NSW Parliament passes Environment Legislation Amendment Bill 2021

On 24 February 2022, the the Environment Legislation Amendment Bill 2021 (NSW)  ('the Bill') passed both houses of parliament. The Bill, which was initially introduced in the Legislative Assembly on 24 November 2021, proposed various amendments to environment protection, waste management, and pollution laws. The amendments aim to strengthen enforcement powers, extend liability for certain offences and increase criminal penalties.

The Bill has yet to receive the royal assent.

Background

In the Second Reading Speech given by Felicity Wilson (on behalf of the then Minister for Environment Matt Kean ), she stated that:

Illegal dumping and waste disposal is a significant issue in NSW, with the NSW Environmental Protection Authority (EPA) estimating that over 130,000 tonnes of contaminated waste was illegally disposed of in the state between about late 2017 and early 2021. 

To address mounting clean-up costs and environmental harm, the Bill primarily seeks to make changes to the following Acts:

• the Protection of the Environment Operations Act 1997 (NSW);
• the Contaminated Land Management Act 1997 (NSW);
• the Pesticides Act 1999 (NSW);
• the Radiation Control Act 1990 (NSW); and
• the Protection of the Environment Administration Act 1991 (NSW).

Increased regulatory powers

The proposed Bill seeks to expand the powers of the EPA – the primary environmental regulator for New South Wales. The EPA is already empowered under Chapter 7 of the Protection of the Environment Operations Act 1997 (NSW) with wide investigative powers. This includes powers to enter and search premises, seize samples or records connected with an offence, and question persons believed to be involved in an offence.

Under the amendments proposed by the Bill, the EPA will also be able to:

• issue clean-up or prevention notices as soon as it is notified of any contamination;
• require financial assurances for sites subject to an ongoing maintenance order or public positive covenant;
• consider the financial capacity of a person or company when determining if a financial assurance should be required; and
• impose restrictions on the use of, or public positive covenants, on land subject to a licence.

The Bill also seeks to amend section 38 of the Pesticides Act 1999 (NSW) to enable the EPA to make pesticide control orders without Ministerial approval. In her second reading speech, Wilson emphasised that these proposed amendments:

Liability for related corporate entities, executives and managers

Notably, the proposed amendments will also extend criminal liability for certain offences under the Contaminated Land Management Act 1997 (NSW), the Pesticides Act 1999 (NSW), the Protection of Environment Operations Act 1997 (NSW) and the Radiation Control Act 1990 (NSW) (“the Acts”) to related corporate entities and directors.  

The amendments seek to make it an offence for persons or entities to receive, acquire or accrue a monetary benefit from the commission of an offence under the Acts by a corporation. A ‘monetary benefit’ is defined in the passed Bill to include any financial or economic benefits. A monetary benefits order can be sought against a director of the corporation that committed the offence, a related body corporate, or a director of a related body corporate.

The Bill also seeks to consequentially amend the Land and Environment Court Act 1979 (NSW) to give the Land and Environment Court, the jurisdiction to hear and dispose of proceedings concerning the recovery of monetary benefits from prescribed persons.

Increased monetary penalties for offences

The Bill also seeks to increase maximum penalties for several existing offences. For example, corporations that, without reasonable excuse, fail to comply with a preliminary investigation order issued by the EPA under section 10 of the Contaminated Land Management Act 1997 (NSW), now face a maximum penalty of $1,000,000. This is up from the current maximum penalty of $68,750.

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Environment Legislation Amendment Bill 2021 (NSW) and supporting materials available from TimeBase’s LawOne Service

Better Regulation Statement – Environment Legislation Amendment Bill 2021 (NSW Environment Protection Authorirty, November 2021)