This article applies to organisations who undertake activities that will affect the environment.

Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Bill 2024 (NSW)

On 21 March 2024, the Environment Protection Legislation Amendment (Stronger Regulation and Penalties) Bill 2024 (NSW) (the Bill) passed the NSW Parliament and is currently awaiting Royal Assent. The Bill will amend a range of legislation, including, the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), the Protection from Harmful Radiation Act 1990 (NSW) (the Radiation Act) and the Pesticides Act 1999 (NSW) (the Pesticides Act). Relevant provisions of the Bill will commence on the date of assent.

Operationally Significant Changes

The Bill will increase penalties and empower the Environment Protection Authority (EPA) to address environmental offences more effectively by amending a range of environmental legislation. The most significant changes (from an operational perspective), include:

• significantly increasing maximum penalties for a wide range of environmental offences, including under the POEO Act, the Radiation Act and the Pesticides Act;
• introducing into the POEO Act new offences for illegal dumping and littering dangerous material; and
• giving the EPA new powers, under the POEO Act, including the power to issue preliminary investigation notices and recall notices.

Further Information

Significant increase in penalties

The Bill will double the maximum penalties for various offences under the POEO Act. Some examples of where the maximum penalties will double, include:

• For tier 1 offences (in section 119), the maximum penalty will be $10,000,000 for corporations and $2,000,000 for individuals. This change is relevant to a range of offences under the POEO Act, such as the offence in section 115 of wilfully disposing waste in a manner that harms or is likely to harm the environment.
• For asbestos-related pollution and waste offences (in Part 5.6), where the highest maximum penalties for certain offences will be $4,000,000 for corporations and $1,000,000 for individuals, with additional penalties for a continuing offence.
• For contraventions of the duties to notify of pollution incidents (in Part 5.7), the maximum penalty will be $4,000,000 for corporations and $1,000,000 for individuals, with additional penalties for a continuing offence.

In the Pesticides Act, for certain offences relating to the control of pesticides, such as where a person causes injury to persons or damage to property, or harm to animals or plants resulting from pesticide use, the maximum penalty will more than double, increasing from $250,000 to $2,000,000 for corporations. Similarly, in section 24 of the Radiation Act, the maximum penalty for causing serious harm to a person, animal, thing or the environment by exposure to radiation will more than double, increasing from $10,000 to $2,000,000 for a corporation.

Offences for illegal dumping and littering dangerous material

The Bill will introduce section 144AE into the POEO Act which is an offence for the illegal dumping of waste or litter that is more than 50L or 50kg on a public place or in an open private place. In addition, the Bill will introduce section 145A into the POEO Act which is an offence for littering dangerous materials in a public place or an open private place. Relevantly, dangerous materials will be defined and include an e-cigarette, a lithium battery, a syringe and fuel, among other materials.

Powers of the EPA

The Bill will provide the EPA with new powers under the POEO Act, including:

• The power to issue preliminary investigation notices, under a new Part 4.1A, if the EPA reasonably suspects that circumstances may exist, or have existed, at a premises, which pose a potential risk of harm to human health or the environment from a substance or the deposit of waste, or where there is a pollution incident. These notices may be issued to any person who has caused or contributed to these circumstances, or owners or occupiers of the premises. Failure to comply with the notice is an offence that has a maximum penalty of $500,000 for an individual and $2,000,000 for a corporation, with additional penalties for a continuing offence.
• The power to issue recall notices, under a new Part 4.2A, to any supply chain participant for a substance or activity poses a potential risk of harm to human health or the environment, where a substance is required to comply with a prescribed standard or other requirements and does not comply or where environment protection legislation has been contravened. Failure to comply with a recall notice is an offence that has a maximum penalty of $500,000 for an individual and $2,000,000 for a corporation, with additional penalties for a continuing offence.

Please click here to access the full Bill.