil penalty rather than a criminal prosecution.

Pursuing civil penalties for an offence means:

• the prosecution will only have to prove its case to the civil standard of "balance of probabilities" rather than the criminal standard of "beyond reasonable doubt";
• individuals facing a civil penalty will not be able to rely on the privilege against self incrimination; and
• certain defences under the EP Act will not be available.

The reforms will also introduce a system to enable the parties to negotiate a civil penalty in lieu of prosecution. Where a negotiated solution is reached, or a civil penalty is paid, no criminal conviction will be recorded.

Greenhouse Gas Inventory

The discussion paper proposes greenhouse emissions monitoring, mandatory reporting of significant greenhouse emissions, and creating an offence for failing to comply with the reporting provisions.

The discussion paper cites the Western Australian Greenhouse Strategy 2004 which called for mandatory annual reporting of all six greenhouse gases by significant emitters at decreasing trigger points. Neither the Greenhouse Strategy nor the discussion paper define "significant emitters". However, the Greenhouse Strategy suggests a trigger point for 2006-2007 of 100,000 tonnes of CO2 per year.

Restriction of the due diligence defence

The discussion paper proposes to restrict the operation of the section 74(1a) due diligence defence to matters not within the control of the person. If enacted, this amendment will significantly limit the ability of individuals and corporations to rely on due diligence defences under the Act.

Other amendments

The paper sets out a number of other proposed amendments to, amongst other things, increase the power of investigators (including the ability to use reasonable force to enter premises), create conservation covenants, and include dust and sewage as unreasonable emissions.