Page 3858 - Week 12 - Thursday, 30 October 2014
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One of the more substantial components of the bill are the new provisions around enforceable undertakings. Enforceable undertakings will provide the EPA with an extended toolkit with regard to the management of offences under the act. While enforceable undertakings may be voluntary agreements that industry or business would enter with the EPA, they are negotiated in the context that the regulator believes an offence has taken place already—that is, there is an alleged offence under the act. An enforceable undertaking can deliver a win-win for government and industry if it means that there is an agreement that environmental reparation will be undertaken.
Generally, enforceable undertakings are entered into after a pollution accident, and in some ways that is frustrating as obviously it would be preferable for a system that prevented accidents. But they can save time and money spent in court by focusing on actions that will actually deliver environmental reparation or benefit.
The EPA is likely to spend some time thinking about how it can best use this new tool in the toolkit and whether or not it could be suggested for lower level breaches where offences, such as reporting offences, have already occurred. Enforceable undertakings can be utilised in response to environmental harm, but also where there is a likelihood of environmental harm, another significant amendment delivered in this bill. One of the interesting features of the enforceable undertakings approach is that when a person enters into an undertaking, the legislation specifically states that this is neither an express or implied admission of fault or liability by the person in relation to the alleged offence. Nor is it relevant to deciding fault or liability in relation to the alleged offence.
This is an important feature in order to get maximum cooperation between entities and the EPA in working through an undertaking, but I think it will be important that the EPA is clear that there might be occasions when penalties should just be pursued. The EPA will also need to be clear in negotiating appropriate undertakings that deliver environmental reparation in an appropriate manner and in an appropriate time frame.
The expansion of this scope of the act to include likely or potential harm will deliver a significant change for the operation of the Environment Protection Act. This broadens the definition beyond actual or realised harm. As the explanatory statement notes, this will provide the necessary tools to proactively tackle transient and cumulative environmental impacts. To date, there have been no offences applying to actions that have the potential to result in serious environmental harm but fall short of actually causing environmental harm.
It clearly makes sense for the EPA to be able to act in these circumstances and have the powers to take steps in a manner that seeks to ensure an identified issue does not become a much more serious problem. It is consistent with definitions of “environmental harm” in other jurisdictions such as New South Wales, Queensland, South Australia and Victoria.
Clause 32 of the amendment bill also provides for an internal review process, a process by which the EPA can internally review decisions made in relation to matters
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