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15 Oct 2020

NSW EPA Prosecution Guidelines to focus on human health and principles of environmental justice

By Claire Smith, Lauren Smith and Cloe Jolly

Changes to the EPA prosecution guidelines seek to ensure considerations of human health impacts and environmental justice inform decisions to prosecute offences under environmental legislation.

The NSW Environment Protection Agency (EPA) has released the latest version of its Prosecution Guidelines 2020 which identify the factors that the EPA takes into account in deciding whether, how and in what court, to launch legal proceedings, including prosecutions, under the legislation it administers. 

The EPA most widely prosecutes under the Protection of the Environment Operations Act 1997 (POEO Act) but it can also bring proceedings under the:

  • Biodiversity Conservation Act 2016;
  • Contaminated Land Management Act 1997;
  • Dangerous Goods (Road and Rail Transport) Act 2008;
  • Environmentally Hazardous Chemicals Act 1985;
  • Forestry Act 2012;
  • Local Land Services Act 2013;
  • Ozone Protection Act;
  • Pesticides Act 1999;
  • Radiation Control Act 1990;
  • Recreation Vehicles Act 1983; and
  • Waste Avoidance and Resource Recovery Act 2001.

The guidelines were developed and first published by the EPA Board in 1993, and have since been revised numerous times with the last revision prepared in 2013. The Guidelines outline factors which the EPA should consider in determining whether or not to prosecute an offence. The key change to the 2020 version is the addition of six other factors to this list of considerations. The additional factors which the EPA must now consider are:

  • the harm or potential harm to human health, and/or unreasonable interference or potential unreasonable interference with human comfort or repose;
  • environmental justice principles such as any disproportionate impact of an alleged offence on disadvantaged communities or other vulnerable persons;
  • whether, if legislative provisions have changed, the conduct giving rise to the alleged offence is no longer lawful;
  • whether prosecution of the alleged offence would assist in resolving an ambiguity in the law; and
  • the strategic value of the proposed prosecution.

The 2020 Guidelines also now expressly state that the EPA will work collaboratively with other authorities, such as councils and government agencies, when conducting criminal or related proceedings in respect of the same incident, conduct or defendant/respondent.


Health-based prosecutions

The harm or potential harm to human health has been explicitly included in the 2020 Guidelines and emphasised as a major objective of the EPA. The impact of an alleged offence on the health of a person or a community was not previously explicitly listed as a matter informing the EPA’s decision to prosecute. The inclusion of health issues ultimately reflects the statutory objective of the EPA under section 6(1)(b) of the Protection of the Environment Administration Act 1991 to reduce the risks to human health and prevent the degradation of the environment in NSW.


Prosecutions based on principles of environmental justice

The EPA can now formally seek to prosecute on the basis of "environmental justice principles", which includes any disproportionate impact of an alleged offence on disadvantaged communities or other vulnerable people. It is expected that this criterion will encourage action be taken in respect of environmental offences which impact vulnerable people groups, including environmental harm to indigenous land and communities.


Strategic value and resolving ambiguity

Recent cases such as the EPA’s prosecution of Grafil for offences under the POEO Act has led to the Court clarifying otherwise ambiguous and contested aspects of environmental law, specifically law relating to waste. The 2020 Guidelines now expressly state that the strategic value of a legal action and its potential role in resolving ambiguity in environmental legislation can, in part, motivate prosecutorial decisions. This may indicate at least a willingness for the EPA to initiate prosecutions or indeed appeal court decisions in an effort to resolve ambiguity in the interpretation of key legal provisions and definitions. These considerations will always be balanced with other factors such as prospects of success. However, this new consideration is an important one for organisations to note if ever investigated or prosecuted by the EPA.


Liability of directors

The 2020 Guidelines also clarify when directors can be held accountable for offences committed by corporations. It does so by providing additional explanation around the liability of directors for particular environmental offences, with reference to sections 169, 169A and 169B of the POEO Act and states:

  • Where an offence attracts "special executive liability" under section 169 a director or person concerned in the management of the corporation is taken to have contravened the same provision unless the person satisfies the court that they were not in the position to influence the conduct of the corporation in relation to the contravention of the provisions or that they used all due diligence to prevent the contravention by the corporation. The Guidelines explain that when determining whether or not to commence proceedings against a director or manager for a special executive liability offence the EPA must consider the actual control of the person involved, not the person’s role or influence more generally in the corporation. The EPA will only commence proceedings where there is evidence linking the director or manager to the corporation’s criminal offence.
  • In order for the EPA to prosecute a director or individual person with an "executive liability offence" committed by a corporation under section 169A it must be able to prove that the person knew or should have known that the offence would be or was being committed and failed to take all reasonable steps to prevent or stop the offence; and
  • For offences under section 169B the EPA, the EPA must prove that the person was involved in or a party to the commission of the offence.

Takeaways

The EPA Prosecution Guidelines help the public, entities subject to any environmental regulation and other organisations understand how the EPA will exercise its prosecutorial powers and the circumstances in which it will pursue legal proceedings.

The 2020 Guidelines are reflective of the types of actions the EPA has been taking for the past few years. The factors for consideration in the previous version of the guidelines focused on the seriousness of an offence, the harm or potential harm to the environment and several offender and procedural factors. The formal inclusion of human health and environmental justice principles as factors that the EPA will consider when deciding what to prosecute shows that the EPA will have a greater focus on protecting human health (as well as the environment) from pollution events and the impact of potentially harmful substances. Even interfering with human comfort is now a formal reason for the EPA to prosecute.

The EPA will also now consider the strategic value of a proposed prosecution and consider whether a prosecution would assist in resolving an ambiguity in the law. This highlights the EPA's role in pursuing prosecutions that will encourage the establishment of precedent to provide greater clarity for both the EPA as well as those organisations the EPA regulates.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.