Published on: November 2021
Environment Legislation Amendment Bill 2021
Bill introduced on motion by Ms Felicity Wilson, on behalf of Mr Matt Kean, read a first time and printed.
Second Reading Speech
Ms FELICITY WILSON (North Shore) (09:31:49):
On behalf of Mr Matt Kean: I move:
That this bill be now read a second time.
The Government is pleased to introduce the Environment Legislation Amendment Bill 2021. Environmental legislation needs to be continually improved to ensure that those who commit crimes pay for them and that innocent landholders, communities and the environment are protected from the impacts of those crimes. When current environment protection laws were first established, they were used as a benchmark across and beyond Australia. Over the past two decades these laws have successfully reduced harmful air and water emissions, ensured legacy contaminated sites are made safe, and promoted the beneficial management and re‑use of waste. Since 2012 these laws have been used to successfully prosecute nearly 680 polluters, making them pay over $12 million for their crimes.
It is time that our environment protection laws are updated to address evolving criminal behaviours and new and emerging environmental issues and to ensure that they continue to set robust penalties and enforcement powers that are effective at preventing, enforcing, managing and remediating environmental crimes. As a consequence of changing criminal behaviours, there are businesses and individuals knowingly breaking the law to profit from their crimes. In the past three years alone these changing criminal behaviours have resulted in the Government or innocent landholders being left with substantial clean‑up costs, with one site alone costing the New South Wales Government $20 million. Criminals have illegally disposed of over 132,000 tonnes of contaminated waste, sterilising land from productive use and removing over $20 million in waste levy revenue.
The Government is committed to ensuring the protection of the environment and the people of New South Wales and is taking steps to ensure that our environment protection Acts remain modern, powerful, effective and innovative, and that New South Wales continues to set the benchmark. The bill will ensure that businesses that set up and then dissolve companies to deflect accountability pay for their crimes and their clean‑up. It will increase penalty amounts to deter criminal activity and reflect the true cost of those crimes. It will expand regulatory powers and enforcement tools to ensure that those who are responsible for the pollution clean it up and manage it into the future. This bill is an important reform to ensure that our environmental laws continue to keep the people of New South Wales safe from activities that can harm our community, our economy and the environment.
I now turn to the provisions of the bill. The bill makes changes to the Protection of the Environment Operations Act 1997, the Contaminated Land Management Act 1997, the Pesticides Act 1999, the Radiation Control Act 1990, and the Protection of the Environment Administration Act 1991 [POEO], as well as consequential amendments to other Acts to give effect to these changes. The Protection of the Environment Operations Act 1997 is the State's key piece of environment protection legislation. It sets out the framework to prevent and manage pollution to the air, land and water, and it provides strong investigation powers and compliance tools to enforce environmental crimes. The bill proposes amendments to the POEO Act to improve its efficiency and effectiveness and enforce the polluter‑pays principle.
Some industry sectors, businesses and individuals have established practices that enable them to deflect accountability and avoid enforcement clean-up and compliance costs by setting up complex corporate structures. Parent companies deliberately set up smaller companies for each licensed entity and they will often deregister them to avoid enforcement action for illegal activities at those sites. These arrangements impact on the Environment Protection Authority's [EPA] ability to hold offenders in the parent company to account and to recover any monetary benefit that they have obtained for their crimes. These evolving corporate structures are becoming more prevalent.
To address this, the bill proposes several amendments to break through these unscrupulous business models. The bill will expand existing licensing offence and notice provisions to hold current and former directors, managers and related companies to account for environmental offences. This includes enabling the EPA to direct related entities to take clean-up action if a company fails to comply with a clean-up notice. These powers ensure that those who are responsible for causing contamination, or benefiting from it, are the ones held responsible for the costly clean-up or long-term management. The bill will ensure that the EPA can take into account multiple and systemic offences of related individuals or companies when determining if a licensee or applicant are "fit and proper persons". The bill ensures that where there has been a pattern of significant noncompliance by related parties, the EPA can refuse, suspend or revoke a licence. This is a significant step in preventing future contamination.
Additionally, the bill will expand the reach of prohibition notices to ban a class of persons or activities at a class of premises from carrying out specified activities. This will prevent those who repeatedly commit crimes from moving to different premises and continuing their bad behaviour. Monetary benefits orders strip offenders of the financial advantage that they have gained from breaking environmental laws. Currently, a court can only make such an order against the party that was successfully prosecuted, not a related party that has benefited from the crime. In a recent court case, a monetary benefits order could not be sought against a parent company that financially benefited from the noncompliance of its subsidiary. This issue exposes the risk that evolving corporate structures are now being used to profit from crimes for financial gain and competitive advantage.
The bill proposes to amend several environment protection Acts to make it an offence for current and former directors, managers and related corporate bodies of a convicted offender to have received monetary benefits from that crime. This will enable the recovery of the proceeds of that crime in separate civil or criminal court proceedings. The bill also broadens the EPA's powers, enabling it to obtain restraining orders in situations where a monetary benefits order is likely to be sought.
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