Compliance and enforcement mechanisms
The EPBC Act contains strong compliance and enforcement mechanisms, some of which have only recently become available to the Commonwealth under environmental law. These include:
- court injunctions
- required environmental audits
- strict civil and criminal penalties
- remediation of environmental damage
- enforceable undertakings
- liability of executive officers
- publicising contraventions
An injunction is a court order preventing a party or parties from undertaking or continuing with an activity. Division 14 of the EPBC Act provides for injunctions.
The Australian Government Minister for the Environment (the Minister) an 'interested person', an interested person (other than an unincorporated organisation) or a person acting on behalf of an unincorporated organisation that is an interested person, may apply to the Federal Court for an injunction to stop a party from engaging in conduct that constitutes an offence or other contravention of the EPBC Act or EPBC Act Regulations.
The EPBC Act defines an interested person as a person whose interests have been, or would be, affected by the conduct in question, or who has been engaged in a series of activities for the protection or conservation of (or research into) the environment at any time within the two years prior to the conduct (or in the case of proposed conduct, the application for the injunction). An individual must either be an Australian citizen or ordinarily reside in Australia. An organisation may also be an interested person, if they meet similar conditions to those of an individual.
Before deciding an application for an injunction the Court may grant an interim injunction. This enables some further fact finding to occur so that the Court may decide whether a permanent injunction is justified.
Directed environmental audits
Directed environmental audits are provided for under Division 12 of the EPBC Act.
An environmental audit may be required if the Minister suspects that an authorised action is having impacts greater than anticipated when the action was assessed, or that the holder of the environmental authority is likely to breach a condition of that authority. (An environmental authority is an approval under Part 9 of the Act or a permit issued under Chapter 5 of the Act.)
If an audit is required the Minister will give written notice to the holder of the environmental authority. The notice will specify the matters to be covered by the audit, how the result of the audit is to be reported and the date by which it is required.
A directed environmental audit is not the same as an audit which may have already been required as a condition of the environmental authority, and it does not affect any obligation of the authority holder in that regard.
Strict civil and criminal penalties
A person who takes an action that is likely to have a significant impact on a matter of national environmental significance, without first obtaining approval, can be liable for a civil penalty of up to $900,000 for an individual and $9 million for a body corporate, or for a criminal penalty of seven years imprisonment and/or a penalty of $75,600.
A person who takes an action that is likely to have a significant impact on Commonwealth land, without first obtaining approval, can be liable for a civil penalty of up to $180,000 for an individual or up to $1.8 million for a body corporate, or for a criminal penalty of up to two years imprisonment and/or a penalty of $21,600.
A person who takes, or fails to take, an action that results in contravening a condition of their approval, can be liable to pay a civil penalty of up to $180,000 for an individual and up to $1.8 million dollars for a body corporate. The maximum criminal penalty for a breach of a condition is two years imprisonment and/or a penalty of $21,600.
A person who provides false or misleading information to obtain an approval or a permit can be liable for a criminal penalty of up to two years imprisonment and/or a penalty of $21,600. If the Minister grants an approval, or sets approval conditions, as a result of false or misleading information, any damage to the environment resulting from the action is taken to arise from the provision of false or misleading information.
Remediation of environmental damage
Provisions for remediation of environmental damage are contained within Divisions 14A and 14B of the EPBC Act.
If the Minister suspects that an act or omission constitutes a contravention of the EPBC Act, the Minister may ensure that appropriate steps are taken to repair, remove, mitigate, or prevent, any damage that arises from that act or omission. For example, if the Minister thinks that damage to the habitat of a threatened species was caused by an act that contravened the EPBC Act, the Minister may ensure that appropriate steps are taken to rehabilitate the habitat.
Similarly, the Federal Court can require the person to repair or mitigate any damage to the environment that the person has caused, is causing, or is likely to cause.
If a person contravenes the EPBC Act or regulations, they may be required to compensate an affected party for their loss or damage. The loss or damage could include the expenses and liabilities the affected party incurred to repair, remove, mitigate, or prevent, any damage likely to arise from the act or omission that was in breach of the EPBC Act.
Enforceable undertakings are detailed under Sections 486DA and 486DB of the EPBC Act.
An enforceable undertaking is a written undertaking provided by a person to the Minister that specifies that the person will pay a specified amount within a specified period to the Commonwealth or to another specified party for the purpose of protection and conservation of a protected matter.
An enforceable undertaking is one option for enforcing contraventions of the civil penalty provisions of Part 3 of the EPBC Act.
Liability of executive officers
Under certain circumstances, an executive officer of a body corporate can be liable for civil penalties and criminal offences (including up to two years imprisonment) for a contravention of the EPBC Act committed by the body corporate.
Publicising of contraventions
The Minister can publicise a contravention of the EPBC Act or EPBC Regulations in any way that the Minister considers appropriate.
Compliance and enforcement contacts
Phone: (02) 6274 1372 or free call 1800 110 395
Fax: (02) 6274 1878
Department of the Environment
Compliance and Enforcement Branch
Environment Standards Division
GPO Box 787
Canberra ACT 2601