07 Nov 2018

CU LAB: Environmental protection in Australia: The state of play

Australia's unique flora and fauna aren't the only environmental surprise ‒ our complex environmental law is too, so early planning for your inbound investment is crucial, says Brad Wylynko.

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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.


Let's talk about environmental protection in Australia.  If you're an international investor looking at Australia it's important to understand that, along with those iconic animals like kangaroos and koalas, there's also a very diverse and unique set of ecosystems across the country. Because these unique and diverse sets of ecosystems are quite localised, the environmental regulatory regime in Australia is itself also somewhat unique and very complex. 

When we're looking at things like a mining operation, resource, oil and gas, agriculture, anybody who's looking to invest, like other places in the world, needs to be cognisant and taking account of those environmental controls; but unlike other places in the world, here in Australia those controls range across the country in different ways. 

For example in Queensland we've recently seen the introduction of chain of responsibility legislation which means that, for example, anybody involved with a mine – including investors – can be issued an environmental protection order to help pay for the costs of things like remediation and clean-up of a site.  The Northern Territory is now looking at introducing similar legislation.  In Victoria we've recently seen the introduction of a general environmental duty which places a responsibility upon (for example) the occupiers of industrial facilities to ensure a level of responsibility towards the environmental goes above and beyond the traditional strict liability that's imposed by licences and permits. 

The upshot of all this is that you need to take environmental considerations into account early in the investment decisions to make sure that you're doing the adequate due diligence required to make the project successful.