EPA Prosecution Guidelines - Section A
Introduction
1. Introduction
1.1 On 1 March 1992, the Protection of the Environment Administration Act 1991 (the Administration Act) established the Environment Protection Authority (EPA) in NSW.
1.2 Under the Administration Act, the EPA has responsibility for investigating and reporting on alleged non-compliance with environment protection legislation for the purposes of prosecution or other regulatory action (section 7(2)(e)). For prosecution, the most important piece of environment protection legislation administered by the EPA is the Protection of the Environment Operations Act 1997 (the Operations Act). This creates a three-tiered structure of offences with the most serious offences under Tier 1 carrying maximum penalties of $1 million for corporations and $250,000 and/or seven years imprisonment for individuals.
1.3 The Administration Act separates the prosecution process from the political arena. While, in general terms, the EPA is subject to the control and the direction of the Minister, the EPA is specifically exempted from that control and direction in relation to any decision to institute or approve of the institution of criminal or related proceedings (section 13(2)(c)). The phrase criminal or related proceedings is defined in the Act as any proceedings for an offence against the environment protection legislation or any proceedings under Division 4 of Part 8.2 and Part 8.4 of the Protection of the Environment Operations Act 1997 (section 3(1)).
1.4 The Administration Act specifies that the EPA Board must determine whether the EPA should institute proceedings for serious environment protection offences (section 16(d)). The Board will have the assistance of Environmental Counsel to advise on the legal merits of a case.
1.5 Another function of the Board is to develop, and make available for public information, guidelines relating to the institution of criminal and related proceedings (section 16(c)). These guidelines will indicate how the EPA will exercise its prosecutorial powers.
1.6 The EPA is not the only body which may institute criminal proceedings under the environment protection legislation. Organisations such as local councils, the Waterways Authority, police and water supply authorities as well as individuals in the community may bring proceedings in their own right. They are not bound directly by these guidelines. However, the EPA recognises that the publication of these guidelines will provide a framework within which consistency, fairness and efficiency can be developed across those agencies assisting the EPA in administering the environment protection legislation. The EPA will also ensure that through its educational programs other agencies which may institute environmental prosecutions are familiar with the principles and content of the guidelines.