Australia operates under a federal political regime, with a federal government, six states and several territories, including two mainland territories each with their own political frameworks and ability to pass legislation. In Australia, environmental laws and policies are made at both the state and federal levels.
In the past year the key developments in environmental law have been the following:
- The second independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) is currently ongoing.
- The National Waste Policy Action Plan 2019 was developed to present targets and actions to implement the 2018 National Waste Policy, which provides a framework for collective, national action on waste management, recycling and resource recovery to 2030.
- The Council of Australian Governments agreed to establish a timetable to ban the export of waste plastic, glass and tyres, which is intended to be implemented in the next three years or so.
- The Underwater Cultural Heritage Act 2018 came into force, which replaces the Historic Shipwrecks Act 1976. The new Act continues the protection of historic shipwrecks and relics, and broadens the objects that may be subject to protection under law (e.g. sunken aircraft).2
Ii LEGISLATIVE FRAMEWORK
i Commonwealth legislation
Australia’s Constitution does not contain an express power for the federal government to make laws concerning environmental protection. However, the federal government has relied upon the external affairs power to enact environmental legislation to achieve the aims of international treaties, for example the Convention on Biological Diversity. The federal government has also relied on its other constitutional powers to legislate, including trade and commerce, corporations, the race power and finance and taxation powers.
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) is Australia’s primary environmental legislation. The main objective of the EPBC Act is to protect and manage matters of national environmental significance.3 The EPBC Act and its regulations establish processes for the assessment and approval of actions that have or are likely to significantly impact these matters. The EPBC Act also provides for strategic planning and management of Australia’s fisheries and the management of federal protected areas, including marine reserves. There are also other federal environmental laws that deal with more specific environmental issues.4
ii International agreements
Australia is a party to multiple international agreements that have the objective of protecting the environment, including the United Nations Framework Convention on Climate Change,5 the Convention on Biological Diversity, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Wetlands (the Ramsar Convention) and the Convention for the Protection of the World Cultural and Natural Heritage. In addition, Australia is a party to bilateral environmental agreements, including Agreements with Japan,6 China7 and the Republic of Korea8 on protection of migratory birds and their environment.
iii State and territory legislation
Australian states can enact environmental laws providing they do not conflict with any Commonwealth legislation. The Commonwealth legislation will prevail if it conflicts with a state law.9 In the territories,10 ministers possess executive powers regarding environmental protection and legislative assemblies may enact laws on issues within the authority of the relevant minister.11
In New South Wales (NSW), for example, major environmental laws include the Environmental Planning and Assessment Act 1979 (the EP&A Act) (which provides a system of planning and assessment, including an approval process for local and State significant developments) and the Protection of the Environment Operations Act 1997 (the POEO Act) (which aims to protect, restore and enhance the quality of the environment in NSW through control of pollution generating activities). Other environmental issues regulated by the states and territories include contaminated land management, environmentally hazardous chemicals, forestry, pesticides, radiation control and waste avoidance and management.
IIi THE REGULATORS
The Department of the Environment and Energy (the Department) is responsible for administering and enforcing the EPBC Act.
ii State and territory
Most of the states and territories have designated environmental regulators as well as other government departments and authorities with regulatory powers. In NSW, for example, the NSW Environment Protection Authority (EPA) issues environment protection licences under the POEO Act, monitors emissions, investigates pollution incidents and prosecutes individuals and corporations who break environmental laws; the Department of Planning, Industry and Environment administers planning and environmental laws, for example the EP&A Act, the Heritage Act 1977, the National Parks and Wildlife Act 1974 and the Biodiversity Conservation Act 2016; and local councils also enforce planning and some environmental laws at the local level.12
In many states and territories, any person can enforce environmental and planning laws by bringing proceedings in the appropriate courts. In certain cases, this can extend to criminal proceedings.
There are specialist environmental courts in NSW, Queensland and South Australia (SA).13 The NSW Land and Environment Court, for example, has an appellate and review jurisdiction that includes merits review, judicial review, civil enforcement, criminal appeals and civil claims relating to planning, environmental and mining legislation. Unlike the other specialist environmental courts, which are inferior courts of record, the NSW Land and Environment Court is a superior court of record. 14
i Federal enforcement
The main offence provisions under the EPBC Act relate to taking an action that has, will have or is likely to have a significant impact on a matter of national environmental significance without approval, for example, clearing land that is habitat for a nationally listed threatened species without approval.15
A person who commits an offence can be liable for a civil penalty of up to A$1.05 million for an individual and A$10.5 million for a body corporate, or for a criminal penalty of seven years’ imprisonment or a penalty of A$88,200, or both (in the case of an individual) and a penalty of A$441,000 (in the case of a body corporate). The Department has, in the past, brought proceedings and obtained significant penalties for breaches of the Act, including a A$450,000 penalty for the deliberate clearing of a Ramsar wetland.16 The Department has also prosecuted a number of people for unlawfully fishing in Commonwealth marine reserves,17 and has power to prosecute individual directors (or other executive officers) for offences under the EPBC Act.
However, prosecutions under the EPBC Act are (irrespective of the identity of the defendant as a corporation or individual) fairly rare, especially when compared to prosecution actions taken at the state and territory level in Australia. The Department has, in the recent past, been prepared to deal with breaches of the EPBC Act by means other than prosecution, particularly through use of enforceable undertakings. 18
The EPBC Act allows third parties to seek injunctions to remedy or restrain breaches of the Act if they demonstrate that they are an organisation whose objects or purposes include protecting, conserving or conducting research into the environment, or an individual who has engaged in those activities in the preceding two years.19 This provision has enabled a number of conservation groups to make administrative law challenges to decisions of the Federal Minister for the Environment under the EPBC Act, for example, approval of large coal mines.20 It has also been used to successfully obtain an injunction to prevent a Japanese whaling company from conducting whaling in Australia’s Antarctic territory.21
ii State and territory enforcement
At the state and territory level the penalties for undertaking development or causing pollution without the necessary approvals or licences can be significant. In NSW, the POEO Act takes a tiered approach to breaches of the Act. Tier 1 offences are the most serious and will usually involve conduct that is wilful or negligent, and can attract penalties of up to A$5 million for corporations, and A$1 million and seven years’ imprisonment for individuals. Tier 2 offences include water, air, noise or land pollution, waste offences and breaches of licence conditions. These offences can attract penalties of up to A$2 million for corporations and A$500,000 for an individual for a failure to notify a pollution incident, and A$1 million for corporations and A$250,000 for individuals for other offences. Tier 3 offences are dealt with by penalty notices (on the spot fines) of up to A$15,000. A similar tiered approach is adopted under the NSW EP&A Act.
In a number of states there is a positive statutory obligation to inform the relevant regulatory authority if certain types of environmental incidents have occurred or land is contaminated. Failure to comply with these obligation is an offence. The types of notifiable incidents can, at times, be relatively minor.
iii Environmental torts
Environmental torts and class actions are not common in Australia, probably because our statutory environmental laws give regulators strong powers to require clean-up and remediation after environmental incidents. The area in which they are most likely to occur is where contamination has migrated from one site to another, the contamination is not so serious as to have the regulator get involved, but damage has been suffered by an adjoining landowner.
iv Corporate liability
Corporations in Australia can be found guilty of environmental offences by reason of the conduct of their officers, employees and, in some circumstances, subcontractors.
In NSW, legislation has broadened the potential scope of an employer’s liability for an employee’s actions. Provided that the employee is acting within the scope of his or her employment, the employer may be prosecuted for the employee’s breach or omission.22
A company (and its directors and managers) may also be liable for the actions of subcontractors in certain circumstances. This will usually be the case where inadequate instructions are given or if the contractor has not been properly supervised. In SPCC v. Australian Iron & Steel Ltd (1992) it was held that a company was liable for acts of an independent contractor where the contractor caused a large spill of oil and tar by mistakenly cutting pipes containing the oil. Liability was attributed to the company on the basis that the instructions given were not sufficiently clear and that inadequate supervision was provided given the recognised potential danger of oil spilling from the pipes if cut. By contrast, in SPCC v. Blue Mountains City Council (1991) the Council was not liable for the action of a contractor where the Council could not have been aware of, or have had control over, the actions of the contractor.
In NSW a licence holder will automatically be found to be guilty of the offence of a breach of a licence condition even if the breach was committed by a contractor.
v Director liability
Environmental legislation in most jurisdictions exposes not only companies, but directors and persons concerned in the management of the company to liability for offences of the corporation. For example, in Western Australia, where an offence committed by the corporation is proved to have been committed with the consent or knowledge of a director or other officer concerned in the management of the corporation; or owing to any neglect on his or her part, the director or officer may also be guilty of the offence. It is not necessary for the corporation to be prosecuted for such liability to arise.
Persons ‘concerned with the management’ of a corporation include various levels of management; from state and regional managers to depot or facility managers. They may also include supervisors and certain senior employees.
In NSW, environmental offences are divided into the more serious ‘general executive liability offences’ and then ‘special executive liability offences’. For general executive liability offences, a director or manager of a company commits the same offence as his or her company unless he or she can prove that he or she was not in a position to influence the conduct of the company; or used all due diligence to prevent the offence by the company.
For special executive liability offences, the prosecution bears the legal burden of proving all of the elements of an offence before a director or manager can be found to be guilty of the same offence as his or her company, the elements being that the corporate officer of the corporation commits an offence where the person knows or ought reasonably to have known that the executive liability offence would be or is being committed; and that person fails to take all reasonable steps to prevent or stop the commission of the offence.
In Queensland, liability has recently been extended beyond corporations and corporate officers through the passing of the Environmental Protection (Chain of Responsibility) Amendment Act 2016. The Act empowers the Department of Environment and Heritage Protection (EHP) to enforce and recover costs against a company’s ‘related persons’. Related persons may include (subject to certain qualifications), a holding company, an owner of land on which the company carries out or has carried out an activity, or a person that the EHP decides has a ‘relevant connection’ to the company.
V REPORTING AND DISCLOSURE
i Environmental audits
Similar to other jurisdictions, with the introduction of ISO 14000 environmental management standards, a number of companies are incorporating periodic environmental audits into their management systems.
In some cases, government agencies may initiate environmental audits, for example through conditions of environmental licences.23 In NSW, conditions requiring mandatory environmental audits can only be imposed on an environment protection licence under the POEO Act where the appropriate regulatory authority reasonably suspects that there has been a contravention of the Act and the contravention has caused, or is likely to cause, harm to the environment.24 Companies are also able to undertake voluntary environmental audits under the POEO Act in NSW. In doing so, documents prepared for the audit may be protected and inadmissible in enforcement proceedings and cannot be inspected or seized by the EPA.25
ii Reporting requirements
Environmental reporting is imposed through a number of federal, state and territory laws.
At the federal level, the National Greenhouse and Energy Reporting Act 2007 (Cth) provides a framework for corporations to report on greenhouse gas (GHG) emissions, energy use and energy production, where reporting thresholds for the corporate group or individual facilities are exceeded.
Environmental reporting obligations are also commonly imposed on companies undertaking licensed activities through conditions placed upon environmental or development approvals or environment protection licences. These may require annual compliance reporting or more frequent reporting of monitoring results for air and water discharges.
iii Notifiable incidents and contamination
As stated above, in a number of states there is a positive statutory obligation to inform the relevant regulatory authority if certain types of environmental incidents have occurred or that land is contaminated. Failure to comply with this obligation is an offence. The types of notifiable incidents can, at times, be relatively minor.
Vi ENVIRONMENTAL PROTECTION
i Air quality
Air quality is regulated in Australia at both the federal and state level.
The National Environment Protection (Ambient Air Quality) Measure was established in 1998. It aims to provide a common national goal to best protect human health and well-being from the adverse impacts of air pollution. It provides a consistent framework to assess Australia’s outdoor air quality by setting national ambient air quality standards for six common air pollutants26 as well as mandatory monitoring and reporting requirements against these standards for participating jurisdictions. Obligations under this Measure are generally assumed by governments rather than emitters.
On 15 December 2015, Australia’s federal and state environment ministers entered into the National Clean Air Agreement. The Agreement, implemented through the National Environment Protection Council, focuses on actions to reduce air pollution and improve air quality through cooperative action between industry and government at the national, state and local levels. Obligations under this Agreement are also generally assumed by governments rather than emitters.
The initial work plan for the Agreement focuses on matters such as:
- introducing emission standards for new non-road spark ignition engines and equipment (such as garden equipment and marine outboard motors);
- adopting measures to reduce air pollution from wood heaters, including the adoption of new emission and efficiency standards for new wood heaters and sharing best management practices across jurisdictions; and
- strengthening ambient air quality reporting standards for particle pollution based on the latest scientific understanding of the health risks arising from airborne particle pollution.
At the federal level, the National Environment Protection (National Pollutant Inventory) Measure (NPI NEPM) sets out national objectives for protecting particular aspects of the environment, which may also affect air quality. More than 4,000 facilities from a wide range of industry sectors that exceed NPI reporting thresholds for the emission of NPI substances to air, land and water are required to report annually to relevant state or territory environment agencies under the NPI NEPM. This reporting enables the NPI to collate and disseminate data about emissions on a geographic, sectoral and facility level.
The federal government also regulates the manufacture, import and export of ozone depleting substances and synthetic GHG through the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) and related acts and regulations. This framework is intended to assist Australia to meet its obligations under the Montreal Protocol.27
State and territory governments implement legislation, statutory instruments, policies and programmes in their own jurisdictions to meet the Ambient Air Quality NEPM standards and manage the collection of data under the NPI NEPM. For example, Victoria has adopted the State Environment Protection Policy (Air Quality Management) and the State Environment Protection Policy (Ambient Air Quality), which set standards for the discharge of major pollutants from sources, including industrial premises, with a view to controlling air pollution. The EPA monitors achievement of the ambient standards and encourages a range of measures to improve air quality such as promoting clean technology, discouraging open-air burning, using tall stacks to promote dispersion and reducing exhaust pollutants from vehicles.
State and territory governments also implement legislation, policies and programmes to meet their own individual goals in relation to air emissions, such as via specific legislative provisions and licence conditions.
ii Water management and water quality
Responsibility for water resources is primarily vested in the state and territory governments; however, the federal government does exercise certain powers under the Water Act 2007 (Cth) in relation to the management of the Murray Darling Basin, which stretches across the eastern states of Australia, and in respect of water information and data collection. In most cases, there are separate regimes related to water management and water quality.
Water management legislation usually provides for:
- the preparation of water management plans for water resource areas28 to support the sustainable use of available water and protect environmental values of those ecosystems;
- the grant of licences or other entitlements to take and use water for various purposes,29 having regard to the availability of water at different times;
- approvals for the construction of works to take and use water;30
- rules to facilitate trading of water entitlements; and
- powers of regulators to investigate and enforce the legislation.31
Water quality issues are then separately regulated through pollution control legislation that creates offences for the pollution of water and sets water discharge limits and monitoring requirements through environment protection licences.
At the federal level, the National Water Quality Management Strategy (NWQMS) is a joint national approach to improving water quality in Australian and New Zealand waterways. It was developed in cooperation with relevant governments from both nations. The NWQMS aims to protect Australia and New Zealand’s water resources by improving water quality while supporting the businesses, industry, environment and communities that are dependent on water for their continued development.
At the state level, Victoria has adopted environmental quality objectives through its State Environment Protection Policy (Waters of Victoria) (SEPP). The SEPP sets the level of environmental quality required to protect aquatic ecosystems. If the objectives are not met, it signals a potential risk to the ecosystem, which is then investigated by the EPA using the risk-based approach. Similarly, in NSW, the government released the Water Reform Action Plan in response to the independent investigation into NSW water management and compliance. The Water Management Act 2000 (NSW) was amended to deliver the legislative amendments required to implement the Water Reform Action Plan, and a new independent Natural Resource Access Regulator has been established to oversee water-related compliance.
In NSW, Section 120 of the POEO Act prohibits water pollution. The only statutory defence to polluting waters is to establish that the pollution arose from a regulated activity and the requirements of that regulation were not contravened.32 There have been a number of recent cases in the NSW Land and Environment Court where companies have received significant fines for water pollution offences. These include a A$360,000 fine for a chemical company found guilty of discharging a number of hazardous chemicals into a pond that drained into a local waterway causing significant environmental harm;33 and a fine of A$187,500 to a water utility found guilty of water pollution and breaches of licence conditions resulting from fluoride and chlorine being discharged into a local creek.34 The EPA has also issued a number of A$15,000 penalty notices to companies for water pollution incidents during recent years, demonstrating a commitment to enforcing pollution prohibitions. Similar water pollution offences apply in other states and territories.
During 2016, the impact of mining activities on groundwater availability and quality fell under the spotlight in Queensland when the government introduced the Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 (Qld). This Act introduces a new requirement for resource sector operators (i.e., in the mining petroleum and gas sectors) to obtain an associated water licence for some projects and to carry out additional environmental impact assessment for site-specific environmental authority applications if they involve taking groundwater. Operators may also have ‘make-good’ obligations or requirements to enter into agreements with landholders if their activities impact upon groundwater availability.
The Federal Department is responsible for undertaking environmental risk assessments of industrial and agricultural chemicals for the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) and the Australian Pesticides and Veterinary Medicines Authority (APVMA). The responsibilities of NICNAS derive from the Industrial Chemicals (Notification and Assessment) Act 1989 and include:
- assessing new industrial chemicals for health and environmental risks;
- maintaining the Australian Inventory of Chemical Substances;
- managing the Register of Industrial Chemical Introducers;
- compelling commercial importers and manufacturers to notify industrial chemicals that are new to Australia;
- providing information and making recommendations about chemicals to other government agencies responsible for the regulation of industrial chemicals; and
- administering the Cosmetic Standard 2007.
APVMA performs similar regulatory functions in relation to chemicals used solely for purposes relating to agriculture, gardening, pesticides, pool sanitisers, veterinary medicine, and pets and livestock.
The Department has recently decided to reform the regulation of industrial chemicals in the country. Six bills were introduced to Parliament on 1 June 2017, the key one being the Industrial Chemicals Bill 2017. This Bill aims to reduce red tape and improve the safety risk framework for industrial chemicals in Australia. It establishes a new scheme, the Australian Industrial Chemicals Introduction Scheme, which will replace the NICNAS. Notably, the bill implements the government’s 2016 election commitment on animal testing, banning the use of animal testing data for industrial chemicals, where those chemicals are intended solely for an end use in cosmetics.
The other bills deal with transitional arrangements and the introduction of various fees and charges. The bills were passed through both Houses of the Federal Parliament in 2019. The new Industrial Chemicals Act 2019 and its associated legislation is due to commence on 1 July 2020.
The Department is also responsible for managing Australia’s engagement with, and obligations under, international treaties relating to hazardous and persistent chemicals, for example, gathering information about persistent organic pollutants35 and developing strategies to reduce or eliminate their use and environmental exposure in accordance with a National Implementation Plan.
Similar to air quality, the federal government has recently been cooperating with state and territory environment ministers to establish a National Standard for environmental risk management of industrial chemicals. A Draft National Standard was released for public consultation on 24 November 2016 and closed on 3 March 2017. It is currently being considered by the environment ministers. The objects of the Draft National Standard are to:
- achieve better protection of the environment through improved management of the environmental risks posed by industrial chemicals; and
- provide a nationally consistent, transparent, predictable and streamlined approach to environmental risk management of industrial chemicals for governments, industry and the community.36
Under the Draft National Standard, industrial chemicals are categorised as low, medium or high risk and broken into seven specified categories, or environmental schedules. Each of the environmental schedules has a set of outcomes-based risk management measures. Responsibility for managing the environmental risks of chemicals throughout their life cycle is then targeted at those who have the capacity to best manage them. This is intended to allow industry to manage risk efficiently and clearly separate regulatory responsibilities for government.
State and territory governments also play a role in managing the use and disposal of industrial chemicals. Certain activities involving the manufacture or use of chemicals may be regulated by EPAs and require environment protection licences to be held. Further, the disposal of certain chemicals will in most jurisdictions only be permissible at facilities licensed to receive them.
iv Solid and hazardous waste
The waste industry in Australia is highly regulated, primarily by state and territory governments through their EPAs.
At the federal level, legislation has been introduced to manage certain activities relating to hazardous waste, used packaging waste and promote product stewardship. The Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) regulates the export, import and transit of hazardous waste within and outside Australia. The Act was developed to enable Australia to comply with specific obligations under the Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and their Disposal.
The main functions performed by the Department in relation to hazardous waste include processing of export, import and transit permit applications under the Act; ensuring compliance and enforcement with the Act; and participating in domestic and international policy development under the Basel Convention.
The National Environment Protection Measure on Used Packaging Materials (the Australian Packaging Covenant) provides a framework where voluntary signatories make commitments to practise product stewardship throughout the life cycle of consumer packaging. This includes through the design of packaging to minimise the use of materials and eliminate excess packaging; adopting and implementing the Environmental Code of Practice for Packaging; supporting materials recovery systems; and reporting and demonstrating continuous improvement. ‘Brand owners’ of consumer products who do not sign up to the Australian Packaging Covenant and who have a gross annual income of A$5 million or more are required to comply with obligations to recover, reuse and recycle in accordance with targets set by relevant regulatory authorities. They are also required to prepare a waste action plan and to keep certain records. These obligations are imposed under environmental laws in each Australian state and territory, and there are penalties for non-compliance.
Under the Product Stewardship Act 2011 (Cth) the life cycle of products, materials and industries can be regulated through voluntary approaches, co-regulatory approaches and mandatory obligations. To date, regulations have only been passed to support a co-regulatory approach for the recycling of televisions and computers. These regulations require liable parties to notify the Minister each year of how many products (identified by product code) in the class of products they imported in the financial year. Approved co-regulatory arrangements are then responsible for the collection and recycling of computers (usually an administrator). This usually involves providing access to collection services or sites. Voluntary approaches have been adopted for used tyres and mercury containing lamps.
At the state and territory level, most jurisdictions adopt an approach to waste management that looks at management options in the following order:
- recovery (e.g., reuse, reprocessing and recycling); and
- treatment, contaminant and disposal.
By way of example, the NSW EPA has produced guidelines on waste avoidance and resource recovery under the NSW Waste and Resource Recovery Strategy 2014–2021, which prioritise avoidance as a primary measure, with measures then cascading into recycling, diverting waste from landfill, reducing litter and finally responsible disposal of waste. The target for the diversion of waste from landfill is increasing from 63 per cent in 2014–2015 to 75 per cent by 2021.
Specific waste provisions in each state and territory generally regulate production and storage of some waste, transport, disposal and reuse of waste. In some circumstances, an offence can be committed by a previous owner of waste if that waste is not disposed of properly by a contractor, unless the due diligence defence can be established.
Another increasing trend in Australian jurisdictions relating to product stewardship is the container deposit schemes (CDS). CDS has been introduced in SA, Northern Territory (NT), NSW, Queensland and the Australia Capital Territory (ACT). The Western Australia CDS is due to commence in early 2020.
The SA scheme was established in 1977 and is now administered under the state’s Environment Protection Act 1993. In 2011, the NT introduced a CDS under the Environment Protection (Beverage Containers and Plastic Bags) Act 2011. The SA and NT schemes follow the same design. Both schemes place a 10-cent refund on eligible beverage containers returned to collection points. Drink manufacturers are required to have a waste management plan for their containers. In practice, this requirement is met by manufacturers joining a ‘supercollector’, which runs a collection scheme on behalf of its member companies.
In NSW, the scheme commenced on 1 December 2017 and provides that anyone who returns an empty eligible beverage container to an approved NSW collection depot or reverse vending machine will be eligible for a 10-cent refund. A network of depots and reverse vending machines will open across NSW to receive the empty containers. Beverage suppliers (manufacturer, importer, wholesaler or retailer) that bring eligible containers into NSW will be responsible for funding the refund as well as associated costs. Queensland has adopted a similar scheme to NSW.
v Contaminated land
There is no federal law that deals directly with contaminated sites, although there are a number of policy documents and guidelines that have influenced state laws. For example, the National Environment Protection (Assessment of Site Contamination) Measure (Site Contamination NEPM) aims to establish a nationally consistent approach to the assessment of site contamination. It provides guidance on determining whether contamination poses an actual or potential risk to human health and the environment, either on or off-site, sufficient to warrant remediation, having regard to current and future land uses.
While the Site Contamination NEPM is used by environmental consultants as a national standard, each state and territory in Australia regulates contaminated land independently. Western Australia and NSW are the only states that have legislation specifically relating to contaminated land, while the remainder of Australia’s states and territories regulate the issue in more general environmental protection and management acts and in subordinate legislation.37 In addition, the NSW Environment Protection Authority released the Contaminated Land Management Compliance Statement in July 2018. It sets out how the EPA can ensure those responsible for managing and remediating significantly contaminated land can comply with their legal obligations to achieve improved environmental and human health outcomes.
Although different definitions are adopted, contamination is broadly described as ‘a condition of land or water where any chemical substance or waste has been added at above background level and represents, or potentially represents, an adverse health or environmental impact’. Several states in Australia, including NSW, Western Australia, Victoria, Queensland and Tasmania, have a contamination register that the public can search for sites with known contamination. In general, these registers are not exhaustive. If a site is not listed in a register, this cannot be relied upon as conclusive evidence that the site is not contaminated, and conversely, nor will listing a site in the register automatically satisfy disclosure obligations.
Responsibility of persons for the clean-up and remediation of contaminated land is expressed differently in each jurisdiction but will ordinarily start with the person causing the contamination and then cascade down to owners or occupiers of contaminated sites. In NSW, in determining the appropriate person to serve with a management order, the EPA is, ‘as far as practicable’, to specify a person who is responsible for the contamination over the owner of the land or the notional owner of the land (such as a mortgagee in possession).
A similar principle applies in Western Australia, where the legislation establishes a hierarchy for determining responsibility of remediation, and allows for the transfer of that responsibility. In addition, in Western Australia, if an owner or occupier has changed or proposes to change the use of all or part of the land, the owner or occupier will be liable for remediation of that land to the extent that the remediation is required because of the change. To the extent that remediation is required because of the change of use, the person who caused or contributed to the contamination, as well as the state, is released from any liability he or she may otherwise have had.
In Victoria, there is a greater risk to owners and occupiers of land. The Victorian Environment Protection Authority may serve a notice directing the recipient to clean up the contaminated area and the person so directed need not necessarily be the person who caused the contamination. There is no hierarchy of responsibility and the notice may be served on the occupier. The definition of occupier includes a controller of premises, which may be an owner or a lessee and in certain circumstances can include a financial institution that is a mortgagee in possession.
Where contaminated land is being transacted, it is prudent to conduct investigations for potential contamination. In Western Australia, any transaction that will involve the sale, lease or mortgage of a site that has been classified as contaminated or possibly contaminated under the relevant legislation must include formal disclosure of the contamination at least 14 days before completion.
It is possible to provide contractually that the buyer accepts and undertakes clean-up requirements in some states. In Western Australia, responsibility for clean-up can be transferred with a written agreement and with the approval of the Department of Environment and Conservation. Similarly, in SA and Tasmania, responsibility can be transferred to a purchaser if appropriate notices have been provided to the respective environment protection authorities. Conversely, in NSW for example, a contract cannot operate to transfer statutory liability for contamination under the Contaminated Land Management Act 1997, although indemnities can still provide contractual protection where appropriately drafted.
In our experience, a purchaser will only take on contractual responsibility for contamination for which it is not responsible if it has confirmed the level of contamination (if any) and has been compensated appropriately for taking on that liability (whether by direct payment or by adjustment of the purchase price).
VII CLIMATE CHANGE
Australia is a party to the United Nations Framework Convention on Climate Change and its Kyoto Protocol, and in November 2016 ratified the Paris Agreement. Australia has submitted a Nationally Determined Contribution (NDC) that commits Australia to reducing its GHG emissions to between 26 to 28 per cent below 2005 levels.
The policy measures intended to achieve this commitment include:
- the Australian Emissions Reduction Fund (ERF);
- the Safeguard Mechanism;
- the Renewable Energy Target;
- energy productivity measures; and
- fuel standards.
Under the ERF, eligible carbon abatement projects developed under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth) are able to generate Australian carbon credit units (ACCUs), for purchase by the Clean Energy Regulator through periodic reverse auctions or other competitive tendering processes. In 2014, the federal government pledged A$2.55 billion to fund the purchase of ACCUs through the ERF. As of November 2019, there have been nine auctions of ACCUs and the majority of the funding has now been committed.
In 2019, the federal government established the Climate Solutions Fund, which will receive A$2billion in funding between 2020 and 2030. The Climate Solutions Fund will operate as a re-branded ERF and is likely to incorporate the majority of existing project methodologies under the ERF. The Clean Energy Regulator will hold reverse auctions in March and September every year, with the aim of delivering approximately 100 million tonnes of emissions reductions by 2030. An Expert Panel appointed by the Minister for Energy and Emissions Reductions is currently examining opportunities for further abatement.
The National Greenhouse and Energy Reporting Act 2007 (Cth) requires reporting on GHG emissions, energy production and energy consumption. In 2016, the federal government amended this Act to introduce the Safeguard Mechanism, which is designed to ensure that emissions reductions paid for through the ERF are not displaced by a significant increase in emissions elsewhere in the economy. The Safeguard Mechanism requires facilities whose net scope 1 emissions exceed the safeguard threshold of 100,000 tonnes of CO2e to keep their GHG emissions at or below a set baseline based upon historical calculations.
Australia has also adopted a renewable energy target of over 23 per cent renewable energy by 2020, which is administered through the Renewable Energy (Electricity) Act 2000 (Cth). Finally, in December 2016 the federal government announced that it would look to introduce more stringent fuel standards in an attempt to bring Australian standards into line with those in Europe and to achieve Australia’s NDC goals. These draft standards were the subject of public consultation in 2017 and a draft regulation impact statement was released in March 2018. Discussions are still ongoing following the consultation.
A number of Australian states and territories have also adopted strong positions on renewable energy and climate change. The NSW Renewable Energy Action Plan sets out the framework for NSW to achieve its goal of net-zero emissions by 2050, and the NSW Climate Change Policy Framework sets out other key policy initiatives for NSW, including the establishment of a climate change fund. In June 2016, Victoria committed to renewable energy targets of 25 per cent by 2020 and 40 per cent by 2025 and, in November 2016, the Victorian government proposed amendments to the Climate Change Act 2010, which include a 2050 net-zero emissions target, as well as requiring Adaptation Action Plans for systems vulnerable to climate change impacts. SA has renewable energy targets of 33 per cent by 2020 and 50 per cent by 2025 and also has a net-zero emissions target for 2050, which is set out in its Climate Change Strategy 2015. In Queensland, the renewable energy target is 33 per cent by 2030 and has adopted a net-zero emissions target by 2050, while the ACT has set a goal of 100 per cent renewable energy by 2020 under its Climate Change and Greenhouse Gas Reduction Act 2010 and also has a net-zero emissions target by 2045.
VIII OUTLOOK AND CONCLUSIONS
While many Australian states and territories are leading with decisive action on climate change and renewable energy, action at the federal level has stalled. Climate change and renewable energy were critical issues at the 2019 election, and played no small part in the removal of former Prime Minister Malcolm Turnbull and his replacement by Scott Morrison shortly before the 2019 Federal Election. Following Mr Turnbull’s removal, the government’s signature energy policy, the National Energy Guarantee, was abandoned and Mr Morrison went on to lead the incumbent coalition government to victory in the 2019 Federal Election. The election of the Morrison government leaves the outlook for federal government action on climate change and renewable energy rather opaque, yet again reflecting the somewhat erratic and political nature of developing climate change and renewable energy law and policy at the federal level in Australia over the past decade.
1 Ilona Millar is a partner, Guy Dwyer is a senior associate and Roopa Varadharajan and Sophie Whitehead are associates at Baker McKenzie.
2 For a detailed analysis of the new Act, see Guy Dwyer, ‘Ship shape or all at sea? A preliminary assessment of Australia’s recent legislative reforms concerning underwater cultural heritage’ (2018) 32 Australian and New Zealand Maritime Law Journal 71.
3 Matters of national environmental significance include both subjects of national environmental significance (e.g. nationally listed threatened species and ecological communities, Ramsar wetlands, migratory species, heritage places and protected areas) and actions that may have a significant impact on particular components of the environment, including subjects of national environmental significance (e.g., coal seam gas or large coal mining development that significantly impacts on water resources, nuclear actions that significantly impact the environment).
4 These include the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, a series of Antarctic acts, the Hazardous Waste (Regulation of Exports and Imports) Act 1989, a series of Great Barrier Reef Marine Park acts, the Australian Heritage Council Act 2003, a series of ozone protection and synthetic greenhouse gas acts, the Environment Protections (Sea Dumping) Act 1981 and the Underwater Cultural Heritage Act 2018.
5 Australia has also ratified both the Kyoto Protocol and the Paris Agreement.
6 The Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA) (1974).
7 Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and their Environment (CAMBA) (1986).
8 Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds (KOKAMBA) (2007).
9 Constitution, Section 109; Commonwealth v. Tasmania (1983) 46 ALR 625.
10 Including the Australian Capital Territory, the Northern Territory and Norfolk Island.
11 Northern Territory (Self-Government) Act 1978 Section 35; Northern Territory (Self Government) Regulations 1978 r 4; Australian Capital Territory (Self Government) Act 1988 Section 22 and Sch 4; Norfolk Island Act 1979; see also Gerry Bates, Environmental Law in Australia (10th ed, 2019, LexisNexis Butterworths) at p. 90.
12 See, eg, Justice Brian Preston, ‘Enforcement of environmental and planning laws in New South Wales’ (2011) 16 Local Government Law Journal 72.
13 These are respectively the NSW Land and Environment Court, the Planning and Environment Court (Queensland) and the Environment, Resources and Development Court (South Australia).
14 Land and Environment Court Act 1979, Section 5.
15 See, for example, Minister for Environment, Heritage and the Arts v. Lamattina (2009) 167 LGERA 219.
16 Minister for the Environment and Heritage v. Greentrees (No.3)  FCA 1317.
17 See, for example, Minister for the Environment and Heritage v. Wilson  FCA 2.
18 Environment Protection and Biodiversity Conservation Act 1999 Sections 486DA and 486DB.
19 Section 475 EPBC Act.
20 See, for example, Australian Conservation Foundation Incorporated v. Minister for the Environment (No. 2)  FCA 1095.
21 Humane Society International Inc v. Kyodo Senpaku Kaisha Ltd  FCAFC 116.
22 Tiger Nominees Pty Ltd v. State Pollution Control Commission (1992).
23 See, for example, in NSW Section 174 POEO Act.
24 Section 175 POEO Act.
25 Sections 180–183 POEO Act.
26 Carbon monoxide, nitrogen dioxide, photochemical oxidants (as ozone), sulphur dioxide, lead and particles (such as PM10 and PM2.5).
27 The Montreal Protocol on Substances that Deplete the Ozone Layer.
28 These include river catchments or groundwater aquifers.
29 These include utilities, irrigation, mining, stock and domestic.
30 These include bores, pumps and pipelines.
31 See, for example, the Water Management Act 2000 (NSW) and the Water Act 2000 (Qld).
32 Section 121 Protection of the Environment Operations Act 1997 (NSW).
33 EPA v. Custom Chemicals Pty Ltd  NSWLEC146.
34 EPA v. Hunter Water Corporation  NSWLEC76.
35 To meet obligations related to chemical management under the Stockholm Convention on Persistent Organic Pollutants.
36 Draft National Standard for Environmental Risk Management of Industrial Chemicals, Commonwealth of Australia 2016.
37 The Contaminated Land Management Act 1997 (NSW); the Environment Protection Act 1970 (Vic); the Environmental Protection Act 1994 (Qld); the Contaminated Sites Act 2003 (WA); the Environment Protection Act 1993 (SA); the Environmental Management and Pollution Control Act 1994 (Tas); the Environment Protection Act 1997 (ACT); and the Waste Management and Pollution Control Act 1999 (NT).