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Environmental enforcement is failing: CE Daily analysis

Companies are up to 20 times more likely to be prosecuted for an OHS offence than an environmental one, and in some states workplace safety agencies issue thousands more compliance notices than their environmental counterparts, raising serious questions about the willingness of environmental regulators to enforce the law.

NSW Environmental Defender's Office director Jeff Smith says the discrepancies show the need for "political will" to treat environmental issues as seriously as OHS matters.

EPA Victoria chief executive John Merritt – a former WorkSafe Victoria top bureaucrat – points to divergent attitudes towards the use of OHS and environmental notices, potential differences in community tolerance for breaches and the different regulatory "catchments" of the two types of agencies.

The analysis follow several damning reviews of the performance of regulators with environmental responsibilities (see related articles here, here and here).

Queensland's OHS regulator 20 times more active

The CE Daily analysis shows Queensland had the starkest difference in prosecutions, with the environment department in 2008-09 finalising just five cases.

Queensland's OHS enforcement agency completed just over 20 times that number (102) in the same year, according to a prosecutions list maintained by the Department of Justice and Attorney-General.

In South Australia, CE Daily found 60 OHS prosecutions were completed in 2008-09 – exactly 20 times the three environmental prosecutions finalised in that year.

In Victoria, the OHS agency completed 108 prosecutions, while EPA Victoria completed only nine.

Western Australia's environment department finalised only three prosecutions in 2008-09, two of them Environmental Protection Act cases against individuals over land clearing (one of which the department lost) and one Litter Act case against an individual over the dumping of waste oil (which it also lost). In the same year, the state's OHS body completed 16 cases.

Tasmania completed six environmental prosecutions in 2008-09, but in the same year referred 30 OHS prosecutions to magistrates' courts, securing seven convictions, losing six, withdrawing three and with 12 still proceeding.

The NSW environment department completed only 21 prosecutions in 2008-09 under the Protection of the Environment Operations Act, not counting littering or smoky vehicle offences, while WorkCover completed 108 OHS prosecutions – more than five times as many.

The NSW environment department also completed a prosecution each under pesticides and dangerous goods legislation in that year. And it completed 53 prosecutions under parks, wildlife, threatened species and Aboriginal heritage legislation – nearly all against individuals, but also including cases against one company and one council.

Huge differences in notices issued

While prosecutions are a last resort enforcement measure, there are also stark differences in the number of notices issued.

In WA, the environment department issued 131 notices, directions and orders to take action with a statutory basis. It also issued 286 environmental field notices and 112 letters of warning, neither of which have a statutory basis.

The department also issued 693 notices under conservation legislation, just under half comprising notices for unlawful camping or bringing animals onto land without authority.

Meanwhile, its OHS counterpart agency issued more than 10,600 improvement notices and more than 700 prohibition notices and signed 45 prosecution notices.

In 2009-10 EPA Victoria issued 127 Pollution Abatement Notices and 44 clean-up notices while WorkSafe issued more than 2,300 improvement notices and 43 prohibition notices.

Local government actions still result in shortfall

Even when environmental notices issued by local government are taken into account – as Queensland and NSW reporting procedures readily allow – the differences are stark.

A spokesman for Workplace Health and Safety Queensland told CE Daily that Queensland issued 10,353 notices under its OHS Act in 2009-10, excluding notices issued under the Electrical Safety Act or the Dangerous Goods Safety Management Act.

However, the most recent data for notices issued under Queensland's Environmental Protection Act - which is for 2008-09 – shows that the Department of Environment and Resource Management issued only 334 notices, including environmental evaluations, environmental protection orders, transitional environmental programs and penalty infringement notices.

Local government issued significantly more – including 4,069 penalty infringement notices.

But the 2008-09 total for departmental and local government notices (4,279) still stands at less than half the number of notices issued for OHS breaches in 2009-10.

In 2009-10, NSW WorkCover inspectors issued 2,486 'confirmation of advice records' (CARs), 688 penalty notices, 856 prohibition notices and 12,161 improvement notices for non-compliance with workplace safety legislation – a total of 16,191 notices.

This dwarfs the number of environmental notices issued by the NSW environment department and local government.

The NSW environment department in the same year issued issued only 186 infringement notices, excluding vehicle-related offences such as noisy vehicles or littering from motor vehicles.

It also issued 437 regulatory notices under Contaminated Land Management Act and negotiated 114 pollution reduction programs.

Local government authorised officers issued another 1,259 non-motor vehicle related offences.

More resources and political will

The NSW EDO's Jeff Smith told CE Daily that "the abiding principle should be that we treat environmental offences as seriously as we treat OHS offences".

Although there are differences between the two regimes, the comparison shows "a massive discrepancy", he said.

Smith said the results indicated a need for more resources and training to be devoted to environmental enforcement and the need for "a political will to treat breaches of environmental law with the same seriousness [as OHS offences]".

Different attitude to notices

EPA Victoria CEO John Merritt, whose agency has just undergone an independent compliance review, said it was important to note that OHS legislation uses "the broadest possible definition of work", meaning the catchment for OHS agencies would always be larger.

However, he said the differences could also reflect a tendency for environment agencies to focus too heavily on licensed businesses, at the expense of regulating other premises.

There is also a different mindset to the use of notices in the environmental and OHS arenas, he said.

For example, abatement notices should be used to outline the action required to comply, rather than as a punishment tool.

"But the feedback we've had is that people see [them] as punitive," he said.

"There is a level of resistance to notices that you simply don't experience [to] anywhere near that extent in the OHS area," he said.

Merritt also suggested that the broader community might not have the same zero tolerance approach for environmental breaches that it now has for health and safety problems.

"Ultimately regulators serve the community," he said.

"It's a personal view, but in my experience the intolerance of the community for health and safety breaches is higher than the broad-based intolerance of the community for environmental issues," he said.

"The reason I say that is because I am not sure that the businesses that I am dealing with are experiencing the same pressures in regard to the environment in their communities that they are in regard to health and safety."

However, the level of community intolerance for environmental breaches "is probably rising", he said.

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